Civ Pro II Outline
Pleadings
I.
Pleadings
a. Function:
i. Give NOTICE re nature of claims and defenses
ii. ELMINATE sham or insufficient claims or defenses
1. Protect litigants against harassing litigation and conserve judicial resources
iii. Narrow the ISSUE, efficiently focus the trier’s attention
iv. GUIDE the conduct of the case; define scope of pretrial preparation and evidentiary relevant at
trial
v. Supply RECORD for judgment permitting application of res judicata
b. CL formalistic pleading/writ writ issued on given facts/narrow issues
i. Reflective of efficiency concerns and minimal discovery available
th
c. 19 Cent code/fact pleading  operative facts constitute COA/legal theory
i. Primary functions = NOTICE and GUIDANCE
d. FRCP 8: Modern notice pleading
i. Old notice pleading historical was not too difficult  then Twombly & Iqbal (greater detail in
P’s pleading)
ii. Primary fx = NOTICE; Secondary fx = ELIMINATE bogus claims
iii. Relief? ***FRCP 54(c): in default judgment, P will receive ONLY what is demanded in
complaint
e. FRCP 7(a): Types of Pleadings: Form of Motions and Other Papers:
1. Complaint;
2. Answer to a complaint;
3. Answer to a counter claim designated as a counterclaim;
4. Answer to a crossclaim;
5. Third-party complaint;
6. Answer to a third-party complaint; and
7. Reply to an answer (court ordered)
ii. Pleadings can be amended, motions CANNOT be amended
f. Special Rules:
i. FRCP 9(b): Must plead fraud or civil rights with more detail, “particularity” special rule
prevents BS
g. FRCP 10 – Rules of Pleadings:
i. All pleadings MUST have:
 (a) caption with court’s name, title, file number and rule 7(a) pleading type
 (b) separate, clear, numbered
 (c) can reference parts of other pleadings
a. local rules may require additional items!
h. General Rules for Attorney, FRCP 11 – DO Stuff or Get Sanctioned – to curb abuses and deter BS
i. Apply to ALL DOCUMENTS except for discovery
ii. Avoiding frivolous lawsuit, bedrock of professional responsibility
iii. FRCP 11(a): Signature: Every pleading, motion, doc must be signed by attorney (NOT
discovery)
iv. FRCP 11(b): By presenting to the court…a pleading, motion, document, atty/pro per is
certifying to the best of his knowledge and belief formed after reasonable inquiry that:
1. It is NOT for an improper purpose like harassment or delay;
2. Contentions are warranted by existing law or by a non-frivolous argument for the
extension, change, or reversal of existing law;
a. You may argue for reversal of current law if you have a colorable argument
for it, do NOT always have right – must be credible
b. IF VIOLATED . . . monetary damages are NOT imposed (11(c)(5)(a))
3. Allegations/factual contentions have evidentiary support or are likely to have it
after further investigation, “inflating the value of your claim”; AND
4. Denials of factual contentions are warranted by evidence, or are reasonably based
on lack of information
a. Simply by signing you have agreed to all 4 things
v. FRCP 11(c): Sanctions, made to deter
1. After notice and a reasonable opportunity to respond, the court may impose an
appropriate sanction.
2. Motion for sanctions must be made separately from any other motion AND
a. Must describe the specific conduct violating Rule 11; AND
b. Must be served under Rule 5;
c. But NOT filed if the challenged paper is withdrawn or appropriately corrected
within 21 days after service or another time set by the court;
d. Court may award atty fees; OR
3. On the court’s initiative, it may order attorney to show cause why a sanction should
NOT be imposed
 FRCP 11(c)(5)(A): court must not impose monetary sanction against a
REPRESENTED party for violating 11(b)(2)
 Note: Court may BOTH dismiss the complaint AND award monetary sanctions for a
Rule 11 violation (Walker v. Norwest)  note: judgment on the merits for res judicata
vi. FRCP 11(d): Court MAY NOT award sanctions for discovery abuses.
vii. Procedural Points:
1. Certification every time you advocate a position from that document, continuing
certification (a year from now advocate a position from that same doc – you are
certified)
2. Sanctions are discretionary – NOT required, up to the court
3. Motion for sanctions cannot be filed right away, must be drafted, served on the other
party, and give the party 21 days to fix the problem, safe harbor
II.
Complaint/Initial Pleadings
a.
FRCP 8(a): A claim, counterclaim, cross-claim, or third party claim shall contain . . .
i. 1) JURISDICTION a statement of the court’s jx (AT LEAST SMJ);
ii. 2) CLAIM a short and plain stmnt of the claim showing the pleader is entitled to relief, and
1. P must state facts sufficient for a PLAUSIBLE claim NOT just a possible claim
(Twombly/Iqbal)
iii. 3) DEMAND FOR RELIEF a demand for judgment for the relief sought, no need to specify
iv. SIGNATURE
b. NEW ERA: After Iqbal & Twombly, Short & Plain Statement MY ANALYSIS!!!
i. Plaintiff must plead facts supporting facts supporting a plausible claim so . . .
ii. Fair Notice: (use to be just notice, now both!)
1. Complaint should have sufficient information to give the defending part grounds of the
claim so the ∆ can claim defense
iii. Twiqbal – Plausibility:
1. Separate facts from legal conclusions
a. Plead the facts constituting a cause of action rather than legal conclusions
2.
3.
b. Court must ignore conclusions of law and focus on the allegations of facts
Facts support a plausible claim not just possible claim
a. More than possibility and not as high as probability
To determine plausibility: the judge uses own experience & common sense, very subjective
c.
FRCP 9: heightened pleading requirement
i. (b) requires parties to state with particularity the circumstances constituting claims of fraud or
mistake, BUT “conditions of the mind” may be alleged generally (Stradford v. Zurich)
1. Civil Rights claims also require particularity
d. Defenses/Denials in ∆’s answer FRCP 8(b)
i. FRCP 8(b)(1): (A) a party shall state in short and plain terms the party’s defenses to each
claim asserted against it; (B) a party shall admit or deny the allegations upon which the adverse
party relies
 Denial of fact must be warranted on the evidence under 11(b)(3)
ii. FRCP 8(b)(2): denial must fairly respond to the substance of the allegation
 Deny the allegation if you have info suggesting both true and false of a fact
 Should know if made reasonable investigation
iii. FRCP 8(b)(4): some allegations are true and some are not – first only designate the facts you
admit, then deny everything else
iv. FRCP 8(b)(5): if a party lacks information sufficient to form a belief, treated as denial
v. FRCP 8(b)(6): failure to deny when required = admission 
e. Affirmative Defenses FRCP 8(c):
i. 8(c)(1): List of Affirmative Defenses  Accord and satisfaction; arbitration and award;
assumption of risk; contributory neg.; duress; estoppel; failure of consideration; fraud;
illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of
frauds; SOL; and waiver
ii. Must be pled in the answer, or risk not being able to introduce evidence about the matter at
trial (note: FRCP 15 amendments)
1. Policy: notify P of Ds defenses; risk of waiver is higher where there is little discovery
during the litigation
2. Some jx automatically place the burden of persuasion on D for an affirmative defense;
and burden of production @ trial
f. Inconsistent/Alternative pleadings FRCP 8(d):
i. Must be an either or
ii. FRCP 8(d)(2): alternative claims/defenses may be pleaded (together or as separate counts);
pleading is sufficient if ANY ONE of them is sufficient
iii. FRCP 8(d)(3): separate claims/defenses may be pled, even if inconsistent, may allege different
versions of facts/claims even if they all can’t be true
 WHY is this okay?
a. Sometimes hard to figure out the case w/o discovery
b. Meant to relieve the pleader from having to make the choice among possible
versions of his claims
III.
Response: Answer or Motion
a.
b.
c.
d.
See above FRCP 8(b) & 12
Must respond within 21 days unless waived service of process
Do nothing and suffer a default judgment (FRCP 55) (see below)
Pre-Answer Motions
i. Substance of a Motion
1. Notice of Mx: when/where the mx will be heard
2. Affidavit setting out any necessary factual information
3. Memorandum of Law: explains legal basis/including Ps&As
e.
IV.
4. Request for Order: Which state w/ particularity justifying grounds for relief (FRCP
7(b)(1))
5. Proposed Order – form which a judge could sign
ii. Note: FRCP 12(g): only ONE PAM can typically be made
iii. 12(b): (1) lack of smj; (2) lack of pjx; (3) improper venue; (4) insufficiency of process; (5)
insufficiency of service of process; (6) failure to state a claim upon which relief can be granted;
(7) failure to join an indispensable party (MUST consolidate in one mx)
1. 12(h)(1): (2)-(5) waived if not raised in FIRST responsive doc
2. 12(h)(2): (6)-(7) NOT waived and can be included in the answer, later mx for
judgment on the pleadings OR at trial
3. 12(h)(3): (1) NEVER waived
iv. 12(b)(6) Motion
1. Whether the complaint has alleged directly, or by inference, a prima facie case i.e. the
basic elements of some COA; OR
2. Where D has an inherent affirmative defense (SOL, SOF, Res Judicata, Failure to
Exhaust) which does NOT require the brining in of external evidence b/c it CAN be
determined as a matter of law where complaint (on its face) is insufficient
3. Court assumes all factual allegations in complaint are true
4. Used when the party has certain ‘preliminary defenses’ to the claim i.e. defenses which
would permit a quick/cheap dismissal
a. Note: P may be given leave to AMEND the complaint thus, P might not
automatically lose the case
v. FRCP 12(e): Seek an Order for a More Definite Statement
1. If a party receives a pleading so V&A that they cannot reasonably respond, they can
make a mx requesting the judge order a “more definite statement”
a. NOT intended to ascertain more facts
2. Rare; MUST be made PRIOR to serving responsive pleading
vi. FRCP 12(f): Motion to Strike
1. Mx to remove part of a complaint that is legally insufficient
2. Party may move (prior to answering) to strike material which is “redundant,
immaterial, impertinent, or scandalous”
Serve an Answer under FRCP 12(a)
i. If ∆ opts not to make a PAM or loses the PAM, he must file an answer which sets out his
position on the Ps allegations
1. May contain admissions, denials, affirmative defenses, and claims/counterclaims/cross-claims (governed by FRCP 8(b)); a general denial to entire complaint
could prompt a FRCP 11 mx for sanctions
ii. Must be served with 21, 60, or 90 days…(FRCP 12(a)(1))
1. 21 days from personal service
2. 60 days from waiver of service under Rule 4
3. 90 days if out of US judicial district
iii. Note: answer is pushed out when ∆ files a 12(b) mx b/c if the ∆ wins the mx, the
claim/complaint is dismissed (but could be amended and re-served)
1. (FRCP 12(a)(4)): If the 12(b) is DENIED, D has 14 days from notice of ruling to
serve a responsive pleading
Reply
a. Rare  only permitted if ordered by the court (FRCP 7(a)(7))
b. Note: if the P has to respond to a counterclaim, the response aka answer
c.
V.
Note: if the D has asserted an affirmative defense, P does not have to respond…it is considered
denied under FRCP 8(b)(6)
Pleading the Elements/Contents of the Pleading
a. FRCP 8(c) affirmative defenses must be pleaded by the ∆
b. For “unusual” elements, courts look to statutes and cases; allocation of the burden of pleading depends
on efficiency, policy, and history
i. Important b/c the burden of pleading USUALLY also determines the “burden of production” at
trial i.e. gather/produce evidence
ii. Sometimes the court will make a ∆ bear the burden on a “rare” element or if the evidence is
peculiarly under the control of the ∆
iii. Burden may shift during trial if the party satisfies the initial burden by producing prima facie
evidence, the other MUST rebut it or lose
iv. Burden of persuasion (51%) will NOT shift
VI.
Judgment on the Pleadings (FRCP 12(c))
a. Rare due to scope of 12(b)s and MSJs
b. Made after the close of pleadings; based on law, not facts
i. Court assumes facts are as the non-moving party claims them to be  Ex: if D has a complete
defense OR D has no defense at all
ii. Court makes a JUDGMENT not a DISMISSAL (like a 12(b)(6))
VII.
Amending the Pleadings, Rule 15
o
o
o
o
o
“Okay, I made a mistake, quick fix”
 Relation back amendments, an amendment relates back to the date of the OG pleading
 The P has 21 days to amend, if motion filed within 21 days – then amend! If after 21 days you
have to get permission from the court
 No limit on the substantive nature of the changes that are allowed, allowed to add new
damages, change theories, recast the factual basis
Two competing philosophies:
 1) should be granted liberally
 as long as the SOL is not involved b/c do not want to base decisions on technicalities
 also depends on how far along you are in the process
 2) party should not be unduly prejudice (still open for discussion)
FRCP 15(a)(1): party may amend pleading 1 time “as a matter of course” when . . .
 15(a)(1)(A): within 21 days of serving it (NOT filing it);
 If you’re the defending party and your answer “closes the pleadings” you may amend
your answer once within 21 days after serving it
OR
 15(a)(1)(B) If the pleading is one that is due an answer or reply, 21 days after service of
opposing parties “responsive pleading”
FRCP 15(a)(2): courts are free to grant leave to amend “freely . . . when justice so requires” so long as
it does not unduly prejudice the other party
 Rules favor trying the issue on its merits rather than foreclosing the issue
 Two Competing Theories: Amendments should be liberally granted & a party should not be
unduly prejudiced
FRCP 15(b)(1): if at trial, evidence is submitted which pertains to issues not raised in the pleadings, the
party can move to amend

o
o
Court should freely permit amendment to aid in presenting the merits IF the objecting party
fails to satisfy the court that the evidence would be prejudicial…court may grant a
continuance if needed
 FRCP 15(b)(2): if such issues are tried by express or implied consent of the parties, the
pleadings shall be DEEMED to be amended “to conform to the evidence”
FRCP 15(c): Relation Back IF:
 The amended complaint, containing the new claim, will be treated as though it had been filed
w/ the OG complaint
 15(c)(1)(A) – must be within the time of SOL
 Why allow? SOL is to ensure the ∆ had notice of the claim within given period of
time, so she can adequately prepare to defend the claim  already on notice
 15(c)(1)(B) – ADDING CLAIMS, claim/defense asserted in amended pleading arose out of the
conduct, transaction/occurrence set forth in the original;
 15(c)(1)(C) – ADDING PARTIES where party or name of the party is being changed 
relation back is possible IF arises out of the same transaction AND if the party brought it
received such notice so that it will not be prejudiced AND knew/should have known of the
action but for the mistaken identity and should be done within the 90 day period of FRCP 4(m)
 Prejudice – whether there is time to conduct discovery
 Purpose – added ∆ had notice (policy of SOL is satisfied), ∆ aware to preserve
evidence & prepare a defense
FRCP 15(a)(3): Responding to an amended pleading
 Due later of 14 days after service OR original time to respond
Discovery
I.
Overview
a. Process of compelled exchange of information between parties to a lawsuit
b. 6 devices: (1) automatic disclosure, (2) request for production of docs, (3) interrogatories, (4)
depositions, (5) requests for admissions, and (6) physical or mental exams
c. Formal discovery tools v. informal investigations
i. Informal investigation may be frustrated by lack of voluntary cooperation from parties,
witnesses, or holders of documents
d. Spoliation – the duty to preserve evidence in anticipation of litigation
i. Duty to take to reasonable steps to preserves, if this is not possible, there is a duty to NOTIFY
the interested party
e. FRCP 26(f): Conference; Planning for Discovery – 21 days prior to scheduling conference is to be held
OR scheduling order is due under FRCP 16(b)
i. FRCP 26(d): cannot seek discovery until after the 26(f) conf.
f. FRCP 26(g)
i. Every discovery request, response, or objection must be (conform to Rule 11); AND
ii. Not unreasonably burdensome or expensive, given the needs of the case, prior discovery, AIC,
and importance
g. FRCP 37(c)(1): Failure to provide proper disclosures/discovery will bar party from use at trial
UNLESS the failure was “substantially justified” or “harmless”
h. Discoverable Information - Relevance (grants and limits discovery)
i. To be discoverable, information must be RELEVANT
1. Legal relevance: that the information tends to prove or disprove something that
matters i.e. element/damages
2. Proportional
ii. Policies
1. If NOT relevant, then it is wasteful of resources or an unnecessary invasion of privacy
(or both)
2. If RELEVANT, UNLESS some other policy comes into play, discovery should be
permitted in reaching a just result based on all the facts
i.
Scope:
i. FRCP 26(b)(1): relevant to any party’s claim or defense and proportional to the needs of the
case
j. Limitations, FRCP 26(b)(2)
i. Sources of Privilege
1. Policy: certain communications (atty/client; dr/pt; penitent/priest) are deemed so
socially important that they are NOT discoverable even if highly relevant
2. Although privilege blocks the source, it does not block the underlying “facts”  so,
the same evidence from another source about the same facts is admissible
ii. FRCP 26(b)(2)(B): Electronically Stored Info (ESI), puts limits if it’s hard and A LOT (undue
burden or cost)
1. On motion to compel discovery . . .party discovery sought must show the info is
unreasonably accessible b/c of undue burden, however the Court can still order the
production of discovery if the requesting party shows good cause
iii. FRCP 26(b)(3): Trial Prep, Work Product
1. UNLESS the propounding party can show:
a. “substantial need” for the materials; AND
b. Inability “without undue hardship, to obtain the substantial equivalent by other
means”
c. POLICY: prevents free loading
iv. FRCP 26(b)(4): Non-testifying expert witness
1. Exception: Unless it is (1) not available anymore AND (2) essential to the case
v. FRCP 26(b)(5): claiming trial prep = same procedure as claiming privilege 26(b)(5)
vi. FRCP 35: Medical Exams: request copy, opens door to like-written opinions you have one the
same things
1. You want something then I get something
k. Meet and Confer Obligations:
i. Rule 26(f): happens anytime you have a problem, throughout – official things under 26(f),
happens continuously
1. (f)(1): the parties must confer as soon as practicable – at least 21 days before a
scheduling conference is to be held of scheduling order is due
2. (f)(2): parties must discuss issues about preserving discoverable info and develop a
proposed discovery plan
3. (f)(3) & (4): detail what the discovery plan must entail
l. Motion to Compel:
i. If there is a fight over discovery, the R37(a)(1) requires the moving party to “confer in good
faith or attempt to confer” to resolve the dispute w/o judicial intervention (above)
1. Motion to compel granted? The party whom discovery is compelled must comply w/
the court order or face sanctions 37(b), pay reasonable expense R37(a)(5)(A)
a. Motion to compel not granted? Court may issue protective order R37(a)(5)(B)
m. Protective Order:
i. Rule 26(b)(5)(A): Claiming Privilege requires a party to (i) expressly claim privilege and (ii)
describe the “things not produced or disclosed” to a sufficient extent that your claim to
privilege can be evaluated
1. MUST show why you are claiming privilege
ii. Rule 26(c)(1): Protective Order A party resisting discovery may move after certifying a good
faith confer seek the court to protect a party from embarrassment, oppression, annoyance . . .
Payment – R26(c)(3)  R37(a)(5)
II.
Mandatory Disclosures (w/o request)
a. FRCP 26(a)
i. (1)(A) Initial Disclosures
1. Name and contact information of persons likely to have discoverable information AND
subjects of their information UNLESS use of the information would be SOLELY for
impeachment
a. This would INCLUDE non-retained experts who will testify as “fact
witnesses”
2. Copy/description by category and location of all doc, ESI, and tangible things which
support the party’s claims or defenses UNLESS the use would be SOLELY for
impeachment
a. Evidence that supports “your” side
3. Computation of each category of damages claimed by the disclosing party AND the
dox upon which that calculation is based must be available for inspection and copying
4. Insurance agreements which may be used to satisfy all/part of the judgment
ii. (1)(C) Timing for Initial Disclosures
1. Must be made 14 days after the 26(f) conference UNLESS there is a
stipulation/agreement between the parties
2. (D) Joined parties after the 26(f) conference, initial parties must make initial
disclosure 30 after being served or joined
iii. (2)(B) Disclosure of Expert Testimony
1. Identify any experts AND written report containing the opinions to be expressed and
the basis and reasons for those opinions, PLUS listings of other cases in which the
expert has been involved AND the compensation to be paid re this case  90 days
before trial
a. Note: non-retained experts must also be disclosed, but no report is required
(FRCP 26(b)(2)(C))
b. i.e. identify expert, report, CV, and fee schedule
c. Policy: because these are technical W’s, the atty’s need the extra time and
preparation for trial/cross
iv. (3) Pretrial Disclosures
1. Must be made at least 30 days prior to trial
2. Including:
a. List of trial witnesses & addresses
b. List of those whose depos will be offered
c. ID of documentary evidence and exhibits
III.
Inspection of Documents
a.
FRCP 34 (re parties) VERY COMMON
i. Request for docs, ESI, tangible things or physical inspection
ii. (a)(1) Production of Documents and Things (RFPs): Any party may request from any other
party to inspect, copy, test, or sample:
1. Any doc, including ESI, writings, drawings, graphs, charts, photos, sound recordings,
images, data (all) stored in any medium directly/for reasonable translation into usable
form;
a. ESI Tips: be specific about what you are requesting and what format, specifics
may also give rise to undue burden, spoliation issues
2. Designated tangible things
iii. (a)(2) Entry Onto Land (Site Inspection)
1. Any party may request entry upon designated land in the control of another party for
the purpose of inspection and measuring, surveying, photographing, or testing
iv. (b)(2) Timing: 30 days to respond to whether or not a doc/thing will be produced, if delivered
b. FRCP 45 (re non-parties): Subpoena/Subpoena Duces Tecum
IV.
Discovery Mechanisms
a. FRCP 30: Depositions (Oral and Written)
i. Oral Deposition
 30(a), Requirements: Party may take testimony of any person, including a party, by
deposition w/o leave of court  recorded in some way
o Witness can be ordered to bring along documents or things (subpoena, 45)
 30(b)(1): Initiating Depositions: unless leave is required, simply give reasonable
written notice to every party starting the time and place of the depo and if know the
deponent’s name and address
 Attendance may be compelled for parties or by a subpoena for non-parties Rule 45
 At the depo, an “officer” will swear in the witness and records the answers (the CSR)
state address, time, place, name, oath
 Cross-examination is permitted
 Method for recoding the testimony must be in notice of depo
 30(c)(2): Objections
o All objections to questions or conduct will be noted by the officer, but the
examination will proceed subject to objection, judge looks at later
i. EXCEPTION: Privileged info, embarrasses, annoys, bad faith
 30(a)(2): When leave is required:
o If the parties have not stipulated to the depo AND . . .
i. The depo would result in more than 10 depositions
ii. The deponent was already deposed (can only depose a person once)
OR
iii. The party seeks to take a deposition before the discovery planning
conference
o If the deponent is confined in prison
 30(b)(6): Deposing an Organization:
o Serve notice on subject matter, the organization chooses the person to be
deposed
i. Strategy Tip: It might be smarter to figure out who the best person
would be on your own (through interrogatories) and directly request
to depose them
ii. Written Deposition FRCP 30(c)(3) difference with Rule 31??
 Parties may serve written requests in a sealed envelope on the party taking the
deposition, who will transmit them to the officer, who in turn will propound the
questions of the witness and record the answers.
b. FRCP 30(d): Duration; Sanction; Termination
i. Unless otherwise stipulated or ordered by the court, the depo of any W is limited to 1 day @
7hrs
1. Court may allow addt’l time if needed to fairly examine the witness OR if the
deposition has been somehow impeded or delayed
a.
V.
The court may impose sanctions on those who impede or frustrate a fair
examination of the W
Written Interrogatories
a.
FRCP 33: Interrogatories (parties only)
i. Without leave of court, any party may serve on any other party up to 25 written questions to be
answered or objected to w/in 30 days
ii. Must be answered separately and fully, in writing, and under oath
iii. Served only on parties, non-parties must be subpoenaed by the court
iv. Responding: Answer or Object, Objections must be noted with specificity (Rule 33(b)(4))
1. Any ground NOT stated in a timely objection is WAIVED, UNLESS the court (for
good cause) excuses the failure
v. Propounding party may move for a court order compelling an answer notwithstanding the
objection
vi. No answer or objection? = party may move for sanctions
b. FRCP 33(d): Option to Produce Business Records ??? I don’t understand!!
i. If answer to an interrogatory may be determined by examining a party’s business records, AND
IF the burden would be substantially the same for either party, the answering/responding party
may respond by:
1. Specifying the record that must be reviewed in sufficient detail to enable the
propounding party to locate them; AND
2. Give the propounding party a reasonable opportunity to examine, make copies, or
summarize the record
VI.
Physical/Mental Examinations
a.
FRCP 35: IMEs (only for parties)
i. Where physical/mental condition of party/person under the care or control of a party IS IN
CONTROVERSY, court may ORDER that person to submit to physical or mental
examination for good cause
1. Good cause: the party seeking the exam must show the info is not obtainable by other
means
2. Controversy: If the condition is relevant to one or more claims and genuine dispute
concerning the condition (look to the pleadings)
3. Scope of the examination will be specified.
b. FRCP 35(b): Examiner’s Report
i. The party who moved to have an examination ordered must then upon request, turn over to the
other side or to the person examined, the report by the physician/examiner
1. The report must be in writing and set out the findings, dx, and results of any tests
ii. 35(b)(3): once the examining party has done this, the examining person is entitled to receive all
earlier or later examinations of the same condition  by requesting the examiner’s report, the
party examined WAIVES any privilege it may have in all other examinations about the same
condition
VII.
Requests for Admission
a.
FRCP 36: RFAs
i. A party may serve upon the other party a written request for admission, for purposes of the
PENDING ACTION ONLY, to admit an allegation
ii. When answering a party may:
1. Admit
2. Deny in good faith
3. State in detail why the party cannot in good faith admit or deny
4. Object: if groundless  move to compel Rule 36(a)(6)
VIII.
IX.
iii. 37(c)(2): Failing to admit: the requesting party later proves true  requesting party may move
for reasonable expenses incurred in making that proof
iv. Strategy Tip: use request for admissions if other party not responding
Expert Witness Discovery – Confirm this is right
a. FRCP 26(a)(2): Disclosure of Expert Testimony
i. Expert Testimony:
1. FRCP 26(a)(2)(B):
a. Disclosure must be made 90 days before trial
b. Must prepare and disclose written report w/ (1) the opinions they will express
at trial; (2) the facts underlying those opinions; (3) exhibits used to summarize
or support; (4) qualifications and publication re 10 yrs; (5) fee schedule
i. Drafts NOT discoverable, atty work product
ii. Witnesses:
1. FRCP 26(a)(2)(C): No written report required (at least note one to be shared), BUT a
disclosure must be made of the subject matter on which they may testify AND a
summary of the facts/opinions
iii. Experts for Trial Prep, Consultants:
1. FRCP 26(b)(4)(D): facts/opinions usually not discoverable absent exceptional
circumstances
Supplementing Prior Disclosure/Discovery
a. FRCP 26(e)(1): Correcting Discovery
i. A party who has made a disclosure or has responded to ROGs, RFPs, RFAs, MUST
supplement or correct the disclosure or response if the party comes to learn that the prior
response is incomplete or inadequate
1. UNLESS, the other party has otherwise learned this new information in discovery or
in writing
X.
Sanctions/Discovery Enforcement:
a. FRCP 37(a)(3)-(4): If a party fails to make a disclosure or proper discovery, any other party may move
to compel disclosure or discovery AND for appropriate sanctions
b. To get an adverse inference instruction, P must show: (UBS v. Zubulake)
i. That ∆ had an obligation to preserve the evidence at the time it was destroyed and ∆ breached
the duty;
ii. That the records were destroyed with a “culpable state of mind” i.e. more than mere
negligence; AND
iii. Destroyed evidence was “relevant” to party’s claim or defense such that reasonable fact-finder
would find it supported claim or defense
c. FRCP 37(b)(2)
i. Court may (among other things) dismiss a claim for failure to comply with a discovery order
d. FRCP 37(c)(1)
i. Failing to provide disclosure/discovery materials properly, the party is not allowed to use that
information or witness at trial UNLESS the failure is “substantially justified” or “harmless”
ii. Court may order payment of the other side’s reasonable expenses;
iii. The Court may inform the jury of the lapse
iv. Or other “appropriate sanctions”
e. Motions, Protective order? Payment – 37(a)(5)
f. Failing to admit? Payment – 37(c)(2)
g. FRCP 37(e):
i. Failure to preserve ESI in the anticipation or conduct of litigation is lost b/c a party failed to
take reasonable steps to preserve it and cannot be replaced . . . the court may
1. Order measures no greater than necessary to cure the prejudice
2. Acting with intent to deprive use the info in litigation
a. Presume that the lost info was unfavorable to the party
b. Instruct the jury it may or must presume the info unfavorable to the party
c. Dismiss the action or enter default judgment
Resolutions w/o Trial
I.
Alternative resolutions (only 2% of cases go to trial)
a. Pre-filing Ks not to Sue
i. Easy and cheap, but needs to be specific…
ii. If P violates and files suit, D must plead and prove under FRCP 8(c) the affirmative defense of
“accord and satisfaction”
b. 12(b) Dismissals
c. Default; Default Judgments (Peralta)
i. FRCP 55(a): Entering a default Occur when a party has failed to plead or defend against a
claim (typically failing to answer or MTD timely)
1. Claiming party (who wants to enter a default judgment) files affidavit asserting the
failure to defend/complaint was served and no response and the clerk will “enter” the
default on the docket
a. Court will then choose to deny or grant the motion
2. Timing: party can move for default judgment after the time allowed for answering has
lapsed, R4(m)  21 days to answer if personally served, 60 days if service waived
ii. FRCP55(b): Entering a default judgment:
1. Sum Certain  Clerk will enter the judgment for the fixed amount OR
2. Not Sum Certain  Party must prove the damages at a later hearing to (1) conduct
accounting, (2) determine damages, (3) establish the truth, or (4) investigate a matter
iii. Upon entry of default judgment, this establishes liability and deems all well-pleaded facts as
being true but is NOT on the merits
iv. Note: If the defaulting party has “appeared” i.e. filed a formal “notice of appearance” or a
pleading/mx or even other communications or settlement activities that evidence intent to resist
the claim…
1. Defaulting party entitled to AT LEAST 7 days notice in advance of hearing on
application for default judgment
v. Setting Aside a Default OR Default Judgment
1. FRCP 55(c): set aside default by clerk/court for good cause
2. FRCP 60(b): set aside default J for inadvertence, excusable neglect, newly discovered
evidence, fraud, or other reasons
3. Policy: courts prefer judgments on the merits rather than by default, so they are lenient
in applying these reasons
d. Voluntary Dismissals
i. FRCP 41(a): May be dismissed either by P filing a notice of dismissal prior to service by D of
an answer or MSJ; OR parties stipulating to a dismissal
ii. The dismissal is w/o prejudice UNLESS (1) specified in the dismissal notice/stipulation; (2) if
the action has previously been dismissed voluntarily (two tries is enough); or (3) by order of the
court
1. Practice Tip: a wise D will require a K promise not to re-file
e. Involuntary Dismissals (does to Ps what default does to Ds)
i. FRCP 41(b): Initiated by the defending party for Ps failure to prosecute the claim or failure to
comply with procedural rules
1. Delay/failure to respond
2. Failing to adhere to discovery rules
ii. Are w/ prejudice (are on the merits) and CANNOT be re-filed UNLESS judge orders
otherwise OR UNLESS, the dismissal is for lack of jx, improper venue, or failure to join a
party under FRCP 19
1. B/c this is on the merits, has res judicata effect
f.
Negotiated Settlements (MAJ of cases resolve this way)
i. Settlements are Ks, they are subject to K invalidating provisions i.e. coercion, mistake, fraud,
unconscionability, undue influence
ii. Policies AGAINST settlements
1. Leaves the parties less satisfied than had a trier heard the case;
2. Permit “might” to triumph over “right”
a. Economic power; moral v. economic right v. might
3. Deprives the public of definitive adjudication of issues that may reach beyond the
individual case
iii. Generally, parties can settle w/o judicial approval
1. EXCEPTION: FRCP 23(e) for class actions
2. EXCEPTION: in minor’s cases; and some multi-D cases
3. EXCEPTION by statute for particular COA(s) or statutes may require inclusion of
“consumer information” into settlements i.e. revocation period/consult lawyer etc.
a. Judge must decide the judgment as “fair” AND w/o “taint or fraud”
g. Stipulated Judgment/Consent Decree
i. Incorporated into the dismissal; orders the entire settlement
1. Gives res judicata effect AND permits the issuing court to retain jx in enforcement
h. MSJs: either party may seek an immediate judgment on the merits
i. FRCP 56(a)
1. Requires there be no genuine issue as to material fact; AND
2. The moving party is entitled to judgment as a matter of law
ii. FRCP 56(a)
1. Partial summary judgment i.e. determining certain material facts which are not
genuinely at issue = “undisputed”
2. Issue an order specifying facts that are determined
iii. FRCP 56(g)
1. May be rendered on the issue of liability alone, even where there is a genuine issue re
damages (later factual proceeding will determine damages)
iv. The moving party may attach supporting affidavits to establish various facts as well as
disclosure/discovery evidence
1. No witness testimony and no jury is present at the hearing
2. Must not have the judge determining credibility…
3. If the D files an affidavit denying an element of the Ps COA, the judge will DENY the
MSJ even if P has 26 Ws supporting the COA…b/c “there is something to have a trial
about”
4. FRCP 56(c): Quality of Evidence /Burdens of Proof
a. Affidavits MUST:
i. Be made on personal knowledge
ii. Set forth facts which would be admissible
iii. Show the affiant is competent to testify to the matters contained
therein
i.
j.
b. When the MSJ is made/supported, the opposing party MAY NOT rely on the
allegations/denials in its pleading  it must produce evidence setting forth
specific facts to show a genuine issue for trial
i. Otherwise, the grant of MSJ against them is proper
v. FRCP 56(d): If a party opposing the MSJ cannot at the time, for good cause, present
affidavits/evidence to oppose, the court may either (1) deny the MSJ or (2) continue it to allow
the party to get affidavits, take depositions, or do addt’l discovery or (3) other.
vi. FRCP 56(e): Supporting and opposing affidavits must:
1. Be made on personal knowledge
2. Set forth facts as would be admissible in evidence
3. Show affiant is competent to testify to the matters in the affidavit
Mediation
i. Consensual process where the parties themselves must agree on the resolution
ii. Third-party involved, is generally voluntary
Arbitration
i. Neutral 3rd party is entrusted with making a decision/”award”
ii. Often result in “winner” and “loser” and tend to find a compromise outcome
iii. Difference from litigation: 4 ways:
1. Private…thus, parties can design procedures that suit them;
a. Exs: (a) rules of evidence, (b) legal precedent to be followed or not, (c) formal
discovery available or not, (d) oral presentations or not
2. Parties may be able to control the applicable substantive law
a. Ex: Stipulate that the traditions between the parties should be used or customs
of the trade
3. May be cheaper, faster, and more private/confidential
a. Ex: arbitrator may be constrained from disclosing the arbitration OR the
award
4. Parties may select the arbitrator i.e. use decision makers more experienced in a given
field
a. May help speed process b/c experts unnecessary
iv. Enforcing arbitration clauses in court
1. Hx: only enforceable after a dispute arose, not prior to
2. Now: widely enforced re federal and state claims
v. Enforcing arbitration awards in court
1. Hx: suspicious
2. Now: state and federal courts will enforce arbitral awards
a. Federal Arbitration Act and Supreme Court have required enforcement of
arbitration agreements even when they contravene state law IF the underlying
transaction involves interstate commerce
The Right to Trial
I.
Pretrial Conferences
a. FRCP 16(b): Initial Conference
i. May occur after receipt of parties’ initial report under FRCP 26(f)
ii. The judge/magistrate MUST issue an order that schedules discovery and perhaps sets a trial
date
b. FRCP 16(c): Pre-trial Conference(s): COULD lead to a pretrial order re:
1. “AB EMAILS”
2. Elimination of some claims/defenses;
c.
3. Necessity to amend the pleadings;
4. Obtaining admissions re facts/evidence that will avoid unnecessary proof
a. Stip to authenticity of dox
b. Advance rulings re admissibility of evidence
5. Summary judgment on some/all issues
6. ID of Ws and dox
7. Exchange pretrial briefs
8. Advisability of referring some matter to a magistrate
9. Limitations on time for presenting evidence
FRCP 16(e): (Possible) Final Pretrial Conference
i. Prompts participants to formulate a plan for trial including re admission of evidence (MILs)
ii. IF HELD, should be as close to trial as possible, AND the a subsequent order should issue
reciting the action taken which controls UNLESS modified by the court  should only do so
to prevent manifest injustice
Joinder
Four question analysis?
1. Does the rule allow it?
2. Will it change SMJ for the federal court?
3. Same thing with PJ, is PJ possible?
4. Claim Preclusion
I.
Joinder of Claims
a.
FRCP 18(a): party asserting a claim/CC/XC may join as many claims as that party may have against an
opposing party
i. That does NOT necessarily mean all will be heard in the same trial; to be heard:
1. Added claim must have SMJ (assume for exam); AND
2. FRCP 42(b): allows the court to split off any claim/CC/XC for separate trial for
convenience, economy, to avoid prejudice
a. Usually this added claim is not heard if ∆ is not found liable but will be
heard if there are claims asserted that need to be heard
ii. Sometimes a party MUST join every possible legal right in a transaction/occurrence or risk it
being claim precluded
1. T/O = facts related in time/space/origin/motivation, form a convenient trial unit, tx as a
unit conforms to expectations…
2. Note: similar to the “logical relation” test under FRCP 13(a)
b. FRCP 13(a): Compulsory Counterclaims
i. A pleading MUST state as a CC ANY claim the pleader has against the opposing party IF:
1. It arises out of the same transaction is the subject matter of the dispute; AND
a. T/O = whether the CC is “logically related” to the existing claim  liberal
standard; same aggregate of operate facts
2. If the CC would NOT require the presence of 3Ps over whom the court has no jx
ii. If not pleaded, a compulsory CC is FORFEITED – you lose it, err on the side of discretion
and plead it as compulsory
iii. FRCP 13(a)(2): EXCEPTIONS to Compulsory Counterclaims
1. The pleader need not state the claim if it is already pending in another action;
2. D need not assert any CC that matures/is acquired AFTER the pleading is served
c. FRCP 13(b): Permissive Counterclaims
i. A pleading MAY state as a CC any claim against opposing party NOT arising out of the same
T/O i.e. no relatedness requirement
ii. If not pleaded, NOT forfeited; may be brought in later proceeding
d. FRCP 13(g): Cross-Claims (XC)
i. A pleading MAY state as a XC any claim by one party against a CO-PARTY arising out of the
SAME T/O OR a CC to that original action
1. Co-party = same side of “v.”
ii. XC’s are NOT compulsory, but MUST be “logically related”
e. FRCP 13(h): ∆ has the power to bring in additional party on either cross claim or counter-claim
i. ONLY covers counterclaims and cross claims, CANNOT do as impleader
II.
Joinder of Parties
a. FRCP 20: Permissive Joinder of Parties
i. Who is going the joining? – P or ∆
ii. (a)(1): All persons may join as Ps in a suit IF:
1. They assert any rights as jointly, severally, or alternatively, re the same T/O OR series
of T/O (same set of facts); AND
2. Any question of fact/law is common and will arise in the action
a. Note: court may split the trial (or consolidate)
iii. (a)(2): Persons may be joined as ∆s IF:
1. Any right to relief is asserted against them jointly, severally, or alternatively re the
same T/O; AND
2. Any question of law/fact is common to and will arise in the action
iv. 1367(a)  additional claims brought in from there
v. 20(a)  ANCHOR CLAIM
b. FRCP 14: Impleader
i. Derivative liability, bringing in a party involuntarily
ii. (a) Third party claims: A defending party, acting as a 3P Pltf MAY bring in as a 3P ∆, a
person who IS OR MAY BE liable to the 3P Pltf for all or part of the Ps claim against the 3P
Pltf
1. CANNOT implead on a theory of direct liability against the 3P D i.e. “she did it, not
me”  requires indemnification or warranty type relationship between 3P Pltf and 3P
D
a. Indemnity, contribution (optional – if you don’t raise it, you won’t lose it)
2. Note: any defending party can implead; MUST be a non-party  otherwise, it would
be a “cross-claim” under 13(g)
iii. The 3P D may assert against the P ANY defenses which the 3P Pltf has to the Ps claim (to
adequately protects its own interests)
iv. 3P D may assert any claim against the P arising out of the T/O
v. (b): authorizes a P defending against a counterclaim to bring in a 3P D
c. FRCP 19: Compulsory Joinder of Parties
i. “P should have joined them and didn’t” (INNY) ∆ making someone to join then BOUND
ii. Persons to be joined IF FEASIBLE (“necessary” party): a person over whom the court has PJ
AND who will NOT destroy SMJ, SHALL be joined as a party IF:
1. In the person’s absence, complete relief CANNOT be accorded among those already
parties; OR
a. Ex: suit for SP on a K, but leave out a joint obligee
2. The person claims an interest relating to the subject matter and, if not joined, that
interest will be jeopardized or be subjected to double or inconsistent obligations
a. Note: if this cannot be done, the court must decide between “dispensing
imperfect justice and not acting” i.e. if “indispensable = dismiss; if not, =
proceed
i. Based on “equity and good conscience” i.e. right of P to have a
forum, right to D in proceeding w/o important parties, rights of the
absentee to be included, public interest and fair admin of justice
d. FRCP 24: Intervention
i. “Parties failed to raise a FRCP 19 and outsider wants to join” (OUTY)
ii. Allows an unjoined party to elbow her way into the suit where no one wants her
iii. Of Right: Anyone MUST be permitted to intervene in an action IF:
1. A federal statute gives them such a right; OR
2. Where the person claims an interest in the subject matter AND is so situated that the
lawsuit’s outcome may impair the person’s ability to protect that interest
iv. Permissive: Anyone MAY be permitted to intervene in an action IF:
1. A federal statute gives a person a CONDITIONAL right to; OR
2. Where the applicant’s claim or defense and the main action have a question of law or
fact in common
v. Note: intervenor is a “full party” and may participate to the extent of asserting addt’l claims
UNLESS the court imposes restrictive conditions
vi. Procedure: Person seeking to intervene MUST make a timely application (standard left to
judicial discretion) by formal motion
1. However, people are NOT REQUIRED to intervene where they have a right to do so
 AND if they opt NOT to, they are NOT bound by the A1 J UNLESS they are
privies OR were deemed foreclosed by adequate representation
vii. Overall, requires a showing that:
1. Intervenor has an interest in the property/transaction that was the subject of the
original action;
2. The interest is somehow at risk i.e. the disposition of the action may impair or
impede their ability to protect that interest; AND
3. Interest was NOT adequately represented by existing parties
a. The possibility of divergence of interest need not be great to satisfy the burden
of the applicants intervention
e. BOTH 19 & 24:
i. Adding another party who should be part of this lawsuit
ii. MUST be a necessary party
iii. 19: asserted by insider
iv. 24: asserted by outsiders
v. EX: heirs under a trust, insurance company with multiple claims
f. FRCP 22: Interpleader:
i. P or ∆ want to invoke it to protect their own rights
ii. Party facing multiple claimants for the same issue can sue all the potential claimants
iii. PJ: service under Rule 4, ordinary jx rules
iv. SMJ: complete diversity
v. Venue: ordinary venue rules § 1391
vi. Complete diversity, determined between P and ∆
vii. EX: P(AZ) v. ∆(CA) & ∆(CA) & ∆(CA), $76,000
g. 1335: Statutory Interpleader:
i. $500+
ii. PJ: Nationwide service of process
iii. SMJ: authorized by federal statute
iv. Venue: resident of one or more claimants
v. Minimal diversity, determined between claimants
vi. EX: P(AZ) v. ∆(CA) & ∆(AZ) & ∆(CA), $1,000
vii. EX: P(NJ) v. ∆(CA) & ∆(CA) & ∆(NJ), $1,000
Former Adjudication
I.
Generally
a. The effect that a first adjudication will have on a second judgment that attempts to deal with the same
claim OR issue(s)
b. Policy Considerations
i. Efficiency: Provide an incentive for parties to include all possible claims and parties in their
first lawsuit
ii. Preventing harassment of Ds: Reinforce fairness by precluding litigation of claims/issues
which could have been raised but were not
iii. Preventing inconsistency of judgments in successive courts
iv. Making peace and finality i.e. “repose”
c. Trend = more liberal in preclusion i.e. greater willingness to invoke
i. Reflects the constraint on judicial resources; and
ii. Shows the effect of modern pleading and the joinder rules which allow multiple parties and
claims to be hear in one lawsuit
d. Availability
i. P or D may argue – depends on who the victim was
ii. Offensive – argue preclusion to ADVANCE the claims v. another
iii. Defensive – argue preclusion to DEFEAT a claims v. the movant
II.
Claim Preclusion
a.
Prevents:
i. The same or sufficiently similar claims from being raised a 2nd time
ii. Claims by the same parties (or those in privity with them)
iii. Where the A1 litigation resulted in a final judgment
iv. And that final judgment was on the merits
b. Same Claim
i. Transactions Test: same T/O
1. Rest. 2d Judgments: factors to consider  whether the facts are related in time, space,
origin, or motivation, whether they form a convenient trial unit, and whether their tx as
a unit conforms to the parties’ expectations/business understanding or usage
2. Share common core of operative facts
c. Same Parties/Privies
i. Sufficiently closely related legally such that they are considered as though they were named
ii. Substantive Legal Relationships
1. If the substantive law of the relationship treats A as a sub for B, then B is bound by the
result in the first lawsuit
a. Exs: K; beneficiary/trustee of a trust; admin/decedent; insured/insurance co
2. The relationship represents the same legal right
iii. Express Agreement to be Bound
1. By K, a person can agree to be bound by a court’s determination re a lawsuit involving
other parties
iv. Procedural Representation: by reason of having been represented adequately in A1
1. Ex: GAL; named P in a class action suit
v. Virtual Representation
1. The interests of A1 and A2 parties are aligned
2. EITHER the A1 party understood it was acting in a representative capacity to the A2
party, OR the A1 judge took care to protect the interests of the A2 party; AND
3. SOMETIMES notice of the A1 action MUST be given to the A2 party (with unclear
limits)
d. Final Judgment
i. Still a final judgment IF the case is up on appeal; though some courts will postpone a decision
on barring a claim in A2 until the appeal is resolved (but that is not a federal rule)
1. If a claim is barred then the A1 is reversed on appeal, that would prompt a FRCP
60(b)(5) mx for “Relief from Judgment Order” so the A2 can be re-opened at any time
where “ a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective
application
e. On the Merits
i. That the parties had an opportunity to litigate the claim
ii. NOT that it was actually litigated i.e. will waive claims if you don’t raise them
iii. Ex: dismissal sanction, jury trial, 12(b)(6), JML, MSJ, NOT no PJX
f. Full Faith and Credit for Claim Preclusion
i. Federal court has to treat the A1 judgment the same way as the rendering state court would
have treated it
g. Limits on Claim Preclusion (more stringent limits)
i. NOT allowed where
1. Parties agree expressly or impliedly to “split” the claim
2. Where the court in A1 explicitly reserved Ps right to bring a second claim (dismissal
w/o prejudice for example)
3. Where jx limits in A1 prevented P from seeking certain relief now sought in A2
4. If the judgment in A1 is plainly inconsistent with the fair and equitable implementation
of a statutory or constitutional scheme, OR it is the sense of the scheme that P should
be able to “split” his claim
a. Where there is a statutory change
5. Where, for reasons of substantive policy involving a continuing or recurring wrong,
the P may choose to sue from time to time for damages as they accrue
a. Ex: breach of K re monthly annuity payments
b. Why? b/c you cannot determine the future damages due to the nature of the K
6. Where the policies FOR CP are overcome by some extraordinary reason (ex: failure of
the prior litigation to yield a coherent resolution of the dispute) OR where a courtordered condition or personal restraint should be looked at a second time (ex:
prisoner’s rights/person civilly committed)
III.
Issue Preclusion
a.
ONLY bars those issues actually litigated and determined; unlike CP, an issue that is not raised is not
necessarily waived
i. Provide an incentive for parties to settle and not get haunted later in another claim on the basis
of issue preclusion in ways which the party could not foresee at the time--> don't want to have
that hanging over the parties heads which would prevent settlement
b. Is “deeper” because it will extend to all subsequent claims between the parties (and some non-parties to
the A1 suit)
c. Elements (OIL FIELD)
i. Same issue of fact or law
1. Old rule = only issues of fact; Now = both fact and law
2. EXCEPTION: different standards of proof
a. A1 by preponderance will NOT preclude A2 by BRD
ii. That was actually litigated and determined
1. Issues which are actually tried, subject to an adversary presentation i.e. not stipulated
to or conceded
a. Policy: want to encourage parties to agree on issues before trial without
worrying about a potential adverse impact those concessions may have in a
later suit!**
2. MSJ, JML, JNOV ARE deemed actually litigated/ determined
iii. By a valid and final judgment
iv. The determination was essential to that judgment
1. Look at the grounds for the ruling
2. If more than one ground = NOT preclusive (Rest. 2d, 27)
a. UNLESS there is a special verdict form specifying;
b. OR UNLESS they are appealed
i. Any grounds affirmed on appeal ARE preclusive
c. Why?
i. Sometimes alternative grounds are not as seriously considered i.e.
dicta
ii. Deter appeals by the losing party since they don’t want to end up with
a preclusive issue where none exists before appeal
v. The party had adequate opportunity and incentive to litigate below
d. Which Parties
i. @ CL “rule of mutuality”  parties must be the same/in privity
ii. Modern = asymmetry
1. Note: participants can be bound; but non-parties to A1 cannot be bound by the A1
judgment b/c of due process
2. However, a “stranger” to A1 can use the A1 judgment to preclude the A1 party in an
A2 action (not allowed in CP)
3. Where a person would be precluded from re-litigating an issue against an opposing
party, they will ALSO be precluded from raising the issue against a “stranger”
UNLESS (Rest. 2d Judgments 29)
a. There was not a full and fair opportunity to litigate
b. A2 offers procedural opportunities not available in A1
c. The person seeking favorable preclusion in A2 could have joined in A1, but
chose not to “wait and see”
d. The judgment relied upon is inconsistent with another prior judgment on the
same issue (State Farm)
e. The A1 judgment may have been affect by personal relationships not present
in A2
f. Treating issues as conclusively determined in A2 could complicate
determination of issues in A3 or prejudice another party/public interest
g. If the issue is one of LAW, and treating it as conclusively determined would
inappropriately foreclose opportunity for reconsideration
4. Offensive Preclusion
a. Discretionary, but sometimes permitted (Parklane)
b. Occurs when the P seeks to foreclose the D from litigating an issue the D
has previously litigated unsuccessfully in an action with another party
c. Dangers
i. Might create an incentive for the P to “wait and see” how A1 results,
then jump on or start anew
ii. Might be unfair if D had only minimal incentive to vigorously defend
in A1
iii. Might be unfair if D would have had procedural opportunities in A2
not available in A1
5. Defensive Preclusion
a. Permitted
b. Occurs when a “stranger” D seeks to prevent a P from asserting a claim the P
has previously litigated and lost against another D
c. Policy: Precludes a P from re-litigating identical issue by switching Ds thus
incentivizes adding all potential Ds in the first action
6. EXCEPTION: The US Gov’t
a. Stranger cannot invoke issue preclusion in A2 against the US i.e. Parklane
does NOT apply to US
i. Inefficiency Concerns – the US would be forced to appeal every
case it loses to protect itself from the subsequent use by third parties
of factual or legal issues determined in A1
ii. And because the issues are often constitutional, it would bind the
entire US forever without the opportunity to change the matter, even
at the Sup.Ct.
iii. Limitations on Issue Preclusion
1. NOT allowed where: (Rest 2d Judgments 28)
a. The party against whom preclusion is sought could not have obtained review
of the A1 judgment (ex: where the case has been rendered moot)
b. If the issue is one of law; AND the claims in A1 and A2 are substantially
unrelated
i. Why? Different contexts often give rise to differing interpretations
of the law  IP would prevent such nuances in legal interpretation
from being explored
ii. Note: could be affected by “stare decisis”
c. Where a new determination is warranted to take account of an intervening
change in “the applicable legal context or otherwise avoid inequitable
administration of the law
d. Where a new determination is warranted because of differences in the quality
or extensiveness of the procedures followed in the two courts OR the
allocation of jx between them
i. Note: other types of forums (admin proc. or small claims) & how
extensive proc. are
e. Where the A1 and A2 burdens of persuasion differ
i. Party to be precluded had a heavier burden in A1 on the issue and
lost on that issue
ii. Burden has shifted in A2 to the party’s adversary
iii. If the adversary has a heavier burden in A2 than A1 on the issue
which they won in A1
f. Where there is a “clear and convicting need for a new determination” due to:
i. Public interest needs
ii. It was not foreseeable in A1 that the issue would arise in A2
iii. b/c the party sought to be precluded did not have an adequate
opportunity to obtain a full and fair adjudication b/c of adversary’s
conduct i.e. subject to procedural deficiencies in A1
e.
f.
iv. Law of the Case
1. Prevents re-litigation of issues in a single case
2. Where issue has been appealed once (ex: interlocutory appeal of an injunction) that
decision will preclude another look at the issue within the same litigation
a. Such a decision will bind the parties even without a final judgment OR
“precedent”
v. Judicial Estoppel
1. Precludes a party from asserting a position in A2 that is:
a. Inconsistent with a sworn position on factual matters which the person took
in A1;
b. That prior inconsistent position was accepted by the court in A1; AND
c. That original position was intentionally misleading to gain an unfair
advantage in A1**
Full Faith and Credit
i. Extends BOTH claim and issue preclusion across political boundaries to other state and federal
courts -(28 USC 1738)
1. Requires the preclusion law of the ISSUING jx in A1 apply
2. Does NOT extend to foreign judgments  requires “comity”
ii. Hole  Collateral attack for lack of jx (Durfee)
1. Litigant who litigates jx (SMJ/PJX) is bound by the decision
2. A D who did NOT appeal (defaulted) can raise a collateral challenge to PJX
3. A D who appears but does NOT challenge PJX waives it
4. Note: cannot be sure re SMJ
5. Nuances
a. A1 can be collaterally attacked in another state IF the J was shown to be
procured by fraud
b. States MAY declare OWN J’s “void” for lack of SMJ
Reopening a Judgment (FRCP 60)
i. Used as a rare safety valve where J1 was procured unlawfully
1. B/c no issue to be appealed since there was no court error and trying to bring another
claim is claim precluded
2. Policy: stabilize judgments
ii. FRCP 60(a): Relieves from a J AT ANY TIME for clerical errors
iii. FRCP 60(b): Relieve from a J where justice demands by reason of:
1. 1 yr time limit to re-open a J due to:
a. Mistake, inadvertence, surprise, excusable neglect;
b. Newly discovered evidence which due diligence could not have discovered in
time to request new trial;
c. Fraud, misrepresentation, misconduct by other party
2. No time limit to re-open a J due to:
a. Judgment is “void”
b. J has been satisfied or discharged, or a prior J upon which J1 was issued has
been reversed or vacated
c. Any other reason justifying relief
iv. FRCP 60(d): Allows court to entertain an independent action to relieve a party or to rectify a
“fraud on the court” (US v. Beggerly)
1. Permitted ONLY in exceptional cases to prevent grave miscarriages of justice
2. No time limits apply