Civil Procedure
Exam Outline
PERSONAL JURISDICTION
Defo: can this court exercise power over this particular person.
Analytical Approach:
- does a statute allow it?
- If yes, does the constitution allow it?
STATUTE
I. Long Arm statute: first question before this constitutional due process question.
A. every state has a series of in personam statutes. Every state has:
1. a statute that mirror the traditional basis
2. statute that is based on implied consent (non resident state motor statute).
3. long arm statute, 2 types:
a. full extent of the constitution
b. laundry list long arm: gives list of things the defendant can do in the
forum (defendant in the forum enters into a contract, insures a risk,
commits a tort)
 issues: State A ship a product into state B. It blows up in state B.
Want to sue me in State B. Long arm has jurisdiction over
someone commit a tort in state B. Did I commit a tort in state
B? Argue both ways.
o I was negligent in state A
o Or say plaintiff was injured in state B, was a tort in state B
DUE PROCESS: outer limits of jurisdictional reach
I. Origins – Pennoyer
A. Pennoyer: 1870s. Stresses raw physical power over people and property that
are inside its boundaries. Gives us the traditional basis for in personam
jurisdiction:
1. Defendant is served with process while in the forum – i.e. transient
2. Defendant agent was served in the forum
3. Defendant is domiciled in the forum
4. Defendant consents to jurisdiction
a. Problem with Pennoyer: As society became more mobile this was
hard. Could run into state, commit tort and leave quickly. S.C.
wanted to expand and push 4 traditional basis
B. In rem: Source of power is property within the state. Bring them into court by
attaching the property to the litigation. Notice is attachment before litigation
1. we assume folks keep an eye on property, constructive notice fine.
2. Absorption of quasi-in rem: no longer is it acceptable to simply attach
property, that property must be somehow related to the litigation and now
falls under mc test, Schaffer. BUT
a. State continue power over true in rem cases (as opposed to quasi in
rem) in things like condemnation proceedings
b. Presence of property can support minimum contacts.
C. Compromise: distinction is a compromise between state sovereignty (in rem)
and individual rights (in personam).
II. Modern Formulation –
A. Implied jurisdiction: Hess expands notion of consent to include implied consent
from a non resident motorist statute. Stretch of Pennoyer.
B. MC consistent with FPSJ: Court no longer stretches the traditional basis and in
Int’l Shoe creates this new test.
1. Test: such MC with forum that exercise of jurisdiction does not intervene
with traditional notions of FPSJ. (amorphous phrase that is real flexible –
away from rigid Pennoyer guidelines.
a. Look at quality and nature of contacts
 Systemic and continuous
 Volume of contacts
 relatedness
b. No where does shoe say that is overrules Pennoyer, in fact when it
gives us that language, it says here is the test if the defendant is not in
the forum. Presence still okay basis.
2. PURPOSEFUL AVAILMENT (mc): focuses solely on the activities of the
defendant. **unilateral act of plaintiff in bring product to state not going to
work (volkswagon, hanson)
a. Did defendant seek to benefit from relationship w/ forum state?
 McGee: one contact enough if defendant reached out to the
forum state. (insurance contract from TX to resident of CA)
 Hanson: Defendant must reach out to the forum, here because
the P brought product to FL when she moved did not mean that
the DE corporation reached out to the state. (introduces
purposeful availment)
b. Entered into long term relationship with the state?
 Burger king: MI guys franchise with FL corp. FL jurisdiction
because he reached out and received benefits from this
national organization
c. Serving or seeking to serve the forum market?
d. Delivering products into stream of commerce with expectation
that they will be purchased in forum state?
 Court divide: discuss both Asahi
o Brennan: contact if you put product in stream and
reasonably anticipate it will get to state C,D, E.
o O’Connor: need Brennan plus the intent or purpose to serve
C,D, and E. – that means need advertising there,,
customer service there, ,etc…
 BUT stream of commerce ends with retail sale, even if
foreseeable produce will be brought to another state.
e. Foreseeability?
 Volkswagon: Foreseeability question: relevant but it is not a
question of whether it is foreseeable that the car gets there,
question is: is it foreseeable that these defendant’s could get
sued in OK.
3. REASONABLENESS (FPSJ) – none better one to argue. Burger King first
case to do divided into two part test. Burden on defendant “gravely
inconvenient that D is a severe disadvantage” high burden to meet.
a. interest of state in providing forum to plaintiff
b. interest of state in regulating activity involved
 interstate judicial system interest in most efficient resolution
 shared interest of furthering public policy
 plaintiff interest in obtaining convenient relief
c. burden on defendant to defend in forum
 courts particularly cautious around foreign defendants.
 really hard burden to overcome, court unlikely to grant this
(look at Burger King)
d. relative burden on plaintiff to prosecute elsewhere – only if plaintiff
can’t travel to injury or something serious.
e. defendants activity systematic and continuous?
f. extent to which claim is related to local activities –
 bit of this makes up for lack of minimum contact
g. avoidance of multiple suits and conflicting adjudication
III. General Jurisdiction
A. Purpose: to provide a safe harbor where plaintiff can always sue the defendant
B. Requirements: must be substantial contacts, suit need not be related with in
state activities.
1. For an individual – state of domicile is where you are held liable
2. For corporation – state of incorporation and principle place of business
C. *** remember to analyze for this when no specific jurisdiction. Also
remember that under Burnham, transient jurisdiction gave general jurisdiction
for some justices.
IV. Transient Jurisdiction
A. Burhnam: Divorce case in CA. Courts split so argue both.
1. Scalia: service in state does give general jurisdiction because of its
historical pedigree. It has always been good, so no minimum contact
because traditional basis lives by itself. (not such a goofy argument because
minimum contacts test laid out in Int’l shoe said only for when def not
present)
2. Brennan: must assess under international shoe.
V. So… Court has Jurisdiction if:
A. Sufficient minimum contacts and jurisdiction is reasonable, or
B. Property has been seized in forum and appropriate relationship between forum
and claim; or
C. Contacts so substantial that there is general jurisdiction; or
D. Defendant was personally served in jurisdiction (transient juris); or
E. Defendant contest to forum’s exercise of jurisdiction
VI. NOTICE – FRCP 4, summons and complaint
A. Due process requires that reasonable efforts are made to provide notice and
opportunity to be heard. Serve notice to actually establish jurisdiction.
B. Rule: Notice must be reasonably calculated under all the circumstances to
apprise the defendant of the suit – look at interest at stake
C. Methods (in order of preference)
1. Personal service: summons and complaint
2. Serve agent: agent can be appointed by D or law (non resident motorist
statute)
3. First class mail – Mullane (Def asking court to recognize that has trustee he
has done a good job) court required this service to those beneficiaries whose
address is known.
4. Notice by publication: court does not insist on personal service, and
approves of mail for known beneficiaries and publication for unknown.
5. Note judgment is binding even if some parties did not receive notice
D. Waiver by mail: FRCP rule 4(d). It does not allow service of process by mail,
it is waiver of sop by mail. Send something by first class mail, send process,
complaint, waiver form and s.a.s.e. and she waives service (get 60 days to
answer). If she does not waive service, she may have to pick up the cost of
service.
SUBJECT MATTER JURISDICTION
Assessment of which court to go to in the state: state or federal?
Constitution: Article II, §1(fq) and §2 (div)
Why does it matter?
- to litigant:
o federal judges have lifetime tenure, many state elected
o law, procedure may be different
o federal bench considered more qualified
o opposing lawyer not used to federal court
- to policy maker:
o some areas we want locals deciding an issue
o uniformity: other areas we want consistent decision (interstate cases,
foreign relations, constitution)
o fairness: any risk of prejudice in local forum
o efficiency and caseload
I. DIVERSITY of citizenship (not domicile or resident) §1332(a)(1)
A. Complete diversity rule: no diversity if any plaintiff is a citizen of the same
state as any defendant. No required by constitution, but courts
B. Determining citizenship: US citizen is a citizen of the state in which she is
domiciled.
1. What is domicile? (1) presence in the state (2) intent to make that state your
permanent home (register to vote, in state tuition, etc..)
a. Only have one domicile at a time, and always have one
b. Hypo: guy domiciled in OK, turns 18 and goes to college in MA for
four years. And then he goes to law school in CA for three years,
and then med school for 4 years. Never gone back to OK and said he
never wants to, but has never formed intent to make new states a
home. His domicile is OK.
2. Exceptions:
a. Baldwin: legal reps of a estate are citizens same state as defendant.
b. Render: guy in France with connections do CA found to be citizen of
CA. Presence not always required.
c. Farouki: Aliens are citizens of the state in which the reside. (want to
limit cases of diversity, so all aliens can’t claim diversity because hey
are foreign)
3. Citizenship of a corporation: never mention domicile.
a. Proscribed by statute. §1332(c)(1): citizen of (1) all states where
incorporated (2) and the one place where it has the principal place of
business. So note corporations can be citizens of two place.
b. Principal place of business, who do you know this? Factors to throw
in:
 Nerve center, where decisions are made, usually headquarters
 Muscle center (place of activities) where the corporation does
more stuff than any where else.
c. Every court will look at total activities (assess both the nerve center
and the muscle center – most courts say they will use nerve center
unless all of activity is in a single state). Discuss on exam muscle and
nerve. Remember that only one principal place of business (muscle,
nerve center, total activities test – if both muscle and nerve, go to the
nerve unless activities in a single state)
4. Timing: determine diversity at the time the original complaint was filed.
C. Amount in controversy must exceed $75,000
a. Amount must exceed $75,000, not counting interest on claim or costs
b. The plaintiff claim governs unless it is clear to legal certainty that she
can not recover that much. Whatever plaintiff says, we generally
respect that.
 Look for a statutory ceiling maybe.
c. Aggregation: aggregation is when you must add two or more claims
to get over $75,000.
 You aggregate claims if one p v. one d, even if unrelated
 There is no aggregation if there are multiple parties on either
side. Can not add these claims together.
 For joint claims, use total value of the claims – i.e. joint
tortfeasors for one single action. Joint liability.
II. FEDERAL QUESTION (§1331)
A. Need a claim that arises under federal law. Citizenship and amount in
controversy is irrelevant.
B. Well pleaded complaint rule: In the complaint, look only to the plaintiff’s claim
itself. It is that claim that must arise under federal law. Ignore everything else
(i.e. anticipated defense and rebuttal.)
a. Question to ask: Is the plaintiff enforcing a federal right? Case must
“arise under” a federal law
b. Motley: Free lifetime pass on the railroad, congress then passes law
that prohibits lifetime passes. Motley sue railroad and say you are
breaching the contract and that new federal law does not apply to us.
 Although federal law brought up, it is brought up as a rebuttal to
their defense. Not enforcing a federal right, only breach of
contract.
c. Arguments for and against WPCR:
 Brightline rule that is easy to administer
 Slippery slope: everyone could put a rebuttal of federal law in
C. What to look of in complaint: Motley told us to look to the complaint, but what
once at the complaint, TB Harms tells us what does arising under mean?
1. An action “arises under” a federal law ONLY if the complaint is for a
remedy expressly granted by the federal law
a. ingredient test: Old Marshall test, if a federal issue is in any way
involved in the claim, that satisfies “arising under”
b. creation test: (new holmes test) a suit arises under the law that
creates the cause of action (“creation test”)
 When federal law is involved, but nothing the parties are
fighting about requires an interpretation of that federal law, the
case does NOT arise under federal law
D. There is concurrent/exclusive jurisdiction (federal copyright or federal
securities law are exclusively federal.)
III. SUPPLEMENTAL JURISDICTION (§1367): Can get non federal non diverse
claims into federal court. For every claim in federal court there must be subject
matter jurisdiction, not just original claim that got the plaintiff into federal court
(counter-claim, cross claim, impleader, etc…) Assess EVERY claim. If you have no
federal question or diversity on every claim, you look to supplemental jurisdiction
A. Policy:
1. Pro: efficiency, consistency
2. Con: jury confusions, don’t want to give II incentive to manufacture a
federal claim to bootstrap their way into federal court, state courts are better
at interpreting state laws, don’t want federal courts tell stae courts what the
state law is.
3. Modern approach is to encourage folks to bring all related claims in.
B. Gibbs rule: can hear it if it arises from common nucleus of operative fact of the
original claim. Same t/o.
1. Without regard to state or federal issue, do we expect plaintiff to ordinarily
bring these actions together?
2. is there a substantial federal issue?
3. same facts should be tried at trial for the two claims
4. issues to consider:
a. complex or novel area of state law?
b. Jury confusion
c. State claim predominate? Is federal claim frivolous?
C. Question to ask:
1. does 1367a grant supplemental jurisdiction to this claim. Answer is yes if it
meets Gibbs.
2. does 1367b take away supplemental jurisdiction?
a. Applies only to diversity cases
b. Applies only to certain claims by plaintiffs (not defendants).
c. Applies only to those of plaintiffs joined under rule 14, 19, 20, 24,
and removes supplemental jurisdiction for rule 19 plaintiffs, and
thirdly claims by plaintiffs by rule 24.
D. Notes:
1. this is a discretionary power of federal courts, not a right
2. If federal claim is dismissed in pre trial litigation, don’t have to hear the
state claim
IV. Pendant Party Jurisdiction
A. When P has claim within original fj against d1 and a claim not within original fj
against d2 for the same event as against d1, then p may be able to append the
claim.
1. If original claim is brought in on diversity: plaintiff is not allowed to assert
a claim against a non diverse d2 because allowing so would circumvent the
complete diversity requirement
a. Could get around this by suing only diverse defendants and wait for
them to join no diverse citizens
b. Aldinger: Gibbs approach not extended to pendant party field.
Finding that that claims arise from common nucleus of operative fact
does not end inquiry. This is merely the constitutional minimum.
2. If original claims is brought on federal question claim: good to go if so
related that they are part of the same case and controversy
a. Why different from diversity? Interest of the federal court in hearing
the claim rests on existence of federal question, that does not go
away when you add a non diverse defendant.
 In diversity, it is only about the configuration of the parties, not
a substantive legal issue. Sense that when there is a federal
question a more substantial interest in having that case in federal
court.
V. REMOVAL defendant sued in state court might be able to remove the case to federal
court. Do not call it transfer. Term of art is removal. 1441, 1446, and 1447
A. §1441a: can be removed if district court has original jurisdiction in the case
B. §1441b: if removal based on federal question, remove. But if removing case on
basis of diversity, it is removable only if any defendant is not a resident of the
forum.
C. §1441(e): If plaintiff after removal tries to add someone to destroy complete
diversity, court has discretion to deny joinder or permit and remand to state
court.
D. What is not considered:
1. well pleaded complaint rule applies, thus the fact that defendant has raised a
federal defense to state law claim won’t get you removal.
2. defendants federal counter claim does not get you removal
E. Exceptions:
1. if the federal law completely preempts the state law on the matter it
converts the plaintiffs claim in to a federal one and satisfies the well
pleaded complaint rule (Metropolitan Life) – i.e. ERISA, securities law
F. Notes:
1. One way street, only from state to federal. No such thing to remove from
federal to state. Federal courts remand it to state court
2. Only defendant can remove. Plaintiff can never remove a case.
3. Must remove within 30 days of service of the document that first makes the
case removable. (usually at the outset), plain statement of the grounds for
removal required.
4. No removal of a diversity case more than one year after it was filed in state
court
5. denial of removal is not a final judgment in a case, so no way to appeal
except through interlocutory review.
G. Remand :
1. This is where a federal court remands a case to sate court, remand is
required when court determines removal was improper.
2. Caterpillar:
a. Understand 1446(b) – Defendant has one year from when they are
added.
 Plaintiff keeps in state defendant in to destroy complete
diversity, when real claim is against diverse defendant, and
drops non diverse year after diverse is added.
b. You can screw if there was a jurisdictional defect at the time of
removal, so that the case should have been remanded but was not and
the defect is cured before final judgment, in the interest of efficiency
and finality and economy, that defect is disgregarded on appeal.
LITIGATING JURISDICTION
Default: risky, but if default judgment is attempted to be enforced, can argue no
jurisdiction existed in the first place. Can’t argue on merits of case
1. Collateral attack: if you were sued without jurisdiction, you file a second
lawsuit to challenge the outcome of the first lawsuit (as opposed to appeal)
Motion or answer: FRCP rule 12: when you get sued and served with process, you must
respond within 20 days by motion or answer. A motion is not a pleading, it is a request
for a court order.
E. 12(b): motion to dismiss for 7 defenses. You can raise either by motion or
through your answer. FRCP 12g and h tell us timing.
1. SMJ (never waived, even on appeal): court can raise sua sponte
a. If no smj, re-file in state court
2. PJ (must raise initially in motion answer or appear. or waive)
a. If no pj, must find another forum with sufficient contacts.
3. Venue (must raise initially or waive)
4. Insufficient process- very rare, (must raise initially or waive)
5. Insufficient service of process (must raise initially or waive)
6. Failure to state a claim (raise anytime through the trial)
a. Def can bring lack of smj here if no federal law covering the conduct,
i.e. discrimination on basis of sexual orientation, and instead of just
being kicked out of federal court, court is saying no law anywhere.
7. Failure to join an indispensable party (raise anytime through the trial)
Discovery: if discovery is needed to further find out if sufficient contacts, court can order
discovery regarding the issue and def. can consent to jurisdiction only over this issue
Binding effect: once def. has appeared and litigated jurisdiction, can’t re-raise issue
collaterally.
Appellate Review: generally this is only available after final judgment. Some states
earlier review is possible.
VENUE
Third major hurdle (pj, smj, and now venue). Exactly which federal court district do we
go to?
I. Basic provision: plaintiff suing in federal court. Got div or fq. §1391a (diversity) and
§1391b federal question. Now really the same. Gives us two basic choices:
A. any district where a substantial part of the claim arose; or
B. any district where all defendants reside, however the exception: if all
defendants reside in different districts of the same state, you can lay venue
where one resides.
1. Residence not citizenship (that goes with diversity) goes with venue
a. Residence means your domicile. For a corporation, residence is in
all districts where it is subject to personal jurisdiction.
II. Transfer of venue: we are talking about moving within the same judicial system.
Can’t transfer between federal to state. Only federal district court to another district
court. Two transfer statutes (both the transferee court must be a proper venue and
must have personal jurisdiction over the defendant)
A. 1404a: applies when original court is a proper venue – very opened ended just
look to convenience and interest of justice.
B. 1406a: applies where the transferor is an improper venue, statute says you can
transfer or dismiss.
III. Forum non conveniens (fnc): court dismisses because the litigation would be more
appropriate elsewhere. Not transferring here, we are dismissing. Why would be
dismiss?
A. Dismissing because transfer is impossible. (i.e. other court is a in a different
judicial system). Usually when court is in a foreign country or another state
more convenient (can’t transfer must dismiss without prejudice)
1. Piper: plane crash in Scotland. Court dismissed for fnc because it should
be litigated in Scotland.
a. Fact that you are going to recover less is not determinative neither is
more favorable law.
b. Substantial weight given to plaintiff’s choice.
c. Private: ease of access to sources of proof, cost of obtaining
attendance of witnesses, availability of compulsory witnesses, need
to view premises
d. Public: local interest in having local issues decided at home, interest
of having trial in forum familiar with the law, avoiding problems of
conflicts of law, fairness of burdening citizens with jury duty in an
unrelated forum.
2. Sometimes courts will impose limitations on fnc. Like you have to waive
certain defenses like sol or no jurisdiction or submit to certain jurisdiction
WHAT LAW APPLIES/ERIE DOCTRINE
I. Issue: when a federal court sits in diversity what law applies?
II. Black Letter law: Erie – federal court must apply state substantive law and federal
procedural law (§1652)
A. Constitution requires this. 10th Amendment provides that federal government
can not invade powers reserved to the states.
III. What is substantive law?
A. Questions of liability, elements of a defense, elements of a claim, are plainly
substantive, but burdens of proof, statute of limitations, etc… are not.
B. Is there a true conflict between the laws?
1. don’t assume there is a conflict, look for ways to be reconciled side by side,
i.e. no direct conflict, narrow construction…)
C. Is there a federal directive on point? (FRCP, Constitution, Act of Congress) If
yes, that governs.. Make a quick constitutional argument.
a. SC has never stricken the FRCP. If federal directive, don’t even look
at Erie, it wins
D. What if no federal directive on point? (i.e. no federal directive no point and
federal judge wants to ignore state law, can she do that?)
1. Can not ignore state law if it is a substantive issue
2. How do we know if it is substantive? This is pure Erie. Law is a mess.
Stuck with three famous phrases, so best you can do is throw in phrases and
come to a reasonable conclusion.
a. Outcome determination: Guarantee trust. Will application of
federal law instead of state law significantly affect the outcome of
the litigation? S.C held that sol is substantive. We want same
outcome in state or federal law to avoid shopping.
 Problem: at some point any rule become outcome determinative,
no direction on limitation (but court generally reasonable)
b. Balance the interests: Byrd. Balance these interests allowed federal
rules even where state law is outcome determinative.
 Relation between state rule and underlying state right: is rule
bound up with underlying states rights or interests
 Countervailing interest of the federal judicial system: strength of
federal interest in having the rule.
 Likelihood of effect on the outcome
c. Twin aims of Erie: Hanna (1) avoid forum shopping – ask at the
outset of the case, if the federal court ignores state law, will it cause
litigants to flock the federal court? (2) avoid inequitable
administration of law. – is it unfair because in state defendants can’t
access federal law and have administration of same justice.
IV. Some history
A. Rules enabling act 28 US.C. §1652: statutory authority that tells you to follow
the laws of states where the constitution, and federal provisions require
otherwise
B. Swift: original thinking was that laws of the state did not include state common
law. Courts could create federal common law, but federal common law did not
apply to state courts, so lots of inconsistent decisions and led to forum shopping
C. Reasoning of Erie:
1. better statutory interpretation
2. alleviated lack of uniformity and resulting discrimination
3. alleviated discrimination by non citizens against citizens, because out of
staters always had choice to remove to more favorable federal court
DAMAGES/REMEDIES
I. PUNITIVE DAMAGES: assume compensatory damages make P whole, PD are
about further sanctions for reprehensible behavior
A. Due Process puts procedural (oberg- subject to review) and substantive (state
farm – deprivation of property with high amounts) restrictions on PD.
B. Procedural: Oberg
1. Civil cases require judicial review (serves as a safeguard) of punitive
damages because they don’t have as many safeguards as criminal cases
(proof beyond a reasonable doubt, for example) Honda requires review
C. Substantive: State farm review PD considering
1. The degree of reprehensibility of the Δ’s misconduct, measured by:
a. The harm caused was physical as opposed to economic
b. The conduct evinced indifference to or a reckless disregard for the
health and safety of others
c. The victim had financial vulnerability
d. The conduct involved repeated actions
e. The harm was the result of intentional malice, trickery, or deceit, or
mere accident
2. The disparity between the actual or potential harm suffered and the damage
award
a. no bright-line ratio, but generally punitive damages that are < 9 x the
compensatory damages award are constitutional (ratio should be in
the single digits)** State farm
b. Amount should reflect punishment for actions in your jurisdiction,
not nationwide
c. The wealth of a Δ cannot justify an otherwise unconstitutional
punitive damages award
3. The difference between the damages awarded by the jury and the penalties
given in similar cases
D. State farm constitutional PD awards, putting them in federal court away from
state court where they were traditionally.
E. Punitive damages caps can create perverse effects – juries use caps as an anchor
and award higher PD than they would have
F. Damages caps:
1. if there is a cap it makes jury inclined to give more than they woud, high
number serves as anchor
2. Scalia/Rehnquist: no cap, state right issue
3. Ginsburg: no cap because little guy should get lots of money if warranted.
II. INJUNCTIVE RELIEF: some type of performance, requirement to act or not act
ordered by the judge. Always granted by a judge.
A. Analytical Frame work
1. is legal remedy adequate?
2. is injunction reasonable?
a. The injunction must be reasonably necessary to protect the Π’s
legitimate interest (sigma –restrictive covenant not to compete)
b. The injunction must be reasonable in terms of temporal scope and
geographic scope
3. balancing test between hardship on defendant and plaintiff
B. ** note**: Even in cases of inadequate legal remedy, the harm of granting the
injunction may be so great as to outweigh the Π’s right to relief
III. DECLARATORY RELIEF: a party asks the court for a declaration of their rights
preemptively avoiding a lawsuit.
A. May be combined with other types of relief.
B. No requirement that the legal remedy be inadequate.
C. There has to be an actual controversy (no advisory opinions)
IV. PROVISIONAL RELIEF (rule 65)
A. Preliminary injunction:
1. A valid exercise of due process IF the Δ has a meaningful option to be heard
before the deprivation occurs
2. Analytical Framework:
a. balance of equities: how harmful to P and D if we grant PI
b. public interest
c. likelihood that the plaintiff will win on the merits
 it is not necessary that the moving party be reasonably certain to
succeed on the merits. If the harm that may occur to the Π is
sufficiently serious, it is only necessary that there be a “fair
chance of success” on the merits
3. Problems:
a. The judge must sort out two “irreparable harms,” balancing of the
harms – must weigh potential risks in a zero-sum vacuum
 Rule 65(c) – if a Π seeks a preliminary injunction, they must put
forth a bond (The efficacy of the bond depends on the kind of
harm the Δ is facing, as well as how much the bond is ordered
at.)
b. Decisions on PI tend to be the end of a case, if it takes three months
on the PI, then sometimes the issue is over
4. You can appeal a PI decision directly to court of appeals, reviewable for
error or an abuse of discretion
B. Ex parte procedure – the other side is never heard (Fuentes)
1. Requirements: Procedural due process requires that the parties whose rights
are to be affected must have NOTICE and an OPPORTUNITY TO BE
HEARD, so that the validity of the claim of the person seeking relief can be
properly evaluated.
a. These rights must be granted at a meaningful time and in a
meaningful manner – when the deprivation can still be prevented!
b. No longer valid to go to court and have sheriff seize property
c. SC does not allow, rationale for disallowing this type of procedure:
 Hearing from the other side is necessary before balancing of the
equities can occur
 The harm cannot be undone, once the item is taken
 Efficiency – the sheriff shouldn’t go to the effort to repossess
until a judge has decided it’s appropriate
 Huge potential for abuse and harassment by the Π!
d. Allowable seizure is limited to 3 situations:
 The seizure is directly necessary to secure an important
governmental or public interest
 There must be a special need for extremely prompt action
 The person initiating the seizure must be a governmental
official, responsible for determining, under the standards of a
narrowly drawn statute, that it was necessary and justified in the
particular instance
e. Note:
 Even if you will likely loose, you have right ot be heard even if
it slows down the process
 to have property interest protected by due process, a possessory
interest is enough, do not need clear title
V. TEMPORARY RESTRAINING ORDERS
A. Four requirements (from Fuentes)
1. Necessity
2. Need for prompt action
3. Government or general public interest at stake
4. Some official check of the P’s claims.
B. Not to last more than 10 days
C. Notification (Rule 65(b)) – TROs are permissible even without written or oral
notice to the other side, so long as make an effort to notify, or show good
reason for not notifying the party.
PLEADINGS
I. COMPLAINTS
A. Rule 8: (notice pleading) include a short and plaint statement on grounds you
are entitled to relief (facts and law), demand and what relief you are seeking,
allege jurisdiction and prayer for relief.
1. generally if complaint faulty dismissed under 12(b)(6) with leave to amend.
a. 12(b)(6): P has not put enough facts in complaint to lead to a suit
2. Factual v. legal insufficiency
a. Factual: you amend the complaint
b. Legal: you fight it on the law, appeal to a higher court
B. Pleading in the alternative: (Rule 8(b)(2)). Inconsistent pleading is permitted.
Why?
1. P does not have all the facts up front
2. Pleading comes at outset, court not going to force you to choose your theory
right way, much turns on discovery
3. By the time you get to trial need one theory.
4. Moves away from common law requirements of writs.
C. Advocacy nature: can use the complaint to add more than short and plain
statement and use to persuade judge and media (Woburn case) \
D. Rule 11 requirements: requires subjective good faith and objective research of
facts and law to a reasonable standard. Applies only to representations made to
the court.
1. Rule 11(b)(3): requires evidentiary support or that support is likely to come.
2. Rule 11 does not get you out of answering the complaint. You must respond
to the complaint and then separately file a motion for violation of rule 11
and serve on D 21 days after file in court.
3. Business Guides: Attorney sues for copyright infringement and turns out 9
out of 10 instances could not be true
4. Gerbode: RICO claim that did not apply in the situation due to a case the
plaintiffs did not know about.
II. RESPONDING TO THE COMPLAINT
A. Do nothing - default judg., possible collateral attack, very risky!
B. Special Appearance
C. Pre-answer motion – Rule 12
1. Same deadlines as answer (20 or 60 days)
2. If granted – case dismissed
3. If denied – go back and file an answer (Rule 12(a)(4)(A) gives 10 days),
generally can’t appeal, not a final judgment
4. If deciding whether file 12(b) defenses – these are things that can be
decided without extensive discovery (either on the law or on preliminary
look at the facts
D. Answer
1. 20 days if personally served, 60 days if service is waived
a. Choices for your answer:
 Admit
 Deny
 You are without knowledge or information (= denial)
 Affirmative defenses
 Counterclaim
b. Zielinski: Def. was intentionally vague in its answer and that was
unfair to P who didn’t know PPI was not manufacturer till after sol.
 If you want to truly contest everything, you can use a general
denial. But court will not allow if you know some stuff is true
 Case demonstrates how answer shape parties perceptions of
what needs to be litigated But if court finds out you knew stuff
2. 12(h) After filing an answer, respondent waives the right to PJ defenses
a. If respondent has just filed an answer and forgot to include PJ, they
have 20 days to add that defense
3. 12(c) – can move for judgment on the pleadings. The standard is the same
as for 12(b)(6), but it’s not a pre-answer motion
E. Affirmative defenses: Must be raised in answer or waived but rule 15a allows
amendments to answers., question is when the affirmative defense is waived
and if it is fair to plaintiff.
1. Definition: If defendant is confessing some facts, but says the P theory of
liability does not apply because of some additional facts that relieve
liability, this is an affirmative defense.
2. Rule 8(c) lists 19 specific affirmative defenses, as well as “any other matter
constituting an avoidance or affirmative defense.
3. Test: if Δ intends to rest his defense upon some fact not included in the
allegations, then he is raising an affirmative defense. Considerations:
a. is this something likely to take the other side by surprise
b. extrinsic element or necessary to the case
c. policy considerations: who is more likely to have evidence (if Def.
then call it affirmative defense) or is this defense disfavored (then
call it an affirmative defense)
4. Denial v. affirmative defense:
a. Denial: allegations in the complaint simply aren’t true
b. Affirmative defense: maybe what Π said was true, but it’s not as bad
as it sounds because there are other facts that legally justify what I
did
5. Rule 12(b)(6) v. affirmative defense:
a. Failure to state a claim: assuming everything in the complaint is
true, there are still no grounds for legal relief
b. Affirmative defense: assuming everything in the complaint is true,
there are new facts that prove we’re not liable
III. AMENDMENTS
A. Rule 15(a): if you are P and D has not responded, you can amend once. If you
are D, can amend within 20 says of service. Otherwise need leave to amend
from the court.
1. Leave shall be given freely when justice so requires
2. Looking for evidence of bad faith
3. In the end, if the prejudice on the Π is not great enough to warrant
disallowing amendment by the Δ, if will be granted (and vice versa)
4. Fairness to the other party (during discovery = OK)
B. 15c: relation back, plaintiff can amend but must relate back to claim, courts will
really stretch. We want folks to bring
1. if SOL has run, does not matter because it relates back
2. but can’t bring in new action where SOL has run.
DISCOVERY
I. SCOPE OF DISCOVERY
A. Goals of discovery
1. Parties’ attempt to discover the underlying facts on which lawsuit is based
2. Sharpens issues of dispute
3. Develops full factual information so there are no surprises at trial
4. Promote settlement
B. Risks
1. collateral purpose
2. non litigation use of information
3. drowning folks in discovery requests
4. harassment
C. Devices:
1. Initial disclosure - identify people and documents that have relevant stuff.,
later on in the case, have to identify what experts you will use at trial
2. depositions
3. interrogatories
4. request for admissions
5. requests for production of documents
6. physical or mental examination.
D. Rule 26(b)(1) – general rule governing discovery, what can be discovered?
a. Anything relevant to the claim or defense of any party regardless if
would be permissible as admissible proof
 Some courts say need to be admissible.
b. “Does the info. sought make a material fact more or less likely to be
true?”
 Davis: discoverable info is not limited to that which would be
admissible at trial. Info is relevant if it appears “reasonably
calculated to lead to the discovery of admissible evidence”
o
 Steffan: The underlying substantive law determines how broad
the scope of discovery will be.
E. Judge involvement: late in the process
1. Parties are left to work out discovery on their own unless there is a dispute.
Early conference of parties to determine discovery, present plan to court
2. Parties must go to the court and request a motion to compel discovery OR a
protective order saying they don’t have to produce the information
a. District courts have enormous discretion on discovery matters
b. As a practical matter, there is very little review of discovery orders
on appeal
c. Rule 26(d) – an order merely postponing a particular discovery
request should be granted more freely than one denying the request
altogether
II. LIMITS ON DISCOVERY
A. Rule 26(b)(2) – limits on discovery for three reasons
1. Unreasonably Cumulative: duplicative, obtainable from some other source
that is more convenient, less burdensome, or less expensive
2. Opportunity: The party seeking discovery has had ample opportunity by
discovery to obtain the information sought
3. Burden: The burden or expense outweighs the likely benefit (party
resources, importance of issue at stake, amount in controversy, needs of
case, importance of discovery in resolving issue)
B. Basis for Protective Order: (rule 26(c))
1. Court can issue protective order to protect party from annoyance,
harassment, undue burden, oppression. Order can:
a. Order no disclosure
b. Discovery can be had at certain times and place
c. Seal a deposition, only to be opened by court
d. Trade secret info not revealed
e. Parties simultaneously file documents
f. Limit numbers of person for discovery
g. Limit scope to certain matters
2. Marese: Ortho association ordering all membership info
a. A motion under Rule 26(c) to limit discovery requires the district
judge to compare the hardships to the parties – balancing test (think
about the public good vs. the private interests)
 Any tools to reconcile the issue without protective order? i.e. in
camera review, redaction of sensitive info
C. Attorney-client privilege: communications are protected, not the underlying
facts
1. Rationale: necessary to promote full and frank disclosure to lawyer by the
defendant. Encourage exchange of advice, and accurate information.
a. Pro defendant: facilitates zone of silence particularly if you are
representing a corporation.
2. Requirements:
a. Must be legal advice sought
b. Must be from a person you reasonably believe is a lawyer
c. Communications relating to legal advice
d. Made in confidence
3. AC and Corporations: Upjohn
a. Attorney-client privilege applies when the client is a corporation
b. Control group test (rejected by SCOTUS): if the EE making the
communication is in a position to control or take substantial part in a
decision about any action which the corporation may take upon the
advice of the attorney, then he is the corporation
c. Modified corporation test: The communications concerned matters
within the scope of the EE’s corporate duties and the EE was
sufficiently aware that he was being questioned in order that the
corporation could obtain legal advice (no clear rule)
 Factors to consider
o In requesting information from the start, was it clear to
people this information was sought in relation to legal
advice
o Could not get info from top managers?
o Could information another way? i.e deposition, higher cost
but preserve privilege
4. Hypo:
a. Plaintiff, pedestrian, is hit by a delivery truck who is employed by
ABC company. Hear about accident, VP for HR finds the driver and
interviews him about what happened.
 not protected because VP not an attorney. TO protect intercorporate communications, must be an attorney or someone
acting in that capacity.
b. Remedy that issue, and hire legal counsel to interview the driver.
 yes, protected. Outside counsel interviewing corporate
employees. (is it done in a public place? is there effort to keep
this confidential?)
c. Outside counsel also interviews a receptionist, who happens to have
been taking smoke break and watched the accident.
 maybe not, because she was not acting within the scope of her
employment. She is like any bystander on the street
5. Notes: Privilege operates despite the relevance of the information.
Absolute protection, regardless of opposing sides needs. But privilege can
be waived. WP is not absolute protection.
D. Work-product privilege: Rule 26(b)(3), Hickman
1. Test:
a. Plaintiff must show substantial need of materials and inability
without undue hardship to obtain materials
b. Interpreted to be applied narrowly
c. Burden on plaintiff to show adequate reason
2. Limits:
a. Does not extend to information which an attorney secures from a
witness when no litigation is foreseen.
b. Does not extend to information hidden in attorney filed and essential
to preparation of a case.
c. Does not extend where the witnesses are no longer available or can
be reached only with difficulty
3. Rationale:
a. Underlying notion is to protect the mental impressions and ideas of
the attorney. Also to protect his efforts, needs some degree of privacy
b. Unlike AC it protects materials gathered from third parties
RESOLUTION WITHOUT TRIAL
I. MOTION
1. Rule 12(b)(6): failure to state a claim upon which relief can be granted
**ON THE MERITS**
2. Rule 12(b)(1)-(5)&(7): lack of SMJ, lack of PJ, improper venue, insufficient
process, insufficient service of process, and failure to join a party under
Rule 19
II. DEFAULT JUDGMENT (Rule 55)
A. Hear nothing from the defendant, default judgment for plaintiff. Usually
dismissed without predjuice, not no the merits.
B. Plaintiff still must prove entitled to damages
III. INVOLUNTARY DISMISSAL (rule 41b)
A. Occurs if plaintiff not moving forward with the case, no clear standard- judges
discretion. Treated as a bar to P from refilling claim
1. court very reluctant to use.
2. Exception: involuntary dismissals for lack of jurisdiction, improper venue,
or failure to join a party are NOT to be treated as decisions on the merits
IV. DISMISSAL (rule 41a)
A. Plaintiff can dismiss without permission before the answer is filed, need court
order after that.
B. Voluntary dismissal does not bar suit, you have one more shot.
C. Why? Cold feet, settlement, need more time, move jurisdiction
V. SETTLEMENT
A. Private contract between parties: no court involvement. If someone breaks
settlement, opposing party initiates an breach of contract claim.
1. defendant generally wants dismissal with prejudice (can’t refile)
2. no public record of the settlement
B. Consent Judgment: court imprints its approval. Court has power to enforce the
terms of the settlement
1. class actions, minors and incompetents have to be settled this way
C. Are settlements substantive?
1. parties settle for reasons rather than substance (money, media, etc)
2. Pro settlement: cost efficient, both parties get what the want, may be better
off with settlement (not all or nothing)
3. Anti settlement: not always equal bargaining power, secretive settlements
bar important information (private contracts)
D. Court can require settlement and if you don’t participate in meaning, court can
sanction you.
E. Kalinauskas
1. The secrecy of a settlement agreement and the contractual rights of the
parties thereunder deserve court protection
2. BUT the courts must carefully police the circumstances under which
litigants seek to protect their interests while concealing legitimate areas of
public concern. The concern grows more pressing as individuals are harmed
by identical or similar action
3. When the confidentiality agreement in question is part of a case which has
concluded before the filing of discovery motions in the current case,
intervention in the previous case and modification of the confidentiality
agreement is NOT required (in other words: the judge is free to disregard
the agreement and order discovery of its facts)
VI. MEDIATION/ARBITRATION
A. Mediation: attempt to settle claim, non binding
B. Arbitration: binding adjudication on the merits
1. Arbitration v. Trial
a. permits parties to design their own procedure
b. ensures decision makers experience in the field
c. faster, cheaper more private
d. you can control the substantive law
2. 1998: Congress passed a law requiring federal judges to encourage ADR in
every case – will be discussed at the initial meeting. Allows enforcement
by the court if it is reasonable.
3. Nick Morgan Foods
a. Referral to ADR does not mandate settlement, it only mandates good
faith participation in the ADR process
b. Good faith participation
 includes providing the neutral with a mediation memo
 requires the presence of a corporate representative with authority
to settle
o Availability by telephone of a corporate representative with
authority to settle is NOT sufficient because the absent
decision-maker does not have the full benefit of the ADR
proceedings
o If someone with authority to settle is NOT present, then
one party is taking advantage of the negotiation process by
getting information about the other side’s position without
giving up any information
4. If a party does NOT want to participate in ADR, options are:
a. Challenge the court order (court orders are NOT optional to comply
with!)
b. Indicate ahead of time that you don’t plan to participate fully in the
ADR
c. It’s an issue within the discretion of the judge – the judge is free to
not require ADR in cases where it won’t be helpful
5. Arbitration clauses in employment contracts:
a. Court will grant no consideration (Floss)
b. Less likely to grant unconscionable contract (Lyster)
c. Courts particularly wary of pro-employer clauses that make
defendant pay large costs, allow plaintiff to choose company, etc…
VII.
SUMMARY JUDGMENT (rule 56(c)
A. Standard
1. no genuine issue of material fact
a. material fact is any fact that will make a difference in the outcome
b. genuine issue : Can’t just disagree, must be enough evidence for a
reasonable trier of fact to conclude that x was true or y was true the
genuine issue
c. If there is enough evidence that a reasonable trier of fact would find
for the moving party, then there are no issues of genuine material fact
(we don’t know anymore information, you gave us all we needed to
know)
2. moving party entitled to judgment as a matter of law
3. Procedure
a. Defendant can bring motion any time
b. P bring motion within 20 days of complaint or after MSJ by D
c. Rule 56(c) – only allows summary judgment after time for adequate
discovery
B. Burden of proof
1. if moving party has bop on issue raised by the motion, proper to grant only
if the jury could not reasonably disbelieve moving parties evidence
2. If moving party does not have burden of proof, appropriate if opposing
party fails to present evidence for a reasonable jury to find for him
3. Celotex::
a. Show affirmatively that non-moving party can’t prove an element, or
you can just prove that they don’t have enough evidence to prove
their claim (second part expands SJ)
C. Considerations
1. all reasonable inferences indulged in favor of opposing party
2. court may not weight the evidence and decide who is more persuasive
D. 12(b)(6) v. 56(c):
1. 12b6: admitting all facts are true, tests sufficiency of the pleadings (failure
to state a claim upon which relief can be granted… not about actually
happened in the case – did you state something upon which legal relief can
be granted. ) as they are written, tests sufficiency of the allegations.
2. 56c: Unlike pleading motions, summary judgment allows court to look at
sufficiency of the evidence. Looking at what actually happened in the
transaction/occurrence, unlike 12b6
E. Witness credibility (Lundeen)
1. Rule 56(e): Supporting affidavits must be based on personal knowledge, not
hearsay. When an affidavit has been filed and is supported, a party must
respond with specific facts showing a genuine issue of material fact
a. If witness can not be impeached or additional information can be
gained at trial valuable to P: SJ is properly granted.
 Can not force a trial merely to cross examine a witness
 Parties have the right to cross-examine in the deposition phase
b. The right to use depositions for discovery does NOT mean that they
are to supplant the right to call and examine the adverse party before
the jury (jury gets to decide credibility)
c. A party opposed to summary judgment based upon affidavits must
assume some initiative in showing that a factual issue actually exist
 Any little bit of fact that could case some doubt on the story
would possibly be enough to stop summary judgment (enough to
warrant a jury hearing the facts and deciding for themselves)
F. Notes (Cross)
1. Summary judgment is particularly inappropriate where the inferences which
the parties seek to have drawn deal with questions of motive, intent, and
subjective feelings and reactions
2. Bare allegations of the pleadings, unsupported by specific evidentiary data,
will ordinarily not defeat a motion for summary judgment
a. NOTE: if summary judgment is more liberally granted, it tends to put
more pressure on the discovery process, forcing parties to reveal
more in pretrial
RIGHT TO JURY TRIAL
I. RIGHT TO A JURY
A. Did this right exist in 1791? If yes, was it hear in equity or legal court
B. If no, is there an analogous claims to this and what is the remedy sough? Terry
1. Substitution remedies: Jury right
a. Compensatory, liquidated and punitive damages
b. Replevin, ejectment, writ of mandamus, habeas corpus
2. Specific remedies: no jury right
a. Injunction, constructive trust, reformation and recession of a K,
accounting, quiet title, restitution damages.
3. Declaratory relief: always a jury
C. Notes:
1. Whenever you have a legal claim, even when joined to an equitable one,
jury trial firght always attaches. Even if legal claim a counter claim.
2. In diversity cases, state law determines the substantive dimension of the
claim, but federal law determines the right to a jury trial
D. Reviewing a denial
1. would a directed verdict have been appropriate? Was there any for the the
trier of fact to decide differently than the judge?
II. ROLE OF THE JURY
A. Jury decides fact, judge decides law. But not always easy to define that line.
B. Court usually says when you get to the ultimate question of applying law to
facts, belongs to jury (i.e. what reasonable means) (Dobson)
C. When there is not enough evidence on either side for the jury to make a
reasonable determination of fact, the judge can take the decision away from the
jury (Ried)
III. APPROACH
A. Is there a right to a jury trial?
B. Will either party assert it?
C. If exercised, who decides the issues?
IV. JUDGMENT AS A MATTER OF LAW (directed verdict, JNOV)
A. Basics:
1. Standard: FRCP rule 50((a)(1) – no legally sufficiency evidentiary basis for
a reasonable jurer to rule in their favor.
2. Effect: takes case away from jury, if no rational jury could find it, forget
about the hullabaloo.
3. When: Can make a JML any time after opposing party has made their case,
can renew after verdict.
a. Party waives their right to JML after closing statements and more
importantly after verdict (7th Amend., can’t try facts after jury has)
B. Directed verdict v. JNOV
1. When party moves for DV, jury has sat through whole trial, don’t want to
take it away from them, if it is so one-sided let the jury decide it and judge
can overturn with a JNOV
2. If close call, judge prefer a JNOV, because reversal of DV means a whole
new trial, reversal of a JNOV simply reinstatement of verdict.
C. JML v. Summary Judgment v. pleading motion (12b6)
1. Pleading motion: brought before trial, often before answer. Court can not
look at evidentiary material, basis for decision is the pleading.
2. Summary judgment: Brought before trial, court can look at evidentiary
hearing. Courts look to pretrial written submissions (depos, affs and
documents)
a. Standard really the same for SJ and JML
b. SJ saying nothing to have trial about, JML says nothing for jury to
deliberate about
3. JML: Brought usually at the close of trial and renewed after the verdict,
court can look at evidentiary material, and bases decision on life testimony
and other evidence presented during trial.
D. Evidence:
1. All inferences in favor of non moving party and un-controverted evidence
from the moving party.
2. not up to the judge to decide if a witness is credible, that is a jury function.
a. But in close cases, granting of JML depends on judge’s opinion of
the case.
V. NEW TRIALS
A. Rule 59: party or court can move for a new trial, does not tell us the appropriate
grounds. Must happen w/i 10 days of judgment
1. Common law reasons: procedural error, verdict against weight of the
evidence, jury misconduct, erroneous jury instructions
B. Rationale: protect right to a jury trial by granting new trial not tainted by bad
evidence or procedure, etc…
C. Process
1. Must be within ascertainable legal standards.
2. New trial is somewhere between a JNOV and judges impositions of her
opinion of the case. If so one sided, JNOV maybe appropriate, but new trial
relatively lower stakes because it does not give a final judgment, just a new
trial.
ISSUE/CLAIM PRECLUSION
I. CLAIM PRECLUSION
A. General (Heaney)
1. Res judicata: precludes parties and privies from re-litigating any claim
actually litigated to a final judgment on the merits in the first suit as well as
any claim that should have been litigated in the first suit
2. All claims for relief which are based upon the same “underlying
transaction” should ordinarily be litigated in a single action. (flexible defo)
3. Old rule precludes same cause of action, now rule is same
transaction/occurrence (broad preclusion to encourage efficient and
consistency)
a. What is transaction: time, space, origin and motivation
4. Usually does not bind third party unless in privity.
B. Process to determine claim preclusion on claim not actually raised in prior
litigation (Heaney)
1. Could moving party have brought claim for damages in first suit?
2. Should he have brought the claim in the first suit?
a. Balance between efficiency and societies interest in providing a
forum for just and responsive adjudication.
b. In Heaney court says no preclusion because as a matter of efficiency
mandamus are supposed to be speedy (we don’t want to add a
burdensome claim on that)
C. How to raise?
1. inappropriate to raise in a 12(b)(6) because only looking at complaint, and P
is not going to mention past suit
2. Raise it in summary judgment motion.
D. Preclusion of defendants claims
1. Rule 13: compulsory counter claim that an opposing party must bring if it
arises out of the same t/o with the lawsuit already filed. Must put in your
pleadings or it is precluded from separate litigation.
2. Policy: defendants can’t hold back on defense and wait on judgment then
briing separate suit.
a. Exceptions: (Martino) if prior lawsuit was quickly resolved, no issue
to raise counterclaim and we don’t run risk of inconsistency, then we
will allow new claim.
E. Preclusion due to prior case
1. Rule 41: involuntary dismissals although on the merits will not always be
considered precluded. (Gargallo, Semtek)
2. Assign preclusive effects when:
a. Party misbehaved and want to give teeth to sanctions
b. Considered the case and decided on the merits
 Full trial: yes
 Directed verdict: yes
 Summary judgment: yes
 12(b)(6): some controversy. Depends if dismissed for substance
or procedure. If party gets leave to amend and dismissed 2nd
time you are precluded.
3. Jurisdiction (Semtek)
a. Facts: CA rule that dismissal on SOL does not extinguish substantive
rights to file in another state. 41(b) says it does (essentially). Sub
right not barred in suit in CO, see below.
b. When sitting in diversity: Fed follow the same claim preclusion
rules as that state’s court would have, and their diversity decisions
should have the same claim preclusive effect as a state court decision
would have
c. RULE: the claim preclusive effect of a judgment is determined by
the laws of the forum where the decision was rendered
4. Validity of judgment: claim preclusion usually requires judgment valid, but
exceptions.
a. When prior case is litigated, and state court never had jurisdiction
(exclusive federal claim), usually going to give greater weight to
finality and not allow collateral attack. Gargallo
II. ISSUE PRECLUSION
A. Test:
1. Issue of fact or law is
2. actually litigated triggered and determined by
3. a valid and final judgment
4. determination essential to the judgment
a. Parks: railroad case where brings second suit for negligence. Not
sure if he was ruled against for no damages or con neg. Don’t know
if con neg was essential. So no issue preclusion.
b. Policy:
 Want issue to have been fully and aggressively litigated
 Worred about incentives, if not essential may not have been
proper incentive to litigate fully and get the just outcome.
 Trials are about dispute resolution and truth finding, we want
only to use decisions created from truth finding.
 Unlike science, as long as procedure is fair we view that
outcome as good enough to resolve the issue regardless of truth.
c. Restatements: if two ways to reach a judgment (like no damages or
contributorily negligent), neither one will be preclusive. If both
appealed and both affirmed, then preclusive.
D. Privity
1. Moving away from requirement of same parties, and possibility of adding a
third defendant in privity (benson and ford)
2. Definition: in privity if your interests are so aligned that it is fair to preclude
them from the previous suit.
a. Privity if:
b. Non party has succeeded party’s interest in property
c. Non party controlled the original suit
 Must have choice of theories advanced, have actual control, not
enough to have same attorney, facts, witness, your finance
litigation or appear as amicus curiae
 Sole shareholder over corporation, parent corporation
d. Non party whose interest were adequately represented
 Virtual representation
 Demands existence of express or implied legal relationship
(guardians on behalf of wards, trustee and beneficiary)
3. Note: no requirement to intervene or join pending litigation that presents a
question effecting your rights. You are entitled to your day in court, don’t
want to force folks to follow what other’s did.
E. Non-mutual collateral estoppel
1. Generally a non party is not bound, such person has not had their day in court
and as a matter of due process can not be denied and interest without one
2. Offensive collateral estoppel: plaintiff using a prior finding against the same
defendant in a prior lawsuit.
3. Parklane: suit 1, SEC sues Parklane for false statements. Suit 2 shareholders
sue, can use judgment from first suit against D.
4. Defensive collateral estoppel: defendant attempting to use a prior finding
against a new plaintiff (rarely works)
a. More often granted when same P. P suing in two suits for same
action against D1 and D2. D2 can use D1 win.
b. More often granted where P could have easily joined in suit.
5. Fairness: How much confidence in the first lawsuit
a. Any reason to expect that although fair then not fair now (not proper
incentives)
b. Different laws in different states?
c. Judgment essential to the claims?
d. Are there other inconsistent judgments?
6. Efficiency – offensive collateral estoppel may decrease efficiency!
a. Π’s incentives: encourages the Π who could have joined the first
lawsuit to wait and see how the judgment turns out. If the 1st Π wins
then the 2nd Π will bring a later suit and try to get an issue preclusion
automatic judgment
b. Δ’s incentives: encourages Δs to litigate much more vigorously (may
be on the hook for later suits if they don’t) – a suit that may have
settled out of court will take more resources and time
JOINDER
II. Joinder: determine scope of litigation. Always ask for joinder and smj.
A. Claim joinder by plaintiff: easy. Rule 18a. Plaintiff can join any claims she has
against the defendant, do not have to be related at all in law or transaction. You
do not have to put them all in.
1. Why join?
a. Think about claim preclusion later
b. Strategy of brining multiple claims against D
B. Claim joinder by the defendant: Defendant wants to assert a claim.
1. counter claim: governed by FRCP 13a and 13b. A counter claim is a claim
against an opposing party. . Someone who has already sued you. D back
against the P. Filed with your answer. Two types:
a. compulsory counterclaim: 13aD must assert that claim in this case or
it is waived. Can’t sue in a separate case. TEST
 Is there any logical relation between the claim and the
counterclaim? (from the same “aggregate of operative facts)
o if the two claims were tried independently, would they
require many of the same witnesses and evidence? (great
lakes)
o Are the issue of law raised by the claim and counterclaim
largely the same?
o Would res judicata bar a subsequent suit on Δ’s claim
absent the compulsory counterclaim rule?
b. permissive counterclaim: 13b, does not arise out of same transaction
or occurrence. May assert that here, but you do not have to.
 The federal courts can exercise supplemental jurisdiction over
compulsory counterclaims, but there must be an independent
basis for jurisdiction over permissive counterclaims
c. Jurisdiction: P (NY) and D (FL) have accident. $100,000 claim. D
brings claim back against P for $90,000. P claim belongs in federal
court, diversity. Counter claim? Yes, it also invokes diversity. No
need for supplemental jurisdiction
 Same hypo, except D counter-claim is for $45,000. Original
claim gets case into federal court. Counter claim does not
invoke diversity, so we need supplemental jurisdiction. Does
1367a grant sup. Juris.? Yes, it meets Gibbs (a compulsory
counter claim always meets that). Does 1367b take away sup.
juris? No this is a claim by the defendant.
d. Counter claim v. affirmative defense: you can’t recover on an
affirmative defense
2. cross claim: rule 13(g)claim against a co-party, must arise from same
transaction or occurrence as the underlying case. Not compulsory, no such
thing (only compulsory claim in the world is counter claim).
a. Three way collision between A B and C. A(CA) is plaintiff sues B
(AZ) and C (AZ). Amount in controversy over $100, 000. SMJ
invoked by original claim. What claims do you bring for C
 compulsory counter claim against A, exceeds $75,000, so yes
SMJ, invokes diversity, no talk of supplemental jurisdiction
 C may file cross claim against B: no diversity in cross claim, so
need supplemental jurisdiction here. Same transaction or
occurrence, meets Gibbs. No exception under 1367b because
defendant claim. Only kills supplemental jurisdiction on claims
by plaintiffs.
C. Joinder of co-plaintiffs and co-defendants: Rule 20a. May join as co plaintiffs
or co-defendants if (1) claims arise out of same t/o, (2) they raise at least one
common question.
1. Jurisdiction: plaintiff structures it in that way, with all these plaintiffs and
defendants, can it get into federal court.
a. If plaintiff is joining party and diversity case, no diversity if those
joined destroy complete diversity under
 Rule 14: plaintiff joining parties for defense of counterclaim
 Rule 19: joinder for folks needed for just adjudication
 Rule 20: permissive joinders (by defendant too)
 Rule 24: intervention
2. Policy: efficiency and consistency
a. But cuts the other way, rune the risk of unmanageable, bias,
confusing suits.
3. Why join plaintiffs?
a. Force in numbers for financial reasons and strategy
b. Prevention of defensive collateral estoppel, although rarely allowed
4. Mosley: ten employees suing GM for title VII discrimination, way different
kinds of claims.
a. Rule 20(b) and Rule 42(b) vests in the district court the discretion to
order separate trials in order to prevent delay or prejudice
b. Can be a flexible meaning of same transaction, terefore the impulse
is towards the broadest possible joinder of parties.
c. The rule does NOT require that all questions of law and fact raised
by the dispute be common, just that there be ONE
d. The fact that individual class members may have suffered different
effects from the acts of the Δ (and therefore may be seeking different
remedies) is immaterial for purposes of joinder (the court can sever
cases at the damage award phase)
D. Necessary and indispensable parties: who must be joined? Rule 19. Issue has to
be obvious, P structures a case as to leave a party out. P sues D and leaves out
A (absentee), sometimes a court will grab A and force him into the pending
case. Why? Because she is necessary.
1. 3 part analysis:
a. Is A necessary? Rule 19a. Yes if she meets any of these tests (address
all tests)
 19(a)(1): without A, the court can not accord complete relief.
Efficiency policy, no duplicative litigation down the road
 19(a)(2)(1): A’s interest may be harmed if she is not joined.
 19a2(2): A’s interest may subject the defendant to multiple or
inconsistent obligations.
b. Is joinder of A feasible? Boils down to PJ and SMJ. Is there PJ?
Would your coming into the case destroy diversity?
c. If they can’t be joined, are they so connected that the lawsuit should
not proceed in their absence?
 will there be prejudice to the unjoined party after the judgment?
 Can the prejudice be lessened by shaping the relief differently?
 Will relief be adequate in this person’s absence?
 Will plaintiff have adequate remedy if action dismissed for
nonjoinder.
2. Notes
a. It is not necessary for all joint tortfeasors to be named as Δs in a
single lawsuit. A tortfeasor with the usual “joint-and-several”
liability is merely a permissive party in an action against another
with like liability
b. 100 miles exception to the fact that state and federal courts have the
same jurisdiction. If defendant is joined by rule 14 or 19 and is
within 100 miles, then a summons can be served. (we really want
necessary parties in the suit if possible)
3. Policy: not about judicial economy, about just outcome.
E. Impleader: Rule 14. P sues D, D then sues another D. This is called
impleading. The defendant becomes a third party plaintiff and the new
defendant becomes a third party defendant .
1. impleader v. cross claim – cross claim involves two parties already in the
lawsuit. 2 defendants suing each other
2. test: Third party defendant must be secondarily liable
a. Liability of t.p.d. is secondary if it turns on liability of original
defendant. Here, contractor is liable only if firm is found liable.
b. Liability of the two are linked, they will rise and fall together.
3. Jurisdiction: say supplemental jurisdiction, sentence or two about that.
4. Note: If the theory of the third party plaintiff is to point the finger at some
one else, that is not basis for 14a impleading. If the third party is saying, if
I did do it, someone else is responsible then that is appropriate time to use
14a.
a. How do you know if someone is secondary or derivative liability?
b. turns on legal relationship of third party plaintiff and third party
defendant. Turns on the substantives law. Like in product liability
there is one between manufacturer and a dealer. And between
insurer and a defendant sued.
5. Jurisdiction: need to look at personal jurisdiction of tpd, no worried about
smj.
6. Why bother?
a. Amount of recovery might be different if you try to sue the tpd
separately
b. Efficiency and consistency, second jury might find tpd not negligent.
c. BUT TPP can only recover from TPD what the plaintiff is seeking.
7. Why narrower test for impleader than cross claim
a. We are more weary of bringing a whole new party.
b. Party autonomy, allow plaintiff to sue only who they want to.
CLASS ACTION
I. DEFINITION
A. Representative party suing on behalf of a class, seeking relief on behalf of a
class. The unnamed parties rely on the named plaintiffs to sue on their behalf.
Must get courts approval to certify a class.
II. POLICY
A. Why do you have class action lawsuits?
1. efficiency
2. consistency
3. provide a remedy for a claim that is not big enough for an individual to
litigate themselves. (Like when you get .80 back from a class action suit on
your credit card)
B. What are the risks of class actions?
1. end up with suits that would not have been otherwise brought
2. time and cost of trial can be huge
3. risk that you homogenize a lot of claims that should not be.
C. Why bring a class action?
1. Avoids issues of moontess - If you bring an individual suit, sometimes the
individual interest is over before the law suit is over.
III. REQUIREMENTS
A. Rule 23(a)
1. Numerosity
a. No answer to how much is enough. Should be so numerous that
joinder of all members is impractical.
2. Commonality – requirement of cohesiveness. Class can not be all claims
against a defendant, must be commonality to the claims.
a. not absence of individual one, difference in damages will no defeat
certification.
3. Typicality – class rep will be controlling the litigation, and in order to do so
should have the same incentives and motivations of the average class
member
4. Adequacy- requires class reps and counsel be prepared to provide fair and
adequate representation to the class. Courts look to counsel’s experience,
knowledge of applicable law, and resources.
B. Rule 23 (b) – classification: this rule controls the type of class action.
Classification makes a difference in the litigation because it changes
notification req’ts and what relief can be awarded.
1. (b)(1) - mass production of rule 19. Allowance of class actions where it is
necessary to avoid creating a risk of incompatible standards of conduct for
the party opposing the class or a judgment for some class members that
threaten the interests of others.
a. Causey: Mass plane crash. must be inconsistent obligations of
conduct, not just damages
2. (b)(2)- provides class actions where the party opposing the class has acted
or refused to act on grounds discriminatory to the class.
a. Must be primarily or exclusively about injunctive or declaratory
relief.
b. Superior res judicata effect (binding on all class members, without
notice)
3. (b)(3) - small claims and mass torts.
a. Common question must predominate
b. Also requires that you show that the class action is the superior
method, how?
 Interest of members in individually controlling the litigation
o i.e. is this about wrongful death or $1 overpaid jeans?
 Extent that class members have already commenced litigation
 Difficulties likely to be incurred in management of the class
action
o Conflicting laws?
o What state should it be brought in?
o Too large or over inclusive, etc..
c. Requires that you notify all class members of suit (pendancy) and
dismissal or settlement and give them an opportunity to be heard
 Class members are allowed to opt out. If not, their claims can be
precluded.
 Court must approve settlements and dismissals.
o Want a regulatory body involved, to protect unnamed class
members at this point, because class rep gunning for
settlement.
 Why no requirements in b1 or b2?
o Whole point is injunctive relief, no need for opting out.
o Often to hard to identify class b1 and b2, not going to
require notice.
o B1 and b2 usually more homogenous.
o Res judicata in b1 and b2 not yet litgated.
C. Notes:
1. Courts can conditianlly certify classes (Castano smoking case)
2. Cannot peek ahead to the merits when deciding class certification,
prejudicial to the D
3. Settling and bring motion at the same time (Amchem – asbestos cases)
a. Court going to scrutinize settlements more carefully because no
litigation to correct class
b. Superiority of class action: not really issue here because not
manageability issues of the litigation, already settled.
c. Rule 23 requires that attorneys reveal other related settlements that
will effect the court decision.
4. Immature tort v. mature tort
a. With mature tort like asbestos, is this something better for legislature
(then you have $$$ paid to lobbyists)
b. Certification of an immature tort (like Castano) results in a higher
than normal risk that the class action may NOT be superior to
individual adjudication
IV. JURISDICTION
A. CAFA 2005 – greatly increased the number of class actions in federal court and
decreased forum shopping.
1. Diversity prior: had to be complete diversity of named class reps and
named defendants. All class members had to have claims exceeding
$75,000.
a. So lawyers only named class reps with claims less than $75,000 and
could stay in state court.
2. Diversity post: If any member of the class is diverse from any defendant and
aggregate claim exceeds $5million, you can get into federal court.
a. Act also got rid of requirement that defendant not be from state to
remove
3. Exceptions: that are exceptions that are hard to interpret, so going to be
difficult.
V. CONSTITUTIONAL CONSIDERATIONS
A. Preclusive effects on unnamed class members
1. Members represented in a class action are bound by the decision (res
judicata)
2. Absent class members may collaterally attack the adequacy of
representation they received in a prior class suit – deprivation of duce
process
a. Require notice and opportunity to be heard. Class action do not
necessarily violate due process, but we need safeguards.
b. If you are going to bind an absent class, has to be adequate
representation – vague standard.
3. Hansberry: racially restrictive covenant where D attempted to preclude him
because he was part of a previous class. Court said, no way, you were not
adequately represented.
B. PJ over unnamed members without contact with state
1. A forum State CAN exercise juris. over the claim of an absent class-action
Π, even though that Π may not possess the minimum contacts with the
State, IF:
a. The Π must receive notice and an opportunity to be heard
b. The notice must be the best practicable, reasonably calculated to
appraise parties of the pendency of the action and afford them an
opportunity to present objections
c. Don’t need notice of opt in, just need to provide option to opt out
d. Why are we lenient hear?
 Class member is already adequately represented
 Class member not likely subject to liability
 Have opportunity to opt out
 Procedures set up to protect them (court must approve settlement
and will give them notice of one)