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About Wolters Kluwer Legal &
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 For Matthew, Joel, and Kate

For a dear friend and former colleague

Dean Fred Lower,
who forty years ago gave me the chance
to begin teaching Civil Procedure

For Aaron
ix

SUMMARY OF CONTENTS

Contents
Preface
Acknowledgments

Introduction
I. Pleadings and Related Motions
II. Personal Jurisdiction
III. Service of Process and Notice
IV. Subject Matter Jurisdiction
V. Venue, Transfer, and Forum Non Conveniens
VI. The Erie Doctrine and Related Problems
VII. Discovery
VIII. Joinder of Claims and Parties
IX. Class Actions
X. Adjudication Without Trial
XI. Trial
XII. Appellate Review
XIII. The Binding Effect of a Final Judgment

Table of Cases
Table of Authorities
Index
xi

CONTENTS

Preface
Acknowledgments

Introduction

A. The State and Federal Judicial Systems

1. State Judicial Systems
2. The Federal Judicial System
B. State and Federal Court Caseloads
1. State Court Caseloads
2. Federal Court Caseloads

Chapter I. Pleadings and Related Motions

A. Code Pleading
Epstein v. M. Blumenthal & Co.
Notes and Questions
Problem 1-1
Doe v. City of Los Angeles
Notes and Questions
Problem 1-2
B. Notice Pleading and the Federal Rules of Civil Procedure
1. The Complaint
a. Rule 8
b. Foundational Cases and Developments
 Conley v. Gibson
Notes and Questions
Problems 1-3–1-5
A Note on Exceptions to Rule 8
Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit
Notes and Questions
Problems 1-6–1-7
c. Recent Developments
Bell Atlantic Corp. v. Twombly
Notes and Questions
Problem 1-8
Ashcroft v. Iqbal
Notes and Questions
A Note on Plausibility, Inferences, and
Pleading Sufficiency

xii

d. Twombly and Iqbal Applied

Swanson v. Citibank, N.A.
Notes and Questions
McCleary-Evans v. Maryland Department of
Transportation
Notes and Questions
Littlejohn v. City of New York
Notes and Questions
Problem 1-9
2. The Answer
King Vision Pay Per View, Ltd. v. J.C.
Dimitri’s Restaurant, Inc.
Notes and Questions
Problems 1-10–1-11
 3. Rule 12(b) Motions to Dismiss
Johnson v. City of Shelby
Notes and Questions
Kirksey v. R.J. Reynolds Tobacco Co.
Notes and Questions
Problems 1-12–1-13
C. Pleading Review Problem
Problem 1-14

Chapter II. Personal Jurisdiction

A. Pennoyer v. Neff and the Rule of Territoriality

Pennoyer v. Neff
Notes and Questions
Problems 2-1–2-3
B. Traditional Bases of Personal Jurisdiction
1. Personal Jurisdiction
a. Domicile
b. Voluntary Appearance
c. Consent to Service on an Agent
d. Transient or Tag Jurisdiction
2. In Rem and Quasi in Rem Jurisdiction
Harris v. Balk
Notes and Questions
Problem 2-4
3. The Advent of Fictions
C. The Modern Law of Jurisdiction
1. International Shoe — Jurisdiction Beyond Fictions and
Tradition
International Shoe Co. v. Washington
Notes and Questions

xiii
2. Establishing a Statutory Basis for Jurisdiction beyond
the Traditional Forms
3. Due Process: The Nonresident Defendant’s
Connections with the Forum State
a. Contracts
McGee v. International Life Insurance Co.
Notes and Questions
Hanson v. Denckla
Notes and Questions
Burger King Corp. v. Rudzewicz
Notes and Questions
Problems 2-5–2-7
b. Torts
Calder v. Jones
Notes and Questions
Problems 2-8–2-10
Walden v. Fiore
Notes and Questions
A Note on the “Stream of Commerce”
Theory
J. McIntyre Machinery, Ltd. v. Nicastro
Notes and Questions
A Note on the Stream-of-Commerce
Theory Today
Problems 2-11–2-12
A Note on Personal Jurisdiction and the
Internet
Problems 2-13–2-14
4. Due Process: The Relatedness Requirement
Nowak v. Tak How Investments, Ltd. [Part I]
Notes and Questions
Problem 2-15
5. Due Process: The Reasonableness Requirement
 Asahi Metal Industry Co., Ltd. v. Superior
Court of California
Notes and Questions
Nowak v. Tak How Investments, Ltd. [Part
II]
Notes and Questions
Problems 2-16–2-17
6. Due Process: General Jurisdiction
Daimler A.G. v. Bauman
Notes and Questions
Problems 2-18–2-19

xiv

D. Minimum Contacts and the Traditional Bases of

Jurisdiction
Problem 2-20
E. Exercising Jurisdiction Under Federal Long-Arm Provisions
1. Federal Long-Arm Provisions
2. Minimum Contacts at the National Level
Problem 2-21
F. Challenging Lack of Personal Jurisdiction over the
Defendant
1. The Burden of Proof
2. Direct Attack
3. Collateral Attack
Problems 2-22–2-23
G. Personal Jurisdiction Review Problems
Problems 2-24–2-25

Chapter III. Service of Process and Notice

A. The Mechanics of Service: Rule 4

1. Request for Waiver of Service
 Problem 3-1
2. Formal Service of Summons and Complaint
a. Individuals
Problem 3-2
b. Corporations, Partnerships, and Associations
American Institute of Certified Public
Accountants v. Affinity Card, Inc.
Notes and Questions
c. Defendants Served in a Foreign Country
d. Substantial Compliance
Problem 3-3
3. Time Limit for Effecting Service: Rule 4(m)
B. The Due Process Right to Notice
Mullane v. Central Hanover Bank & Trust
Co.
Notes and Questions
Problems 3-4–3-5
Jones v. Flowers
Notes and Questions
Problems 3-6–3-7
A Note on Challenging Service of Process
You’ve Got Mail
C. Pre-filing Waiver and Consent
Underwood Farmers Elevator v. Leidholm
Notes and Questions

xv

D. Policy-Based Immunities and Exemptions

1. Participation in Legal Proceedings in the Forum State
2. Trickery or Fraud
Problems 3-8–3-9
E. Notice and Hearing When Property Is Attached
 Connecticut v. Doehr
Notes and Questions
Problems 3-10–3-12
F. Service of Process and Notice Review Problems
Problem 3-13–3-15

Chapter IV. Subject Matter Jurisdiction

A. Subject Matter Jurisdiction in Federal Courts

1. The Constitutional and Statutory Dimensions of
Subject Matter Jurisdiction in Federal Courts
2. Federal Question Jurisdiction
a. Article III “Arising Under” Jurisdiction
Problem 4-1
b. Statutory “Arising Under” Jurisdiction: The Federal
Question Jurisdiction of U.S. District Courts
The Foundations of Statutory Arising-
Under Jurisdiction
Shoshone Mining Co. v. Rutter
Notes and Questions
American Well Works Co. v. Layne & Bowler
Co.
Notes and Questions
Smith v. Kansas City Title and Trust Co.
Notes and Questions
Gully v. First National Bank
Notes and Questions
Problems 4-2–4-4
A Note on Declaratory Judgments and
Statutory Arising-Under Jurisdiction
Problems 4-5–4-6
A Note on Concurrent and Exclusive
Federal Question Jurisdiction
 The Modern Approach to Statutory
Arising-Under Jurisdiction
Gunn v. Minton
Notes and Questions
Problem 4-7

xvi

3. Diversity Jurisdiction
a. Introduction
b. Diversity of State Citizenship
Rodríguez v. Señor Frog’s de La Isla, Inc.
Notes and Questions
Problem 4-8
A Note on 28 U.S.C. § 1359 and “Collusive”
Transfers or Assignments to Create
Diversity Jurisdiction
A Note on the Citizenship of Artificial
Entities
Problem 4-9
A Note on Statutes Allowing for Minimal
Diversity
c. Cases Involving Aliens
Eze v. Yellow Cab Co. of Alexandria,
Virginia, Inc.
Notes and Questions
Grupo Dataflux v. Atlas Global Group, L.P.
Notes and Questions
Problems 4-10–4-11
A Note on U.S. Citizens with Dual
Nationality
A Note on U.S. Corporations with Their
Principal Place of Business Abroad
 Problems 4-12–4-13
d. Amount in Controversy
Coventry Sewage Associates v. Dworkin
Realty Co.
Notes and Questions
A Note on Aggregation of Claims
Problems 4-14–4-15
A Note on Computing the Amount in
Controversy in Suits for Declaratory or
Injunctive Relief
Problem 4-16
4. Supplemental Jurisdiction
a. Overview and Introduction
b. Pendent and Ancillary Jurisdiction
United Mine Workers of America v. Gibbs
Notes and Questions
Owen Equipment and Erection Co. v. Kroger
Notes and Questions

xvii

A Note on Kroger and Potential Evasions

of the Complete Diversity Principle
A Note on Pendent-Party Jurisdiction
c. Supplemental Jurisdiction: § 1367
Problems 4-17–4-19
5. Removal Jurisdiction
a. Section 1441(a): Removability in General
b. Section 1441(b): Limits on the Removal of
Diversity Cases
Problems 4-20–4-21
c. Section 1441(c): Removal of Federal Questions
Joined with Nonremovable Claims
 d. Section 1446: Procedure for Removal of Civil
Actions
e. Section 1447: Procedure after Removal Generally
Ettlin v. Harris
Notes and Questions
Problems 4-22–4-23
B. Challenging a Court’s Subject Matter Jurisdiction
1. Direct Attack
2. Collateral Attack
Problems 4-24–4-25
C. Subject Matter Jurisdiction Review Problems
Problems 4-26–4-27

Chapter V. Venue, Transfer, and Forum Non Conveniens

A. Venue in Federal Courts

1. The General Venue Statute: 28 U.S.C. § 1391
Subsection (b)(1)—Residence of
Defendants
Subsection (b)(2)—Substantial Part of
Events
First of Michigan Corp. v. Bramlet
Notes and Questions
Problems 5-1–5-3
Subsection (b)(3)—Fallback Provision
Problems 5-4–5-5
Subsections (c)(2) and (d)—Residence of
Corporate and Noncorporate Entities
Problems 5-6–5-7
Notes and Questions
Problem 5-8

xviii
 2. Transfer of Venue in Federal Court
Skyhawke Technologies, LLC v. DECA
International Corp.
Notes and Questions
Graham v. Dyncorp International, Inc.
Notes and Questions
A Note on Transfer When Originating
Court Lacks Personal Jurisdiction
Problems 5-9–5-10
A Note on Multidistrict Litigation
A Note on Forum-Selection Clauses
Atlantic Marine Construction Co., Inc. v.
United States District Court
Notes and Questions
Problems 5-11–5-12
B. Forum Non Conveniens
Piper Aircraft Co. v. Reyno
Notes and Questions
A Note on an Available Alternate Forum
A Note on Forum Non Conveniens in State
Courts
Problems 5-13–5-15
C. Venue, Transfer, and Forum Non Conveniens Review
Problems
Problems 5-16–5-17

Chapter VI. The Erie Doctrine and Related Problems

A. The Law to Be Applied in Federal and State Courts

B. The Erie Doctrine: The Law to Be Applied in Diversity and
Supplemental Jurisdiction Cases
1. A Brief History of the Pre-Erie Landscape
2. The Demise of “Federal General Common Law”
 Erie Railroad Co. v. Tompkins
Notes and Questions
Problems 6-1–6-2
C. A Survey of the Three-Track Approach to the Erie Doctrine
1. Is There a Conflict?
2. Is the Federal Law Valid?
Track One: The Validity of Federal
Procedural Statutes
Track Two: The Validity of Formal Federal
Procedural Rules
Track Three: The Validity of Judge-Made
Procedural Law

xix

D. Three Tracks of Analysis: Procedural Statutes, Formal

Rules, and Judge-Made Laws
1. Track One: Federal Statutes and the Supremacy
Clause
a. The Standard Model
Stewart Organization, Inc. v. Ricoh Corp.
Notes and Questions
Problems 6-3–6-4
b. A Variation on Track One: The Continuing Validity
of “Specialized” Federal Common Law
Problem 6-5
2. Track Two: The Federal Rules of Civil Procedure
Sibbach v. Wilson & Co., Inc.
Notes and Questions
Problem 6-6
A Note on the Omnipresence of Erie
Hanna v. Plumer [Part I]
Notes and Questions
 Problems 6-7–6-8
Shady Grove Orthopedic Associates, P.A. v.
Allstate Insurance Co.
Notes and Questions
Problems 6-9–6-11
3. Track Three: Federal Procedural Common Law
Guaranty Trust Co. v. York
Notes and Questions
Problem 6-12
A Note on Byrd and Refining the Erie/York
Formula
Problem 6-13
Hanna v. Plumer [Part II]
Notes and Questions
Problems 6-14–6-15
Gasperini v. Center for Humanities, Inc.
Notes and Questions
A Note on Federal Law in State Courts
Problems 6-16–6-17
E. Erie Review Problems
Problems 6-18–6-20

Chapter VII. Discovery

A. Pragmatic Preliminary—Devising a Discovery Plan

B. The Scope of Formal Discovery
1. Discovery Relevance
Problems 7-1–7-2

xx

2. Privilege
Jaffee v. Redmond
Notes and Questions
 Problem 7-3
Upjohn Company v. United States [Parts I
and II]
Notes and Questions
Problem 7-4
3. The Work-Product Doctrine
Hickman v. Taylor
Notes and Questions
Upjohn Company v. United States [Part III]
Problems 7-5–7-6
A Note on Information Obtained from
Experts
C. The Formal Discovery Process in Federal Court
1. Mandatory Conference and Mandatory Disclosures
a. The Discovery Conference
b. Mandatory Disclosure
Advance Financial Corp. v. Utsey
2. Methods to Discover Additional Materials
a. Depositions
b. Interrogatories
c. Requests for Production and Inspection
Problem 7-7
Notes and Questions
d. E-Discovery
Wood v. Capital One Services, LLC
Notes and Questions
e. Physical and Mental Examinations
Schlagenhauf v. Holder
Notes and Questions
Problems 7-8–7-9
f. Requests for Admissions
g. Discovery Related to Experts
Problem 7-10
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other plants on which they have alighted. They also seize small
aquatic insects; but, although, I suspect that they disgorge in pellets
the harder parts of these, I have no proof, obtained from actual
observation, that they do so.
The holes perforated by this species for the purpose of breeding
require considerable exertion and labour. They are usually bored at
the distance of two or three feet from the summit of the bank or
surface of the ground, to the depth of about three feet, but
sometimes to that of four or even five. They are near each other or
remote, according to the number of pairs of swallows that resort to
the place, and the extent of the bank. In one situation you may find
not more than a dozen pairs at work, while in another several
hundreds of holes may be seen scattered over some hundreds of
yards. On the bluffs of the Ohio and the Mississippi there are many
very extensive breeding-places. While engaged in digging a sand-
bank on the shore of the Ohio, at Henderson, for the purpose of
erecting a steam-mill, I was both amused and vexed by the
pertinacity with which the little winged labourers continued to bore
holes day after day, whilst the pickaxes and shovels demolished
them in succession. The birds seemed to have formed a strong
attachment to the place, perhaps on account of the fine texture of the
soil, as I observed many who had begun holes a few hundred yards
off abandon them, and join those engaged in the newly opened
excavation. Whether the holes are frequently bored horizontally or
not I cannot say, but many which I examined differed in this respect
from those described by authors, for on introducing a gun-rod or
other straight stick, I found them to have an inclination of about ten
degrees upwards. The end of the hole is enlarged in the form of an
oven, for the reception of the nest, and the accommodation of the
parents and their brood.
When the birds have for a while examined the nature of the bank,
they begin their work by alighting against it, securing themselves by
the claws, and spreading their tails considerably so as, by being
pressed against the surface, to support the body. The bill is now
employed in picking the soil, until a space large enough to admit the
body of the bird is formed, when the feet and claws are also used in
scratching out the sand. I have thought that the slight ascent of the
burrow contributed considerably to enable the bird to perform the
severe task of disposing of the loose materials, which are seen
dropping out at irregular intervals. Both sexes work alternately, in the
same manner as Woodpeckers; and few ornithological occupations
have proved more pleasing to me than that of watching several
hundred pairs of these winged artificers all busily and equally
engaged, some in digging the burrows, others in obtaining food,
which they would now and then bring in their bills for the use of their
mates, or in procuring bits of dry grass or large feathers of the duck
or goose, for the construction of their nests.
So industrious are the little creatures that I have known a hole dug to
the depth of three feet four inches, and the nest finished in four days,
the first egg being deposited on the morning of the fifth. It sometimes
happens that soon after the excavation has been commenced, some
obstruction presents itself, defying the utmost exertions of the birds;
in which case they abandon the spot, and begin elsewhere in the
neighbourhood. If these obstructions occur and are pretty general,
the colony leaves the place; and it is very seldom that, after such an
occurrence, any swallows of this species are seen near it. I have
sometimes been surprised to see them bore in extremely loose
sand. On the sea coast, where soft banks are frequent, you might
suppose that, as the burrows are only a few inches apart, the sand
might fall in so as to obstruct the holes and suffocate their inmates;
but I have not met with an instance of such a calamitous occurrence.
Along the banks of small rivulets I have found these birds having
nests within a foot or two of the water, having been bored among the
roots of some large trees, where I thought they were exposed to
mice, rats, or other small predaceous animals. The nest is generally
formed of some short bits of dry grass, and lined with a considerable
number of large feathers. They lay from five to seven eggs for the
first brood, fewer for the next. They are of an ovate, somewhat
pointed form, pure white, eight-twelfths of an inch long, and six-
twelfths in breadth
The young, as soon as they are able to move with ease, often crawl
to the entrance of the hole, to wait the return of their parents with
food. On such occasions they are often closely watched by the
smaller Hawks, as well as the common Crows, which seize and
devour them, in spite of the clamour of the old birds. These
depredations upon the young are in fact continued after they have
left the nest, and while they are perched on the dry twigs of the low
trees in the neighbourhood, until they are perfectly able to maintain
themselves on wing without the assistance of their parents.
In Louisiana, or in any district where this species raises more than
one brood in the season, the males, I believe, take the principal
charge of the young that have left the nest, though both sexes
alternately incubate, all their moments being thus rendered full of
care and anxiety respecting both their offspring and the sitting bird.
The young acquire the full brown plumage of the adult by the first
spring, when there is no observable difference between them; but I
am induced to think that they keep apart from the old birds during the
first winter, when I have thought I could yet perceive an inferiority in
their flight, as well as in the loudness of their notes.
This species has no song, properly so called, but merely a twitter of
short lisping notes. In autumn it at times alights on trees preparatory
to its departure. On such occasions the individuals, often collected in
great numbers, take up the time chiefly in pluming themselves, in
which occupation they continue for hours.
I must conclude with assuring you that in my opinion, no difference
whatever exists between the Bank Swallow of America and that of
Europe. The birds from which I made the drawing for my plate were
procured on the banks of the Schuylkil River in 1824.

Hirundo riparia, Linn. Syst. Nat. vol. i. p. 344.—Lath. Ind. Ornith. vol. i. p.
575.—Ch. Bonap. Synopsis, p. 65.
Bank Swallow or Sand Martin, Hirundo riparia, Wils. Amer. Ornith. vol. v.
p. 46, pl. 38, fig. 4.
Hirundo riparia, the Sand Martin, Richards. and Swains. Fauna Bor.-
Amer. vol. ii p. 333.
Bank Swallow, or Sand Martin, Nuttall, Manual, vol. i. p. 607.

Adult Male. Plate CCCLXXXV. Fig. 1.

Bill very short, much depressed and very broad at the base,
compressed toward the point, of a triangular form with the lateral
outlines concave, when viewed from above or beneath; upper
mandible with the dorsal line considerably convex, the sides convex,
the edges sharp and overlapping, with a slight but distinct notch
close to the deflected tip; lower mandible with the angle very broad,
the dorsal line ascending and convex, the ridge broad and flat at the
base, narrowed toward the tip, which is acute, the edges inflected.
Nostrils basal, lateral, oblong.
Head of ordinary size, roundish, depressed; neck short; body
slender. Feet very small; tarsus very short, anteriorly scutellate,
moderately compressed, with a tuft of feathers behind at the lower
part; toes free, small, the lateral equal, the first much stronger; claws
long, slightly arched, much compressed, very acute.
Plumage soft and blended, without lustre. Wings very long,
extending a little beyond the tail, very narrow, slightly falciform; the
primaries tapering to an obtuse-point, the first quill longest, the
second half a twelfth shorter, the third four and a quarter twelfths
shorter than the second, the rest rapidly graduated; six of the
secondaries distinctly emarginate. Tail rather long, deeply
emarginate, the feathers tapering to an obtuse point.
Bill brownish-black. Iris hazel. Feet flesh-coloured, claws dusky. The
upper parts are greyish-brown, or mouse colour, the head and wing-
coverts darker, as are the primary coverts, primary quills, and outer
secondaries, of which the shafts are dusky above, white beneath.
The lower parts are white; the cheeks, a broad band across the
lower part of the neck and fore part of the breast, and the sides
under the wings, greyish-brown. The tail-feathers are very narrowly
edged with a lighter tint, the outer with whitish.
Length to end of tail 5 inches, to end of wings 5 1/4, to end of claws
4 1/8; extent of wings 11; bill along the ridge 3/12, along the edge of
lower mandible 6 1/2/12; wing from flexure 4 2/12; tail to the fork 1 11/12;
to the end 2 4 1/2/12; tarsus 5/12; hind toe 2 1/4/12; its claw 3 1/2/12;
3/ 1/
middle toe 4 /12, its claw 2
4 /12.
2

Adult Female. Plate CCCLXXXV. Fig. 2.

The Female cannot be distinguished from the male by any difference
in her external appearance.

Length to end of tail 4 7/8 inches, to end of wings 5 1/4, to end of

claws 4.
Young. Plate CCCLXXXV. Fig. 3.
The young when fully fledged, have the bill dusky, with the edges
yellow, the feet flesh-coloured, the claws yellowish. The colour of the
upper parts is darker, but the feathers are margined with light
greyish-brown; the quills brownish-black, the outer very faintly, the
inner broadly margined; the tail-feathers greyish-black, edged with
greyish-white. The lower parts are white, the throat faintly streaked
with dusky; the band across the breast, and the sides, coloured as in
the adult, but darker.
On very carefully comparing skins of this Swallow, with a series of
those of the Bank Swallow of Europe, procured for me by my
esteemed friend, Thomas Durham Weir of Boghead, Esq. an
enthusiastic and successful observer of the habits of birds, I can
perceive no difference whatever. Old birds compared with old, and
young with young, prove perfectly similar. There is, however, another
species closely allied to the present, and which might very readily be
confounded with it. This species, to which I give the name of Rough-
winged Swallow, Hirundo serripennis, I consider it expedient to
describe, although it has not as yet been figured by me.

In a male of the present species, from Boston, the palate is flat, the
mouth very wide, measuring 5 twelfths across. The tongue is short,
triangular, 2 1/2 twelfths long, deeply emarginate and papillate at the
base, two of the lateral papillæ much larger than the rest, the tip
bluntish and slightly slit. The œsophagus, a b c, is 1 inch 9 twelfths
long, narrow, 2 twelfths in diameter, without crop or dilatation. The
proventriculus, b, is little enlarged. The stomach, cdef, a gizzard of
moderate length, with distinct lateral muscles, and of an elliptical
form, is half an inch long, and 5 twelfths broad; its epithelium
longitudinally rugous, tough, and light red. It is filled with remains of
insects. The intestine, f g h, is 5 1/2 inches long, its greatest diameter
1 1/2 twelfth; the cœca very small, being 1 1/2 twelfth long, and 1/2
twelfth in diameter, their distance from the anus 9 twelfths. There is
no essential difference between the digestive organs of this and
other swallows, and the Flycatchers, Warblers, and other slender-
billed birds.
The trachea is 1 inch 4 twelfths long; slender, flattened, of about 55
unossified rings. The contractor and sterno-tracheal muscles are
slender; and there are four pairs of inferior laryngeal muscles
 ROUGH-WINGED SWALLOW.

Hirundo serripennis.
On the afternoon of the 20th of October 1819, I was walking along
the shores of a forest-margined lake, a few miles from Bayou Sara,
in pursuit of some Ibises, when I observed a flock of small Swallows
bearing so great a resemblance to our common Sand Martin, that I
at first paid little attention to them. The Ibises proving too wild to be
approached, I relinquished the pursuit, and being fatigued by a long
day’s exertion, I leaned against a tree, and gazed on the Swallows,
wishing that I could travel with as much ease and rapidity as they,
and thus return to my family as readily as they could to their winter
quarters. How it happened I cannot now recollect, but I thought of
shooting some of them, perhaps to see how expert I might prove on
other occasions. Off went a shot, and down came one of the birds,
which my dog brought to me between his lips. Another, a third, a
fourth, and at last a fifth were procured. The ever-continuing desire
of comparing one bird with another led me to take them up. I thought
them rather large, and therefore placed them in my bag, and
proceeded slowly toward the plantation of William Perry, Esq., with
whom I had for a time taken up my residence.
The bill and feet of the Swallows were pure black, and both, I
thought, were larger than in the Sand Martin; but differences like
these I seldom hold in much estimation, well knowing from long
experience, that individuals of any species may vary in these
respects. I was more startled when I saw not a vestige of the short
feathers usually found near the junction of the hind toe with the
tarsus in the common species, and equally so when I observed that
the bird in my hand had a nearly even tail, with broad rounded
feathers, the outer destitute of the narrow margin of white. At this
time my observations went no farther.
Doubts have been expressed by learned ornithologists respecting
the identity of the Common Sand Martin of America and that of
Europe. Some of them in their treatises write Hirundo riparia? or
Cotyle riparia? which in my opinion is foolish, especially if no reason
be given for appending so crooked a character. About two years ago,
my friend the Rev. John Bachman, sent me four Swallow’s eggs
accompanied with a letter, in which was the following notice:—“Two
pairs of Swallows resembling the Sand Martin, have built their nests
for two years in succession in the walls of an unfinished brick house
at Charleston, in the holes where the scaffoldings had been placed.
It is believed here that there are two species of these birds.” The
eggs which my friend sent me differ greatly from those of our
Common Sand Martin, being so much longer, larger, and more
pointed, that I might have felt inclined to suppose them to belong to
the European Swift, Cypselus murarius. But of the birds which had
laid them no particular account was given. Time has passed; and
during the while I have been anxious to meet again with such
Swallows as I had shot near Bayou Sara, as well as to determine
whether our Common Sand Martin be the same as that of Europe.
And now, Reader, I am at last able to say, that the Sand Martin or
Bank Swallow, Hirundo riparia, is common to Europe and America;
and further, that a species, confounded with it in the latter country, is
perfectly distinct.
I perhaps should never have discovered the differences existing
between these species had I not been spurred by the remarks of
Vieillot, who, in expressing his doubts as to their identity, and
perhaps holding in his hand the bird here spoken of, says that the
tarsus is much larger than in the European Sand Martin. I have been
surprised that these doubts did not awaken in others a desire to
inquire into the subject. Had this been done, however, I should
probably have lost an opportunity of adding another new species to
those to whose nomination I can lay claim, not to speak of such as,
although well known to me previous to their having been published
by others, I have lost the right of naming because I had imparted my
knowledge of them to those who were more anxious of obtaining this
sort of celebrity. I have now in my possession one pair of these
Swallows procured by myself in South Carolina during my last visit to
that State. Of their peculiar habits I can say nothing; but, owing to
their being less frequent than the Sand Martin, I am inclined to
believe that their most habitual residence may prove to be far to the
westward, perhaps in the valleys of the Columbia River.
I regret that I have not figured this species, though it would have
proved exceedingly difficult to exhibit in an engraving the peculiar
character presented by the outer quill, unless it were much
magnified.
The specific characters of these two Swallows, so nearly allied, are
as follows:—

Fig. 1.

Hirundo riparia. Tail, Fig. 1, slightly forked, margin of first quill

smooth, tarsus with a tuft of feathers behind; upper parts greyish-
brown, lower whitish, with a dusky band across the fore part of the
neck.
 Fig. 2.

Hirundo serripennis. Tail, Fig. 2, slightly emarginate, margin of first

quill, Fig. 3, rough with the strong decurved tips of the barbs, tarsus
bare; upper parts greyish-brown, lower pale greyish-brown, white
behind.

Fig. 3.

In its general appearance, including proportions as well as colour,

the Rough-winged Swallow is extremely similar to the Bank Swallow.
It differs however in having the bill considerably longer, more
attenuated toward the end, with the point of the upper mandible
more decurved. The tail, Fig. 2, is shorter and but slightly
emarginate, the lateral exceeding the middle feathers by only two-
twelfths of an inch, whereas in the other species they exceed them
by five-twelfths or even six; feathers are also broader and more
rounded at the end. The wings are longer, and extend half an inch
beyond the tail. The tarsi and toes are somewhat longer and more
slender, and there are no feathers on the hind part of the tarsus as in
the common species; the claws are much more slender.
The bill is black, the tarsi, toes, and claws dusky. The upper parts
are of the same greyish-brown, or mouse-colour, as those of the
Bank Swallow. The lower are of a very light greyish-brown, gradually
paler on the hind parts, the abdomen and lower tail-coverts being
white.
Length to end of tail 5 3/4 inches, to end of wings 6 1/4; extent of
wings 12 1/2; bill along the ridge 3 1/2/12, along the edge of lower
mandible 6 1/2/12; wing from flexure 4 4/12; tail to end of middle feather
1 10/12; to end of longest feather 2; tarsus 5/12; hind toe 2 1/4/12, its
claw 2 1/4/12; middle toe 5/12, its claw 3 1/4/12.

In a specimen, from Charleston, South Carolina, preserved in spirits,

the roof of the mouth is flat, the width of the gape 5 1/2 twelfths; the
tongue triangular, 3 1/2 twelfths long, emarginate and papillate at the
base, with two of the papillæ much larger, flat above, tapering to a
slit point, more narrow and elongated than that of the Sand Swallow.
The œsophagus is 1 inch 11 twelfths long, without dilatation, its
breadth 1 1/2 twelfth. The stomach is elliptical, muscular, 5 twelfths
long, being 4 1/2 twelfths, and placed a little obliquely; the epithelium
brownish-red, tough, longitudinally rugous, filled with remains of
insects. The intestine is 4 1/2 inches long; the cœca 1 1/2 twelfth in
length, and 8 twelfths distant from the anus.
The trachea is 1 inch 4 twelfths long, its diameter 1 twelfth; its rings
about 50; the muscles as in the other species; the bronchi very
slender, of about 12 half rings.
 VIOLET-GREEN SWALLOW.

Hirundo thalassina, Swainson.

PLATE CCCLXXXV. Male and Female.

Of this, the most beautiful Swallow hitherto discovered within the

limits of the United States, the following account has been
transmitted to me by my friend Mr Nuttall. “We first met with this
elegant species within the table-land of the Rocky Mountains, and
they were particularly abundant around our encampment on Harris
Fork, a branch of the Colorado of the west. They are nearly always
associated with the Cliff Swallow, here likewise particularly
numerous. Their flight and habits are also similar, but their twitter is
different, and not much unlike the note of our Barn Swallow. In the
Rocky Mountains, near our camp, we observed them to go in and
out of deserted nests of the Cliff Swallow, which they appeared to
occupy in place of building nests of their own. We saw this species
afterwards flying familiarly about in the vicinity of a farm-house (M.
Le Boute’s) on an elevated small isolated prairie on the banks of the
Wahlamet, and as there are no cliffs in the vicinity, they probably
here breed in trees, as I observed the White-bellied Martin do. This
beautiful species in all probability extends its limits from hence to the
table-land of Mexico, where Mr Bulloch, it seems, found it.”
Dr Townsend, who afterwards had better opportunities of observing
the habits of this bird, thus speaks of it:—“Aguila chin chin of the
Chinook Indians, inhabits the neighbourhood of the Colorado of the
west, and breeds along its margins on bluffs of clay, where it
attaches a nest formed of mud and grasses resembling in some
measure that of the Cliff Swallow, but wanting the pendulous neck in
that of the latter species. The eggs are four, of a dark clay colour,
with a few spots of reddish-brown at the larger end. This species is
also found abundant on the lower waters of the Columbia. River,
where it breeds in hollow trees.”
Dr Townsend also informs me that in the neighbourhood of the
Columbia River, the Cliff Swallow attaches its nest to the trunks of
trees, making it of the same form and materials as elsewhere. From
the above facts, and many equally curious, which I have mentioned,
respecting the variations exhibited by birds in the manner of forming
their nests, as well as in their size, materials, and situation, it will be
seen that differences of this kind are not of so much importance as
has hitherto been supposed, in establishing distinctions between
species supposed by some to be different, and by others identical.
To give you some definite idea of what I would here impress upon
your mind, I need only say that I have seen nests of the Barn or
Chimney Swallow placed within buildings, under cattle-sheds,
against the sides of wells, and in chimneys; that while some were not
more than three inches deep, others measured nearly nine; while in
some there was scarcely any grass, in others it formed nearly half of
their bulk. I have also observed some nests of the Cliff Swallow in
which the eggs had been deposited before the pendent neck was
added, and which remained so until the birds had reared their brood,
amidst other nests furnished with a neck, which was much longer in
some than in others. From this I have inferred that nests are formed
more or less completely, in many instances, in accordance with the
necessity under which the bird may be of depositing its eggs.

Hirundo thalassinus, Swains. Synopsis of Mexican Birds, Philos. Mag. for

1827, p. 365.
Adult Male. Plate CCCLXXXV. Fig. 4.
Bill very short, much depressed and very broad at the base,
compressed toward the point, of a triangular form, with the lateral
outlines nearly straight; upper mandible with the dorsal line
considerably convex, the sides convex toward the end, the edges
sharp and overlapping, with a slight but distinct notch close to the
deflected acute tip; lower mandible with the angle very broad, the
dorsal line ascending and slightly convex, the ridge broad and a little
convex at the base, narrowed toward the tip, which is acute. Nostrils
basal, lateral oblong.
Head rather large, roundish; neck very short; body slender. Feet very
small; tarsus very short, anteriorly scutellate, compressed; toes free,
small, the lateral equal, the first stronger; claws rather long, arched,
much compressed, very acute.
Plumage soft and blended, on the upper parts somewhat velvety.
Wings very long, extending far beyond the tail, very narrow, slightly
falciform; the primaries tapering to an obtuse point; the first quill
longest, the second almost equal, the rest rapidly diminishing; six of
the secondaries emarginate. Tail of moderate length, emarginate, the
middle feathers four-twelfths shorter than the lateral; all rounded.
Bill black; iris brown; feet dusky. The upper part of the head deep
green gradually shaded into the dark purple of the hind neck; the
back rich grass-green, the rump and upper tail-coverts carmine
purple. The smaller wing-coverts are dusky, broadly tipped with
green, glossed with purple; the quills and larger coverts dusky,
glossed with blue; the tail also dusky, glossed with blue. A line over
the eye, the cheeks, and all the lower parts, are pure white excepting
the lower wing-coverts, which are light grey.
Length to end of tail 4 10/12, to end of wings 5 7/12; bill along the ridge
2 3/4/ , along the edge of lower mandible 5/12; wing from flexure
12
 1/2
4 6/12; tail to end of middle feathers 1 1/2, to end of longest 1 10 /12;
3/ 1/
tarsus 4 /12; hind toe 2/12, its claw 2/12; middle toe 5
4 /12, its claw
2

2/12.

Adult Female. Plate CCCLXXXV. Fig. 5.

The Female is somewhat smaller, and differs considerably in colour.
The upper part of the head and the hind neck are light greyish-brown
glossed with bronzed green; the back bright green as in the male,
the rump greyish-brown; the wings and tail are as in the male, but
less glossy; as are the lower parts, which are, however, anteriorly
tinged with grey.

Length to end of tail 4 7/12, to end of wings 5; wing from flexure 4 1/4,
tail 1 8 1/2/12.
 GREAT AMERICAN EGRET.

Ardea Egretta, Gmel.

PLATE CCCLXXXVI. Male.

In the third volume of this work, I have already intimated that the truly
elegant Heron which now comes to be described, is a constant
resident in the Floridas, that it migrates eastward sometimes as far
as the State of Massachusetts, and up the Mississippi to the city of
Natchez, and, lastly, that it is never seen far inland, by which I mean
that its rambles into the interior seldom extend to more than fifty
miles from the sea-shore, unless along the course of our great rivers.
I have now to add that on my way to the Texas, in the spring of 1837,
I found these birds in several places along the coast of the Gulf of
Mexico, and on several of the islands scattered around that named
Galveston, where, as well as in the Floridas, I was told that they
spend the winter.
The Great American Egret breeds along the shores of the Gulf of
Mexico, and our Atlantic States, from Galveston Island in the Texas
to the borders of the State of New York, beyond which, although
stragglers have been seen, none, in so far as I can ascertain, have
been known to breed. In all low districts that are marshy and covered
with large trees, on the margins of ponds or lakes, the sides of
bayous, or gloomy swamps covered with water, are the places to
which it generally resorts during the period of reproduction; although
I have in a few instances met with their nests on low trees, and on
sandy islands at a short distance from the main land. As early as
December I have observed vast numbers congregated, as if for the
purpose of making choice of partners, when the addresses of the
males were paid in a very curious and to me interesting manner.
Near the plantation of John Bulow, Esq. in East Florida, I had the
pleasure of witnessing this sort of tournament or dress-ball from a
place of concealment not more than a hundred yards distant. The
males, in strutting round the females, swelled their throats, as
Cormorants do at times, emitted gurgling sounds, and raising their
long plumes almost erect, paced majestically before the fair ones of
their choice. Although these snowy beaux were a good deal irritated
by jealousy, and conflicts now and then took place, the whole time I
remained, much less fighting was exhibited than I had expected from
what I had already seen in the case of the Great Blue Heron, Ardea
Herodias. These meetings took place about ten o’clock in the
morning, or after they had all enjoyed a good breakfast, and
continued until nearly three in the afternoon, when, separating into
flocks of eight or ten individuals, they flew off to search for food.
These manœuvres were continued nearly a week, and I could with
ease, from a considerable distance mark the spot, which was a clear
sand-bar, by the descent of the separate small flocks previous to
their alighting there.
The flight of this species is in strength intermediate between that of
Ardea Herodias and A. rufescens, and is well sustained. On foot its
movements are as graceful as those of the Louisiana Heron, its
steps measured, its long neck gracefully retracted and curved, and
its silky train reminded one of the flowing robes of the noble ladies of
Europe. The train of this Egret, like that of other species, makes its
appearance a few weeks previous to the love season, continues to
grow and increase in beauty, until incubation has commenced, after
which period it deteriorates, and at length disappears about the time
when the young birds leave the nest, when, were it not for the
difference in size, it would be difficult to distinguish them from their
parents. Should you however closely examine the upper plumage of
an old bird of either sex, for both possess the train, you will discover
that its feathers still exist, although shortened and deprived of most
of their filaments. Similar feathers are seen in all other Herons that
have a largely developed train in the breeding season. Even the few
plumes hanging from the hind part of the Ardea Herodias, A.
Nycticorax, and A. violacea, are subject to the same rule; and it is
curious to see these ornaments becoming more or less apparent,
according to the latitude in which these birds breed, their growth
being completed in the southern part of Florida two months sooner
than in our Middle Districts.
The American Egrets leave the Floridas almost simultaneously about
the 1st of March, and soon afterwards reach Georgia and South
Carolina, but rarely the State of New Jersey, before the middle of
May. In these parts the young are able to fly by the 1st of August. On
the Mule Keys off the coast of Florida, I have found the young well
grown by the 8th of May; but in South Carolina they are rarely
hatched until toward the end of that month or the beginning of June.
In these more southern parts two broods are often raised in a
season, but in the Jerseys there is, I believe, never more than one.
While travelling, early in spring, between Savannah in Georgia and
Charleston in South Carolina, I saw many of these Egrets on the
large rice plantations, and felt some surprise at finding them much
wilder at that period of their migrations than after they have settled in
some locality for the purpose of breeding. I have supposed this to be
caused by the change of their thoughts on such occasions, and am
of opinion that birds of all kinds become more careless of
themselves. As the strength of their attachment toward their mates
or progeny increases through the process of time, as is the case with
the better part of our own species, lovers and parents performing
acts of heroism, which individuals having no such attachment to
each other would never dare to contemplate. In these birds the
impulse of affection is so great, that when they have young they
allow themselves to be approached, so as often to fall victims to the
rapacity of man, who, boasting of reason and benevolence, ought at
such a time to respect their devotion.
The American Egrets are much attached to their roosting places, to
which they remove from their feeding grounds regularly about an
hour before the last glimpse of day; and I cannot help expressing my
disbelief in the vulgar notion of birds of this family usually feeding by
night, as I have never observed them so doing even in countries
where they were most abundant. Before sunset the Egrets and other
Herons (excepting perhaps the Bitterns and Night Herons) leave
their feeding grounds in small flocks, often composed of only a single
family, and proceed on wing in the most direct course, at a moderate
height, to some secure retreat more or less distant, according to the
danger they may have to guard against. Flock after flock may be
seen repairing from all quarters to these places of repose, which one
may readily discover by observing their course.
Approach and watch them. Some hundreds have reached the well-
known rendezvous. After a few gratulations you see them lower their
bodies on the stems of the trees or bushes on which they have
alighted, fold their necks, place their heads beneath the scapular
feathers, and adjust themselves for repose. Daylight returns, and
they are all in motion. The arrangement of their attire is not more
neglected by them than by the most fashionable fops, but they spend
less time at the toilet. Their rough notes are uttered more loudly than
in the evening, and after a very short lapse of time they spread their
snowy pinions, and move in different directions, to search for
fiddlers, fish, insects of all sorts, small quadrupeds or birds, snails,
and reptiles, all of which form the food of this species.
The nest of the Great White Egret, whether placed in a cypress one
hundred and thirty feet high, or on a mangrove not six feet above the