Steps to a Lawsuit
1. Determine Jurisdiction
2. Complaint
3. Service of Process
4. Answer
5. Discovery
6. Summary Judgment
7. Trial
8. After-Trial Motions
9. Post-Trial Memorandum
10. Appeals
3 Requirements for a Court to hear a Case:
1. Personal Jurisdiction:
○ The court must have jurisdiction over the defendant
○ 3 types:
■ In personam, in rem, quasi in rem
2. Subject Matter Jurisdiction:
○ The court must have jurisdiction over the type of claim in which the lawsuit is
based
3. Venue:
○ The court must be geographically located in the proper place in light of where
the facts of the case occurred
Personal Jurisdiction:
● Determines whether the plaintiff can sue the defendant in a particular state
● The power of a court to exercise control over a particular person or item of property
● Can be waived
● If you don’t challenge it, you consent
● 3 Types of Personal Jurisdiction:
1. In Rem
2. Quasi in Rem
3. In personam
● In Rem Jurisdiction:
○ When the defendant owns property in the forum & the claim arises from the
ownership of that property
○ The power of a court to exercise jurisdiction over property
1
○ Disputes Related to the Ownership of Property:
■ When the disputes involve the litigant’s interest in the property, min
contacts is apparent & satisfied
■ Due to the close relationship between the claim & the attached property
● Quasi in Rem Jurisdiction
○ When the defendant owns property in the forum, but the suit is unrelated to
that property
○ Disputes Unrelated to the Ownership of Property:
■ For disputes unrelated to the ownership of the property & no close
relationship is formed, in addition to having the property located in the
forum state, min contacts must exist b/w defendant & the forum state
before PJ can be exercised
● In Personam Jurisdiction:
○ Jurisdiction over a defendant by virtue of their relationship with the forum state
○ Either:
■ General or specific jurisdiction
➢ Depends upon relatedness
■ General Jurisdiction:
➢ Allows the defendant to be sued in the forum state for a claim
that arose elsewhere
➢ Claim is unrelated to the defendant’s contacts with the forum
➢ The defendant’s contacts are sufficiently extensive that the
defendant would be considered domiciled there for individuals or
at home for corporations
➢ Est by:
●
●
●
●
●
●
Physical / personal service
Service at domicile
Consent by defendant or agent
Incorporation or principal place of business
Continuous & systematic contact throughout the years
Out of state corporation is doing substantial activity in the
forum state
 Note:
o For breach of contract claim  where the breach
occurred, but still must est that defendant had
minimum contacts with the state
2
➢ Corporations:
 A corp is a citizen of the state of its incorporation
■ If the corp is not incorporated in the forum state,
sufficient minimum contacts with the forum must
be est
➢ Continuous & Systematic Contact:
 In situations where the claim is unrelated to the
defendant’s contacts with the state, the court will have
general jurisdiction over that defendant if he has
continuous + systematic ties with the forum
■ Specific Jurisdiction:
➢ Defendant is being sued for a claim that arose IN the forum
➢ Claim is related to the defendant’s contacts with the forum
➢ Plaintiff’s claim must arise out of the defendant’s contact with the
forum
➢ Long-Arm Statutes:
● Courts can exercise personal jurisdiction over certain out
of state defendant based on activities that took place
within the state
● Every state has a long-arm statute
● [If no long-arm is provided say, “…here in order to proceed
assume state long-arm is satisfied.”]
○ In addition to being authorized by statute PJ must
also be constitutional
● Limited Long-Arm Statutes:
○ Limits personal jurisdiction over out of state
defendants to certain circumstances or categories
○ If one of the enumerated categories does not
apply, then the court may not hear the case
■ FL & NY
●
Unlimited Long-Arm Statutes:
○ Give courts personal jurisdiction over any person or
property over which the state can constitutionally
exercise jurisdiction
○ Allowed as long as it does not violate the U.S. or
the state constitution
■ California
3
➢ Minimum Contacts:
● Defendant must have sufficient min contacts with the
forum state such that the exercise of jurisdiction does not
offend traditional notions of fair play and substantial
justice
● Satisfies the right to due process
➢ Purposeful Availment:
○ Defendant’s contact with the forum must arise
from something the defendant did
○ Defendant must have taken actions that were
purposefully directed towards the forum state
○ Court examines whether the defendant has
purposefully availed itself of the benefits &
protections of the forum state
■ Ex: prior negotiations, contemplated future
consequences, terms of a contract, parties’
actual course of dealing
■ Choice of Law Clause:
➢ A contract provision that designates
a certain state’s law or country’s law
that will be applied in any dispute
concerning the non-performance of
the contract
➢ Established that the non-resident
purposefully availed itself of the
benefits of the forum’s laws
➢ Foreseeability:
 The defendant must know or reasonably
anticipate that its activities in the forum state
render it foreseeable that it may be hauled into
court there
 It must be foreseeable that the defendant can be
sued in this forum
o Foreseeability alone is not enough & cannot
be the only factor
➢ Stream of Commerce:
 Merely placing products into the stream of
commerce will not alone generate sufficient min
4
contacts with each of the states the product may
reach
o A defendant must have made efforts to
market in the forum state or must have
otherwise purposefully availed himself of
the state’s resources
o There needs to be an expectation that the
product is going to be sold there
➢ Fair Play & Substantial Justice:
 Once minimum contacts are established a court
must still determine the facts to determine if
maintenance of the action would offend the
traditional notions of fair play & substantial
justice
o Factors:
○ The difficulty for the defendant of
appearing in the court
○ The state's interest in deciding the
case
○ The plaintiff's interest in the
convenience of the court and
○ The effectiveness of the relief to be
obtained there
Presence:
● If the defendant is present in the forum state, don't go to a minimum contacts
analysis…. you have already established personal jurisdiction
● Voluntary Presence:
○ If a defendant is voluntarily present in the forum state and is served with process
while there, the state has personal jurisdiction
○ Regardless of whether the defendant is a resident of that state or not &
regardless of how long they were in that state when served with process
■ Exceptions:
➢ Testifying in a different case: defendant is given a free pass if he is
only in the state due to testifying a diff proceeding
➢ Fraud: If a plaintiff fraudulently brings a defendant into the state
for the purpose of serving process on him, the service will most
likely be invalid
5
➢ Passing through: a defendant may also be immune if they are
merely passing through the state to attend other judicial
proceedings
● Corporations are Present Where:
○ Where they are incorporated or
■ Usually Delaware
○ Where their principal place of business is
■ At the time the complaint is filed
Domicile
● Permanent residence
● A defendant is subject to the PJ of his home state
● Established when a person with capacity, enters a state, with the intent to make that
state their home
○ Ex: registered to vote there, driver’s license there, pay taxes there
● Home State for Individuals:
○ By residence, citizenship or domicile
○ Even if the defendant is absent from the state at the time of the suit
● Home State for Corporations:
○ The state of incorporation or
○ Where principal operations are conducted
■ Aka the nerve center
■ Can have multiple states of incorporation but only one principal place of
business
Consent
● A defendant may consent to a court’s personal jurisdiction by voluntarily appearing in
the forum state’s court & submitting himself to jurisdiction
● Express Consent:
○ A defendant may agree by contract (forum selection clause) to submit to the
jurisdiction of the court if a lawsuit is brought by the plaintiff
■ If adhesion contract the court may deem the consent ineffective
● Implied / Voluntary Consent:
○ The voluntary appearance of defendant in court automatically subjects the
defendant to PJ.
● Consent by Failing to Object:
6
○ The defense of lack of PJ must be asserted in a responsive pleading or by motion
before a responsive pleading is submitted
■ If defendant fails to timely object a court’s assertion of PJ, he waives the
option to object
Waiver
● A defendant may waive his challenge to PJ by acting in a way that is inconsistent with his
argument that the forum lacks a basis for asserting PJ over him
○ Ex: defendant conducts discovery
Challenging PJ:
● A defendant may object to PJ by:
o Raising it in a pre-answer motion to dismiss under Rule 12b or
o If he has not moved under Rule 12b, by raising the defense in his answer
● Federal:
o Motion to Dismiss for Lack of PJ
● State:
o Motion to Quash
● Special Appearance:
o Showing up to court to debate PJ w/o agreeing to it
o Defendant can use this as an affirmative defense in their answer
Notice:
● Defendants must be put on notice for fairness & so they have the ability to defend
themselves or their property
● Reasonably Calculated:
○ The notice has to be reasonably calculated to reach the individual
○ People you can find  mail to their last known address
○ People you cannot find  publication is enough
Service of Process
● Who Can Serve Process?
○ Any non-party who is at least 18 years old
○ State service:
■ Can differ depending on the state
■ Look to the state statute to determine who can serve + how
7
➢ FL: can leave the summons at the person’s home or with a person
at least 15 years old
● Personal Service:
○ Physically delivering the summons & complaint to the defendant
○ Defendant has 21 days to respond
● Service by Mail:
○ Mailing two copies of the summons & complaint to defendant & requesting that
they return a waiver of service
■ If the defendant returns & signs the waiver:
➢ They have 60 days to respond
■ If the defendant does not sign the waiver:
➢ Service has not been completed
➢ Plaintiff must still serve defendant personally
● Cost of this goes to the defendant
● Time Limit for Service
○ The plaintiff must serve the summons & complaint within 90 days after filing the
complaint
● Service If the Person is Represented by an Attorney:
○ Service must be made on that attorney
● Foreign Country Service
○ Service may be affected in any manner, internationally agreed upon, which is
reasonably calculated to give notice.
○ If no international agreement exists, or if an international agreement permits
service by other means, service on any competent individual outside the U.S.
may be affected by any method permitted by the law of the foreign country
● Service on Minors:
○ Follow the rules of the state
Subject Matter Jurisdiction:
● Determines whether a case is appropriate for trial in federal court
● The power of a court to hear a particular type of case relating to a specific subject
matter
○ Cannot be waived
○ Determined at the time case is filed & does not change later on
● State Courts
8
○ Courts of general jurisdiction
○ Can hear any case that is not granted to the federal gov by Article 3
■ Ex: contracts & tort cases
● Federal Courts
○ Courts of limited jurisdiction
○ Can only hear cases granted to them by Article 3
■ Ex: cases that involve laws from the Constitution, laws or treaties
4 Grants of Subject Matter Jurisdiction:
1. Federal Question Jurisdiction
2. Diversity Jurisdiction
○ When both a federal question & diversity jurisdiction exist, the federal question
normally trumps diversity jurisdiction
3. Supplemental Jurisdiction
4. Removal Jurisdiction
Federal Question Jurisdiction:
● 28 U.S.C. § 1331
● Available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises
under federal law
○ Involves treaties, statutes, violations of the Constitution
■ Ex: federal civil rights claim
● 2 types:
○ Exclusive jurisdiction
○ Concurrent jurisdiction
● Exclusive Jurisdiction
○ Authority of only fed courts to hear & decide cases
■ Ex: bankruptcy, patent, copyright, antitrust, admiralty cases
● Concurrent Jurisdiction:
○ Authority for both state & fed courts to hear & decide cases
■ Fed & state courts have concurrent jurisdiction over most types of
actions
● Well Pleaded Complaint Rule:
○ The federal question must appear on the face of the plaintiff’s properly pleaded
complaint
■ The plaintiff has to raise this issue
■ The defendant cannot raise it as a defense
Diversity Jurisdiction:
● 28 U.S.C. §1332
9
● A fed court may also exercise federal subject matter jurisdiction where the claim
involves citizens of different states, or countries, in conjunction with an amount in
controversy exceeding $75k
● Purpose is to prevent prejudice against the out of state defendant
○ The in-state defendant cannot remove to federal court
○ Note:
■ Even if diversity & min amount in controversy are present, fed district
courts will not hear domestic relations or probate proceedings
● Requirements:
○ Complete diversity
○ Amount in controversy
● Complete Diversity
○ Every plaintiff must be a citizen of a different state or country than each
defendant
○ No citizenship can be shared between a plaintiff & a defendant
○ Citizenship is determined at the time the action is filed
■ Citizenship:
➢ A US citizen is a citizen of the state in which they are domiciled
➢ New state citizenship may be established by physical presence in
a new state with the intent to remain there indefinitely
■ Citizenship for Corporations:
➢ Citizens of both the state of incorporation & its principal place of
business
➢ Principal place of business is where the executive offices are
located
■ Citizenship for Legal Representatives:
○ Deemed to be a citizen of the same state as the decedent,
incompetent or minor
● Amount in Controversy:
○ The plaintiff’s good faith claim must exceed $75k
■ Claim is in good faith unless it is clear to a legal certainty that plaintiff
cannot recover more than $75k
■ What plaintiff recovers is irrelevant, just have to plead in excess of $75k
○ Aggregation of Claims:
○ The addition of multiple claims to exceed the amount in controversy of
$75k
10
○ Allowed if:
■ There is 1 plaintiff & 1 defendant
■ No limit on the # of claims you can aggregate & the claims do not
have to be related in any way
○ Not allowed if:
■ Multiple parties on either side
■ There is 1 plaintiff & multiple defendants or
■ There are multiple plaintiffs & 1 defendant
➢ Unless joint claim:
● The plaintiffs are joining together to enforce a
single title or right
● Will say the word “joint”
● # of parties is irrelevant with joint claims
■ Use the total value of the claim
○ Class Actions:
○ At least one plaintiff must meet the $75k individually
■ Cannot aggregate claims together to reach the $75k
○ If one plaintiff satisfies the amount in controversy:
■ The claims of the other plaintiffs can be heard
 So long as all of the claims arise out of the same
transaction & complete diversity is maintained
Supplemental Jurisdiction:
● 28 U.S.C. § 1367
● Allows non-diversity & non-federal question claims into fed court when they derive from
a common nucleus of operative fact or are substantially related to the claim invoking
federal jurisdiction in the first place
○ Up to the court’s discretion
○ Note:
■ If fed claim & state claim do not share a common nucleus of operative
fact the fed court may not exercise supp juris over the state claim
■ Supplement Jurisdiction cannot override the complete diversity
requirement
 Plaintiff cannot sue a non-diverse defendant in a second claim
● Pendent- Party Jurisdiction
11
○ Jurisdiction by the fed court over non-fed claims when both the fed & non-fed
claims derive from a common nucleus of operative fact
○ When the plaintiff seeks to add a claim
● Ancillary Jurisdiction:
○ Jurisdiction by the fed court over a claim that would normally be outside of its
subject matter jurisdiction if it is substantially related to another claim that is
within its jurisdiction
○ When the defendant seeks to add a claim
■ The plaintiff cannot be the one to destroy the diversity
➢ It is okay if the defendant does it: ancillary
Removal Jurisdiction:
● 28 U.S.C § 1446
● The transfer of a case from state → fed court
● Gives the defendant the chance to pick the forum
● Generally a case is removable if:
○ It invokes federal subject matter jurisdiction & could have been originally filed in
a federal court and
● Note:
○ A defendant can only remove to the federal district where the state court is
embraced
○ A diversity case cannot be removed if any defendant is a citizen of the forum
○ All defendant must agree to remove
○ Only defendants can remove
■ A plaintiff cannot remove on the basis of a counter claim against him
● Procedure for Removal
○ 28 U.S.C § 1446
○ Defendant can remove by filing a notice of removal with the relevant fed court &
in the state court where the case is pending
■ Containing a short + plain statement on the grounds of removal & signed
under Rule 11
■ Defendant must give written notice to all adverse parties & to the state
court
○ Timing for Removal:
■ Defendant must file within 30 days of receiving the initial pleading or
■ Within 30 days after becoming aware that removal is proper
➢ If not filed within 30 days  removal is waived
12
● For diversity cases, removal must also occur within 1 year
from the date the case is commenced
○ Motion to Remand:
■ Filed is plaintiff thinks removal is wrong
➢ Defendant cannot appeal it
■ For a procedural defect:
➢ Must be filed within 30 days of defendant filing notice of removal
■ For lack of Subject Matter Jurisdiction:
➢ Can be raised at any time before final judgment, even on appeal
Venue:
● Which federal district court should hear the case
● The geographic district in which a case is tried & from which the jury is selected
● Requirements are generally waivable by the affected parties; few are not waivable
○ Improper venue may be waived
○ The place where process is served has no effect on venue
○ A defendant may object to improper venue
● Transfer of Venue:
○ Motion for an inconvenient forum is filed
○ For the convenience of the parties & witnesses and in the interest of justice
○ A district court may transfer to another district court where the action could
have been brought in the first place
○ The transferee must be a proper venue & must have PJ over the defendant
■ All that changes is the courthouse
➢ Nothing is waived when venue is changed
➢ The underlying substantive law of the original place stays the
same unless there is a choice of law question
■ Factors:
➢ Convenience of the parties, witnesses, costs, calendar congestion,
where the events took issue, the interest in justice in general
■ Choice of Law Question:
➢ Transferor: the original fed district
➢ Transferee: the one to which we transfer
● If suit is brought in proper venue & case is transferred →
law of transferor (old) forum controls
● If suit is brought without proper venue & case is
transferred → law of transferee (new) forum controls
13
● Venue in Federal Courts:
○ Venue is proper in any district where any defendant resides if all defendants
reside in different districts of the same state or
■ Reside:
➢ Individuals: the district in which one is domiciled, only one
➢ Corporations: in all districts where it is subject to PJ, can be
several districts
○ Where a substantial part of the claim arose
■ Note:
➢ A plaintiff’s residence is not a valid basis for fixing venue
○ Cases Removed from State Court:
■ Venue is automatically proper in the fed district in which the state action
was pending
○ Forum Non Conveniens:
■ When the defendant files a motion to dismiss arguing the convenience is
strongly in favor of another court
■ Although a forum may have the power to hear a case, they should
decline to when the forum is not convenient
➢ Presumption is in favor of the plaintiff, especially if they are suing
at home
■ The proper court be the one most convenient to all parties
➢ Factors: convenience of the parties, witnesses, costs, calendar
congestion, where the events took issue, the interest in justice
Multi-District Litigation:
● Mass tort action suits involving multiple plaintiffs with the same injury or problem
● A special federal litigation procedure designed to speed the process of handling complex
cases
○ Different from class action suits: the facts of each case are different
Erie Doctrine:
● Arises when a federal court is exercising diversity jurisdiction
● Courts must use the entire state substantive law (includes choice of law rules) & the
federal procedural law
14
1. Is there a federal provision on point that directly conflicts with state law? If yes,
apply the federal law → supremacy clause
2. If no federal provision on point: apply the state law for substantive matters
■ Ex: SOL, if litigation changes the outcome
● Outcome Determinative Test:
○ States that the outcome of a lawsuit should be the same in fed court as it would
be in state court
○ If the litigation changes the outcome:
■ The issue is substantive, apply the state law
○ If the litigation does not change the outcome:
■ The issue is procedural, apply the federal law
● Substantive versus Procedural:
○ Substantive:
■ Laws that define and regulate rights / duties
■ Determine whether the plaintiff has a valid claim
○ Procedural:
■ Laws that establish methods for enforcing & protecting rights
■ Governs the way in which the sides may present their arguments
➢ The remedy, relief, process
● Balancing Test:
○ When a federal law conflicts with a state statute, the fed court sitting in diversity
employs a balancing test
○ Test: is the state law integral to the substantive rights & obligations at issue?
■ If yes  follow state law
■ If no  follow federal law
Reverse Erie:
● If a state court is hearing a federal cause of action, that state court must use the
substantive federal law NOT state law to determine the outcome
○ Fed claim in state court → fed law applies
Pleadings:
● Statements by the plaintiff & defendant that detail the facts, charges & defenses of a
case
15
● Set the agenda & describing the nature of the disputes between the parties
● Notice Pleading:
○ Plaintiffs simply informs the defendant of the claim & the general basis for it
■ Used in federal district court and in most state trial courts
● Code Pleading:
○ A statement of the facts constituting the COA in ordinary + concise language
○ Used in a small amount of state courts
■ Cali, Illinois, NY & FL to some degree
■ FL:
➢ “Pleading ultimate fact”
➢ Must allege enough facts so that when the defendant reads them,
they add up to the elements of the claim & would demonstrate a
theory of liability
● Complaint
○ Pleading by the plaintiff alleging defendant’s wrongdoing
○ Initiates the lawsuit
○ Caption
■ Includes the name of the court
■ The title of the action
■ The name, address & number of the attorney presenting the pleading
and
■ A designation of the nature of the paper
○
Body
■ Sets forth the allegations in separately numbered paragraphs
○ 3 Elements of a Complaint in Fed Court:
1. Short & plain statement of the grounds of the court’s jurisdiction
2. Short & plain statement of the claim:
➢ Requires enough facts to suggest the required elements
➢ Plausibility: have to plead certain facts that would show evidence
of the activities for plausibility standard
➢ Asks for more than a sheer possibility that defendant has acted
unlawfully
3. Demand for relief sought:
16
➢ Plaintiff asking for damages in a certain amount or a demand for a
jury trial
➢ Does not require a legal theory to be pleaded as long as the
complaint sets forth sufficient factual allegations
○ Claims for Relief:
■ Describes the plaintiff’s legal theories
○ Prayer for Relief:
■ A statement made by the plaintiff at the end of the complaint requesting
or demanding that the court grant relief / remedies to them
● Filing a Motion Directed Towards the Complaint:
○ Challenging something about the complaint
■ Ex: jurisdiction or service was bad
Pre-Answer Motions:
● 7 pre-answer motions to dismiss that can be raised either in a motion of in an answer:
1. Lack of subject matter jurisdiction
■ Can be raised anytime (including the first time on appeal)
■ Not waivable
2. Lack of personal jurisdiction
3. Lack of venue
4. Insufficient process (something wrong with the document)
5. Insufficient service of process (served improperly)
6. Dismiss for failure to state a claim
7. Failure to join an absentee / indispensable party
■ 2-5:
 Must be raised by defendant in his first response or they will be
waived
■ 6 + 7:
 Can be made any time prior to trial or at trial
17
● Motion to Dismiss for Failure to State a Claim
○ Asserts that even if the allegations in the complaint are taken as true, no legal
claim is stated, and the complaint should thus be dismissed
 Addresses the adequacy of the pleadings
 Factual allegations must tell a story of liability
● Motion for Judgment on the Pleadings
○ Presents the moving party’s contention that on the face of the pleadings, she is
entitled to judgment
○ Matters outside the pleadings are irrelevant to a decision
○ This motion tests the legal sufficiency of the pleadings on their face
 Use this as a plaintiff if the defendant raises an affirmative defense in her
answer
● Motion for a More Definite Statement
○ A party may move for a more definite statement before responding to a pleading
that is so vague or ambiguous that a responsive pleading cannot reasonably be
framed
● Motion to Strike
○ Before responding to a pleading, a party may move to have stricken from any
pleading any insufficient defense, or any redundant, immaterial, impertinent, or
scandalous matter
 This should only be granted if material in the pleading is wholly irrelevant
and can have no bearing on the equities and no influence on the decision
○ Joining Motions
 A motion under rule 12 may be joined with any other motion allowed
under this rule
Answer:
● The defendant’s response to the plaintiff’s complaint
● Purpose of an Answer:
○ To admit to the claims you agree with & deny those you don't
■ Don't know:
➢ Say I do not know & on that basis alone I deny because I don't
have enough info to know if I agree
■ If you do not acknowledge the allegation:
➢ You essentially admit to it
18
○ List affirmative defenses
● General Denial:
○ Type of answer in which the defendant denies every allegation set out in the
complaint
● Time Limit to Respond / Answer:
○ If personally served with the summons and complaint:
■ 21 days to serve an answer
○
If served the summons and complaint through mail with the request that you
sign a document saying you’ve received it:
■ 60 days to serve an answer
○ After motion to dismiss is denied:
■ 14 days after motion was denied to file an answer
Reply:
● A plaintiff, co-defendant, or third-parties response to the defendant’s answer
○ Federal system:
■ Not required to file a reply, but courts may ask the party to
○ State System:
■ Some require a reply
Counterclaim:
● Any claim filed by the defendant against the plaintiff of the same suit
● Compulsory Counterclaim:
○ A defendant’s claim against a plaintiff that must be brought in the same suit as it
arises out of the same transactions or occurrence as the plaintiff’s claim
■ If not brought in same suit  barred forever
○ Jurisdiction is exercised over this claim though supplemental jurisdiction
■ Two-Part Test:
 Must arise out of the transaction / occurrence that is the subject
matter jurisdiction of the opposing party’s claim
 Whether there is a logical relationship:
● Would yield judicial efficiency
19
● Permissive Counterclaim
○ Counterclaim that arises out of an unrelated transaction
■ Defendant is allowed, but not required to make
■ Less likely to qualify for supplemental jurisdiction, although it is possible
for them to satisfy the common nucleus of operative fact standard
 Court does not have to hear the claim & has discretion
 Looks to convenience, fairness, whether it will benefit both
parties
Cross-Claim:
● Claim brought by one defendant against another defendant
● Must arise from the same transaction or occurrence as the underlying case
● Must invoke subject matter jurisdiction
○ Once a party asserts a crossclaim against another co-party they are placed in an
adversarial relationship with the cross-claimant
■ The party against whom a crossclaim is asserted must assert all
transactionally related claims available as compulsory counterclaims or
they will be waived
Impleader
● The addition of a non / third party to the suit by the defendant filing a complaint against
them
● Impleader seeks contribution or indemnity from the third party
○ The defendant may implead the 3rd party if the claim arises under the same
transaction or occurrence as the orig
○ The 3rd party defendant may assert a claim against the plaintiff if it arises under
the same transaction or occurrence as the orig
○ The plaintiff may assert a claim against the 3rd party defendant if the claim arises
under the same transaction or occurrence as the orig
○ Note:
■ The plaintiff cannot be the one to destroy the diversity
➢ It is okay if the defendant does it: ancillary
■ Via supplemental jurisdiction
➢ Every claim must have a basis for subject matter jurisdiction
Interpleader:
● Allows a person holding property (stakeholder) to force all potential claimants into a
single lawsuit & require them to litigate among themselves to determine which, if any,
has a valid claim to the debt or property involved.
● Avoids inconsistent judgments
○ Can implead others by rule or federal statute interpleader 1335:
20
○ Statutory Interpleader:
○ Fed courts have jurisdiction over any civil action of interpleader where
the amount in controversy is over $500, there is minimum diversity & the
plaintiff deposits the money or property to the court
○ Guarantees everyone is in the case
■ Only minimum diversity required:
➢ Diversity between two or more claimants is required
○ Rule Interpleader:
○ When a plaintiff may be subject to multiple liabilities, an outside party
may be joined as a defendant & then be required to intervene, so long as
they have a claim against the plaintiff
○ A device for joining rival defendants
○ Does not guarantee everyone is in the case
■ Need complete diversity:
➢ Between the stakeholder & all adverse claimants
Pleading Special Matters:
● Special damages are those that do not normally flow from an event
○ If an item of special damage is claimed, it must be stated with specificity
■ Ex: If you are alleging fraud or mistake you must allege it with detail and
particularity
Signing of Pleading, Motions & other papers:
● Rule 11 (a)
○ The doc must be signed by at least one attorney or personally by the party if he
is unrepresented
● Rule 11 (b)
○ Your representations of the document:
○ No improper purpose
○ Legal contentions are warranted
○ Facts will likely have evidentiary support
○ Denials of fact have evidentiary support
○ Safe Harbor Provision:
■ If rule 11 sanctions exist, write a letter to opposing party and tell them
your basis for the motion & give opposing side the opportunity to
change, amend or withdrawal their complaint
■ 21 days to fix the improper action before rule 11 motion is filed to the
court
21
Amended Complaints
● Can amend either as a matter of right within 21 days or after 21 days
○ Before 21 days:
■ Can be amended once as a matter of right
○ After the first amendment:
■ Leave to amend shall be freely given when justice so requires (totality of
the circumstances are evaluated)
■ Court balances the interests of both parties to determine whether justice
would be furthered.
➢ Courts might decide not to allow amendment when it would
unfairly prejudice the adverse party, the party seeking to amend
failed to include the proper info due to lack of due diligence or
good faith effort, if the amendment is a result of undue delay or
bad faith, or amending cannot cure the original pleading
➢ A pleading may be amended even after a motion to dismiss has
been granted
○ After 21 days:
■ Need the court or defendant’s approval to amend
○ After discovery & trial date is set:
 The evaluation will be different, likely the court will not grant your
motion as it is too late & unfair
● Purpose of Amending a Complaint
○ To fix a mistake or
○ To include the actual defendant that is found through discovery
○ To add an additional claim
■ During discovery, there might be an additional theory of liability
○ Naming Defendants
○ If you name the defendant as “unknown” you cannot go back & change it
○ But, if you misname the defendants “Tim and bob” but those aren’t the
defendants you can change it
Relation Back Doctrine:
● Amending after SOL has run is allowed when the amendment relates back to the original
pleading
○ Does not mean the court will grant the motion if it applies
○ The court is interested in being fair
22
○ Amendment Relates Back If:
■ It concerns the same conduct, transaction or occurrence and
■ Opposing party had some notice of the amendment
● Naming Defendants & Relation Back Doctrine:
○ If you name the wrong defendants & then amend to fix the incorrect names
■ Relation back doctrine applies
○ If you name the defendants as unknown & later find out who they are & amend
to include them
■ Relation back doctrine doesn't apply
➢ You need a mistake in order for the doctrine to apply
Supplemental Complaint:
● A complaint that alleges a new, additional claim that arose from a transaction or
occurrence that took place after the initial complaint was filed
○ Ex: additional injury, additional contract breach
Joinder:
● After joinder is authorized, must determine whether for each separate claim & party if
the federal court has subject matter and personal jurisdiction
● Joinder of Parties
○ Parties may be joined as defendants when:
■ Some claim is made by each plaintiff against each defendant relating to
or arising out of the same series of occurrences or transactions and
■ There is a common question of law or fact to all parties
○ Permissive Joinder of Parties
■ A party asserting a claim may join with it as many independent or
alternative claims of whatever nature as the party may have against the
opposing party
○ Rule 19 & 20:
■ Govern the addition of a person as a party to a counterclaim or
crossclaim
● Joinder of Claims
○ The bringing together, in one lawsuit, of the different claims that a party may
have against another party
○ Can be as may claims as one party wishes against the opposing party
23
○ Misjoinder:
■ Is not a ground for dismissal
■ On motion or on its own, the court may at any time, add or drop a party
■ The court may also serve any claim
Intervention:
● A person not in a lawsuit may join in if they believe they have an interest to interject
● Someone who should have been joined under Rule 19 but was not, because of lack of PJ
over that person, can voluntarily join the suit
○ Such a claim can only proceed on an independent basis of subject matter
jurisdiction, not supplemental.
● Courts will allow anyone to intervene who:
○ Is given a conditional right to by federal statute or
○ Has a claim or defense that shares with the main action a common question of law
or fact
● Why Intervene?
○ Interest in subject matter of the action
○ The protection of this interest would be impaired because of the action
○ The interest is not adequately represented by existing parties to the litigation
■ Intervention as a right
○ Amicus Curiae Brief:
○ Friend of the court brief
○ Allows a party to present their position to the court
■ Not a party, can only file a brief
Discovery:
● Legal process by which the opposing parties obtain info from each other to prepare for
trial
● Informal Discovery:
○ Info gathering before suit is filed
○ Not governed by specific procedural rules
○ Gives the attorney freedom to manage the info obtained:
■ If a witness says something unfavorable to the attorney it is not on a
formal record & cannot be used against them
➢ Ex: interviews by lawyers, by investigators employed by lawyers,
by private investigators, review of documents or visits to property
that is subject of the potential hearing
● Purpose of Informal Discovery:
24
○
○
○
○
○
○
○
○
Produces more info
Less expensive
Info is more reliable if found early
More easily obtained
No opposing party present
Enables more accurate outcomes in cases that are litigated on the merits
Reduces risk of surprise
Provides the trier of fact with a more complete view of the circumstances
out of which the litigation arose
○ Promotion of settlement
○ Reveals whether the case may be disposed of, in whole or in part, by SJ
● Federal Discovery
○ Timing:
■ 21 days prior to the final deadline for issuance of a scheduling order
under rule 16
➢ Within 120 days after any defendant has been served with the
complaint or
➢ 90 days after any defendant has appeared
■ Discovery Plan:
➢ Parties must agree on & submit a written report outlining the
discovery plan to the court within 14 days of meeting
➢ Must contain:
● Any proposed changes to the mandatory disclosures
● Any proposed changes in limitations on discovery
● A description of the party’s views on the subjects & timing
of discovery
■ Initial Disclosures:
➢ Except in certain cases, parties in fed court are required to make
initial disclosures of:
➢ 4 classes of info:
1. Names, addresses & telephone #s of individuals likely to
have discoverable info, with subjects of that info
2. Copies of docs, data & other tangible things that the
disclosing party may use to support its claims /defenses
3. Computation of any category of damages
25
4. Any insurance agreement out of which a judgment may be
paid
➢ Timing:
● Must occur no later than 14 days after the initial rule 26(f)
conference
● Unless a different time is set or
● Unless a party objects during the conference that initial
disclosures are not appropriate in this action & states the
objection in the proposed discovery plan
○ When ruling on the objection the court must
determine what disclosures if any, are to be made
& must set the time for disclosure
● Scope of Discovery
○ A party may obtain discovery regarding any unprivileged matter that is relevant
to any party’s claim or defense & proportional to the needs of the case
○ Evidence does not need to be admissible to be discoverable
■ As long as the info sought appears reasonably calculated to lead to the
discovery of admissible evid
■ Relevant:
➢ Info must tend to prove or disprove something that the governing
substantive law says matters
■ Proportional:
➢ Considers:
● The important of the issues at stake
● Amount in controversy
● The parties’ relative access to relevant info
● The parties’ resources
● The importance of the discovery in resolving the issues
and
● Whether the burden/ expense of the proposed discovery
outweighs its likely benefits
● Discovery from Experts:
○ Categories of witnesses:
1. Experts who testify
➢ Mandatory disclosure
● Lawyers have to provide info
2. Assisting experts:
26
➢ Formally retained
➢ Those hired to assist the lawyer but won't testify
● Info isn’t discoverable unless a need is shown
3. Informally conduct experts
➢ Informally retained
➢ Never discoverable
● Ex: talking to someone on the golf course
4. Percipient experts:
➢ Works for someone who is an expert
➢ Discoverable but a report does not have to be made
Electronic Discovery:
● A party need not provide discovery of electronically stored info from sources that the
party identifies as not reasonably accessible because of undue burden or cost
Types of Formal Discovery:
Deposition:
● The formal questioning of a witness under oath
● Is recorded & a typed transcript version is used at trial
● Conducted by a lawyer
● Any party to the complaint or any potential witnesses can be deposed
○ But, a lawyer cannot depose his own client
○ Notice of Depositions:
■ A party who wants to dispose a person by oral questions must give
reasonable written notice to every other party
■ Notice must state the time & place of the deposition & if known, the
deponent’s name + address
➢ If name is unknown, the notice must provide a general description
sufficient to identify the person or particular class or group to
which the person belongs
● Party:
○ Only needs written notice of the deposition
● Non party:
○ Needs notice + subpoena
○ Limitations on Depositions:
■ No more than 7 hours per witness and
27
■ No more than 10 witnesses per side
➢ Unless agreed upon between the parties
○ Objections During Depositions:
■ A lawyer can object to a question asked
■ A lawyer can direct their client not to answer only to:
➢ Assert a privilege
➢ Due to a court ordered limitation on discovery or
➢ A rule 30 (d) motion to terminate deposition
Interrogatories:
● A series of written questions sent to a party
● Usually the first discovery tool used after filing of the lawsuit
● Inexpensive for the parties asking the questions
● Used to seek hard info:
○ Names, addresses, doc identification & monetary calculations
● Can only be sent to parties, not non-parties
○ Answers to Interrogatories:
○ Must be answered by the party to whom they are directed to or
○ If that party is a public or private corp, partnership, association or gov
agency, by any officer or agency, who must furnish the info available to
the party
■ Each interrogatory must, to the extent that it is not objected to,
be answered separately & filed in writing under oath
➢ The person who makes the answer must sign them
○ Time to Respond to Interrogatories:
○ Responding party must serve its answers & any objections within 30 days
after being served with the interrogatories
■ A shorter/ longer time can be ordered by the court
○ Objections to Interrogatories:
■ The grounds for objecting must be stated with specificity
■ Any ground not stated in a timely objection is waived unless the court,
for good cause, excuses the failure
■ If it’s not objectionable it must be answered
➢ The attorney who objects must sign any objections
○ Limitation on Interrogatories:
■ No more than 25
➢ Including all discrete subparts
■ Can be more if agreed upon by the parties or ordered by the court
28
Physical & Mental Examinations:
● Available only against parties when the physical or mental state of a party is in issue
● Court ordered needed & court will require a showing of good cause before allowing the
examination
○ Conducted by a certified examiner
■ The party seeking examination or the court chooses the examiner
Request for Admissions:
● Petition filed by one party asking the second party to admit to the truthfulness of some
fact or opinion
● Can also ask the party to authenticate the genuineness of a doc
○ May be served on any party to the suit, but not on a non-party
○ If a party does not answer or object to a request for admission within 30 days,
the matter is deemed admitted
Discovery Motions
Motion for Protective Order:
● A request that the court limit discovery
● Appropriate when the opposing party has requested info that is not within the scope of
discovery, privileged or burdensome
○ Can only be made after the moving party in good faith, conferred or attempted
to confer with the opposing party in an effort to resolve the dispute w/o
litigation
Motion to Compel Discovery:
● A motion asking the court to force the non-moving party to comply with a discovery
request
● Can be filed by either party
Limitations on Discovery:
Attorney-Client Privilege:
● Applies only to communications b/w client & the lawyer
○ Can be either written or oral communications
○ Ex: attorney does not have to tell the court where their child client is
■ Covered by attorney-client privilege
■ If the attorney is told they have to give up that info, the child / client will
not tell the attorney where they are → not the best interests of the child
29
■ Attorney might be able to counsel the child & convince him to come back
● Attorney-Client Privilege Does Not Cover:
○ Observations made by the lawyer
■ What the client looked like when he sought counsel, what he was
wearing, the color of his hair
■ All not privileged → not communications
○ Payment of fees to lawyer
○ Identity of the client
■ Not usually protected unless:
➢ Plea bargaining: a client who has committed a crime, but has not
been identified by the authorities, may seek to have a lawyer
engage in plea bargaining w/o revealing the client’s name
○ Pre-existing conversation or docs
■ Mere repeating by a client of a pre-existing conversation to his lawyer is
not covered under the privilege
■ Same goes with a document
➢ If you create a document or enter into a contract before you seek
legal advice, the doc or contract is not protected merely because
you later hand it to your lawyer
● Waiver of Attorney-Client Privilege:
○ Can be waived by the client
■ Either by voluntarily disclosing the communication or
■ By failing to claim the privilege
➢ Note:
● Not waived if there is a paralegal in the room or there are
two attorneys in the room
Work Product Doctrine:
● Materials prepared in anticipation of litigation are protected from disclosure during
discovery
● The court may order the party to disclose those materials if the other party shows:
○ Substantial need for the materials to prepare its case and
○ They cannot, without undue hardship, obtain their substantial equivalent by
other means
○ Even if the court orders the material be disclosed it must protect against
disclosure of the:
30
➢ Personal thoughts, mental impressions, memoranda, conclusions,
opinions or legal theories
● Of a party’s attorney or other rep concerning the litigation
○ Extends to experts or persons hired by attorney
■ If the attorney asked that person to do
something & it led to certain conclusions or
opinions
● Privilege Log:
○ Doc listing the material protected by date, author, recipient & privilege or
protection claimed
○ Must be detailed enough to allow the judge to determine whether the material
is protected
■ Gets attached in the response
Motion for Summary Judgment
● May be granted if:
1. No dispute as to material / important fact and
2. Moving party is entitled to judgment as a matter of law
■ Credibility of witnesses is not looked at
● Timing for MSJ:
○ Can be made up to 30 days after the end of discovery
○ But, must be served at least 10 days before the hearing date
○ Partial Summary Judgment:
■ Directed at some or one of several claims in the complaint
■ If SJ is not rendered on the entire action the court should determine
which facts are not at issue
➢ Then issue an order specifying those facts
○ Burdens of Summary Judgment:
■ Either party can move for SJ
➢ Most favorable to the non-moving party
■ Moving party has the burden of proving that there are no disputes of
material fact
➢ Test for No Dispute:
○ If no reasonable jury could find for it
○ Moving party is not required to provide affidavits to
support its motion
31
■ Once the moving party demonstrates there are no disputes of material
fact
➢ The burden shifts to the non-moving party to show there is a
dispute of material fact
➢ Non-moving party must set out specific facts using affidavits & not
merely rely on allegations or denials in its own pleadings
Voluntary Dismissal by Plaintiff:
● Plaintiff may voluntarily dismiss before defendant answers or files for SJ
○ Whichever comes first
● Can only do it once: as a matter of right
○ Dismissal is without prejudice
● After first time dismissal is with prejudice
○ Unless defendant agrees plaintiff can dismiss w/o prejudice
Involuntary Dismissal by Defendant:
● May be granted if plaintiff fails to appear for trial or comply with court rules or orders
○ Dismissal is with prejudice
Default Judgment:
● Judgment entered against a defendant who fails to appear in court or
● Fails to defend against the plaintiff’s claim
Declaratory Judgments:
● When a court outlines the rights of the parties under a statute, will or a contract
Pretrial Order:
● An order that acts as a guide for the trial
● Informs both parties on the info relating to the case
● Give the parties a chance to determine whether it is worthwhile to pursue the case
Jury Trial:
● Criminal Cases:
○ Constitutional right to a jury trial in both state + fed court
● Civil Cases:
○ A party has 14 days after the service of the last pleading to demand a jury trial
■ If one is not requested → right to have one is waived
■ If neither party requests one → judge is the fact finder
32
○ Federal:
■ Right to jury trial derived from the 7th amend
○ State
■ Each state has its own constitution where the right to a jury trial is
derived
➢ 7th amend does not apply to states
○ Equity vs Law:
■ Cases at Law:
➢ Entitled to a jury
● When the relief sought is money damages
○ Ex: tort claims
● Compensatory Damages:
○ Damages awarded to restore plaintiff to where he
was before the accident
■ Ex: medical bills, lost wages
■ Cases at Equity:
➢ Not entitled to a jury
➢ When the relief sought is not money damages
● Ex: injunctions, domestic & divorce proceedings
● Includes admiralty + maritime law
➢ Two Part Test:
● Whether there is there an adequate remedy at law
● Whether irreparable harm will result
○ Balances the interests + hardships of the parties
■ When $ is not going to solve the problem
■ If relief is not granted irreparable harm will
result
■ Goal is to make the parties whole again
Voir Dire:
● Process of questioning potential jurors to ascertain their qualifications & determine any
bias for challenge
○ Federal Court:
■ Judges ask the questions to prospective jurors
➢ Lawyers are only allowed to submit the questions to be asked,
they cannot conduct voir dire themselves
33
● 2 Types of Challenges:
○ To remove someone from the jury
○ Challenge for Cause:
■ Argument that the potential juror will be unable to render an impartial
verdict because of bias or prejudice
■ No limit on # allowed
➢ But, judge must agree to dismiss the juror & the patience of
judges is limited
■ Occurs if:
➢ Juror or immediate family member has been affected by similar
situation
➢ Employee of a corporate party or
➢ Juror knows too much about the case due to actual connection to
the person
○ Peremptory Challenges:
■ If a judge refuses to dismiss a potential juror for cause, the lawyer must
decide whether or not to use a peremptory challenge
■ The privilege for lawyers to dismiss potential jurors without giving a
reason for removal & without approval from the judge
➢ Limit of 3
● Exact # varies by state
➢ Cannot be on the basis of race, sex or national origin
Motion in Limine:
● A request that the court order certain info not be mentioned in the presence of the jury
as it is inadmissible and / or prejudicial
○ Usually made before jury selection & in writing, but can be oral
Batson Test:
● Applies in civil & criminal cases
● Cannot use preemptive strikes to dismiss a juror based on their race, gender, or on the
basis of any protected class
○ 3-part test:
1. Defendant must show a juror was dismissed at first based on race &
defendant was part of that cognizable racial group
2. The prosecution must offer a race-neutral basis for eliminating the juror
➢ Not difficult to do
34
3. The trial court must determine whether there was purposeful
discrimination or not
Motion to Recuse:
● A motion to remove a particular judge from a case
○ Motion must be filed promptly once party has reason to believe the judge should
not participate in deciding the case
● The judge determines whether or not they will remove themselves
○ A judge should recuse himself if a reasonable person could interpret previous
comments as showing an appearance of prejudice
Motion for a Directed Verdict
● State court
● Motion for the judge to take the decision out of the hands of the jury & to direct a
verdict for the party making the motion
○ On the grounds that the other party has not produced sufficient evidence to
support his claim
■ Judges are reluctant to grant (they like to have juries decide cases due to
greater public acceptance)
Motion for Judgment as a Matter of Law: (JMOL)
● Federal court
○ Party requests the judge enter judgment in his favor because the other party has
not presented sufficient evid to support the claim
○ Can be made any time before case is submitted to jury once the non-moving
party has presented all evid
○ Granted if the court finds that a reasonable jury would not a have a legally
sufficient basis to find for the party on the issue
○ Factors:
■ Evidence must be viewed in the light most favorable to the non-moving
party & non-moving party must be given the benefit of all reasonable
inferences which may be drawn in his favor
■ Credibility of the witnesses is irrelevant
○ Renewed Motion for Judgment as a Matter of Law:
■ Exactly the same as JMOL but comes up later at trial
■ After the jury verdict is announced
➢ When the jury reached a verdict that reasonable people could not
have reached
➢ A party can only file a renewed motion if they filed for JMOL
previously
35
■ Timing:
➢ Motion must be made no later than 10 days after the entry of
judgment
➢ May be filed in unison with a Motion for a New Trial
● Judge may allow judgment on the verdict, order a new
trial, or direct entry of judgment as a matter of law
Motion for New Trial:
● Must be filed within 28 days after judgment
● Granted if:
1. The verdict is against the great weight of the evidence
2. The verdict is excessive
● As to shock the conscience
3. The verdict is seriously erroneous due to juror misconduct:
● Judge may order a new trial or may offer a remittitur as an alternative
Remittitur:
● The reduction by a judge of the damages awarded by a jury
○ Plaintiff is given the choice between accepting an award less than granted or
submitting to a new trial
Standards of Review on Appeal:
1. Sufficiency of the evidence
2. De novo
3. Abuse of discretion review
Sufficiency of the Evidence Review:
● Whether the evidence, if believed, would convince the avg person that the plaintiff
proved the case by a preponderance of the evidence
○ Accepts the trial court’s fact finding & affirms the judgment unless the appellate
standard is not met
○ All conflicting evidence is resolved in appellee’s favor
○ So long as there is some evidence in the record, the verdict will be upheld
■ Applies to questions of fact
De Novo Review:
● “Do over”
● Appellate court acts as if were considering the question for the first time
● Affords no deference to the decisions below
36
○ Applies To:
■ Questions of law
■ MSJ appeals
■ Determining jurisdiction
■ Determining venue
Abuse of Discretion Review:
● Reviewing court determines whether the trial judge acted in an arbitrary or
unreasonable manner without reference to guiding principles or rules & results in a
miscarriage of justice
● Is not an abuse of discretion:
○ Is a mere error of judgment → reaching the right decision for the wrong reasons
○ Applies To:
■ Applies to discretionary trial court rulings
■ Procedural rulings
■ Attorney fee awards
■ Discovery rulings
Relief from Judgment or Order:
● Grounds for Relief:
1. Mistake, inadvertence, surprise or excusable neglect
2. Newly discovered evidence
3. Fraud
4. The judgment is void
5. The judgment has been satisfied, released or discharged
6. Any other reason that justifies relief
● Timing:
○ First 3 reasons:
■ Motion must be filed within 1 year after the entry of the judgment or
order
○ Last 3 reasons:
■ Have to be made within a reasonable time
ACTIONS WITHIN THE SAME STATE:
Res Judicata:
● Claim preclusion
○ Claim: a theory of liability, cause of action
37
● Once a court has entered a judgment on the merits on a claim, the parties are barred
from raising in any other case, a claim that was or could have been raised in the original
action
○ Compulsory Counterclaims:
■ Must be brought as they are related to the same transaction or
occurrence as the original claim
➢ If a party loses on their first claim & then files another claim out of
the same transaction or occurrence, they are precluded from
suing
➢ Other party can file a Motion to Dismiss for Failure to State a
Claim upon which relief can be granted
○ Elements:
1. Parties in prior & current suit must be identical or those in privity
2. A court of competent jurisdiction must have rendered the judgment
3. The prior judgment must have been final & on the merits
4. The plaintiff must raise the same cause of action in both suits
Collateral Estoppel:
● Issue preclusion
○ Of fact or law in a subsequent proceeding
● Prevents the relitigation of issues that have already been litigated + decided
● Can be between the same parties or one of the parties & someone else
○ Only precludes issues that were actually decided
■ If an issue was already decided the other party can file:
➢ MSJ or Motion to Dismiss for Failure to State a Claim upon which
relief can be granted
○ Elements:
1. Same issue
○ The issue litigated in current suit must be the same issue litigated
in the prior suit
2. Actually litigated
○ The parties must have actually litigated the issue
3. Determined
○ The issue must have been actually decided in the prior action
4. Essential to judgment
○ The issue must have been part of or necessary to the court’s
holding
38
5. Party against whom preclusion is asserted must have had full & fair
opportunity
○ To litigate the issue in the first suit
○ Offensive Collateral Estoppel:
○ Plaintiff seeks to estop defendant from litigating issues which the
defendant previously litigated & lost against another plaintiff
■ Is not absolute: fairness evaluated on a case-by-case basis
➢ Despite unfairness to defendant, trial courts have broad
discretion to determine when offensive collateral estoppel
should be applied
○ Defensive Collateral Estoppel:
○ Defendant seeks to prevent the plaintiff from asserting a claim the
plaintiff has previously litigated & lost against another defendant
ACTIONS OUTSIDE THE STATE:
Full Faith & Credit Clause:
● Final judgment on the merits of one court in one State → must be recognized by the
court of another State
○ Does not matter if there was a mistake of law
● Only applies State court → State court
● State to Federal Preclusion:
○ When case 1 has been decided in state court
■ The Fed court in case 2 must apply the preclusion law of the state where
case 1 was decided
● Federal to State Preclusion:
○ When case 1 has been decided in fed court
■ The court in case 2 will apply federal preclusion law, which is federal
common law
➢ Under common law:
● If case 1 was based on fed law → uniform fed rules of
preclusion apply
● If case 1 was based on state law → preclusion law of the
state in which the fed court in case 1 sat applies
STATE COURT APPEALS:
Appeal:
39
● The losing party has a right to appeal after a final judgment has been rendered in the
trial court
● Done by filing a notice of appeal within 30 days after the entry of the final judgment
○ A judgment is entered when it is noted on the docket
■ First party to appeal: petitioner or appellant
➢ Note:
● There is not a right in all cases to appeal from the
appellate court → state supreme court
■ Every state has their own rules as to what their
state supreme court can hear
● Appeal by Permission:
○ A discretionary appeal
○ The appeals court has the power to decide or not
■ Even if there is an adverse trial court decision
○ Party must file a petition for permission to appeal
■ Must be filed within the time specified by the statute or rule authorizing
the appeal
➢ If no time is specified → within 30 days of entry of final judgment
● Record on Appeal:
○ The record on appeal consists of:
■ The original papers & exhibits filed in district court
■ The transcript of proceedings if any and
■ A certified copy of the docket entries prepared by the district clerk
➢ Note: it is the appellant’s duty to order a transcript to be sent to
the court of appeals, but it is the district clerk’s duty to forward
the record when complete
● Cross Appeal:
○ When an opposing party (respondent or appellee) also wishes to request review
of a lower court decision
○ Must be filed within 14 days from when the appellant filed their notice of appeal
● Signed Notice of Appeal:
○ Rule 11(a) requires that papers filed in the district court, including notices of
appeal, must be signed by the appellant or his attorney
○ The notice should read appeals or does appeal & must substantially state a
present intention and show that the party is appealing from some specific thing:
■ The judgment or some appealable order
40
FEDERAL APPELLATE REVIEW:
Appeals on Final Orders or Judgments:
● General rule that an appeal to a fed appellate court may be taken only from a final order
or judgment of all claims in the action
○ A final judgment ends the litigation on the merits & leaves nothing for the court
to do but execute the judgment
○ Note:
■ Normally, 3 judges hear a case on appeal in the fed courts
● Unless rehearing on bank: all judges will hear the case
● Discretionary Interlocutory Appeal:
○ An exception to the final judgment rule is the appealability of certain
interlocutory orders that may have immediate & irreparable consequences
● Collateral Order Doctrine:
○ Authorizes immediate appeal of orders separable from & collateral to the main
suit, but too important to deny immediate review
■ Ex: The denial of a motion to dismiss for forum non conveniens is almost
always a collateral order & immediately appealable
➢ Note:
○ Lack of personal jurisdiction: not a collateral order
○ Can challenge it on appeal
● Extraordinary Writ:
○ A court order often issued by an appellate court, making available remedies not
regularly within the powers of lower courts
○ Writ of Mandamus
■ Commands or mandates a trial judge to act
● Is an extraordinary writ → must show other ways of solving the
problem wont work
● Certification of Class Actions:
○ A district court’s order granting or denying certification of a class action can be
appealed within 10 days of entry of the order
■ The Court of Appeals has complete discretion in deciding whether to hear
the appeal
Supreme Court Jurisdiction:
41
● The Supreme Court has direct appeal jurisdiction from any order granting or denying an
injunction in any proceeding required to be heard by any three-judge count
○ Has both original & appellate jurisdiction
● Note:
○
○
○
○
9 judges on Supreme Court
Has discretionary power to decide whether or not they will hear a case
Only accept approx. 100 cases per year
Render decisions over the course of the year, no set time for how long a case sits
on appeal
● Court of Appeals Cases
○ Cases in the Court of Appeals may be reviewed by the Supreme Court:
■ By Certiorari:
➢ Granted upon petition of any party to any civil or criminal case,
before or after judgment
■ By Certification:
➢ Filed by the Court of Appeals regarding any question of law in any
civil or criminal case as to which it desires instruction
○ Upon certification the SC may give binding instructions or
may require the entire record to be sent to it for decision
of the entire case
● Cases from Highest State Court → Supreme Court:
○ Final judgments rendered by the highest court of a state may be reviewed by the
Supreme Court by certiorari when:
■ The validity of a treaty, fed statute, or state statute is drawn into
question or
■ Any right, privilege or immunity is claimed under the fed constitution,
treaty or a fed statute → fed question
42