Civil Procedure Fall 2007
Personal jurisdiction- power of sovereign over people and property
Territory theory- state has power only within borders. State can assert power by presence,
property based, citizenship, status, and consent.
I. Does local law of court allow jurisdiction?
A. Does state court allow jurisdiction? (Pennoyer)
1. If Δ is in state, use service rule
2. If Δ is out of state, use long arm statute
B. Does federal court allow jurisdiction? F.R.C.P. Rule (4)
1. Some federal statutes allow national service. (RICO)
2. 100 mile radius bulge rule
3. Court’s reach is as far as the state’s borders
II. Is the due process clause of the 14th amendment met?
Need standard minimum contacts met so that “fair play and substantial justice” are met
A. In personam jurisdiction- court has power over person/corporation
Any valid judgment can be enforced anywhere because of “full faith and credit”
clause. It’s attached onto the person/corp.
1. General jurisdiction- court has power over Δ regardless of case
a. Individual 3 ways
i) Domicile- presence and intent to remain indefinitely
ii) Personal presence
iii) Consent
A) Contract
B) Waiver
b. Corporation 3 ways
i) Place of incorporation
ii) Place of continuous and systematic business
iii) Consent
A) Contract
B) Waiver
2. Specific jurisdiction- lawsuit is related to conduct in forum state
To meet minimum contacts, Δ must have sought business in forum state, not
reverse.
a. Individual must meet minimum contacts of state
i) Purposeful availment- reasonable expectation to hale into court (Burnham)
A) Business must be sought after (Memorabilia)
B) Was in relationship established in state by Δ
ii) State interest (Kulko, Hanson)
iii) Convenience- not too inconvenient so that defense cannot be presented
a. Corporation must meet minimum contacts of state
i) Purposeful availment (unlike Helicopteros, Asahi, World-Wide)
A) Commerce must be purposeful
B) Expectation product will be sold in that market
ii) State interest (Intl. Shoe, McGee)
iii) Convenience (Asahi, BK)
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B. In Rem- value of case = value of property attached. Not collected outside of
jurisdiction. Valid in forum state only.
1. Pure in rem- court has power over case to determine owner among all claimants
2. Quasi in rem- to determine who owns property
a. Type I- case is related to property ownership has particular claimants
b. Type II- case in unrelated to property ownership. Must apply minimum
contact rule. Not valid for intangible property (debt)
C. Presence in Court
1. Special appearance- Δ shows up to fight jurisdiction
a. If Δ argues other points, special appearance is waived, and they’re not subject
to personal jurisdiction.
b. Courts don’t want games
2. General appearance- Δ shows up for case, accepts jurisdiction
3. Limited appearance- Δ can claim special appearance w/o being subject to in
personam jurisdiction (Greyhound, in rem)
III. Civil Procedure- must give proper notice to receive a valid judgment
A. Notice
1. In state, use state rule
2. In federal court-deliver complaint & summons
a. To deliver service F.R.C.P. Rule 4 (c)(2)
i) Server cannot be Δ or π
ii) Must be at least 18
iii) Can be an authorized agent/marshal
iv) Cannot be under fraudulent terms
v) Use state’s method of service where court sits
b. Waiver and summons F.R.C.P. 4(d)(2)
i) If there is consent, π sends Δ waiver
c. Served upon individual F.R.C.P. Rule 4 (e)(2)
i) Leave w/ Δ
ii) Leave at usual place of abode w/ person of suitable age and discretion
iii) To an authorized agent
d. Served upon corporation F.R.C.P. Rule 4 (h)(2)
i) To an officer, a managing or general agent, or anyone authorized by law &
ii) If required mail to Δ
3. Federal service rules apply to district and bankruptcy courts.
B. Does due process allow this method?
C. Use Mullane test. (NY bank)
1. Service must be in good faith/reasonably calculated to reach intended parties
2. It must afford interested parties the ability to take action and the opportunity to
object.
a. Newspaper posting
b. Mailed letter
IV. Due Process: The right to be heard.
Provisional remedies- remedies done at the beginning of lawsuit to preserve status quo
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Civil Procedure Fall 2007
If state has procedures that lead to accuracy, then due process is met. Courts’ primary
concern is accuracy, then dignity
A. Adversarial process provides
1. Dignity (Fuentes). Right to be heard is a fundamental part of adversarial process.
2. Accuracy
B. Mathews Test (CT v. Doehr)
1. Risk of error- affects accuracy
a. Procedures reduce risk of error by government
1) Evidence
2) Hearing before a judge
b. Can vary according to circumstances
2. Π’s interest
a. Does π have pre-existing interest in property?
b. If there is a pre-existing interest, it favors π more
c. ↑ π’s interest, ↑ risk of error tolerated
3. Δ’s interest
a. Is there strength in property interest?
b. ↑ Δ’s interest, ↓ risk of error tolerated
V. Subject Matter Jurisdiction: Court must have power over case
A. Four terms/courts of jurisdiction
1. Limited jurisdiction- can only hear the cases authorized by sovereign
2. General jurisdiction- can hear any type of case in sovereign
3. Exclusive jurisdiction- case can only be heard there (probate, family)
4. Concurrent jurisdiction- choice of jurisdiction
B. Principles
1. Cannot be waived by parties
2. Court has duty to raise subject matter jurisdiction (sua sponte)
3. If case is waived b/c of sua sponte, it can be refiled in correct court (res judicata
doesn’t apply, unless time expired)
C. Jurisdiction
1. State courts have at least one court of general jurisdiction
2. Usually state and federal courts have concurrent jurisdiction over cases filed in
federal court
3. Federal courts have exclusive jurisdiction over certain cases (patent, bankruptcy)
4. Determined when case is filed
Federal Limited Jurisdiction. Federal courts have limited jurisdiction b/c of powers granted
by Constitution and Congress.
VI. Federal Limited Jurisdiction 2 Major Ways
A. Complete diversity between Δ & π 28 U.S.C. § 1332 (a)
1. Determining home state for diversity purposes
a. Individuals- domicile
b. Corporations- principal place of business and incorporation
i) Operations nerve center or
ii) Total activities- center of operations (hybrid)
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B.
C.
D.
E.
2. Amount of suit > $75,000.
a. Can include soft damages (pain & suffering, punitive)
b. Punitive damages cannot be excessive, $ > 10× actual damages
c. No costs or interest included in amount minimum
d. If damages turn out to be <<<$75,000, π may have to pay costs
Federal question jurisdiction (arising under)
1. Federalism-Why we have it
a. Worried about state hostility toward federal rights
b. Expertise of federal judges on federal laws
c. There is uniformity of laws applied
2. Filing suit
a. Congress must confer by statute the ability to hear case (Holmes test) 28
U.S.C. § 1331
b. Plaintiff must raise federal issue (Mottley)
c. Federal law will create right to sue if state law creates right to sue that
incorporates federal element, it must be substantial
i) Pendant claim- π has power to add additional claims
ii) Pendant party- π adds claim to Δ2. 2nd claim cannot be in federal ct. alone
iii) Ancillary party- power over additional claims besides original claim
Supplemental Jurisdiction
1. Federal question
2. Diversity
3. 28 U.S.C. § 1367
a. Gibbs test- common nucleus of operative fact
b. Diversity cases only excludes FRCP 14, 19 (a), 20, 24 by π (Owens v. Kroger)
c. Ways a district court has discretion to remand to a state court
i) State law is novel
ii) Federal part of suit is dismissed and state part dominates rest of suit
iii) Claim substantially dominates over the claim or claims which it had
original jurisdiction
iv) Exceptional circumstances that are compelling; court must give reason for
remand (Executive Software)
d. If case is dismissed under part (a) π has 30 tolling period to refile case unless state
law provides a longer time
Removal 28 U.S.C. § 1441
1. Π has choice on where to file
2. Δ can have case moved to federal court if π could have filed there
3. If Δ is sued in domicile state court, suit cannot be moved to federal court;
diversity cases only
Additional suits & multiple parties
1. Assume diverse parties, suits must have common nucleus
a. Π1 v. Δ1
$1 + $2 > $75 G OK
b. Π1 v. Δ1 + Δ2
$1 < $75 G, $2 < $75 G NO
c. Π1 v. Δ1 + Δ2
$1 > $75 G, $2 < $75 G OK
d. Π1 + Π2 v. Δ1
$1 < $75 G, $2 < $75 G NO
e. Π1 + Π2 v. Δ1
$1 > $75 G, $2 < $75 G OK
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2. Countersuits and interpleaders
a. Cross complaint between Δs allowed if from common nucleus
b. Countersuit allowed if from common nucleus
c. Countersuit unrelated to π’s suit but could be filed in federal due to diversity
or federal question are allowed. Rule 18
3. Mutli-district litigation 28 U.S.C. § 1407
a. Many cases from one issue
b. Cases can be transferred to one court
VII. Venue 28 U.S.C. § 1391
A. Diversity- all Δ & π must be diverse from each other
1. Any district where any Δ resides if all in same state or
2. Where major events occurred
3. Any district where any Δ is subject to personal jurisdiction if 1 & 2 don’t apply
B. Federal question
1. Any district if all Δ reside in same state
2. Where substantial part of events of case occurred
a. There can be more than one places
b. If so, use state of residence of any district
c. Any district where any Δ is subject to personal jurisdiction if 1 & 2 don’t
apply
3. Where any Δ is domiciled
C. A corporation resides for venue purposes where it is subject to personal jurisdiction;
where there is continuous and systematic business
D. Forum non conveniens- common law convenience doctrine
1. There must be a foreign forum available
2. Presumption π’s choice should stick
a. Π’s choice less strong if π is foreign
b. Consider public (court resources, choice of law, etc.) and private (evidence,
witnesses, put on defense, etc.) interests
c. Don’t want US courts to be forum for foreign cases
3. Case is dismissed and π refiles
4. Not valid for another US court, use transfer statute 28 U.S.C. § 1404
a. Transferee court must follow transferor court rules
b. Case can be transferred to court where it could have been filed
c. For state court, case is dismissed and refiled, protect sovereigns’ rights
E. Improper venue choice 28 U.S.C. § 1406 (a)
1. If π chooses wrong venue 2 choices
a. Case can be dismissed
b. Court can transfer case, law of transferee court rules will apply
Erie doctrine
In diversity cases, federal court must apply law of state where it sits
VIII. The Erie Doctrine
A. 4 Principles
1. Policy- twin evils
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Civil Procedure Fall 2007
a. No forum shopping
i) Courts didn’t know what law to follow
ii) Led to unpredictably (Taxi Cab)
b. Discrimination
i) Out of state π had more choices
ii) Erie led to uniformity
2. Statutory
a. State statutory and case laws must be used (RDA)
b. Congress did not change law after Swift
3. Constitutional
a. No rights were given to court to create statutory law
b. Power is only granted by Constitution
c. Diversity makes federal court an unbiased forum
d. Federal court did not have power to make substantive law in diversity cases
4. Philosophy
a. Swift court did not think it was changing law
b. Law is not meant to be discovered
B. The line between procedural and substantive
1. Substantive Issue- using state law
a. Use state law of court’s location
b. When it affects primary conduct in real world
2. Procedural Issue- Outcome Determinative test
a. Would people forum shop?
i) No- Any law, use federal law b/c it trumps (Hanna)
ii) Yes- Byrd balance test: federal interest v. state court
3. Procedural rules can have substantive effects
4. Federal courts can create procedural rules 28 U.S.C. § 2072
C. Federal v. State: Byrd Balancing test
1. Strength of federal interest in uniformity of laws applied (horizontal) v.
2. The state interest having its procedures apply in federal courts sitting in the state
(vertical)
D. Is there a clash b/t federal and state law?
1. No. Use state law
2. Yes. Is the federal law conflicting w/ state law codified?
a. Yes. Codified- federal (Hanna)
i) Is the law valid & constitutional? Does it regulate procedure?
1) No- unlikely
2) Yes. Is the federal law pertinent? Should it be used?
A) Yes. Use federal law
B) No. Use state law, no clash.
b. No. Case law- state (Erie-York-Byrd)
i) Is state law substantive?
1) Yes. State law (Gasperini)
2) No. Is state law outcome determinative?
A) No. Fereral law
B) Yes. Byrd balance test
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Civil Procedure Fall 2007
E. Erie exception
1. Walker case was substantive
2. Rule 3 applies for federal question cases
A plead is to give notice- Justice Black.
IX. Pleading- a paper filed at the beginning of lawsuit where π informs court & Δ of position
A. Types of pleads
1. Complaint- sets out π’s position. In federal court, jurisdiction, position, facts must
be stated
2. Answer-Δ’s response, each question gets an affirmed, denied, or not enough info
3. Reply- can be forced in federal court. Submitted by π in response to answer
B. Reasons to plead
1. Give notice
2. Show strength of case
3. Screen out baseless claims
4. Isolate dispute- factual or legal
C. Pleading Rules- a short and plain statement
1. Rule 8: state a claim that entitles relief
2. Rule 8(d): if plead is required but avoided, take as true. If plead is optional, but
avoided assume denial
3. Rule 9: a claim concerning mistake or fraud requires particularity
4. Rule 11 (b)(3): Make complaint plausible. Don’t add too much.
5. Rule 12 (b)(6): dismissing a claim b/c relief cannot be granted
a. Allegations are assumed to be true
b. Gov’t doesn’t grant remedy
6. Rule 12 (c): when pleads are finished, a party can move for a summary judgment
as in Rule 56
7. Rule 12 (e): An objection to the manner in which a pleading is drafted; need
specifics
8. Rule 12 (h)(1): Objection to venue, jurisdiction, etc. must be first thing stated in
answer or reply. Failure to do so means you waive objection.
9. Rule 15(a): “Oops clause” party can amend plead within 20 days. Afterwards
need court permission. Court has discretion. Freely given as justice desires
(Beeck)
10. Rule 15(b): Allows pleads during and after trial. Must be a substantial issue.
Pleadings match evidence
11. Rule 15(c): Includes extra 120 days from statute of limitation to include proper Δ.
Proper Δ needed notice within 120 days of S. of L. of original complaint. If true,
amended complaint will relate back to original date. Hard to prove
12. Rule 15(d): Circumstances require additional info; post filing events included
13. Rule 54 (c): If π proved large award, they’re entitled to it (Bail)
D. Special Considerations
1. Special damages
a. Must be specifically stated
b. Want to prevent unfair advantage
2. Courts cannot impose heightened pleading standards. See rule 9
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Civil Procedure Fall 2007
3. Don’t plead yourself out of court by stating too much, use Rule 11 (b)(3)
X. Ethics. Rule 11
History: Impose objective standard and fact checking. From 1983-1993, sanctions were
mandatory. After 1993, court has discretion. The purpose of rule is not to deter cases of
merit. (Surowitz)
A. (a) Attorneys or pro se litigants must sign each document. Warranties are implied.
B. (b) Attorney or pro se litigant affirms:
1. No bad motives
2. Duty to investigate law (attorney and/or firm can be punished)
3. Fact check (litigant, attorney, and/or firm can be punished)
4. Denials based on good faith
C. Sanctions- imposed when (b) is violated
1. How they’re initiated
a. File motion w/ opponent to correct error within 21 days. Then report to court
b. Sua sponte: court must give party a chance to amend plead (Hadges)
2. Types of sanctions
a. Money: pay costs of other side
b. Money: pay to court
c. Mistake of law: lawyer and/or firm
d. Mistake of fact: All involved
3. Need order explaining sanction
D. Discovery: A-C do not apply. See rules 26-37
XI. Joinder. It requires permission (FRCP) and power (subject matter jurisdiction) over each
claim. Power- federal question § 1331, diversity § 1332, & supplemental § 1367
A. Additional claims against current opponent can be brought at anytime. Rule 18.
B. Counterclaims Rule 13
1. Rule 13(a): Compulsory. Same transaction test. 4 parts to determine if joinder is
allowed. Use it or lose it. Along w/ a claim properly brought in federal court
a. Overlap of issues
b. Overlap of evidence
c. If it’s res judicata otherwise- weak
d. Logical relationship
2. Rule 13(b): Permissive. Not arising from same transaction
C. Cross claims Rule 13(g)
1. Cross suit not compulsory
2. Use same transaction test. 4 parts
D. Derivative Liability Rule 14
1. Only for outsider, not co-defendant
2. Must be filed within 10 days of answering complaint
3. 3d party must reimburse losing Δ
4. There must be power (SMJ) & permission
5. Rule 14(a) allows 3d Δ to sue Π (a post impleader claim)
6. 3d party does not affect venue
7. Rule 13(h) outsider is co-defendant on cross claim
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Civil Procedure Fall 2007
13(h)
Π→Δ1→Δ3
↓
Δ2
OR
Π↔Δ
13(h)
Π2
E. Neglecting outsiders and dismissing Rule 12(b)(7)
1. Filing a motion to dismiss for failure to sue proper Δ and since it cannot be done
dismiss suit
2. Rule 19(a) If any one of three is true, join outsider:
a. No complete relief for current parties or
b. Outsider has interest that will be practically impaired (it cannot legally bind
outsider) or
c. A current party would face multiple or inconsistent liability claims
3. Rule 19(b) When joinder is not feasible- either b/c of diversity or personal
jurisdiction
a. Dismiss case or
b. Continue w/o person/party
c. Use equity or good conscience: look at all parties and courts interests
i. Π: forum choice
ii. Δ: liability
iii. Court: efficiency
iv. Outsider
XII. New Parties. Interpleader & Intervenor
A. Interpleader: A party that expects to be sued takes initiative to join all claimants as Δ.
Judgment is in personam.
1. Principles
a. Avoid inconsistent judgments
b. Efficient for Π
c. Promotes fairness as no one is shut out
d. The fund must be limited such as an insurance fund or jewelry
e. The stakeholder can be a claimant
f. A claimant could win race to courthouse
g. The judgment that holds is the first one with a verdict
h. Stakeholder can counterclaim and interplead potential claimants
2. Two types of stakeholders
a. Pure- stakeholder walks away (disinterested)
b. Interested- stakeholder wants piece of property
Π→→→deposits property w/court →→→Many Δ
3. Levels
a. Statutory and Rule 22 see chart
b. If both are met use statutory then rule
c. To control and avoid interpleader, file a suit in state court. The first judgment
wins.
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d. Court has power to combine all claims into one. If interpleader files suit before
other case comes to judgment, court has power to enjoin case w/ an injunction.
B. Intervention Rule 24
1. Principles
a. Allows people with a common interest to join together
b. The later the intervention, the less likely it’s allowed
c. Must have SMJ
2. Types
a. As of right. Must meet all 3.
i) Interest in subject matter
ii) Interest would be practically impaired unless joined
iii) You are not adequately represented
b. Permissive
i) Share a common issue of law or fact
ii) High discretion
iii) Appellate is not likely to interfere
Joinder Device
General Claim
Π → Δ (2×)
Counterclaim
Compulsory
Π↔Δ
Counterclaim
Permissive
Π↔Δ
Cross claim
Π → Δ1
Rule
18
Test
None
SMJ
28 USC 1331, 1332, 1367
13(a)
Same transaction
Supp. juris. (1367) always met b/c same
trans.
13(b)
Not same
transaction
Usually does not meet supp. juris.
13(g)
Same transaction
Co-Δ x-claim, supp. Exists
Co-Π, no supp. juris if diversity is
broken
Δ2
Permissive Joinder
Π→Δ
20
Transaction &
No supp. juris by Π3 v. non-diverse
common fact or law parties if anchor’s diverse
Π/Δ
Compulsory party
Outsider (O)
19
1. Relief w/o
outsider?
2.O interest
impaired?
3.Current party has
many liabilities?
If any true, join
O. Can’t join b/c
of diversity, use
19(b)
Fed. Q: OK
Diversity: Will outsider break it?
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Add’n party to x/c or
c/c
Π1 ↔ Δ or Π → Δ1
↓ Δ3
Π2
Δ2
Impleader
Π → Δ1 (Π3)
↓
Δ3
13(h)
O must be a co-Δ
w/ current party on
c/c or x/c
14
Derivative liability
Post impleader claim
Π→Δ
↓
Δ3
Intervention
As of right
14(a)
Same transaction
24(a)
Intervention
Permissive
24(b)
Interpleader
22
1. Practical
impairment if not
there
2. Not adequately
represented
3. O has interest
Common issue of
law or fact
Common issue of
law or fact. Can
appeal on error of
law
See chart below
Always supp. when Δ impleads
Supp. exists when Π impleads in c/c
Π↔Δ
↓ (Π a defending party)
Δ3
Usually there unless Π sues instate Δ in
diversity case
Usually exists unless non-diverse Π
intervener joins diversity case
Hard to appeal b/c court has great
discretion.
Interpleader
Venue
Subject Matter Jurisdiction
Personal Jurisdiction
Statutory
Where any 1 claimant
resides
1. Minimum diversity. 2
claimants are diverse
2. Minimum $500
National service of process
Rule 22
28 USC 1391
1. Federal question
2. Complete diversity & >
$75 G
Rule 4 + minimum contacts
XIII. Discovery- getting info from other people
A. Why allowed? The 5 Purposes
1. Discover info and preserve it as evidence
2. Helps frame issues
3. Help negotiate settlement
4. Helps facilitate summary judgment when no disputed facts
5. Prevents surprise (Perry Mason)
B. Getting into the rules
(a)(1) Mandatory disclosure
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(A) Witnesses
(B) Documents
(C) Damages computation & possible insurance
Items supporting opponent don’t have to be disclosed
(2) Expert testimony
(3) Pre-trial disclosures- trial plan
(5) Methods to discover additional material. Interrogatories (written) to other
parties, depositions- under oath w/o judge, but w/ lawyers; request for admission,
producing documents or things to enter land, physical and/or mental exam
(b)(1) Scope of discovery from 26(a)(5)- Meet all 3
1. Relevance to claim or defense of any party. Court may order discovery relevant to
subject matter
2. Not privileged. A. Attorney/client but not to commit crime or tort B. Work product
3. Reasonably calculated to lead to admissible evidence
(b)(2) Limitations
(A) Judge can limit
(b)(3) Work product. If legal staff prepares it, it’s privileged. Conditional- if other
side can show substantial need and would endure hardship, it overrides privilege.
Strategy (an absolute) is protected
(b)(4) Preparing experts
Used at trial, other side gets full access 26(a).
Retained, but not presenting at trial- access if there’s an exceptional need (car
mechanic)
Consulted, but not used- no access
(c)(4) Protective orders. W/O PO, evidence can be given to whomever. To get a PO,
show court potential harm & good cause
(e)(4) Duty to supplement
(f)(4) Conferences
(g)(4) Court can impose sanctions after motions to compel are not followed (Similar
to Rule 11)
Failure to cooperate w/ mental and/or physical exam will allow evidence to be used
against you
XIV. Summary Judgment Rule 56. The standard: judgment sought if there is no genuine
issue of material fact so that the moving party is entitled to judgment
A. Points of Notice
1. There is no genuine issue if a reasonable jury could find for the other side. The
burden depends if movant has burden at trial
a. Π movant
i) Must show evidence that no reasonable jury can find for other side
ii) If so, Δ responds
iii) Δ must show evidence if there is a dispute
b. Δ movant
i) Adickes way- foreclose possibility, negate other side
ii) Show lack of evidence to advance π’s claim
2. Celotex made it easier to get SJ
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B. Support phase
1. There is an obligation to support SJ motion depending on whether moving party
would have burden of proof
2. If motion is properly supported, then a response is needed and burden shifts to
other side to respond w/ evidence
3. No genuine issue: must have evidence such that a jury could reason
C. Response phase
1. If burden shifts to π, then π can use affidavits. The affidavits must be by people
competent to testify
D. The 3 Burdens (Brennan)
1. Proof at trial- Who has to prove what, π must prove more likely than not each
element is true. For affirmative defense, burden is on Δ
2. Persuasion- Tie breaker on SJ. Moving party bears burden. The standard of Rule
56- no genuine issue of fact
3. Production- Who has to produce evidence and when? Initially borne by π. If met,
other side must show evidence to prove their case
E. Point of notice- burden of support is less when moving party does not bear burden at
trial
XV. Judgment as a Matter of Law Rule 50
A. Directed verdict
1. Motion for it after opposing case presented or after both sides present (a)(1)
2. Automatically preserved if raised
B. Judgment notwithstanding the verdict (JNOV) (b)
1. after a jury reaches a verdict, one side asks judge to set aside verdict b/c no
reasonable jury could get to that verdict
2. Must ask for DV to ask for JNOV
3. If JNOV is reserved, judge isn’t reexamining fact, but law and 7th Amendment
isn’t violated
C. Why it’s not used often
1. If DV is granted, other side can appeal. If appellate court disagrees w/ DV, a new
trial must occur
2. If JNOV is granted, other side can appeal. If appellate court disagrees w/ JNOV, it
will reinstate jury verdict
th
D. 7 Amendment- preserves a right to jury trial as guaranteed in 1791. No fact found by
a jury can be reexamined except by a matter of law
1. Jury trial was not absolute
2. Jury trial was used when a party was seeking a law remedy which is damages
3. Bench trial was used when seeking equity remedy (injunction, specific
performance)
4. If underlying claim is legal then there is a right to a jury trial
5. If not sure, use 3 part test
a. Look at history: Would claim be legal or equitable
b. Remedy sought: If looking for money then trial, otherwise equity
c. Consider practical limitations of jury: If case is too difficult, due process
might be violated
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Civil Procedure Fall 2007
E. History
1. Equitable clean up doctrine- equity then legal claims heard to same judge
2. After Beacon Theaters, legal heard by jury then equity heard by judge
F. Jury Selection
1. Jurors cannot be excluded on race or gender
2. As civil cases are held in courthouse, the gov’t must be an extension of civil rights
G. Terminology
1. Venire- people getting summons
2. Voir dire- selecting jurors
3. Petit- those chosen as jurors
4. Causal strike- bias or prejudice strike these are unlimited
5. Pre-emptory strike- any reason limited by number
XVI. Res Judicata- the thing decided
A. Res judicata is for π as compulsory c/c is for Δ
B. Claim preclusion- Π gets one chance to bring claims arising from same transaction
1. If π wins and tries to sue again concerning same transaction, π is forbidden, all
future claims have merged
2. If Δ wins and π tries to bring claims concerning same transaction, π is barred
3. Π cannot claim split- not efficient or just
4. Requirements: All 3
a. Need at least 1 prior valid, final, & on the merits judgment
i) Valid- the court needed power to render verdict
ii) Final- came to judgment at trial level
iii) On the merits- not dismissed to technicality or 12(b)(6) w/o prejudice
b. Case 2 parties = Case 1 parties or privity (parent & minor child)
i) If parties change, case 2 is alive
ii) If another non-named party controls litigation, they should be bound. They
had day in court (class action w/ named parties)
c. To preclude claim, it had to have been within scope of prior judgment
i) Use transaction test (4 Part) &
ii) The claim could have been brought in prior case. If case 1 is state claim
and case 2 is exclusive federal question, then claim 2 not precluded
C. Issue preclusion- the particular issues are done once decided (collateral estoppels)
1. Only precluded if issue was litigated, not could have been. Same issue can be
excluded
2. Types
a. Offensive non-mutual: repeat losing Δ, new Π (Parklane v. Shore)
i) The repeat Δ cannot use the unsuccessful issue
ii) The Π wants to stop it
iii) Courts frown on it. Wait & see π. Stakes in case 2 could be different and
defenses could be different
iv) W/ prior inconsistent verdicts, future π cannot invoke it
v) Case 1: Πx v. Δz
Case 2: Πy v. Δz
b. Defensive mutual: repeat losing Π, new Δ (Blonder Tongue)
i) The repeat Π cannot use the unsuccessful issue
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Civil Procedure Fall 2007
ii) The Δ wants to stop it
iii) Case 1: Πx v. Δy
Case 2: Πx v. Δz
3. Party seeking it must raise it
4. Requirements
a. Need at least 1 prior valid, final, & on the merits judgment
i) Valid- the court needed power to render verdict
ii) Final- came to judgment at trial level
iii) On the merits- not dismissed to technicality or 12(b)(6) w/o prejudice
b. Same issue
i) Must have been litigated. Evidence presented to fact finder. Issues agreed
to, settlements, stipulations, and default judgments don’t count.
ii) Actually decided- avoid error exportation. W/ federal bench trials, jurist
will give a special verdict. W/ jury trials, usually general verdict
iii) Issue was necessary to the verdict
c. To use it, you don’t have to have been a party. To be bound, you had to have
been part of the full & fair litigation.
d. The following are fairness factors and can defeat issue preclusion
i) Avoid wait & see π
ii) Stakes in case 1 were minimal
iii) Very different procedures between cases. Administrative/judicial
iv) Prior inconsistent verdicts
D. Law of mutuality
1. Case 2’s Δ cannot use case 1’s winning defense b/c Δ2 was not at risk w/ Δ1. No
risk, no benefit
2. Exception is indemnity
3. Most jurisdictions stopped using it. The law allowed inconsistent verdicts (NJ
exception)
XVII.
The New Trial Rule 59
A. Errors
1. Harmless errors do not allow for a new trial
2. Material/Reversal errors warrant a new trial
3. If error is in between trial judge has great discretion
4. If trial judge knows it’s reversible, new trial should be granted
B. Appellate court
1. Appellate will reverse trial judge only on error of law.
2. Trial judge sat through trial.
C. Avoiding a new trial
1. Remittur
a. Court denies Δ’s motion for a new trial and tells Π to accept less damages
b. Constitutional b/c you’re not interfering w/ jury trial
2. Additur
a. Court denies Π’s motion for a new trial and tells Δ to add more damages
b. Unconstitutional b/c court is doing something jury never did
3. Some state courts allow additur
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