Rule 4

In the Circuit Court of the United States for the Western District of Arkansas, John Hicks, an Indian, was jointly indicted with Stand Rowe, also an Indian, for the murder of Andrew J. Colvard, a white man, by shooting him with a gun on the 13th of February, 1892. Rowe was killed by the officers in the attempt to arrest him, and Hicks was tried separately and found guilty in March, 1893. It appears that on the night of the 12th of February, 1892, there was a dance at the house of Jim Rowe, in the Cherokee Nation. Jim Rowe was a brother to Stand Rowe, who was indicted jointly with the defendant. A large number of men and women were in attendance. The dance continued until near sunrise the morning of the 13th. Stand Rowe and the defendant were engaged in what was called scouting, eluding the United States marshals who were in search of them with warrants for their arrest. They were armed for the purpose of resisting arrest. They appeared at the dance, each armed with a Winchester rifle. They were both Cherokee Indians. The deceased, Andrew J. Colvard, was a white man who had married a Cherokee woman. He had been engaged in the mercantile business in the Cherokee country until a few months before the homicide. He came to the dance on horseback on the evening of the 12th. A good deal of whiskey was drank during the night by the persons present. Colvard appears to have been drunk at some time during the night. Colvard spoke Cherokee fluently and appears to have been very friendly with Stand Rowe and the defendant Hicks. On the morning of the 13th, as the party were dispersing, Colvard invited Stand Rowe and Hicks to go home with him. He repeated frequently this invitation. Finally, he offered as an inducement to Stand Rowe, if he would accompany him home, to give him a suit of clothes, and a hat and boots. The urgency of these invitations appears to have excited the suspicion of the plaintiff in error. He declared openly that if Colvard persisted in his effort to take Stand Rowe away with him he would shoot him. Some time after sunrise on the morning of the 13th, about 7 o'clock, S.J. Christian, Benjamin F. Christian, Wm. J. Murphy, and Robert Murphy stood on the porch of the house of William J. Murphy. All had been at the dance the night before and had seen there Colvard, Stand Rowe, and the defendant. The porch was about 414 steps west from the house of Jim Rowe. They saw Stand Rowe coming on horseback in a moderate walk, with his Winchester rifle lying down in front of him, down a trail which led into the main travelled road. Before Stand Rowe appeared in sight the men who were on the porch had heard a whoop in the direction from which Stand Rowe came. This whoop was responded to by one from the main road in the direction of Jim Rowe's house. Stand Rowe halted within five or six feet of the main road. The men on the porch saw Mr. Colvard and the defendant Hicks riding together down the main road from the direction of Jim Rowe's house. As Colvard and Hicks approached the point where Stand Rowe was sitting on his horse, Stand Rowe rode out into the road and halted. Colvard then rode up to him in a lope or canter, leaving Hicks, the defendant, some 30 or 40 feet in his rear. The point where the three men were together on their horses was about 100 yards from where the four witnesses stood on the porch. The conversation between the three men on horseback was not fully heard by the four men on the porch. All that was heard was not understood because part of it was carried on in the Cherokee tongue. Some part of this conversation was distinctly heard and clearly understood by these witnesses. They saw Stand Rowe twice raise his rifle and aim it at Colvard, and twice he lowered it. They heard Colvard say, I am a friend to both of you. They saw and heard the defendant Hicks laugh aloud when Rowe directed his rifle toward Colvard. They saw Hicks take off his hat and hit his horse on the neck or shoulder with it. They heard Hicks say to Colvard, Take off your hat and die like a man. They saw Stand Rowe raise his rifle for the third time, point it at Colvard, fire it. They saw Colvard's horse wheel and run back in the direction of Jim Rowe's house, 115 or 116 steps. They saw Colvard fall from his horse. They went to where he was lying in the road and found him dead. They saw Stand Rowe and John Hicks ride off together after the shooting. Hicks testified in his own behalf, denying that he had encouraged Rowe to shoot Colvard, and alleging that he had endeavored to persuade Rowe not to shoot. Hicks further testified, and in this he was not contradicted, that he separated from Rowe a few minutes afterwards, on the first opportunity, and that he never afterwards had any intercourse with him, nor had he been in the company of Rowe for several weeks before the night of the fatal occurrence.

On February 6, 1963, petitioner, a citizen of Ohio, filed her complaint in the District Court for the District of Massachusetts, claiming damages in excess of $10,000 for personal injuries resulting from an automobile accident in South Carolina, allegedly caused by the negligence of one Louise Plumer Osgood, a Massachusetts citizen deceased at the time of the filing of the complaint. Respondent, Mrs. Osgood's executor and also a Massachusetts citizen, was named as defendant. On February 8, service was made by leaving copies of the summons and the complaint with respondent's wife at his residence, concededly in compliance with Rule 4 (d) (1). Respondent filed his answer on February 26, alleging, inter alia, that the action could not be maintained because it had been brought contrary to and in violation of the provisions of Massachusetts General Laws Chapter 197, Section 9. On October 17, 1963, the District Court granted respondent's motion for summary judgment. On appeal, the Court of Appeals for the First Circuit affirmed. The Supreme Court granted certiorari because of the threat to the goal of uniformity of federal procedure posed by the decision below.

Shady Grove Orthopedic Associates, P.A., provided medical care to Sonia E. Galvez for injuries she suffered in an automobile accident. As partial payment for that care, Galvez assigned to Shady Grove her rights to insurance benefits under a policy issued in New York by Allstate Insurance Co. Shady Grove tendered a claim for the assigned benefits to Allstate, which under New York law had 30 days to pay the claim or deny it. Allstate apparently paid, but not on time, and it refused to pay the statutory interest that accrued on the overdue benefits at two percent per month. Shady Grove filed this diversity suit in the Eastern District of New York to recover the unpaid statutory interest. Alleging that Allstate routinely refuses to pay interest on overdue benefits, Shady Grove sought relief on behalf of itself and a class of all others to whom Allstate owes interest. The individual claim was worth roughly $500, which fell far short of the amount-in-controversy requirement for individual suits under 28 U.S.C. § 1332(a). The District Court dismissed the suit for lack of jurisdiction. It reasoned that N.Y. Civ. Prac. Law Ann. § 901(b), which precludes a suit to recover a penalty from proceeding as a class action, applies in diversity suits in federal court despite Federal Rule of Civil Procedure 23. Concluding that statutory interest is a penalty under New York law, it held that § 901(b) prohibited the proposed class action.