1
Civil Procedure Outline
EXAM TIP: Kim cares most about the rule and the analysis. Do NOT be conclusory.
EXAM TIP: use headings and paragraph breaks – makes it easier for the reader to follow.
EXAM TIP: pay attention to the scope of the question.
Better to cite cases than not, but not always necessary
Rules
4 - service of process
3, 7, 8, 10 - complaints and answers
11 - ethical limits
12 - motions to dismiss
13 – counterclaims (compulsory and permissive); cross-claims
14 - third party claims
15 - amendments
18 - joinder of claims
20, 21 - joinder of parties
23 - class actions, especially a/b/e
26, 37 - discovery (esp. 26(b)(1) and (2), 26(c) - also 37(a), b2A, 26b3 and b5
38 - jury trial
41 - voluntary and involuntary dismissal
42 - separate trials
50 - JML
54 - appeals (a), (b)
55 - default judgment
56 - summary judgment
59 - new trial
65 - provisional remedies
Statutes
1391 – venue – often parallels PJ analysis
1404, 1406, 1631 - transfer, FNC
1331 - fed ? jx
1332 - diversity jx
1367 - supp jx
1441, 1446, 1447 - removal
1652 - Erie - rules of decision
2201 - declaratory relief
1291, 1292 - appeals
1738 - full faith and credit
2
Why Procedure?
• Procedure answers questions about how we apply the rules. Procedure = the rules of the
game, how to get from dispute to resolution through litigation
• Procedure is how we safeguard values like truth, justice, efficiency, and peace – and
navigate tensions in these values
• Procedure is also about allocating power
• Note: the line between substance and procedure is not always clear.
Federal sources: Constitution, statutes, Federal Rules of Civil Procedure, common law.
Jurisdiction: the power to render an authoritative judgment.
Personal: power of this court over this D (DP & Article IV).
Subject matter: power of this court over this case/claim (Article III).
• Personal jurisdiction’s source is state sovereignty; limitation on power is due process
clause.
• Subject matter jurisdiction’s source, and the limitation on its power, is Article III.
I. Personal Jurisdiction



Exercised on a state-by-state basis
o Rule 4(k), if the state can exercise PJ, a Fed. district court within that state can as
well
Types:
o In personam: over someone’s “person” (all their assets) that creates personal
obligation that can be enforced in other states under
 p will always try to get this
o In rem: property in a state is at stake
 No personal obligation and unenforceable in other states
 Valid only to the extent of the value of the property
o Quasi in rem: property is used only as a jurisdictional hook to allow the litigation
of a claim not related to that proper
“Full faith and credit”: Article IV.1 – states have to respect other state court judgments
unless the state court does not have jurisdiction
Long-Arm Statutes:
 Long-arm statute: statute indicating the circumstances under which a state’s court will
exercise PJ over nonresident D.
 To determine if there’s PJ over a D:
o Is there statutory authorization (long-arm statute) for the exercise of J?
 Assume yes, unless told otherwise
o Is the exercise of J constitutional?
 Do analysis below
Does a Traditional Basis Apply:
3

Pennoyer
o State has J if:
 D domiciled in forum
 D physically present in forum when served (“tag J”)
 D consents, express or implied
 Giving “real consent:
 Implied: D who fails to contest PJ in responsive pleading (12(h))
 Is this still true?
o Tag J- Burnham: justices are split on whether service of process to D in a forum
still gives that court jurisdiction, so still do Shoe
 3 justices and Scalia- Shoe is not relevant if the traditional, Pennoyer
basis is sufficient
 3 justices and Brennan- Shoe swept away Pennoyer. Every case must be
assessed under Shoe according to Shaffer.
o Consent- Carnival Cruise Lines: consent via forum selection clauses are often
valid, even for parties with unequal bargaining power
 Considerations
 Did other side have notice? Do they have bargaining power?
 Did other side benefit?
o Ex) reduced ticket prices
 Is it sensible that litigation is limited?
o Interactions with many forums
 Does it dispel confusion?
 Is a party denied a remedy?
Minimum Contact Analysis
 International Shoe- court moves to a more flexible standard of minimum contacts
o Key takeaways:
 If D is benefiting from state laws, it gives rise to certain obligations, but
the obligations must arise out of/ be connected to your contacts
 Practical effect: can sue out-of-state D more easily, but harder to predict
outcomes
 Language indicates this exists alongside Pennoyer as an alternative to
traditional bases of PJ
o State can have personal J over D if 1) there is such minimum contacts between D,
claim, and state such that 2) it is consistent with “fair play and substantial justice”
to make them answer the claim (“Minimum contacts test”)
 “Fair play and substantial justice”= reasonableness, amt of inconvenience
in answering suit
 Minimum contacts test applies to in personam, in rem, and quasi in rem (Shaffer)
Part 1: Relevant Contact
 D’s contact with forum can be established through Purposeful Availment (Hanson)
and/or Caldor Effects Test
4
o Calder Effects Test: purposeful availment through effects
 D’s tortious acts can serve as a source of personal jurisdiction only where
the plaintiff makes a prima facie showing that the defendant’s acts
 (1) were intentional
 (2) were uniquely or expressly aimed at the forum state, and
 (3) caused harm, the brunt of which was suffered (in the forum)
o Purposeful availment
 World-Wide Volkswagen
 Majority (affirms Hanson)- assess reasonability using the
purposeful availment test: when a defendant is trying to serve,
directly or indirectly, the market of another state
 Dissent (Brennan): assess reasonability by asking whether it is
foreseeable a product will end up in another state- “purposefully
injects goods into stream of commerce”
o Could cause limitless liability
 Is it more like McGee or Hanson?
 McGee: D solicited business from forum state
 Hanson: contact with forum was act of third party
 Unilateral actions of another are insufficient (Walden)
 Not enough that P has relationship/residence in forum
 Asahi
 O’Connor (for 4 Justices): Minimum contacts require that D
purposefully targeted its activities toward the forum state
o (e.g. advertising, customer service, etc.)
 Brennan (for 4 Justices): Minimum contacts is satisfied if D could
reasonably anticipate that it would be marketed in forum state
(stream-of-commerce; foreseeability)
 Split decision means you need to analyze both
 McIntyre
 Four justices (w/ Kennedy) use O’Connor approach: there is no
contact unless D had an intent to serve the market of that state.
 Dissenting 3 judges (w/Ginsburg) use Brennan approach: the corp.
targeted the U.S. which includes NJ
 Ford
 “Reciprocal obligations” can help establish contacts

Internet- special case
o Abdouch
 “Zippo Sliding Scale Test” to show purposeful availment (from most to
least contacts) using level of interactivity and commercial nature of
exchange
 D clearly does business over the internet/ enters knowingly into
contact with residents of different forums
5


Interactive websites where a user can exchange info w/ a host
computer
Simply posted information on a website that does little more than
make information available to those who are interested in it
Part 2: “Relatedness” of contact
 Does π's claim “arise out of or relate to” D's contact with the forum (Did D's contact
include thing that harmed P) (Bristol-Myers Squibb)
o If no, must find general jurisdiction
 Move on to Daimler analysis
o If yes, can be either specific or general
 Seems to require that D’s contact with forum include the thing that harmed
P
 Move on to fairness factors
 “Relate to” means it doesn’t necessarily need to be caused by D’s conduct (Ford)
Part 3:
A. Specific Jurisdiction- Fairness factors
 Specific jurisdiction: D is being sued for a claim that arises out of or relates to D’s
activities within the state
 Burger King
o Exercise of J must be fair, considering the following factors (argue these both
ways):
 Burden on defendant and witnesses
 Forum state’s interest
 State has interest in protecting its citizens from scams and
providing redress (McGee)
 Plaintiff’s interest in litigating in that forum
 Efficient resolution
 Further substantive policies of the states
o Burden is on D to show that the forum causes them a “severe disadvantage” in
litigation
 This is nearly impossible to show
 Brennan- relative wealth of parties is not determinative
 Due process doesn’t guarantee D will be sued in convenient
(Hanson) or “good” forum, just not an unconstitutionally unfair
forum
B. General Jurisdiction
 General: if D is sued in a forum on a claim that it isn’t connected with in-forum
activities, need substantial contacts such that company is “at home”
o Individual can (at least) be sued in the state they reside in
o Corporation can (at least) be sued in the state of their incorporation and the state
that is their principal place of business
 Daimler
6
o A corporation is subject to general jurisdiction in the states where contacts are
“so ‘continuous and systematic’ as to render it essentially at home”
 Where it is incorporated
 Where it maintains its principal place of business; must be “essentially at
home”
 And “exceptional cases” (Amazon’s 2nd headquarters?) if:
 Only one more state
 Undertakes all its activities in that state
Challenging Personal Jurisdiction
 Motion to dismiss for lack of PJ (Rule 12(b)(2))
o Raise in pre-answer motion or as part of first responsive pleading
 Waived if omitted (12(h))
 12(g)(2) says needs to be raised with other defenses
 Collateral Attack: D who had default judgment entered against them in an action in one
jurisdiction may collaterally attack the default judgment
o Can argue court had no PJ or SMJ
Venue
• Venue (28 U.S.C. 1390(a)): the geographic specification of the proper court… for the
litigation of a civil action that is with the subject-matter jurisdiction of the federal district
courts
o Subject matter J, personal J, and venue are all needed. The basic question is where
should litigation occur?
o Very often, this inquiry roughly parallels the personal jurisdiction question… here,
the question is about where to locate a lawsuit within a state.
EXAM TIP: always do personal jurisdiction analysis first, since venue often duplicates.
• Venue is only about applying statutes, NOT Constitutional limits: primary source is 28
U.S.C. 1391. Goal is to place suits in districts connected either to the parties or to the
events giving rise to the action.
o Applies only to cases that begin in federal court! Does not apply for state cases
removed to federal court (that’s 1441(a))!
• To see if venue is proper: 1391(b) (Greyhound).
o (b)(1) – any district where a D resides if all Ds are residents of the state; and
o (b)(2) – district where substantial part of events that gave rise to claim occurred
(or property that is the subject of the action)
 Contracts- where contract was executed/performed/breach occurred
 Tort- where tort was committed/where harm was felt
 *Note: this can be used even if (1) produces a proper venue
o (b)(3) – if (1) and (2) do not apply, any district where D is subject to personal
jurisdiction.
 rare, fall-back clause; only if literally no district in U.S. works (foreign
accidents or Ds)
7
•
Where is residence 1391:
o Individual – where person is domiciled
o (d) Entity/corporation – if D, wherever D is subject to personal jurisdiction and
where D “resides”; if P, only in district of principal place of business
▪ Corporations reside anywhere that contacts would be sufficient for
personal jurisdiction, or, if none would be sufficient, in district with most
significant contacts.
•
Can be more than one
• If D doesn’t bring in the defense of improper venue (or PJ) in its responsive pleading, it is
waived (12)(h)
• If venue is improper under 1391, the court has discretion to dismiss or transfer
(Greyhound).
•Pendant Venue: In a case, if one claim has a basis in one venue, and one doesn’t- the court
can hear the claim with no venue basis if it shares a common nucleus of operative fact
Notice
 Proper notice- once it has been established a court has J, it must still be established D
received proper notice
o Requirement of due process of notice of action and opportunity to present
objections
 Reasonableness standard: The notice must be fairly certain to inform the
party, but this is limited by reasonable considerations of economy
(Mullane)
 Types of Notice- notice can be sensible under the circumstances
 Personal notice (by hand) is best
 Substitute notice: some state statutes allow notice by mail or
leaving it at dwelling
 Constructive notice: if person is missing or difficult to locate,
notice that is reasonably likely to notify them is sufficient
o W/ actions affecting many people, if notice is effectively
given to majority it can be adequate (Mullane)
o Names and addresses known: publication is insufficient
o Names and addresses unknown: publication is reasonable
 Rule 4- Mechanics of notice and service
o “Waiver of service”- first-class mail to send copy of complaint to D w/ a request
D return a form by mail, waiving formal service of a summons (4d)
 Waiving service does not waive objections to venue, J, or defenses; only
waives objections to notice
 Service can’t be waived for U.S. gov, minors, incompetents, and others
whose service requires special formality
 If D has refused to waive service without good cause, pays the costs of
subsequent service (stick)
8

If D has waived service they have a longer time to answer complaint- 2160 days for domestic Ds and 21-90 days for foreign Ds (carrot)
o If form is returned, case proceeds. If form isn’t returned, summons must be served
more formally (Rule 4(e)-(j))
Transfer and Forum non Conveniens
• Both state and federal courts may decline to exercise jx even though they possess it.
Common law doctrine of forum non conveniens affects both state and federal courts;
transfer under 1404 applies only to federal courts. Both flow from perception that there
will be circumstances in which a court has the power to hear a case but, for reasons of
justice or efficiency, should not do so. o 1404(a) – courts can transfer because of
convenience and justice even where there is personal jurisdiction and venue.
• In forum non conveniens, a court exercises its discretion to dismiss a case. This is rare,
and should only occur when another forum has jurisdiction and when trial in the chosen
forum would establish oppressiveness and vexation to a D out of all proportion to P’s
convenience, or when chosen forum is inappropriate because of considerations affecting
the court’s own administrative and legal problems. (Piper Aircraft) o Private interest
factors: relative ease of access to evidence; availability of compulsory process/cost for
attendance of witnesses; possibility of view of premises; all other practical problems.
(Piper Aircraft)
 Deals with convenience of the litigants o Public factors: administrative
difficulties with court congestion; local interest in deciding local
controversies; forum should be at home with governing law; avoidance of
unnecessary problems in conflict of law/ foreign law; unfairness of
burdening citizens in unrelated forum with jury duty. (Piper Air9craft)
 Deals with convenience of the forum
o Court uses a balancing test, looking at the totality of these factors and then
exercising discretion.
• Unfavorable change in law is not decisive; however, where remedy provided by
alternative forum is “so clearly inadequate or unsatisfactory that it is no remedy at all,”
this may be given substantial weight. (Piper Aircraft)
• If case is dismissed on forum non conveniens: Courts regularly require D to waive statute
of limitations defense in advance, and sometimes require waiver of objections to personal
jurisdiction and venue.
• To enforce a forum-selection clause, use 1404(a), NOT 1406(a) or 12(b)(3). These latter
options authorize dismissal only when venue is wrong or improper. (Atlantic Marine)
 If a forum-selection provision points to state courts, the proper
mechanism is forum non conveniens. Both 1404(a) and FNC involve a
balancing test. (Atlantic Marine)
 “A forum-selection clause should be given controlling weight in all but
the most exceptional cases.” (Atlantic Marine)
 When the parties have agreed, courts shouldn’t disrupt settled
expectations; clause may have been negotiated for, affected other terms, or
been the basis for doing business. (Atlantic Marine)
9
Dismiss
Transfer
No personal jurisdiction
12(b)(2)
??? 1631? 1404(a)? 1406(a)?
No venue
12(b)(3)
1406(a)
Yes personal jx, yes venue
Forum non conveniens
1404(a)
- All but forum non conveniens deal with federal court; FNC deals with state or foreign courts.
II. Subject Matter Jurisdiction
Subject matter jurisdiction limits power of federal courts to certain kinds of cases.
Why do we care about whether case is in federal or state court?
Practical: waiting times; more sympathetic hearings; different jury requirements Policy:
uniformity; about power (federalism); expertise; caseloads
Federal Question Jurisdiction (“arising under”)
• Federal courts are courts of limited jurisdiction, possessing only that power authorized by
Constitution and statute. (Kokkonen)
• The meaning of ‘arising under’ in Article III is broader than the same phrase in 1331.
o Article III grants jurisdiction to Supreme Court and other federal courts; 1331
grants federal question jurisdiction to district courts
• Federal question jurisdiction is more expansive than diversity jurisdiction – it is easier to
get into and stay in court on this basis.
Cases can “arise under” federal law in two ways:
• 1) Well-pleaded complaint rule: A suit arises under the Constitution and laws of the US
only when the P’s statement of his own cause of action shows that it is based upon those
laws or that Constitution. (Mottley)
o It is NOT enough that P alleges some anticipated defense to his cause of action
and says that defense is unconstitutional. (Mottley)
 Confined to stating P’s cause of action, not anticipating D’s defenses o
Advantages: sorting occurs at beginning of lawsuit; prevents P’s manipulation of jx
through imagining potential complaints. Disadvantages: possibility of error really
early on (before all the facts arise); sometimes gives counter-intuitive results
o Creation test: when federal law creates the cause of action asserted (Gunn).
 Serves as gloss/clarification of well-pleaded complaint rule.
 Admits only extremely rare exceptions; accounts for vast bulk of suits that
‘arise under.’
• 2) “Small and special category” under Grable test that looks like Pollock painting (Gunn)
o Four part test: federal subject matter jurisdiction exists over a state law claim when: (1)
resolving a federal issue is necessary, (2) the federal issue is actually disputed, (3) the
federal issue is substantial, and (4) federal jurisdiction will not disturb the balance of
federal and state judicial responsibilities. (Grable)
 Very strict test; all four elements must be met. When they are met,
jurisdiction is proper because of the serious federal interest that can be
10


vindicated without disrupting Congress’s intended division of labor
between state and federal courts. (Gunn)
(3) substantial – looks to importance of the issue to the federal system as a
whole, NOT to the importance of the issue to P’s case or the parties.
(Gunn)
Does NOT apply to a defense.
Challenging Subject Matter Jurisdiction
12(b)(1) motion = direct challenge
12(h)(3) – NEVER waived
If no SMJ, P can re-file in state court
Collateral attack? Probably not; it’s complicated
• The requirement of subject matter jurisdiction is so fundamental that a court is required to
raise the issue on its own and dismiss if it finds a lack of jurisdiction. (Mottley)
• Why so different from personal jurisdiction? Deals with power of federal courts. PJ
intended to protect DP rights of D; D can consent, so no longer a problem. In SMJ, we
can’t count on the parties to always raise broader federalism issues.
Diversity Jurisdiction (“controversies between citizens of different states”)
• Comes from Constitutional authorization + Congressional extension in 1332.
o 1332 requires “complete diversity,” while the Supreme Court can hear cases of
minimal diversity.
o One of the areas where state and federal courts exercise concurrent jurisdiction. If
state law claim + diversity of citizenship, P has a choice of forum (and D can
consent or try to remove).
• 1332(a) – district courts have original jurisdiction when controversy is between:
o Citizens of different states;
o Citizens of a state and citizens or subjects of a foreign state; o Citizens of
different states and in which or subjects of a foreign state are additional parties;
and
A foreign state as plaintiff and citizens of a state or different states. •
“Amount in controversy” – 1332 requires an amount greater than $75,000.
o Allegations of pleading all but controlling: “It must appear to a legal certainty that
the claim is really for less than the jurisdiction amount to justify dismissal.” (St.
Paul Mercury) o P may be able to aggregate amount sought for relief to reach
statutory minimums (yes in cases with two or more unrelated claims against single D,
where 2 Ps have same claim, and in class actions if $5m; but not in cases where 2 Ps
have ‘separate and distinct’ claims)
• Complete diversity = each P must be diverse from each D. Existence of a single party
with the same state citizenship as that of an opposing party will destroy diversity
(Strawbridge, Allapattah).
11
o Person is a citizen where they are domiciled. Domicile = established by physical
presence in a place in connection with a certain state of mind concerning one’s
intent to remain there (Holyfield).
o A corporation has dual citizenship: where it is incorporated and where it has its
principal place of business. (Hertz)
 Nerve center test: a corporation’s principal place of business is the nerve
center from which it radiates out to its constituent parts and from which its
officers direct, control, and coordinate all activities. Normally the place
where the corporation maintains its headquarters. (Hertz)
• Different definitions of PPB for general jurisdiction (at home) and diversity jurisdiction
(nerve center).
o Partnerships and other unincorporated entities are not considered as entities but as
collections of individuals (ConAgra Foods).
o The time for measuring citizenship is the date on which the complaint is filed in
federal court (even if P moved solely to establish diversity).
• Why do we care about diversity? Typical reason is prejudice against out of state litigants
and provide a federal forum for important disputes (Allapattah); may also raise standards
of state judiciaries and prevent federal judges from becoming narrow specialists.
Supplemental Jurisdiction
• Another way that a federal court can have subject matter jurisdiction. Sometimes referred
to as ‘pendent’ or ‘ancillary’ jurisdiction.
• 28 USC 1367 is the primary source for supplemental jurisdiction:
o (a) Codifies Gibbs and creates supplemental jurisdiction over related pendent
claims. If there is federal question jurisdiction, and P has a related state claim
against the same D, they can bring this in federal court.
o (a) Overturns Finley and allows supplemental jurisdiction for additional parties.
o (b) Codifies Owen Equipment and says that supplemental jurisdiction will not be
granted if original jurisdiction is based solely on diversity (since 1332 requires
complete diversity)
o (c) Codifies Gibbs discretionary factors – common nucleus test may not end the
inquiry.
o (d) Provides for tolling of statute of limitations.
o 1367 supersedes the reasoning of Aldinger; don’t cite Aldinger or Finley. Can cite
Gibbs for “nucleus” test.
• Supplemental jurisdiction allows a party to bring other claims that are so related to the
claims in the action where there is original jurisdiction that they “form part of the same
case or controversy.” (1367; Gibbs) o Why? Concerns of efficiency and consistency.
o Test: the state and federal claims must derive from a common nucleus of
operative fact, such that P would ordinarily be expected to try both in one judicial
proceeding. (Gibbs)
 FORK: lot of gray area in this test. Look at the underlying facts and ask
whether the same kind of evidence is going to be presented.
12
Removal
• Only works if there is concurrent jurisdiction and P chooses the state court; here, D can
remove the case to federal court under 1441.
o State court  removed to federal court; federal court  remand back to state
court
• Generally, federal courts require rigorous adherence to procedural requirements.
o Exceptional circumstance where district court has made a mistake allowing
removal but then case has been fully tried: If federal jurisdiction requirements are
met at the time judgment is entered, the absence of complete diversity at the time
of removal is not fatal to federal court adjudication
(Caterpillar). (Considerations of finality, efficiency, and economy)
• 1441(a) – generally, wherever district courts have original jurisdiction, D can remove
from state court.
o In order to do so, D has to file, in federal court, a notice of removal with a short
statement providing grounds for removal and a copy of all the pleadings so far,
and then give notice to P and the state court. (1446(a), (d))
• 1441(b)(2)– diversity removal – an action removable solely on the basis of diversity may
not be removed if any of the Ds are a citizen of the state where the action is brought in
state court.
• Remember the well-pleaded complaint rule of Mottley!
• 1446(b)(3) – D can remove 30 days after they receive some paper (motion, pleading, etc.)
“from which it may first be ascertained” that the case has become removable.
o LIMIT: 1446(c)(1) – limits diversity removal to 1 year after commencing the
action, unless P has acted in bad faith.
 Contrast: if P adds a federal claim 3 years after the action commenced, D
then has 30 days to remove.
III. What Law Applies: The Erie Doctrine
•
•
Comes up in diversity and supplemental jurisdiction contexts
General rule: follow state law for substantive rules; follow the federal rule for procedural
matters. (Erie) “Except in matters governed by the Federal Constitution or by Acts of
13
•
•
Congress, the law to be applied in any case is the law of the State.”
o True for law made by state legislatures and highest state court decisions. (Erie)
o There is no federal general common law that federal courts can use to displace that
of the states. (Erie)
o Mediating opposing principles: deference to state courts with the independence of
the federal courts.
What state?
o State where federal court sits and that state’s “choice-of-law” rules
How do we figure out if something is substantive or procedural?
o Outcome-determinative test: follow state law if it significantly affects the result of
the litigation; follow federal law if it involves the manner and means of
enforcement. (Guaranty Trust)
 Note: this test is very broad – almost all procedural requirements that
parties bring up have a very good chance of determining the outcome.
 Says Erie is about making sure outcome of litigation in federal court
should be substantially the same as in state court (Guaranty Trust).
o Federal courts in diversity cases must respect the definition of state-created rights
and obligations by the state courts (Byrd).
 ‘manner and mode’ of enforcing rights points to procedural (federal)
o More importantly than outcome-determinative test, ask how the result impacts
Erie’s goals of discouraging forum-shopping and avoiding inequitable
administration of the laws (Hanna).
 Even if state substantive law applies, the FRCP displace contrary state
rules, so long as it is consistent with the Rules Enabling Act
(promulgating ‘practice and procedure’) and whether it is constitutional
 2072 - Rules Enabling Act - gives Supreme Court power to “prescribe
general rules of practice and procedure…” – and these rules shall not
abridge, enlarge, or modify any substantive right.
 Any procedural rule will incidentally affect substantive rights
Erie Analysis
• If it’s federal law, like federal copyright law, you don’t need to do this analysis because
it’s procedurally and substantively federal
• Is there a federal rule or statute that directly conflicts with state practice?
o Yes (to Rule)  Rules Enabling Act – is Rule ‘truly procedural’? Is it
Constitutional? (Hanna)
 If Yes  follow federal rule
 If No  follow state rule (virtually never happens)
o Yes (to statute)  if federal statute is constitutional, follow federal law.
o No  Bound up with state-created rights & obligations? (Byrd)
 Yes, substantive  follow state rule
14

•
No  is it outcome determinative considering purposes (forum-shopping,
inequitable administration)? Are there countervailing federal
considerations? (Byrd)
May follow state or federal law depending on the balance here: if not outcomedeterminative  federal law; if outcome-determinative, but there are meaningful
countervailing considerations  federal law.
o Note: a LOT depends on your answer to the first question, about whether or not
there is truly a direct conflict.
IV. Incentives to Litigate
Damages, Injunctive Relief, and Declaratory Relief
Substitutionary Remedies – Damages
• Includes: Compensatory damages; liquidated damages; (Punitive damages) – both
economic and non-economic o Roughly = to legal remedies
o Exceptions: damages (ordered by equity court)
•
•
•
By far the most common remedy awarded by US courts. Why? 1) In credit economy
many claims are for debts; 2) for many common claims, specific remedies are impossible.
Damages will matter if P proves liability, and may determine which court hears the case.
o Law requires P to prove damages.
o For removal, amount in controversy is determined by the initial pleading; if initial
pleading is not clear, look at notice of removal. If preponderance of evidence
shows that amount is met, it can be removed. (1446(c)) (Troupe)
Supreme Court ruled that award of punitive damages more than 9x compensatory
damages in a case will presumptively violate Due Process (State Farm).
Specific Remedies – Injunctive Relief
• Includes: injunction; constructive trust; rescission of K; reformation of K; accounting;
quiet title
o Roughly = to equitable remedies o Exceptions: replevin, ejectment, writ of
mandamus, habeas corpus
• More flexible – courts can use discretion here, looking at the overall fairness of the result
and how the parties have behaved (Sigma Chemical).
• To get an injunction:
o Only granted if the remedy at law is inadequate (Sigma Chemical).
 Damages remedy is preferred; injunction is more coercive and more
difficult to enforce practically. (Sigma Chemical)
o Balance the hardship on P if relief is denied with the hardship on D if relief is
granted (Sigma Chemical).
o Note: “inadequate legal remedy” and “balance of the interests” are two separate
(but somewhat overlapping) inquiries. You can have P without legal remedy that
loses because harm to D would be so significant.
15
Declaratory Relief
• 2201 – Declaratory Judgment Act – parties can seek from a court a declaration of their
rights without seeking or being in a position to seek any coercive relief like damages or
an injunction.
o Procedure governed by Rule 57. Can be chosen by a party even though other
remedies are open.
• Why declaratory judgment? P’s audience may be third party (investor, bank); P may be
fairly certain D will comply with law when declared (e.g., government D); strategy of
telling your story first.
• Tends to raise standing issues.
Provisional Remedies
• A preliminary injunction is issued before the trial on the merits; very powerful remedy.
Trade off between speed and certainty on the merits.
o FRCP 65(a)(2) allows a court to consolidate preliminary injunction hearing with
trial on the merits.
o Can sometimes be the whole case, even though there will be trial in theory.
o Preliminary injunction standard: party seeking relief must demonstrate (1) some
likelihood of succeeding on the merits, (2) that it has no adequate remedy at law
and will suffer irreparable ham. Then, court (3) balances the harms involved and
(4) looks at the public interest. (Abbott Labs)
 Court weighs all four factors, trying to minimize costs of being wrong.
 Court has discretion here – they don’t have to focus on the most drastic
remedies, but can be creative in fashioning a solution (Abbott Labs)
• Because of Due Process, parties must have notice and an opportunity to be heard before
their property is seized (Fuentes – general rule).
o Notice and hearing must be granted at a meaningful time and in a meaningful
manner, when deprivation can still be prevented. (Fuentes)
o There are some extraordinary situations that justify postponing notice and hearing
– important public interest, special need for very prompt action, and state strictly
controls the force. (Fuentes)
 Summary seizure of possessions with no more than private gain at stake and
that gives permission too easily is unconstitutional (Fuentes).
• Injunctive equivalent of a seizure without hearing is a temporary restraining order (see
FRCP 65).
o 65(a) – requires notice and hearing for preliminary injunction o 65(b) – TROs can
be given without notice if you satisfy a pretty high standard. Maybe close to the
line in Fuentes?
V. Pleadings Complaints
•
•
Complaint – introduces the story to the court and gives notice to the other side.
12(b)(6) – motion to dismiss for failure to state a claim.
16
•
•
•
o If a court grants, it is usually with leave to amend (P can add allegations that
would render complaint valid). So why bother as D? Get better understanding of
P’s case and what they know.
o Common law equivalent = demurrer. Admits that for purposes of the motion, all
facts alleged are true—but even so, P’s story doesn’t matter legally. (Haddle) 
“Even if everything you allege is true, the law affords you no relief.”
(Haddle)
o Tests the sufficiency of a complaint – can challenge factual OR legal sufficiency.
If factual, P will try to add more facts; if legal, P will try to argue for a favorable
interpretation. (Haddle)
Underlying question: how much detail should a court require in a complaint for it to
move forward?
o Less detail – we want to give people access to the courts; more detail – we don’t
want frivolous claims that waste time.
o Rule 8: notice pleading – pleading is about making claims, not giving a lot of
facts. However, to have a valid complaint, you need law and facts.
 Requires (1) short and plain statement of jx; (2) short and plain statement
of the claim; and (3) demand for relief sought.
 P often includes more than bare minimum required in Rule 8.
Rule 8 standard: a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. (Iqbal) o 1) The court does not have to
accept “legal conclusions” in the complaint. Conclusory statements, recitations of
elements, or unadorned accusations are not enough. (Iqbal)
o 2) Then, look at whether a claim is plausible – whether it allows the court to draw
the reasonable inference that D is liable for the conduct alleged, drawing on its
judicial experience and common sense. (Iqbal)
 What you think is plausible depends on life experience; can’t be done in
the abstract.
o First disregard conclusory legal allegations, then decide whether what’s left is
plausible. FORK: how do we know if it’s a legal conclusion? How do we know if
it’s plausible?
o APPLIES TO ALL CIVIL ACTIONS (Twombly, Iqbal)
Consistency in Pleading – 8(d)(2)-(3) permit a sort of apparent duplicity. Why? 1)
pleadings come very early in case, before parties know all they will by time of trial. Often
setting forth possible versions; if discovery shows one is wrong, amended complaint
drops. 2) Allegations of pleadings are tempered by burdens of proof. 3) Lawyers will
have to often settle on single version before trial.
Ethical Limits
• Rule 11 – a rule of professional conduct masquerading as procedure. Courts say it is
reasonably necessary to maintain the integrity of the federal system of procedure.
• 11(b) requires that in a pleading, motion, or other paper, attorneys who sign say that “to
the best of the person’s knowledge, information, and belief, formed after an inquiry
17
reasonable under the circumstances,” the paper is (1) not being presented for any
improper purpose, (2) claims are warranted by existing law or by non-frivolous argument
for extending/reversing law, (3) factual contentions have (or will likely have) evidentiary
support), and (4) denials of factual contentions are warranted on the evidence. o 11(c)(2)
– opposing party can make separate motion for sanctions, has to serve and then give 21
days before presenting to court; 11(c)(3) – court can order sanctions on its own. 11(c)(4)
– sanctions limited to what suffices to deter repetition of the conduct. 11(c)(5) – court
cannot impose monetary sanction on represented party if 11(b)(2) violation, or on its own
unless it gives a show-cause order.
o 11(d) – Rule does not apply to disclosure or discovery; violations here are covered
under other Rules.
Responding to the Complaint
• Three options for D at pleading stage: default, pre-answer motion, answer
• Default: do nothing and have judgment entered against you (Rule 55)
• Pre-answer motions: lead to hearing; if denied  D must answer within 14 days –
12(a)(4)(A); if granted  case dismissed, or leave to amend o Most of 12(b)
motions have nothing to do with the merits; saves costs of answering and
discovery, saves everyone time.
o 12(c) is just like 12(b)(6), but you’ve already answered. Can be a shield for D or a
sword for P. o 12(e) motion for more definite statement – infrequently and almost
never successfully invoked
• Answer: leads to discovery, sets on the road to trial. (majority of cases) o Must be done
within 21 days (or 60 days if they waived the service)… o D must “state in short and
plain terms its defenses” and “admit or deny the allegations asserted against it.” 8(b)(1)
 A denial “must fairly respond to the substance of the allegation.” 8(b)(2)
• D has to make clear what exactly is in dispute. (Zielinski)
o RULE 8: In responding to allegations in complaint:
 Can ignore  deemed admitted 8(b)(6)
 Admit, deny, or partially admit and partially deny
 “No knowledge or information”  acts as denial 8(b)(5)
 Add: affirmative defenses, counterclaims
•
A denial says that what P alleges is not true. Affirmative defenses are additional
allegations that defeat liability. They admit the facts of the complaint but show cause for
why the facts shouldn’t have their ordinary legal effect (Ingraham).
o Affirmative defenses are waived if not timely raised.
o To determine if it is an affirmative defense: first, look at 8(c) and then at case
law.
Then, consider some informal factors: (1) is the matter necessary or extrinsic to
P’s case; (2) who has better access to relevant evidence; (3) is matter indulged or
disfavored; (4) is this the type of thing to unfairly surprise P. (Ingraham)
18


Overriding concern seems to be about fairness to P… can be some close
questions here, and they can also raise Erie problems if the defenses are
state-law related but the claim is based on federal law.
Often, D can raise the defense for the first time even as late as trial;
however, if defense is raised after the verdict or after judgment has been
entered, it is less likely to be granted.
Amendments
• Rule 15 – allows revisions of original stories but limits the extent and timing of these
changes.
• 15(a)(1) – allows parties to amend once within 21 days if they made a mistake; 15(a)(2) –
party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court “should freely give leave when justice so requires.” o Standard
for leave to amend: should be given in the absence of things like bad faith, undue delay,
or undue prejudice. (Aquaslide)
 When there is a risk that, regardless of the choice the court makes, there will be
potential prejudice, the court may favor testing the claim on the truth and getting
to the merits. (Aquaslide)
 Burden is on the party opposing the amendment to show such prejudice.
• 15(c) allows “relation back” – allows an amended pleading to be treated as though it was
filed on the date of the original pleading.
o 15(c)(1)(B): “an amendment relates back to the date of the original pleading when
the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out in the original pleading.”
 How do we determine if it arose out of same conduct/ transaction/
occurrence? Look at the specificity of the complaint (relates to whether D
is on notice), the timing of the amendment (state of litigation), and
whether there is a good reason for the amendment. (Moore and Bonerb)
• This test – and the concept – is fairly elastic. FORK
o Also provides allowance if a corporation is sued under the wrong name or an
individual’s name is misspelled – 15(c)(1)(C) (see Zielinski)
VI. Discovery
The Discovery Process
• Where the parties uncover the underlying facts/events. Effect: very few surprises at trial,
fewer trials overall.
o Criticisms: excessive; time-consuming; costly; can be used to harass.
• Rule 26 = master rule. Types of discovery tools: requests for production; interrogatories;
requests for admissions; depositions; physical and mental evaluations.
The Scope of Discovery and its Limits
• Scope – 26(b)(1) – parties can seek discovery regarding any non-privileged matter that is
relevant to a claim or defense and is proportional to the needs of the case.
19
•
•
•
•
o Limits: relevance, privilege, proportionality, undue burden, privacy, and
prejudice/annoyance/embarrassment.
o Note: scope of discovery is different than the scope of admissible evidence.
Relevance = information must tend to prove or disprove something that the governing
substantive law says matters. Is the information pertinent given the claim or defense at
issue?
o FORK: Though the legal standard is straightforward, there is enormous room for
argument as to what is relevant.
Proportionality factors: importance of issues; amount in controversy; relative access to
information; resources; importance of discovery; burden or expense outweighs likely
benefit?
o Proportionality consists of more than whether the particular discovery method is
expensive. (Wagoner)
Privilege: attorney-client; physician-patient; psychotherapist-patient; priest-penitent;
spouses – look to the common law for the nature and scope of privilege.
o Privilege acts to exclude even when the information is relevant.
o Privilege extends to communications but does not block underlying facts.
(Upjohn)
 Opposing party can ask what happened, but not what you told the lawyer.
 So why fight? Expense; shield of the lawyer.
o Privileges are absolute unless they are waived. The party must assert the
privilege, and the privilege can be waived by taking actions inconsistent with a
claim of privilege.
o Why privilege? To encourage full and frank communication and to encourage
compliance with the law. (Upjohn)
o Privilege in a corporate setting – no clear rule after Upjohn. Considerations:
importance of keeping material confidential and making confidentiality clear;
make role of general counsel clear; investigating within scope of employment.
Work product (trial preparation materials): Rule 26(b)(3) codifies Hickman, and
conditionally bars discovery of information prepared “in anticipation of litigation” or for
trial by a party or their lawyer.
o Tension with full disclosure: Applies when information is not privilege and
relevant, but the court protects because it goes against the adversarial system.
(Hickman)
 Bar is conditional – if party cannot obtain information another way, they
must show substantial need (say, if witness had died)
 Written statements are most likely to be turned over; interview notes by a
lawyer may be partially redacted; lawyer’s recollections are almost never
turned over.
o “Discovery was hardly intended to enable a learned profession to perform its
functions either without wits or on wits borrowed from the adversary.” (Hickman)
20
•
•
Privilege: absolute bar unless waived; purpose is full communication; limited in scope to
attorney-client; Work Product: conditional bar; purpose is adversary system; little broader
– in anticipation of litigation, prepared by party or representative.
Courts have broad discretion to shape discovery, and their rulings here cannot be
appealed because they are not final judgments. However, judges only get involved if the
parties are not able to agree after a “meet and confer.”
VII. Resolution without Trial
Defaults, Dismissals, and Settlement
• Rule 55 – default – judgment entered for P
• Rule 41(b) – involuntary dismissal – mirror of default; type of sanction on P that operates
as adjudication on the merits so P cannot bring the same claim again.
• Rule 41(a) – voluntary dismissal – most common reason is settlement; allows P to
dismiss any time before D answers or to dismiss at any time if all parties agree.
• Settlement – can be (1) private contract in which P agrees to not bring or drop lawsuit; no
court involvement; if breached, must bring breach of contract claim; if signed, bring
41(a) dismissal with prejudice; stays private; OR (2) consent judgment where parties
agree and ask the court to enter judgment as its own; if breached, court can enforce; will
be publicly recorded.
o Exceptions to private settlements: class actions, minors, or incompetent adults. o
Over half of civil cases end in private settlement. Is this good?
 Pros: faster and cheaper; consent is a principle of justice; takes account of
nuance and subtleties; controls risk.
 Cons: leaves parties less satisfied; permits might to triumph over right;
deprives public of valuable information and definitive adjudication.
 Underlying this debate: what do you think courts are doing?
Reinforcing/shaping public norms or helping private parties resolve
disputes?
Arbitration
• Litigation: Judge as decision-maker; Third party decision; FRCP
• Arbitration: Arbitrator as decision-maker; Third party decision; Agreement or
courtordered o Essentially final award; more confidential; can be less expensive; parties
can choose arbitrator and substantive and procedural rules.
o Should court enforce arbitration agreements? May depend on if you think the
purpose of litigation is private or public. Arbitration agreements are
overwhelmingly enforced today – even pre-dispute agreements (Epic Systems).
• Mediation (facilitated negotiation): Mediator as facilitator; Party agreement; Agreement
or court-ordered
• Federal Arbitration Act broadly declares agreements to arbitrate as “valid, irrevocable,
and enforceable, save upon such grounds as exist at law or in equity for the revocation of
any contract.” o Procedural unconscionability – involves oppression (inequality of
bargaining power and absence of meaningful choice) and surprise (terms are hidden in a
21
long, printed form); Substantive unconscionability – terms are so one-sided as to shock
the conscience. (Ferguson) – limited now…
o Key question: is this a generally applicable contract defense or does it target
arbitration? Savings clause of FAA applies only to generally applicable contract
defenses, not to defenses that target arbitration (directly, or by interfering with the
fundamental attributes of arbitration). (Epic Systems)
 Example: Courts can’t allow a contract defense like illegality to reshape
individualized arbitration. (Epic Systems)
Summary Judgment
• Standard: Rule 56(a) – “the court shall grant summary judgment if the movant shows that
(1) there is no genuine dispute as to any material fact and (2) the movant is entitled to
judgment as a matter of law” so no trial is necessary
o Grant SJ if no reasonable jury could find for non-moving party.
 Courts are required to view the facts and draw inferences in the light most
favorable to the non-moving party; they are not to engage in weighing the
credibility of competing evidence (Anderson, Scott).
o “Genuine dispute” – enough evidence that a reasonable trier of fact could reach a
different conclusion (i.e., return verdict for non-moving party).
o “Material fact” – makes difference to the outcome of the case.
• Burden-shifting framework (Celotex)
o 1) Party moving (movant) for SJ bears the burden of production of information
(affidavits, depositions, or other materials) that “clearly establishes that there is
no factual dispute regarding the matter upon which SJ is sought”
 Show evidence of genuine dispute OR
 Show non-moving party’s lack of evidence of an essential element
(Celotex)
 Lower bar- no need to cite specific evidence, can simply point
to absence of other’s evidence
 Rule 56 requires entry of summary judgment “against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.”
 More common for D than P (because P bears burden of proof):
 If P is moving, they must show they have sufficient evidence
to make out a prima-facie case
o 2) If this is passed, the burden is on the non-moving party (e)
 Must show real evidence (affidavits, depositions, or other materials) that
there is a genuine issue for trial such that “reasonable minds could differ”
 must do more than show some metaphysical doubt as to the
material facts (Scott).
 56(c)(2), (4) – hearsay is not enough; documents must be
admissible in evidence at trial. (Lundeen)`
22

•
•
•
Not as difficult to reach as movant’s burden of production (“light most
favorable”)
o Why? Saves time and money; avoids trials without a “scintilla” of evidence. Gets
rid of unsupported claims/defenses.
 Caution? Worry that what the judge thinks is obvious might not be; gets
rid of the jury too easily.
Compare with 12(b)(6): 12(b)(6) tests the sufficiency of the allegations; summary
judgment tests the sufficiency of the evidence.
When?
o 56(b) at any time until the deadline, which is 30 days after discovery
 This gives D more time than P because they did discovery first
(d) Judge has discretion to (1) deny or defer motion, (2) allow time to obtain affidavits or
to take discovery, etc.
VIII. Jury Trial
The Right to a Jury Trial
• 7A: “in suits at common law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved, and no fact tried by a jury shall otherwise be
reexamined in any Court of the United States than according to the rules of the common
law.” o 7A not incorporated against the states.
o Parties must demand a jury trial (and they often do so in pleadings); if they fail to
raise the issue, they waive the right (Rule 38).
• To determine whether there is a jury right, courts undertake a historical test, seeking to
give the parties the same right as they would have had in 1791 (looking at the law-equity
division).
o If cause of action developed post-1791: first locate the closest historical analogy,
and then look to the remedy sought in the case. EXAM TIP: for us, look at the
remedy sought – this will be a rough cut for our purposes. If damages  assume
court of law  jury trial
o When a case blends legal and equitable claims: to the extent of overlapping
issues, the jury decides first; then the judge decides the equitable issue, but is
constrained by the findings of the jury.
• Roughly: judge decides questions of law; jury decides questions of fact. However, jury is
basically a black box that spits out a verdict. The judge acts as a filter to control what
inputs go into the black box (facts, evidence, instructions of law).
Judgment as a Matter of Law (JML)
• Rule 50: a court should render judgment as a matter of law when a party has been fully
heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue.
o Combines what used to be called directed verdict and JNOV as JML.
• Same standard as summary judgment: Court must review all of the evidence in the
record, but in doing so must draw all reasonable inferences in the favor of the nonmoving
23
•
•
•
party, and it may not make credibility determination or weigh the evidence. Can give
credence to evidence favoring the non-movant and evidence supporting the movant that is
un-contradicted and un-impeached. (Reeves) o Grant JML if no reasonable jury could
find for non-moving party.
o Burden of production: If evidence of P points with equal force to two things, and
one makes D liable but the other does not, P must fail. (Reid)
Effect: send the jury home.
When? After opposing party has been fully heard but before the case is submitted to the
jury. (P has tighter window to move) o Party cannot file JML motion for first time after
verdict; have to “renew” motion within 28 days after entry of judgment.
 Why? 7A – can’t “re-examine…” Courts engage in sleight of hand and
say if the motion is renewed, the judge never technically decided JML
motion and so it’s not ‘re-examining…’
 Why ‘renewal’ of JML at all? Court may think it’s really obvious; if they
are reversed on JML after jury reached a verdict, the jury verdict will be
reinstated.
Summary judgment v. JML – evidence considered by judge differs; timing is different;
SJ says no point in having a trial.
New Trial
• Rule 59 – refers back to common law – court can grant new trial for any reason for
which new trial has been granted at action at law in federal court. Can be by motion or
the court can grant on its own.
• Why grant? Evidentiary error; Error of law; Other procedural problems; or “Contrary to
the weight of the evidence” o Last one is a little more subjective and troubling;
effectively the judge taking it away from the jury. However, very clear precedent for
this, and it’s not a lot of space here because of JML.
IX. Appeals Timing
•
•
Final judgment rule: 1291 – appeals can be brought only after there is a final decision by
the district court. If no final judgment  no jx.
o A final decision “ends the litigation on the merits and leaves nothing for the court
to do but execute the judgment.”
o Why? For: costs of interlocutory appeal are high; we want efficiency; trial judges
are right more than they are wrong. Against: trials are more expensive; often
serve as the end of litigation because parties cannot afford to wait…
Final Judgment Exceptions: 54(b), 1292(a) injunctions, 1292(b) interlocutory appeals,
23(f) class certifications, collateral order doctrine o 54(b) – does not apply to a single
claim action. Permits courts to direct entry of final judgment on some of the issues
or parties but not all only if the court
expressly determines there is no just reason for delay. Court asks if it’s
sufficiently independent of the rest of the litigation.
o Injunctions are exception because of their special nature and potential for harm.
24
o 1292(b) – where a trial judge isn’t sure about the question of law and there is
substantial ground for difference of opinion, they can certify an order to the
appeals court. Must state this expressly; appeal must be made within 10 days; and
appeals court must agree, exercising its discretion. Not very popular overall.
o Collateral order doctrine – narrow; only if collateral issue will be unreviewable.
Think immunity and Iqbal.
Standards of Review
• Law = de novo (SJ and JML are de novo); Facts = clearly erroneous o Why difference?
Different institutional strengths; trial court is closer to the facts; at some point, we want
litigation to be done.
o Inferences are still within findings of facts.
o Clearly erroneous = although there is evidence, the reviewing court on the entire
evidence is “left with the definite and firm conviction that a mistake has been
committed.” (Bessemer City)
 When there are two permissible views of the evidence, the fact-finder’s
choice cannot be clearly erroneous.
• Mixed questions of law and fact = it’s complicated
• Discretionary decisions, trial management = abuse of discretion
• All subject to ‘harmless error’ doctrine – court will affirm if error makes no difference to
the outcome of the case. Federal courts are forbidden to reverse for errors or defects that
do not affect the substantial rights of the parties under USC 2111.
o Ex: court fails to treat 12(b)(6) as summary judgment where material facts are not
disputed and other party had chance to respond.
X. Respect for Judgments // Former Adjudication
Question: what effect does a lawsuit have on subsequent litigation? This is the arena of former
adjudication.
Claim Preclusion
• Claim = theory or basis on which P seeks recovery.
• Claim preclusion occurs when the case concerns the same claim as a prior action, is
litigated by the same parties to the prior action, and when the first action resulted in a
final judgment on the merits. Underlying goals: efficiency, finality, and avoidance of
inconsistency.
• RULE: Claim preclusion treats a judgment on the merits as an absolute bar to re-litigation
between parties and privies for every matter offered and received to sustain or defeat the
claim AND for every matter which might and should have been litigated as part of or in
conjunction with the earlier action. (Heaney) o Is it the same claim? Precluded.
o Different claim? Ask, “Should it be litigated?” Two tests (FORK):
 Preclusion where the parties and the cause of action are identical.
 Preclusion where both suits arise out of the same transaction – broader
and more modern test; majority and federal test. (Assume this for EXAM)
25
•
•
•
•
•
Transaction: ask whether the facts are related in time, space, origin, or motivation;
whether they form a convenient trial unit; and whether treatment conforms to party’s
expectations.
o Court may also look at policy regarding preclusion:
 For: efficiency, fairness to D, consistent results, finality
 Against: want claims determined on the merits
Claim preclusion applies to Ds and defenses also. (Martino)
Consent judgments and sanctions are treated as adjudications on the merits (Martino,
Gargallo).
o If a court lacks subject matter jx, then that judgment will not be given preclusive
effect. (Gargallo)
1738 – full faith and credit statute; if the effect in the forum where the first suit is decided
= preclusion, then result in all other courts = preclusion.
Rule 13(a) – forces parties to raise certain claims at the time and place chosen by their
opponents or to lose them; makes counterclaims compulsory if they arise out of the same
transaction and do not require adding another party… o Does not apply unless there has
been some form of pleading. (Martino)
Issue Preclusion
• Issue = specific factual/legal question that must be decided; subset of claim.
• Issue preclusion = when (1) an issue of fact or law is (2) actually litigated and determined
by (3) a valid and final judgment, and (4) that determination is essential to the judgment,
then the determination is conclusive in a subsequent action between (5) the same parties
(or those in privity), whether on the same or a different claim.
o If there is a general verdict where two grounds are possible, then we don’t know
whether either issue was actually litigated or determined. Not precluded. (Parks)
o If there are two alternative and sufficient grounds given for a ruling, we don’t
know whether the determination is essential to the judgment.
 FORK: R.1 says that both issues are precluded
 R.2 says that neither should be precluded – unless an appellate court
upholds both grounds  then both are precluded.
• Why? Determination in alternative may not have been as careful; losing party may be less
likely to appeal.
Which Parties?
• Due process is a limitation on preclusion doctrine; everyone has a right to be heard.
• Both claim and issue preclusion apply to the same parties and those in privity.
o In privity: Nonparty is precluded if (1) succeeded to party’s interest, (2)
controlled the original suit, or (3) their interests were adequately represented.
 (2) Control: means effective choice to legal theories (like president and
sole shareholder controls company; parent corporation controls
subsidiary); lesser means of participation do not suffice (financing, same
lawyer, testimony as witness)
26

•
•
(3) Adequate representation: need an express or implied legal relationship
(trustee-beneficiary, guardian-ward)
Mutuality applies to claim preclusion, but NOT issue preclusion. Takeaway: nonparty
(new P or new D) can take advantage of an issue fully litigated and determined in a prior
suit, as the victim of preclusion already had an opportunity to litigate. However, a
nonparty who has never had the chance to litigate an issue cannot be precluded from
doing so.
Basic posture: offensive collateral estoppel is ok, but shouldn’t be granted if unfair. Trial
court has discretion, should consider incentives and potential unfairness. (Parklane) o
Efficiency can point both ways – not make P re-prove, but also could encourage wait and
see attitude or separate lawsuits.
o On unfairness, ASK: Could P have easily joined other lawsuit? Different
procedural safeguards? Are there inconsistent judgments already? New evidence?
o Offensive collateral estoppel – P can use a prior judgment against D on a
particular issue offensively to preclude D. Here, D already had chance to litigate
and they lost.
 Offensive collateral estoppel okay, but only for P and not for D.
 Does not undermine 7A right to a jury trial. (Parklane) o Defensive
collateral estoppel – new D trying to take advantage of prior judgment
against P. Okay.
Note: CP always used against P; IP may be used against P or D. CP always involves same parties
or privies; IP may be non-mutual. If you have CP, you won’t get to IP; but you can have no CP
and yes IP.
XI. Joinder
Joinder of Claims and Counterclaims
• Rule 18 – a single P may join any and all claims he has against a single D. (may, not
must) o Eliminates all barriers to joinder of claims by P. Not compulsory, but claim
preclusion and efficiency provide a strong incentive to join.
• 13(a) compulsory counterclaims = same transaction or occurrence; 1367 = part of the
same case or controversy o If compulsory counterclaim, then there will be supplemental
jurisdiction. If permissive counterclaim, ask if there is independent ground of federal
jurisdiction or if it falls within 1367.
o There is a penalty for omitting a counterclaim, but there is no penalty for including
if a court finds that it is not compulsory. Cover your bases.
• 13(b) permissive counterclaims – must either be supported by independent grounds of
federal jx or fall within supplemental jx.
• 13(g) cross-claims – same transaction or occurrence – D1 brings against D2.
Joinder of Parties
• EXAM TIP: First ask about joinder; then ask about subject matter jurisdiction and
preclusion.
27
•
•
•
•
•
•
•
o 1367(a) allows claims through joinder. 1367(b) applies in situations of diversity
jurisdiction, but only when joining claims by Plaintiff, not Defendant or third
party.
20(a) has two requirements: (1) same transaction, occurrence, or series of transactions or
occurrences and (2) a common question of law or fact.
o (1) Logically related events; all reasonably related claims. There’s some
ambiguity here (FORK). Depends on how you frame the transaction, occurrence,
or series. Often, the judge’s intuitions about what claims belong together are
driving this inquiry. (Mosley)
o 20(a) deals with permissive joinder. For: efficiency, consistency. Against:
confusing, risk of prejudice.
20(a)(1) Joinder as P – same transaction, occurrence, or series of transactions and
occurrences and common question of law or fact.
20(a)(2) Joinder as D – same as 20(a)(1)
14(a) third-party/impleader – a defending party may serve a complaint on a nonparty who
is or may be liable to D for all or part of the claim against D.
o A third-party claim can be maintained only if the liability it asserts is in some way
derivative of the main claim. Third party cannot be joined because he may be
liable to P; only because he may be partly liable to D. D saying, “If I’m liable, 3P
is liable too.” (Watergate)
 Cannot bring third-party claim when D says, “It was him, not me.”
Even though D can’t bring a claim, D can still make the argument as a defense to liability
at trial.
o Why would D bring third-party claim here? Because if D loses at trial, they can’t
use preclusion to then get liability of third party; they would have to bring another
suit. o 14(a)(2) – third-party D must bring compulsory counterclaims at this time.
o 14(a)(3) – P may assert any claim arising out of same transaction or occurrence
against third-party D. (however, there may be jurisdictional problems)
Joinder possibilities will shift as the substantive law changes (joint vs. joint and several
liability and the technicalities there).
Rule 21 – if parties are improperly joined, the cases are severed.
XII. Class Actions
Why class actions? Efficiency, encouraging compliance with law, finality
Worries: gives lot of power to class; preclusive effect; uncertainty of who’s in the class; super
high stakes; complexity undermining efficiency?
Constitutional Considerations
• A party cannot be bound if their interests were not adequately represented in a prior class
action. (Hansberry) o A conflict of interest means no adequate representation.
(Hansberry)
28
•
A forum state may exercise jurisdiction over the claim of an absent class-action P, even
though P may not possess the minimum contacts with the forum which would support
personal jurisdiction over a D. (Shutts)
o Burdens are different: named Ps and court are required to protect the interests of
absent Ps; absent Ps do not have to hire counsel, suffer liability, or be subject to
cross-claims or discovery.
o P still must receive notice and an opportunity to be heard: describe action, rights
of P, and give an opt-out. (Shutts)
Class Certification
• To bring a class action, you need to meet all four requirements of 23(a) AND fit into any
one of the categories in 23(b)
• 23(a) requirements – numerosity, commonality, typicality, adequacy of representation o
Numerosity – no real qualitative cut-off; typically at least 100 o Commonality - sharing
characteristics for law and fact
 What matters is not the raising of common questions, but the capacity of
the class action to generate common answers that move the litigation
forward (Dukes)
 To figure this out, you have to start digging into the facts, and, to some
degree, take a peek at the merits of the claim. (Dukes)
o Typicality – representatives must stand in the same shoes as the average class
member
o Adequacy – no conflicts of interest for the representatives; skill and financing for
lawyers.
 These requirements are concerned with ensuring efficiency and fairness to
the individuals affected.
• 23(b) categories:
o (1) (A) –inconsistent obligations; have to decide them all together (like pooled
trust in Mullane)
 Not met if D simply has to pay some but not others. (Causey) o (1)(B) –
dispositive of other claims (insurance policy with multiple claimants on a
common fund that is going to run out)
o (2) injunctions or declaratory judgment; arose out of civil rights cases
 Can only be certified when monetary relief is incidental; needs an
indivisible remedy to be a (b)(2) class. (Dukes)
o (3) need predominance and superiority; is residual, looks at individualized money
claims (small claims and mass torts)
 If there are complex conflict of law questions, or a strong interest for class
members to individually control their actions, then unlikely to meet these
requirements (Causey).
• 23(b)(3) classes are different – there are higher bars to clear at certification level
(predominance / superiority), there are different notice requirements, and there’s a
required opportunity to opt out.
29
o Contrast with (1) and (2) – the whole point is to bind everyone, so they can’t opt
out…
o Alternative for (b)(3) is individualized lawsuits; alternative for (b)(1) or (b)(2) is
to not resolve the problem at all.
Notice and Settlement
23(e) – class action settlement
• Court approval required for settlement
• Reasonable notice to class members
• Fairness hearing
• Disclose side agreements
• May order new opportunity to opt out
• Class members may appear and object
In class action settlement, you still have to meet 23(a) requirements. (Amchem)
30
CHECKLIST
I.
Personal Jurisdiction
a. Origins and The Modern Formulation
b. Challenging Jurisdiction
c. Specific Jurisdiction
d. General Jurisdiction
e. Long-Arm Statutes
f. Transient Jurisdiction
g. Contemporary Applications
h. Consent
i. Notice
j. Venue
k. Transfer and Forum non Conveniens
II.
Subject Matter Jurisdiction
a. Federal Question Jurisdiction
b. Challenging Jurisdiction
c. Diversity Jurisdiction
d. Supplemental Jurisdiction
e. Removal
III.
What Law Applies: The Erie Doctrine
IV.
Incentives to Litigate
a. Damages
b. Injunctive and Declaratory Relief
c. Provisional Remedies
V.
Pleadings
a. Complaints
b. Ethical Limits
c. Responding to the Complaint
d. Amendments
VI.
Discovery
a. The Discovery Process
b. Scope of Discovery and its Limits
c. Further Limits on Discovery (Privilege, etc.)
VII.
Resolution without Trial
a. Defaults, Dismissals, and Settlement
b. Arbitration
c. Summary Judgment
VIII. Jury Trial
a. The Right to a Jury Trial
b. Judgment as a Matter of Law
c. New Trial
IX.
Appeals
X.
Respect for Judgments
a. Claim Preclusion
b. Issue Preclusion
c. Which Parties?
XI.
Joinder
a. Joinder of Claims and Counterclaims
b. Joinder of Parties
31
XII.
Class Actions
a. Constitutional Considerations
b. Class Certification
c. Notice and Settlement