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I. Complaints
A. Rule 8(a) requires a “short and plain statement of the claim showing that the
pleader is entitled to relief.”
B. 3 problems with drafting a claim
1. substantive validity
a. do the given facts comprise entitlement to relief?
b. major premise (the law)
1) ex: “if the ∆ insults the π” and “if the π suffers anguish”
and “unless the π provoked the insult” then π is entitled to
compensation.
c. minor premise (the facts)
1) ex: ∆ insulted π, π suffered harm.
2. Burden of allegation
a. generally to the π for “if” to the ∆ for “unless”.
1) rule 8(c) lists most of the “unless”, but otherwise must
look to case law for burden of allegation.
b. policy considerations
1) who has greater access to the proof (policy)
2) who has most efficient access to the proof (convenience)
3) who is causing the burden (fairness)
3. specificity of the allegation (how much detail) - “simple, concise, and
direct.” - Rule 8(e); “pleadings shall be construed as to do substantial
justice” - Rule 8(f) “plaintiff need not plead evidence” - Sierocinski
a. “code” states require more rigid pleadings than “rule” states.
b. goals of specificity:
1) determining the proper legal theory
2) determining the relevance of evidence
3) isolating legal issues for early determination
4) eliminate factual issues early
5) determining the bounds of res judicata
c. specificity is not needed where:
1) liberal rules of discovery - See Sierocinski
2) extensive pretrial motions/conferences
3) issue is not complicated
d. disfavored claims such as fraud, libel and deceit are often abused
and hard to prove so there are special pleading requirements in
Rule 9(b)
C. Definition of “claim” (legal theory or natural grouping of events?)
1. Rule 8(e)(2) allows alternate claims regardless of consistency
a. can state the same claim in several counts (redundancy)
b. can state different claims in the same count (joining under Rule
18(a).)
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c. thus, the issue of the definition of claim is minimized for
pleadings, assisting a π who is unsure about what he will have to
prove after discovery.
2. Liberality of 8(e)(2) is subject to the obligations of rule 11.
a. 11(a) requires the attorney to sign the pleadings averring that
they are not frivolous and are based on a “reasonable inquiry.” See also Mohammed.
b. 1993 amendments relaxed sanctions:
1) making them discretionary
2) provided for a “safe harbor” of withdrawing frivolous
motion/claim within 21 days after service by opposition of a
motion for sanctions.
3) sanctions paid to the court as deterrents only, not
compensation to other party for costs, reducing hostility
4) no longer deters attorney from making borderline
frivolous argument for change in the law.
II. Answers/Motions (Defenses)
A. Answer must normally come within 20 days (12(a)(1)(a)) or plaintiff can take
default under rule 55(a)-(b).
a. ∆ may be able to reopen under 55(c) and 60(b).
1) must show good cause.
b. under 12(a)(4)(A) if the court denies a pre-answer motion, the party
must serve an answer within 10 days of notice of the court’s action
c. under 12(a)(4)(B) if the court grants a 12(e) motion for more definitive
statement, then the party has 10 days to cure the statement.
1) also probably applicable to the other corrective motion 12(f) but
left out on oversight.
B. Five types of defenses:
1. Dilatory Defenses - do not reach the merits of the case:
a. 12(b)(1) lack of subject matter jurisdiction
b. 12(b)(2) lack of jurisdiction over the person
c. 12(b)(3) improper venue
d. 12(b)(4) insufficiency of process
e. 12(b)(5) insufficiency of service of process
f. 12(b)(7) failure to join a party under rule 19.
2. Demurrer - challenges the legal sufficiency of the pleading
a. 12(b)(6) failure to state a claim upon which relief can be granted
b. 12(f) strike defenses for insufficiency (π’s equivalent to 12(b)(6)).
3. Denials- 8(b) - allegations that are not denied are admitted 8(d)
4. Affirmative defenses - 8(c) must go in answer
5. Corrective motions
a. 12(e) more definite statement
b. 12(f) strike immaterial or scandalous matter.
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C. Two other actions/objections:
1. Counter-claim - rule 13
2. Implead - rule 14.
D. Answer or Motion??
1. All defenses and actions/objections listed above may be made by
answer, except 12(e)-(f) which must be by motion.
2. Rule 12(b)(1)-(7) may be made by motion, before answer, at the option
of the pleader.
3. Denials (8(b)) and Affirmative defenses (8(c)) must be in the answer, or
are waived unless amended “of course” (Rule 15(a)).
a. this is not explicitly stated, but it follows from the structure of the
waiver operation of 12(g) as it applies to 12(b) motions.
(consolidation of defenses).
E. Preservation/Waiver of defenses:
1. Consolidation of defenses: 12(g)
a. all 12(b) defenses “then available” are to be joined into a single
pre-answer motion, or they are waived (except 12(b)(6)-(7) which
may be raised later).
a. bottom line: party is allowed only one pre-answer 12(b) motion
(except super defense 12(b)(1))
2. Disfavored defenses: 12(h)(1)
a. 12(b)(2)-(5) (personal jurisdiction, venue, process, service) are
lost unless made in the FIRST document (unless amended “of
course” - Rule 15(a)), whether motion or answer.
3. Strong defenses: 12(h)(2)
a. 12(b)(6)-(7) can be raised through “trial on the merits,” but not
after judgment.
4. Super defense: 12(h)(3)
a. 12(b)(1) lack of subject matter jurisdiction can be made at any
time by any party, even upon appeal.
b. policy - public interest in keeping the courts in their proper
place.
5. Correction objections
a. 12(e) motion for a more definite statement must be made “before
interposing a responsive pleading,” so it is lost if not joined in the
pre-answer motion under 12(g)
b. 12(f) motion to strike must also be made “before responding to a
pleading”, but the court may make it on its own initiative at any
time.
III. Replies
A. Rule 7(a) indicates that the π is not permitted to respond to an affirmative
defense, or denial, unless ordered by the court
1. 7(a) allows replies to “counter-claims denominated as such.”
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2. thus, court normally only orders replies if the counter-claim were
mislabeled as a defense.
3. policy is to get on with trial once notice is given.
a. At the pre-trial hearing under 12(d), the π will have a chance to
reply to the affirmative defenses of 8(c), as well as any 12(b) motion
raised by the defendant.
B. Rule 8(d) treats any averments in a pleading to which no responsive pleading
is allowed as denied or avoided.
C. Rule 12(f) is the π’s equivalent of the ∆’s 12(b)(6) for defenses (but he can
make regular 12(b)(6) for counterclaims).
1. π may assert that the affirmative defense set forth in the answer is
“insufficient”.
2. this right is preserved through “trial on the merits” by 12(h)(2), and
thus is a “strong counter-defense.”
IV. Counter-Claims/Cross-Claims
A. Compulsory counter claims - Rule 13(a)
1. ∆ “shall” put the counter-claim in the answer if it “arises out of the same
transaction or occurrence” and is available at the time of response.
a. the “shall” language implies that it is waived if not brought in
the pleading.
1) but if the claim arises during the action, the defendant
may supplement his counterclaim under 13(e) with
permission of the court.
b. 13(f) allows leave to amend if failure to counter claim was
excusable. -BOP on moving party
1) contrast with 15(a) for π’s claims, which may allow
amendment without permission, and BOP is on opposing
party to show “prejudice”
c. a motion is not a “pleading” so it does not have to contain a
counter claim
1) ex: 12(b)(6) motion granted before answer does not
preclude bringing a separate action for what would have
been compulsory counterclaim if the ∆ had answered instead
of moved.
d. the test of “same transaction or occurrence” is whether the same
evidence will support or refute both claims - Williams v. Robinson.
2. promotes efficiency
3. Rule 18(a) states that the π “may” join claims, but 13(a) states that ∆
“shall” counter claim for claims arising out of the same transaction or
occurrence.
a. only superficially inconsistent because the π would still be
precluded by judicial doctrine of res judicata (like ∆ is precluded by
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rule 13(a)) from bringing his claims piecemeal if they all arose out
of the same occurrence.
1) but if the claim arose during the action, the π may
supplement under 15(d) with court permission
B. Permissive Counter claims - Rule 13(b)
1. ∆ “may” make any counter claim, even for claims “not arising out of the
same transaction or occurrence.”
a. “may” indicates optional.
b. counter claim may be wholly unrelated to the original action.
1) for “convenience,” the court may “order a separate trial of
any...counterclaim” under Rule 42(b).
2) court may enter judgment as to “fewer than all the claims”
under 54(b).
2. counter claim is optional because it doesn’t necessarily promote
efficiency.
C. Cross-claims under 13(g)
1. ∆ “may” bring a cross claim “against a co-party arising out of the same
transaction or occurrence.”
a. “may” indicates optional.
b. prevents the underlying claim from being stalled by exponential
growth of claims by other co-parties.
D. Counterclaims or Cross-claims reverse the role of the parties with respect to
that claim.
1. Response is required under 7(a), failure to reply or move in time brings
admission under 8(d) and default under 55(b) and (d).
V. Amending the Pleadings (Rule 15).
A. Amendments before trial
1. Rule 15(a) allows amendment “once as a matter of course at any time
before a responsive pleading is served.”
a. if no responsive pleading is allowed under rule 7(a), then the
party may amend within 20 days as long as it has not been put on
the calendar.
b. an “answer” is a “responsive pleading,” a motion is not, so a
party may still amend without applying for leave if the opponent
moves 12(b)(6) in response to the original claim.
1) note that 15(a) states that a party “shall plead in response
to an amended pleading” so technically, a 12(b)(6) motion
would not be allowed in response to the amended, but this is
an oversight in the rules.
2. After the grace period expires (either “responsive pleading” is served or
the 20 days expires), the party may amend:
a. with the leave of the court by motion; or
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1) “leave shall be given when justice so requires.”
2) provides max opportunity to get to the merits of the case,
since pleadings are for general notice only
b. by “written consent of the adverse party.”
B. Amendments after trial has begun (or even ended)
1. There is no absolute limit on when a pleading may be amended.
2. Rule 15(b) (first two sentences) treat the pleadings as being amended
when the issue is tried differently than the pleadings at trial, and neither
party objects.
1) allows the party to expressly amend to avoid confusion later as
well.
3. Rule 15(b) (last two sentences) provide for the opposing party to show
prejudice in order to block the entry of an amendment when the issue is
being tried differently than the pleadings
1) must be prejudice on the merits of the case, such as unfair delay,
inability to prepare adequately, etc.
2) contrast with 13(f) which allows amendment of counterclaims
only if the moving party can show “oversight”, etc. - different
standard, different burden of proof.
C. Relation back of amendments - Rule 15(c)
1. 15(c)(2) allows relation back when the claim or defense “arose out of the
conduct, transaction, or occurrence set forth...in the original pleading.”
a. because the role of pleadings is notice, this is usually interpreted
broadly.
b. does not apply to 15(d) supplemental pleadings because the
supplemental actions have “happened since the date of the
pleading sought to be supplemented.”
1) this can result in technically barring the supplemental
addition of a wrongful death action where the person dies
after the statute of limitations expires for bringing the
original negligence action. But policy behind S/L is not
offended by allowing relation back anyway.
VI. Discovery Rules 26-37
A. In general, rule are intended to prevent surprise at trial, so their scope is broad
under Rule 26(b).
1. Rule 26(b)(1) the “parties may obtain discovery regarding:
a. “any matter, not privileged, which is relevant.”
b. “need not be admissible” if it is “reasonably calculated to lead to
the discovery of admissible evidence.”
1) ex: evidence of remedial measures is inadmissible to
prove negligence, (evidence rule 407) but may still be
discovered.
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2) ex: your own statements in depositions are usually
inadmissible under hearsay, but your (and your opponent’s)
admissions are admissible.
3) ex: evidence not admissible under hearsay may become
admissible to impeach the witness at trial, or to substitute for
a missing witness.
c. but 26(b)(2) allows courts to limit discovery at their discretion.
2. Rule 26(c) prevents abuse of the liberal discovery rules by issuing a
protective order “for good cause shown” after a “good faith...effort to
resolve the dispute without court action.”
3. Rule 26(g) prevents abuse by requiring the attorney to sign under risk of
sanctions (similar to Rule 11).
4. Discovery is meant to proceed automatically under 26(a)
a. Rule 26(a)(1) provides that “a party shall, without awaiting a
discovery request, provide to the other parties:
1). contact info for persons “likely to have discoverable
information” concerning the facts
2). copies of relevant documents, etc.
3). computation of damages; and
4). copies of insurance agreements.
b. Voluntary disclosure must happen within 10 days of discovery
conference 26(f).
c. Physical or mental examination under rule 35 is the only
discovery device that must be initiate by motion to the court.
d. 26(e) imposes a duty to
1) supplement disclosures at appropriate intervals if the new
or incorrect information has not “otherwise been made
known to the other parties.”
2) seasonably amend prior responses to interrogatories, etc.
if the new or incorrect information has not “otherwise been
made known to the other parties.”
e. 26(a)(2) requires a detailed report by expert witnesses showing
all facts, basis and opinions.
f. 26(b)(4) allows deposition of experts without a court order if they
are testifying experts.
g. 26(b)(3) allows discovery of written work product only under
“substantial need” and “undue hardship” to obtain the materials
by other means.
1) partially codifies Hickman v. Taylor’s ban on the
discovery of “core” work product of mental processes,
opinions, and strategy.
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2) only applies to “documents and tangible things” so
Hickman is still needed to prevent party from being
compelled to disclose “core” work product orally.
e. failure to cooperate results in Rule 37 sanctions
1) party must first get a motion to compel discovery under
37(a), then they can
2) seek sanctions of fines, attorney’s fees, dismissal or
contempt under 37(b)
3) if it is really bad, party can go straight to 37(c) and skip to
motion to compel.
B. Depositions upon Oral Examination (Rule 30)
1. Leave of the court is not needed except:
a. 30(a)(2)(A) when the total number of depositions (oral under 30
or written under 31) made without leave exceeds 10
b. 30(a)(2)(B) when that person has been previously deposed.
c. 30(a)(2)(C) the party seeks to take a deposition before the
discovery conference of 26(f).
2. non parties must be subpoenaed under Rule 45(b), but parties are
required to show up simply by notice of the deposition under Rule
30(b)(1).
a. if documents are required of a party, a rule 30(b)(5) states that a
rule 34 request may be made.
b. if documents are required of a non-party, a subpoena duces
tecum under 45(d) and 45(a)(1)(C).
c. if a party does not cooperate, sanctions under rule 37(a)(2)(A)
and then 37(b) may be taken.
d. if a non-party does not cooperate, sanctions under rule 45(e) may
be taken.
3. Objections are noted under 30(c), but the deponent still must answer,
and the objection awaits trial.
1) objections may be made for the first time at trial under 32(b) (so
they are not waived if not made at the deposition) unless under
23(d)(3)(A) or (B) they could have been corrected (form objections leading questions, etc.) because it would be unfair to exclude
evidence that the examining party could have corrected had he
known.
2) under Rule 30(d) a party may instruct a deponent not to answer
only when the answer is privileged or the question is made in bad
faith. Counsel advising unreasonable action may have to pay fees
under 37(a)(4).
3) questions requiring application of law to facts are generally not
allowed because rule 30 does not have a provision comparable to
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rule 33(c), and the party probably doesn’t know the law well
enough. - See Umphres
4. Rule 29 allows the parties to “stipulate” away some of the formalities of
oral depositions. The “usual” stipulations are:
a. objections as to form are reserved until trial (because they are not
waived anyway) so as to lessen hostility.
b. no signing or filing required under 30(e) and 30(f) because
authenticity may be easily proven.
c. the stenographer is qualified to admit the oath under 28(a) to
prevent wasting time only to find out that the oath was invalid.
d. the deposing party pays for opponents copies under 30(f)(2).
C. Depositions on Written Examination, (Rule 31)
1. similar to oral examination, except they are written.
2. party is on his own when testifying under oath to the questions, but the
opposing lawyer can have the questions for 30 days and serve questions
for cross-examination.
3. normally used only when a non-party witness has limited technical
information, not requiring legal analysis.
D. Interrogatories to parties - Rule 33
a. 33(c) requires answers to application of law to fact, perhaps delayed
until later in discovery.
1). party can frame answers with help of lawyer so application of
law to fact is proper.
2) however, questions of pure law are not allowed (see O’Brien)
because this is an invasion of the “core” work product protected by
26(b)(3) and Hickman. (Can ask legal theory but cannot demand
written memo outlining legal theory)
3) not an admission under Rule 36, so the party can change legal
theories if necessary later in discovery. See Freed v. Erie Lackawana
b. 33(b) allows a written objection in lieu of an answer.
1) 33(b)(4) states that failure to state a ground for objection to an
answer waives that ground unless good cause is shown.
4. Production of documents and things - Rule 34
a. especially helpful in cases where there is important physical evidence
that needs to be preserved.
b. only to parties, get non-parties under subpoena duces tecum Rule 45(d)
and 45(a)(1)(C).
5. Physical and mental examinations - Rule 35
a. only applies to parties, not third-party witnesses.
1) can discover information about witnesses eyesight by deposition,
subpoena of medical records, etc.
b. only made on motion, must be for “good cause,”
1) ability to obtain the info by other means is relevant.
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c. the condition must be “in controversy.”
1) π bringing personal injury action explicitly places condition “in
controversy” - Sibbach.
2) can apply from one co-defendant to another without bringing a
cross-claim - see Schlagenhauf.
d. 35(b)(1) and (2) provide for swapping of medical reports between
parties.
6. Requests for admission - Rule 36
a. Rule 36(a) failure to answer or properly object within 30 days is
admission.
b. 36(a) can ask for the application of law to fact.
1) differs from Rule 33 in that the answer is binding.
c. 36(a) party can not fail to admit or deny based on lack of knowledge
until after he makes a reasonable inquiry.
d. 36(b) insufficient answers or ungrounded objections may result in
admission.
e. Rule 37(c) allows a party to “prove” the truth of a matter denied in a
request for admission, and then get costs for “proving” it.
VII. Pretrial Conferences - Rule 16
A. Trend (since 1983) to promote broad scope case management by judges early
on in the litigation, but individual judges have much discretion on how much
management to give.
1. 16(a)(5) and 16(c)(9) even allows facilitation of settlement of the case.
2. same judge does pre-trial order as does trial, so judge feels less inhibited
to determine issues up front.
3. done early within litigation (120 days)
B. Begins with mandatory scheduling order of rule 16(b).
1. avoids duplicative proof under 16(c)(4), 16(c)(5)
2. judge can move shaky issues up front in order to dispose of case more
quickly under 16(c)(14)
C. Optional one or more pretrial conferences may follow.
D. More coercive than previous rules
1. 16(c)(16), 16(c)(6) and 16(f) imply more strict, coercive pretrial
conference, but perhaps not enough to compel discovery unless lack of
prosecution is done in bad faith. Identiseal
2. 16(c)(11) allows partial summary judgment if the party won’t stipulate
to facts that should be stipulated.
3. Judge can impose sanctions for failure to appear or prepare under 16(f)
even if the parties later settle.
a. judge has the power, according to case law, to compel the party
to appear, not just the attorney.
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D. Results in order under 16(e), which stipulates the action taken, and in effect
supersedes the pleadings, because it controls the action from there forward. No
contrary evidence will be allowed after the order is granted, unless it would
cause “manifest injustice.”
1. Contrast to Rule 15(b) which requires opponent to show “prejudice”
rather than moving party to show “manifest injustice.”
VIII. Motions to Avoid Trial on the Merits
A. Motion for judgment on the pleadings (Rule 12(c))
1. Made after the pleadings are closed (summary judgment 56 can come
before the pleadings are closed, but they can still be amended.)
a. Can only be used to resolve questions of law, not fact.
1). Ex: if the answer admits the allegations of the complaint,
but sets up two affirmative defenses, the motion will be
granted only if both defenses are legally insufficient (if only
one is bad, strike it with a 12(f) motion.)
2). Counter-ex: motion will not be granted if the answer
contains a denial because that affects a matter of fact.
3) however, if answer doesn’t deny, 12(c) can be used in
place of a 12(f) to get total victory.
4) can also be used in place of a late 12(f), 12(b)(6) or 12(b)(7)
because it is preserved under 12(h)(2), but it will not get total
victory.
5) will be converted to a Rule 56 motion for summary
judgment if it contains facts outside the pleadings.
b. Treats all of adversary’s allegations as admitted, but his own
allegations are taken as true only if admitted by opponent.
1) Result:. 12(c) motion by the ∆ takes on no added strength
by virtue of affirmative defenses in his answer because they
are taken as denied anyway under rule 8(d).
B. Motion for Summary Judgment (Rule 56)
1. 56(a), (b) Can be filed by either party in any type of case, even before
the pleadings are closed.
a. π must wait 20 days after complaint filed, ∆ can bring it any time.
2. Ordinarily accompanied by affidavits in support of the contention that
there really is no genuine issue of fact.
a. 56(e) The opponent may enter admissible counter-affidavits with
contrary facts based on the personal knowledge of the affiants, but
may not simply rest on the denials in his pleadings.
b. if more time is needed to conduct discovery and get affidavits,
56(f) allows for delay or postponement of ruling on motion.
3. Granted only if a “reasonable trier of fact” could not find for the
opponent on the matter.
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a. Ex: statute of limitations has run - no reasonable trier of fact
could find that it has not.
4. Not used to actually resolve a genuine factual dispute that is found to
exist, only to identify whether there are any.
a. ex: if π provides 10 credible affidavits, and ∆ only provides 1
suspicious affidavit, motion will be denied.
b. counter-ex: if π provides conclusive evidence of admission by ∆,
then motion will be granted.
5. 56(c) and 56(d) May be partial in nature, narrowing the scope of the
dispute for trial.
a. ex: establish liability for personal injury, but leave damages issue
for trial.
6. For ∆’s it can serve the equivalent of 12(c) for π to get total victory.
a. because π has burden of proof, ∆ could even move 56 without
alleging any facts -forces π to produce critical evidence early.
7. A 12(c) or 12(b)(6) that attempts to allege facts outside the pleadings can
be transformed into a 56.
8. Can be used as a discovery tool to “force the opponent’s hand”.
a. disadvantage: encourages opponent to prepare better.
9. Often denied in three types of cases:
a. negligence case - facts can be proven, but whether it is negligence
is normally left to jury to decide.
b. important, broad reaching policy decisions - case precedent is
stronger when it is backed up by a full trial and opinion. (scope of
appeal is de novo and thus, successful appeal results in whole new
trial)
c. fraud cases - involve a mental state more properly determined by
“feel” of jury.
d. present trend is allow more summary judgments because of
judicial control/involvement in litigation process.
IX. Provisional Remedies- Seizure of Property (Rule 64) Preliminary Injunctions &
Temporary Restraining Orders (Rule 65)
A. Rule 64 Seizure of Property (state law applies) - Obtained to prevent
irreparable harm to the π in advance of trial, or the possibility that he won’t
collect after a successful trial.
1. Attachment - seizure of ∆’s property to give π security that the
judgment he hopes to obtain will be collectible.
2. Garnishment - property held by a third person, but belonging to the ∆ is
made subject to the π’s claim.
a. ex: ∆’s bank deposit or, to a limited extent, wages.
b. requires proper service on the third party.
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c. third party who violates the garnishment order can be forced to
pay out of his own pocket.
B. Injunction - directs ∆ to do or refrain from doing specific acts. Strictly
construed to avoid undue limiting of ∆’s rights.
1. Rule 65(a)(1) requires that no preliminary injunction will be given
without notice.
2. Rule 65(b) provides for temporary restraining orders when the harm
feared by π may be done before the court can hear and decide the case.
a. May be done without notice only upon a sufficient showing of
need and inability to serve notice in time.
b. Good for 10 days only without good cause or permission of ∆.
c. Must be followed immediately by an application for a
preliminary injunction.
d. ∆ may move for dissolution of the TRO upon 2 days notice to π.
3. Rule 65(c) Both TRO’s and preliminary injunctions require the π to
deposit a security bond for damages to the ∆ in case π is wrong.
4. Rule 65(d) the order granting a TRO or preliminary injunction shall be
clear, and binding only upon the parties to the action and their agents, or
parties in concert with actual notice of the order.
C. Strategy
1. move for preliminary injunction and at the same time, move for a TRO.
2. then serve the motion for P.I. on the opponent, and include the already
effective TRO.
3. conduct hearing for P.I. - if successful, it supersedes the TRO. (might be
consolidated with trial on the merits under 65(a)(2).
4. conduct trial on the merits - if successful, permanent injunction replaces
TRO.
D. Standard for granting a preliminary injunction.
1. irreparable harm to the π. (damages insufficient)
2. harm to the ∆ (whether π’s bond is adequate to cover)
3. π’s likelihood of success on the merits
4. public interest in the injunction (third parties, etc.)
E. Appeal of a Preliminary injunction:
1. §1292(a)(1) grants the right of appeal of preliminary injunctions even
though they are only “interlocutory decisions” (and not final decisions
under §1291).
2. Standard of review on appeal:
a. limited - Preliminary injunction should not be reversed unless it
is “abuse of discretion;”
b. Rule 52(a) provides that findings of fact by the judge with respect
to “interlocutory injunctions” shall not be set aside unless “clearly
erroneous.”
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X. Juries
A. Rule 38(a) preserves the right of jury trial as in the 7th amendment to apply to
federal cases.
1. 7th amend - “jury trial right is preserved as at common law” at time of
constitution (1791).
a. claims “at law” (damages) entitled π to a jury.
b. “equity” claims (injunctions, mandamus, etc.) - no jury.
c. thus merger of law and equity of Rule 2 is not complete.
d. new statutory causes of action are treated as their most similar
cause of action existing in 1791.
B. 38(b) and (c) any party may request within 10 days after service of last
pleading on the triable issue (normally put in complaint, or in answer by ∆) or it
is waived.
C. 39(c) allows advisory juries - findings binding with respect to legal issues
(where jury is entitled), advisory to judge with respect to equitable issues (jury
not entitled).
D. Rule 40 provides that local rules are to be used for getting the case on the
calendar
1. some require action by the party, some are automatic
E. Rule 47 selection of jurors has 3 stages:
1. preliminary statement - used to ingratiate yourself to jury, but
statements must not be argumentative.
2. voir dire - questioning the jurors under oath.
3. challenges a. peremptory - normally 3. (Rule 47(b) and §1870).
b. for cause - unlimited (Rule 47(c))
F. Jury Size:
Less than 12?
State
Federal
Criminal
Yes. Williams v. Florida
No. Fed. Crim. Pro. rules
But 5 is too few Ballew
require 12, so there has
been no experimentation.
Civil
Yes. 7th Amd. does not
Yes. Colgrove v. Battin
apply to states (could
abolish without
constitutional problem)
G. Unanimity of Jury
Non-unanimous?
State
Criminal
Yes for 12, Apodaca
No for 6, Burch
Civil
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Yes. 7th Amd. does not
14
Federal
No. Fed. Crim. Pro. rules
require unanimity, so
there has been no
experimentation.
No now, but could
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apply to states (could
abolish without
constitutional problem)
change because
precedent Springville is
old and trend is evident.
XI. Trial
A. Burden of Proof
1. Burden of Production
a. decided by the judge - usually follows burden of allegation.
b. may shift between the parties.
c. standard is whether a rational jury could find that this issue is
proven by a preponderance of the evidence.
2. Burden of Persuasion
a. persuade the jury
b. does not shift between parties
c. standard is preponderance of the evidence.
B. Motions seeking judgment
1. Jury trials - Rule 50(a) judgment as a matter of law - after a party has
been fully heard” on an issue
a. standard is “no legally sufficient basis for a reasonable jury to
find on that issue”
b. 50(b) provides it may be may at any time before submission of
the case to the jury.
c. treated as an adjudication on the merits (with prejudice) but the
court may allow the plaintiff to voluntarily withdraw under
41(a)(2) instead of granting 50(a).
2. Non-Jury trials - Rule 52(c) judgment on partial findings - after a party
has been “fully heard” on an issue
a. standard is whether the claim could be maintained without a
favorable finding on the issue that the judge has decided against
the party.
1) don’t need a reasonable jury standard because the judge is
the trier of fact- if he has decided against the party, that’s it.
b. available to either π (if ∆ had burden of proof on something)
c. standard of review on appeal is “clearly erroneous”, thus it is
better than a Rule 56 summary judgment because the party has
been fully heard.
XII. Federal Rules of Evidence
A. Admissible evidence must be:
1. “material” - measure of the applicability of the proposition asserted to
the case.
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a. ex: if ∆ kicked you in the groin, that is material in a battery
action, but not a negligence action because malice is not a material
element of negligence
2. “relevant” - measure of the logical relationship between the evidence
and the proposition asserted.
a. ex: if ∆ was drunk, that is only relevant if it occurred during the
proper time frame.
3. “competent” - measure of the authenticity of the evidence and policy
a. ex: hearsay is not “competent” because of authenticity problems
b. ex: privileged information is not “competent” because of public
policy.
B. Basis of Federal Rules
1. 401 defines what is “relevant evidence”
a. tendency to make a material fact more or less probable
b. easy standard
2. 402 states that “relevant” evidence is admissible unless it is not
competent
3. 403 states that even if it is relevant and competent, it may be excluded
by the judge if its probative value is substantially outweighed by the
danger of prejudice, confusion or waste of time.
a. used when probative value for proper purpose is slight, and
improper purpose is great.
4. 105 - doctrine of limited use
a. evidence may only be used for purposes for which it is proper
1) ex: evidence of subsequent remedial measures under 407
is only admissible to show ownership.
2) ex: hearsay may be used to impeach a witness but not to
prove the proposition for which it is asserted.
C. Testimony of Witnesses
1. Rule 701 Opinions by lay witnesses are admissible only if:
a. rationally based on perceptions
b. helpful to a clear understanding of the case
1) must not be legally conclusory because that is not
“helpful”
2. Rule 702-705 Expert testimony
a. can give testimony to which he has no personal knowledge
under 703
b. standard is whether it would “assist the trier or fact” under 702
c. can make conclusions on ultimate issue under 704
d. can give opinion without laying out basis under 705
D. Privileges
1. the holder is the person who can seek exclusion
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a. if court erroneously upholds a witness’s privilege, the damaged
party can appeal.
b. however, if the court erroneously denies the witness’s privilege,
damaged party can not appeal because he is not the holder of the
privilege.
E. Hearsay - generally inadmissible as being incompetent 802
1. Definition 801(c) - an out of court statement offered for the purpose of
proving the proposition asserted by the statement.
2. Policy- precludes the opportunity to cross-examine the declarant who
made the statement in front of the jury - the person whose perception,
memory and sincerity is at issue.
a. 801(d)(1) allows prior statements of the witness to be used to
impeach him
b. 801(d)(2) admissions are likewise allowable - believed to be true
because you don’t normally admit unless true.
3. Exceptions a. “technical hearsay” - doesn’t violate the policy
1) “Verbal Act” - the statement itself is the legal issue (ex: “I
accept” is legal issue for contract)
2) Affect on hearer - the words have a legally significant
affect on hearer (Ex: husband hears man say wife is
adulterous. Not admissible to prove adultery, but is
admissible to show “provocation.”)
3) declarant’s state of mind - (ex: declarant states “I am the
Pope.” Not offered to prove piety, only to show insanity.
Same as saying “I believe...”)
b. Business records 803(6) - believed to be independently reliable if
made during the ordinary course of business.
c. 803(2) excited utterance - stress and excitement prevented a lie.
See Handel
d. 804(b)(2) dying statements - witness must be unavailable.
e. 803(1) present sense impression - no time to fabricate a lie.
f. 803(24) and 804(b)(5) (misc.) residual exceptions that allow it in if
it is relevant, best evidence, presumably reliable, and justice would
be served.
4. Multiple hearsay - need an exception for every level to get it allowed.
5. Writings have authentication 901 and best evidence 1002 problems.
a. but may not be hearsay if it is a contract or the like because it is a
“written act.”
b. business exception - can substitute for the testimony of the
witness if he could testify out of personal knowledge to the same
thing were he present.
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XIII. Submission to the Jury and Return of Verdict (Rules 49, 51, 52)
A. Jury instructions - Rule 51
1. May come before or after closing arguments, or both, at the discretion of
the judge.
2. Allows more flexibility to judge to manage the trial.
3. Party must object to the instruction before the jury retires to deliberate,
but does not have to propose the instruction in order to object to the lack
of giving of an instruction.
B. Special verdicts and interrogatories - Rule 49
1. Can be a special verdict - 49(a)
a. “special written finding upon each issue of fact.”
b. parties waive consideration of an issue if it is omitted by the
court and the jury has retired.
c. tends to localize errors and minimize issues on appeal.
d. prevents jury consideration of irrelevant facts/issues.
2. Can be a general verdict with interrogatories - 49(b)
a. “written interrogatories upon one or more issues of fact the
decision of which is necessary to a verdict.”
C. Findings by the Court -Rule 52
1. in a non-jury trial, “the court shall find the facts specially and state
separately its conclusions of law thereon.”
XIV. Motions after Verdict - Rules 50, 59
A. Motion for judgment n.o.v.
1. Rule 50(b) allows a deferred or denied motion for judgment as a matter
of law at the close of evidence to be renewed as a motion for judgment
n.o.v. after an adverse jury finding.
a. must have made a previous 50(a) motion at the close of evidence.
b. must be made within 10 days (“ten day motion”)
c. standard is same as motion for directed verdict, i.e. reasonable
jury.
1) looks at movant’s evidence in light most favorable to
movant, and only uncontradicted evidence of non-moving
party.
d. judge may deny the motion at the end of evidence:
1) to prevent reversal causing a new trial.
2) jury may find for mover anyway, making it moot.
e. if judge is reversed on judgment n.o.v., there is no new trial, only
reinstatement of jury verdict.
B. Motion for a new trial - Rule 59
1. Motion must be made within 10 days, (“ten day motion”) or the court
itself can order a new trial on its own initiative after giving the parties a
chance to be heard.
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a. judge may reconsider his actions and thought he made a
prejudicial error.
2. One standard is that judgment is against the “weight of evidence”.
a. Differs from judgment n.o.v.:
1). by definition results in a new trial,
2). standard is different than “reasonable jury” of 50(b).
3) looks at all the evidence
3. Another standard is failure to follow jury instructions.
4. Also, newly discovered evidence (civil trial only).
5. Only available for non-harmless errors, meaning ones that affect the
substantial rights of the parties - Rule 61.
6. Usually joined with a motion n.o.v. under Rule 50(b).
a. if the judgment n.o.v. is granted, the judge may also
conditionally grant the rule 59 motion for a new trial under 50(c),
subject to the judgment n.o.v. being reversed on appeal. (makes no
sense to say that “no reasonable jury could find” but that finding
was “not against the weight of the evidence)
XV. Judgment
A. Demand for judgment - Rule 54(c)
1. in case of default, the judgment shall not be different in kind, or exceed
the amount asked for.
2. every judgment shall grant relief that the party is “entitled” to,
regardless of what they ask for, and even if they don’t ask.
B. Costs
1. Other than attorneys fees - Rule 54(d)(1)
a. granted as a matter of course.
b. “taxed” (tallied) by the clerk under 28 USC 1920
c. may be reviewed or denied by judge by motion made within 5
days.
2. Attorney’s fees - Rule 54(d)(2)
a. motion must be made within 14 days to ensure notice to the
adverse party before the time for appeal has expired.
b. does not require an exact accounting of the fees, but only a “fair
estimate”.
c. court may require the moving party to disclose any fee
arrangements that have been made between the parties.
d. the court may grant or deny the motion with or without allowing
the adverse party time to prepare an opposing motion or to
conduct additional discovery as to fees.
e. fee awards are made as a separate judgment under Rule 58.
C. Declaratory Relief - Rule 57
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1. Under 28 USC 2201, “in a case of actual controversy any court of the
United States...may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is
or could be sought.”
a. Rule 57 provides that “the existence of another adequate remedy
[i.e. money damages at law] does not preclude” a declaratory
judgment (which is equitable relief).
b. “actual controversy” requirement is to generate focused opinions
based on facts, rather than hypotheticals.
1) keeps judiciary from legislating
2) not an “advisory opinion” so it does have precedential
value.
3) can even be based on contingent rights within the power
of the π to control - see Amer. Machine
4) not available if the statute has not yet been enforced
against anyone and is contingent that it might - See Int’l
Longshormen
c. “further relief” refers to additional remedies that could be sought
such as money, etc.
2. Under 28 USC 2202, “further relief” may be granted against the adverse
party whose rights have been determined by a declaratory judgment, after
reasonable notice and hearing.
a. further relief refers to subsequent actions which would otherwise
be barred by res judicata.
XVI. Enforcement of Judgment - Rule 69
A. First step is for π to identify and discover the ∆’s assets.
B. Then π seeks a writ of execution from the federal court, addressed to a federal
marshal.
1. marshal seizes so much of the ∆’s non-exempt property as to satisfy the
judgment.
2. if ∆ does not pay, marshal sells the property, pays the judgment,
subtracts his own costs, and refunds the difference to ∆.
C. Local state rules are generally conformed to.
1. some states mandate that the ∆ attend a post-judgment hearing to
determine his assets, and order him to turn over his assets to pay the
judgment.
2. if ∆ does not pay, he may be imprisoned for contempt, not for
indebtedness, but for failure to comply with the order since he was able.
XVII. Appellate Review
A. Appeal to the Court of Appeals - Rule 62
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1. 28 USC 1291 gives a party the right to appeal erroneous “final
decisions” of a district court.
a. Russell v. Barnes Foundation held that a defendant may not
appeal a Rule 56 summary judgment as to liability before the
assessment of damages, because it is not a “final adjudication of the
controversy between them.”
b. however, it follows that a plaintiff would be entitled to appeal a
summary judgment against him as to ∆’s liability.
2. 28 USC 1292(a)(1) also gives a right of appeal from “interlocutory”
judgments that grant, refuse, modify, or otherwise affect injunctions.
a. uncommonly used, 1292(b) allows appeal of interlocutory orders
(other than injunctions) when they involve “controlling questions
of law” to which there is “substantial ground for difference of
opinion” and that immediate appeal “may materially advance the
ultimate termination of the litigation.”
1) ex: if jury verdict for ∆ and π successfully moves for new
trial, ∆ must ask permission from court because judge must
“certify” the question as having question of law deserving
appeal.
b. ex: π sues ∆ for personal injury on battery and negligence and ∆
attempts to transfer assets. π moves for preliminary injunction to
freeze assets. If denied, it can be appealed under 1292(a)(1) because
it is important enough even though not a final order.
3. Rule 54(b) provides that interlocutory orders appealable provided there
is “no just reason for delay” where there are multiple claims
a. ex: if ∆ moves for summary judgment on battery in a negligence
and battery case, it may be appealed by π if granted as long as the
judge states “no just reason for delay.
B. 62(d) Stay of proceedings to enforce a judgment.
1. Rule 62(a) provides for an automatic 10 day stay of enforcement of a
judgment.
2. Appeal must be filed within 30 days under App. Rule 4(a). (So there is a
20 day gap in which to execute)
C. Ways around the finality rule:
a. collateral matter doctrine - ruling was on a collateral matter, separable
from the main case, and so is final with regard to the collateral matter and
independently appealable.
b. special proceeding in mandamus - party losing motion sues judge to
compel him to grant motion, judge immediately dismisses, and so is a
final decision as to the mandamus.
1) still must be an important issue and not interrupt a trial in
progress.
D. Two ways to get to supreme court: § 1254
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a. writ of certiorari - granted upon petition of any party, “before or after”
final judgment.
1) even winner can request cert. (ex: gov’t loses in 9th circuit, wins
in 2nd circuit, seeks cert. for uniformity)
b. certification of issue by court of appeals
XIX. Subject Matter Jurisdiction
A. General vs. Limited Jurisdiction
1. Federal system is limited jurisdiction
a. limited by Const. art. III, sec. 2. (9 specific categories of “cases”
and “controversies”)
b. limited by statute
2. State system is general jurisdiction
a. can hear any kind of case
b. 10th Amd. reserves power to states
B. Exclusive vs. Concurrent Jurisdiction
1. Since Art. III, sec. 2 doesn’t state that federal jurisdiction is exclusive,
then it is concurrent with that of the state
2. unless you can find a statute (i.e. patent) that provides exclusive federal
jurisdiction
3. state resident vs. state resident is exclusively state jurisdiction.
C. Original vs. Appellate Jurisdiction
1. Supreme court has both original jurisdiction and appellate jurisdiction
2. congress can only limit appellate jurisdiction
D. Constitutional vs. Statutory jurisdiction
1. is the source of the jurisdiction Const. or statutory?
2. if it is constitutional, is it self-executing?
a. ex: appellate jurisdiction of the Supreme Court, as well as the
original jurisdiction of lower courts, is granted by congress (not
self-executing)
b. ex: original jurisdiction of the Supreme Court is granted by
Const. itself (self-executing)
E. Federal Question Jurisdiction - no monetary limit
1. Cases “arising under” the laws or treaties of the federal government.
a. federal constitution
b. federal statutes
c. federal treaties
2. Policy a. uniformity
b. state judges may be parochially biased
c. federal judges handle things more regularly, leading to judicial
expertise.
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3. Federal question “must appear on the face of a well pleaded
complaint.” - Louisville v. Mottley
a. can not anticipate a federal defense to create federal question
jurisdiction.
1) jurisdiction determined at the beginning to avoid
unnecessary action were the complaint dismissed.
2) the ∆ could avoid federal question jurisdiction by refusing
to put the defense in his answer, thus preventing even
default judgment because the jurisdiction would be
improper.
b. Mottley only interpreted §1331 in well-pleaded complaint rule to
determine that district courts did not have jurisdiction, but not art.
II, sec 2 to say that supreme court did not have jurisdiction
1) π can return to state court and if he loses, appeal to
supreme court via §1257 which allows review of state court
decisions.
c. puts more emphasis on the pleadings because they must be
“well-drafted” now.
1) ex: no jurisdiction if π sues for “quiet title” and defense is
federal statute, however yes jurisdiction if π instead sues “to
remove a cloud from title” where the cloud is a federal
statute.
2) ex: no jurisdiction if π sues for “ejectment” and defense is
federal statute, but yes jurisdiction if π instead claims title
under federal law.
d. alternative is for ∆ to bring the action under §2201 for
declaratory relief
1) but court can “unscramble” the parties to get to the
underlying coercive action and then decide whether there is
a federal question on the face of the coercive action.
2) ex: business records subpoenaed. defense is federal statute
protecting records. business seeks declaratory judgment that
statute overrules the subpoena. court unscrambles the
parties to see statute as a defense and dismisses for want of
jurisdiction.
F. Diversity of citizenship jurisdiction §1332
1. Policy
a. fear of bias by the π’s state against the ∆.
b. uniformity of decisions
2. 1332(a)(1) provides for “between citizens of different states.”
3. 1332(a)(2) provides for “between citizens of a state and citizens...of a
foreign state.”
4. “citizenship” means where a person is “domiciled.” - Baker v. Keck
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a. “domicile” is physical presence plus and intent to remain
indefinitely
1) only a single location (can’t have multiple domiciles)
2) motive is not important, person can move to another state
to create diversity
b. time of commencement of the action is the time to determine
domiciliary status, not the time of the event
c. need “national formalities”
1) ex: a U.S. citizen domiciled in Kansas is a citizen of Kansas
but a U.S. citizen domiciled in England is not a foreign
citizen.
d. corporations are citizens of the state of incorporation AND the
principle place of business 1332(c)
1) determined by level of activity - Kelly v. U.S. Steel
2) where the activity factor and the management factor occur
in different states, then balance the two, giving favor to the
level of activity (more employees)
3) if there is no central location for activities, then use the
nerve center American Airlines
5. Although complete diversity is required in §1332 (by judicial
interpretation), Art. III, Sec. 2 has not been so limited, so the strict
diversity could be changed.
G. Removal to Federal Court §1441
1. §1441(a) May be removed by ∆ to the district court in the district in
which the action is pending if the district court would have original
jurisdiction.
2. §1441(b) provides that in federal question matters, the case may be
removed without regard to citizenship.
3. §1441(b) provides that where diversity questions, the case shall only be
removable if none of the defendants is a citizen of the state in which the
action is brought. (in-state defendant can not remove)
4. In contrast to venue (1391), removal is only allowed to the federal court
in the same district (across the street), so transfer to a different district is a
two step process (first remove under 1441, then transfer under 1404).
5. Mechanics of removal: §1446
a. file notice of removal in the appropriate federal court
b. copy of notice to the state court and the π
c. federal court then takes over sole jurisdiction
XX. Jurisdiction over the person
A. Venue §1391 - where the court will exercise s/m jurisdiction
1. substantially the same requirements whether federal question 1391(a) or
diversity based 1391(b).
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a. where any defendant resides if all reside in same state;
b. or where a substantial link exists (events or property)
c. or if not one of the above, then where any defendant may be
found.
2. 1391(c) Corporations - contrast with s/m jurisdiction of 1332(c) (only
state of incorp. or primary place of business) - π not so limited in venue.
a. “any judicial district in which it is subject to personal jurisdiction
at the time the action is commenced.”
3. 1391(d) for an alien, venue is proper in any district.
B. Service of Process - Rule 4.
1. Proper jurisdiction over the person requires:
a. Notice
1) Const. 5th Amd. due process - “reasonably calculated” to
give actual notice; and
2) statutory - may be more strict (i.e. serve in person, etc.)
b. Nexus/Basis - sufficient connection
1) physical presence, in-state activity, consent, doing
business, etc.
2. 4(e)(2) - may leave a copy with a suitable person of age at the
defendant’s dwelling house.
3. 4(d) - provides for waiver of service (concede actual notice)
1) gives ∆ more time to answer,
2) ∆ must pay costs of service if he refuses to waive.
4. 4(k)(1) - may serve a person (to get jurisdiction over the person)
a. wherever the state court would allow it;
1) ex: “longarm” statute for non-resident motorist
b. when a party later joined is within 100 miles (bulge provision)
c. interpleader statute (nationwide service)
5. 4(k)(2) can serve out-of-country ∆ who has sufficient contact on a
national level to meet 5th amend due process requirement, but insufficient
contact with any particular state.
XXI. Conflict of Laws
A. Swift v. Tyson - federal law in federal court except where there is a local
statute which controls the issue or if there is a “local usage or custom”, but not
state court precedents.
a. construed the word “laws” in §1652 (Rules of Decision Act) to exclude
state general common law
b. philosophy was that judges don’t “make” law, they “find” the natural
law.
c. need uniformity in federal law
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a. it encouraged intra-state forum shopping by diversity plaintiffs
b. it discriminated against in-state defendants by out of state
plaintiffs.
c. goal of uniformity was not occurring.
2. the “course pursued” by the courts was unconstitutional - courts went
too far in the interpretation of the Rules of Decision act made by Swift.
a. Swift did not require courts to make general federal common law
applicable to states.
3. Federal courts must apply state law even in many cases where there is
not a constitutional (10th amendment) barrier, simply as a matter of
deference to the states.
C. Klaxon v. Stentor - federal court must apply the choice of law rule of the state
in which the federal court is sitting.
1. federal court can not decide this substantive right independently,
otherwise you get the same forum shopping problems.
2. criticisms:
a. no constitutional requirement to follow state choice of law rules
b. does not eliminate forum shopping because the plaintiff can still
go to a federal court in another state if venue was proper.
D. Guarantee Trust - state statute of limitations applies in federal court (outcome
determinative test).
1. rejected “procedure vs. substance” test as being too mechanical
2. “get back in step” with Erie doctrine to prevent forum shopping, equal
protection, and federalism
3. however, “outcome determinative” test was mechanical itself!
a. ex: Ragan - Rule 3 states statute of limitations is tolled upon filing
the action, state law said tolled on service of summons. Court
applied “outcome determinative” test to follow state law.
b. ex: Woods - foreign corp. can’t sue in state unless he appoints an
agent (“door closing” statute). Even though Rule 17(b) allows it,
court follows outcome determinative test to close the door.
c. ex: Cohen - derivative action by shareholders required π post
bond, even though covered by Rule 23.1. Still followed state law.
E. Byrd - balance state and federal interests case by case:
1. balance state interests with
2. federal interest in maintaining independence, less
3. outcome determinative test
F. Hanna - Erie doctrine does not control when a valid federal rule is directly on
point (Sibbach).
1. Hanna/Sibbach (holding) - federal courts are bound by the constitution
to follow a federal rule which is on point, unless it is unconstitutional
under Sibbach.
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a. not likely because any rule that is arguably procedural will pass
Sibbach given that it has been reviewed by Congress and adopted
by the supreme court.
2. Hanna/Erie (dicta) - if the federal rule is not on point, use a modified
outcome determinative test.
a. only take into account the outcome if it would be changed in a
way that would encourage forum shopping or result in
discrimination against Erie doctrine.
I. Permissive Joinder of Parties (Rule 20)
A. A tool for multiple plaintiffs to join together
1. must grow out of same transaction or occurrence, AND
2. some common question of law or fact will arise later in the action.
3. allows claims against defendants in the alternative (See Form 10).
II. Cumpulsory Joinder of Parties (Rule 19)
A. Must be joined if feasible, if:
1. “complete relief” can not be afforded to the parties; or
2. the person’s interest will be practically destroyed, or leave one of the
parties subject to double liability as a result of later suit by the omitted
person.
a. ex: A sues B for a debt on a note that C is also a holder. If A wins,
B may become bankrupt and A may spend the money before C can
bring suit.
b. ex: Cotenant 1 sues landlord to rescind a lease. Landlord may
demand that Cotenant 2 be joined so as to avoid two inconsistent
actions in case Cotenant 2 doesn’t want recission.
3. service of process and subject matter jurisdiction are still required
a. venue can be waived by the joining party, or the action may be
dismissed as to him if he objects to venue.
B. if it is not feasible to join an “indispensible party,” then the action must be
dismissed
1. court must weight the amount of the damage of going on without the
other party.
III. Interpleader (Rule 22)
A. mechanism for a defendant to seek relief against multiple competing parties
each of which claims to be entitled to the identical relief. (i.e., two parties
claiming to be the beneficiary of a life insurance contract).
B. potential defendant brings an action to have the court declare which one (if
any) is entitled to relief.
1. “we’ll pay the winner, or neither.”
C. Two versions:
1. “rule interpleader” - Rule 22(1);
a. must use if based on federal question jurisdiction
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b. for diversity actions, ($50,000 or more) service of process is
limited by Rule 4.
2. “statutory interpleader” - Rule 22(2) (§§ 1335, 1397, 2361)
a. only $500 or more §1135(a)(1), but claimants must be from
different states (but not complete diversity, only necessary that two
are from different states)
b. venue is proper in any district in which a claimant resides under
§1337 (regardless if all reside in the same state as is the case in §
1391)
c. process may be served nationwide under Rule 4(k)(1)(C)
IV. Third Party Practice: Impleader (Rule 14)
A. a defendant may implead another party who he believes should indemnify his
losses against the plaintiff (original defendant, even by counter-claim, becomes
the third party plaintiff, and impleaded party becomes third party defendant.)
B. must get permission of the court unless implead within 10 days of original
answer.
C. the third party defendant may assert any defense against the original plaintiff
that the third party plaintiff has, or may bring a related action, or the plaintiff
may take the opportunity to bring a related action solely against the third-party
defendant.
D. defendant’s tool: original plaintiff can not force defendant into impleading a
third party.
V. Class Actions: (Rule 23)
A. binds unnamed members of a class to a judgment
B. three types (safeguards)
1. 23(b)(1) risk of inconsistent judgments or harming others interests
2. 23(b)(2) injunction or declaratory relief would apply to whole class
3. 23(b)(3) common question of law or fact predominates and fairness
factors are large.
a. ex: too small an amount of money per class member, but high
total
C. Opt-out notice 23(c)(2) - individual may opt out of class, or will be bound if
given reasonable notice.
1. if members are identifiable, 23(c)(2) requires actual notice (i.e. mailing)
to each member.
D. For diversity jurisdiction, the individual class members each must satisfy the
$50K limit, with no aggregation, so the likely case is one based on federal
question jurisdiction.
E. Judge must approve class action settlement.
VI. Intervention (Rule 24)
A. Intervention as a matter of right - 24(a)
1. a party who would be necessary under Rule 19(a)(2)(i) does not need to
wait until he is forced into the lawsuit.
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B. Permissive intervention - 24(b)
1. similar to a rule 20 party, only need common question of law and fact.
2. must apply to the discretion of the court.
VII. Validity of Judgments
A. A judgment, though erroneous, is valid if the court has:
1. subject matter jurisdiction
2. nexus/basis for exercising power over the party
3. notice and an opportunity to be heard
B. A valid judgment is subject to direct attack only (appeal, j.n.o.v., new trial,
etc.) during the litigation.
1. ex: ∆ moves 12(b)(1) lack of jurisdiction over the subject matter. If the
judge denies the motion, it is not subject to collateral attack because the
issue was actually litigated and thus issue preclusion attaches jurisdiction to determine jurisdiction.
a. ex: even if the court order is unconstitutional, failure to appeal or
obey results in a valid contempt order
b. exception - does not apply if the order disobeyed is not
appealable, or having to appeal would, as a practical matter, be
meaningless - but injunctions are appealable as interlocutory
orders.
C. A void judgment is subject to collateral attack outside the context of the
original litigation.
VIII. Jurisdiction over the Subject Matter
A. Limited by Art. III, §2 grant of judcial power.
1. 12(b)(1) motion to dismiss for lack of s/m jurisdiction can be made at
any time, even by the plaintiff, after losing.
2. Parties can not “waive” s/m jurisdiction, or consent to it.
B. Federal Question Jurisdiction §1331
1. cases “arising under” federal law.
a. Must be closely and substantially related to a federal law.
2. federal question must “appear on the face of a well pleaded complaint”
- Mottley
a. ex: Bell v. Hood - even though there was no cause of action for
damages under the 4th or 5th amendments, the court still had to
take jurisdiction over the case in order to determine its lack of
merit.
3. exception for frivolous cases or where the federal question is not
substantially related to the claim.
C. Pendent Jurisdiction - π’s tool §1367
1. §1367(a) federal court has the power to exercise discretion in
adjudicating a state claim appended to a federal claim if:
a. there is “common nucleus of operative fact” (Gibbs), AND
b. the claims would be expected to be tried together
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2. §1367(c) the court must consider convenience, and fairness to the
litigants
a. if state law dominates, dismiss without prejudice
b. if federal law dominates (preemption), exercise pendent
jurisdiction
c. court can also separate the trials of the state and federal claims
under Rule 42(b) if there is a risk of jury confusion.
3. §1367(b) court has no jurisdiction to consider pendent-party case, if
original claim is based only on diversity of citizenship and there is not
strict diversity.
4. The issue of whether pendent jurisdiction has been properly assumed
always remains open (like 12(b)(1)).
D. Ancillary Jurisdiction - ∆’s tool §1367
1. only a semantic difference from pendent jurisdiction
2. applies to:
a. compulsory counterclaims under 13(a)
b. impleader actions under 14(a) and 14(a) 6th sentence.
c. intervention as a matter of right under 24(a)
d. cross-claims under 13(g)
3. does not apply to (must have independent federal grounds for):
a. permissive counterclaims under 13(b)
b. permissive intervention under 24(b)
E. Diversity Jurisdiction §1332
1. Safeguards against abuse of diversity jurisdiction:
a. can create it by mis-aligning the parties
1) ex: P1 (NY) can’t create complete diversity by suing
P2(CA) solely to enable P2 to bring a cross-claim against
D(CA) by ancillary jurisdiction that P2 could not have
brought against D in the absence of P1 because of lack of
diversity.
b. can’t leave out an indispensible party under rule 19 to create
complete jurisdiction
c. must be the real party in interest under rule 17(a).
1) ex: 5% transfer of rights not good enough in Kramer. Also,
even if a guardian is the only living relative of the real party
(no stake in outcome).
2) probably OK if 100% transfer, even if the purpose is to
create diversity
3) the more interest the party has, the less motive is
questioned.
d. §1359 prevents transactions geared to create jurisdiction by
collusion.
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e. Also, collusive joinder to defeat jurisdiction is prohibited if the
objecting party can show that there is no possibility of liablity,
unless the joinder of other π’s was done by original π in state court
in order to prevent removal. - Rose
2. Jurisdictional Amount - $50K
a. purely statutory based, not constitutionally based, so π could sue
in state court for only $49K in order to prevent removal by diverse
defendant.
b. can not aggregate amounts from multiple πs, but one π can
aggregate several claims against the same (but not different) ∆s.
1) ex: π1 and π2 can not bring two claims, each for $25K
against ∆1 unless unifying to assert a common undivided
interest.
2) ex: π1 can bring two claims, each for $25K, against ∆1, but
not one claim each against ∆1 and ∆2 for $25K each.
c. under Zahn, can not aggregate amounts from multiple πs, even if
one of them exceeds $50K - probably bad policy, most class actions
survive anyway on federal question.
d. test is no dismissal unless it appears to a legal certainty,
considering facts outside the pleadings, that the π can not, as a
matter of law, recover more than $50K. (weak standard)
1) allows flagrant claims to be weeded out early.
F. Removal §1441
1. Only a tool for the original defendant, not the π who becomes a
defedant to the original defendants counterclaim, regardless of the
amount of the main claim, or whether the counterclaim was compulsory
or permissive. - Shamrock
a. ex: π sues ∆ for $35K in state court, and ∆ counterclaims for
$1million - π can not thereafter remove.
2. Action must be within original jurisdiction of the court
3. §1441(b) for diversity-based removal, only if none of the defendants is a
citizen of the state (in-state ∆ can not remove).
4. All ∆s must join in the removal.
5. §1441(c) court may exercise pendent jursidiction over even unrelated
state claims if the removal is for a “separate and independent” federal
question (contrast with supplementary jurisdiction under §1367 if π brings
the action in federal court first).
a. court has discretion to remand “all matters in which state law
dominates.”
b. may be a constitutional problem if court decides to adjudicate the
state claims because they fail the Gibbs “common nucleus” test.
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c. does not defeat §1445 (non-removable pro-plaintiff FELA action)
- i.e. federal claim must be removable if it had been sued upon
alone.
6. A case having both a state and a federal claim and having a single π and
a single ∆ is removable under either §1441(a) and §1367 (pendent
jurisdiction) if the claims are related, and under §1441(c) if the claims are
unrelated.
IX. Nexus or Basis
A. Territorial jursidiction - §1655
1. a lien or security interest in property existing within the territorial
jurisdiction of the court may be enforced against a non-resident defendant
(given adequate notice under rule 4(e)), but due process requires that the
judgment only affects the property itself, and not the personal liability of
the absentee defendant.
a. in rem - determines the interests of everyone in the world with
respect to a property, even those not parties to the action.
1) ex: real property located within the boundaries of the
jurisdiction
2) ex: proceeding to quiet title in land.
b. quasi in-rem type I - π attempts to establish a pre-existing
interest in the property, and extinguish the interests of other named
parties.
1) ex: π sues to partition land, foreclose a mortgage, recover
a chattle, or divorce (marital status being the res).
c. quasi in-rem type II - π seizes a res of the ∆ that lies within
territorial boundaries, and sues it as a surrogate for a personal
action against the ∆.
1) if π wins, he keeps the res, and may sue against other
property until the claim is satisfied
2) π keeps the res even if the ∆ later comes in to defend in
person and wins.
3) unconstitutional under Shaffer unless other minimum
contacts exist with forum state (i.e. may be useable if
long-arm statute does not cover your situation).
B. Types of appearances
1. “special appearance” - only to object to in rem jurisdiction over
property without subjecting oneself to in personam jurisdiction
2. “limited appearance” a. ∆ appears to defend property in QIR type II action (not fair to
make ∆ choose between default and in personam jurisdiction)
1) policy - want to encourage ∆ to come defend the action.
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b. not allowed for QIR type I action because there is no unfairness an appearance subjects ∆ to full in personam jurisdiction as to all
claims related to the in- rem portion of the action.
1) ex: π can not add a $2million libel claim on an unrelated
matter just because ∆ is present
3. “restrictive appearance” - long arm jurisdiction - only have basis for the
claim in the statute
C. Enforcement of Judgments in Other States
1. A state court judgment may be enforced in another state by bringing a
separate action on the judgment in that new state, in order to obtain a new
judgment in that new state.
a. New court must find that the judgment was valid (on collateral
attack).
1). court must have competency to render judgment (i.e.
subject matter jurisdiction)
2). sufficient nexus or basis for exercising authority over the
defendant or the target of the action (i.e. substantive due
process).
3). persons to be legally affected must be given an
opportunity to be heard (i.e. notice).
b. If judgment is valid, it is entitled to full faith and credit.
1). laws of the state of judgment are used to determine
validity.
2). laws of the state of enforcement are used to enforce the
judgment.
c. if the first judgment is from a state court and the second action is
in federal court, §1738 provides that the federal court will give full
faith and credit.
d. if the first judgment is in a federal court and the second action is
in a state court, then the supremacy clause requires that the federal
common law doctrine of res judicata is applicable and binding on
the state court to enforce the judgment.
e. If both actions are in the federal courts, federal res judicata binds
the second court.
1). §1963 provides for registration of a federal judgment in
all of the federal courts, without requiring a new action,
automatically converting the judgment into a judgment in
the jurisdiction of the registering court.
D. In personam jursidiction - look to state law under 4(k)(1)(A)
1. physical presence (if not otherwise immune) no matter how transient.
a. exception: Fraud and Force - service of process of out-of-state
residents is void if done by fraudulently or forcibly persuading
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them to enter the state and be served, however, fraud may be used
to serve a defendant who is otherwise voluntarily in the state.
b. exception: Immunity from Service - a non-resident party has
customarily been immune from service of process while in the state
for attendance at litigation and a reasonable time to go to and from.
Look to state law.
1) however, this is not constitutionally based, so a state
could theoretically treat any appearance as a general
appearance.
2. Domicile
a. mere residence is enough, even absent domiciliaries (assuming
sufficient notice)
b. can serve the absent domiciliary/resident in a foreign state
because that is only a question of notice, not nexus.
3. Consent
a. ∆ waives service of process either expressly or impliedly.
1) ex: ∆ serves an answer without including the 12(b)(2)
motion to dismiss for lack of jurisdiction over the person in
the first paper.
2) ex: if ∆ loses 12(b)(2) motion, and then defends on the
merits, a minority of states say that he has waived his
jurisdictional objection (i.e. must either collaterally attack, or
default in order to appeal j.o.p.).
4. Acts done in state (sufficient for actions arising out of the in-state
activity)
a. Doherty - contract for the sale of stock (transacting business)
b. Dubin - owning property within the state
c. Adam v. saenger - bringing an action in the state court
1) π subjects himself to all counterclaims ∆ might have,
whether or not compulsory, but not unrelated third party
claims, generally.
2) πs attorney is in-state agent for service purposes.
E. Jurisdiction over Corporations
1. Int’l Shoe “minimum contacts” test- “modern power” test replaces
Pennoyer “power” (territorial) test.
a. “continuous and systematic” activity will support a related claim
(arising from business activities).
b. “casual presence” wil not support an unrelated claim.
1) ex: Ratliff - advertising activity alone does not support a
claim for personal injury not arising from the advertising.
c. “continuous and systematic” may support an unrelated claim if
the activity is substantial enough.
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1) ex: Perkins - performing all corporate activity occuring in
Ohio will support an Ohio state court action for unrelated
stock claim.
d. “single occasion” act may support a related claim if the act is
substantial enough.
1) McGee - single mailing of life insurance contract to
in-state π was enough to support claim arising from that
contract.
2. Also consider other “reasonableness” factors such as:
a. ∆’s intent in conducting the activity
1) did ∆ “purposefully avail himself” of the protection of the
laws of the state (Hanson, Bruger King).
b. π’s interest in recovery
c. nature of the activity (private or for profit)
d. balance of inconveniences (where are witnesses, etc.)
e. state interest in regulating the activity
1) unreasonable if action is simply a spin off leaving only
foreign parties (Asahi).
3. Does not matter whether action is in rem, quasi-in rem, or in personam “reasonableness” and standard of “minimum contacts” applies - Mullane,
Shaffer
a. need both “modern power” and “reasonableness” except if:
1) you would otherwise have in personam jurisdiction but
no long arm jursidiction
2) QIR type II plus some other minimum contacts, but
perhaps not enough for in personam jurisdiction alone
3) to enforce a judgment
4) if there is no other forum available to π (necessity).
b. this is part of trend toward a coalesing of the reasonableness and
power tests, leaving a reasonableness test as the survivor, and
letting the ∆ use transfer or venue to relocate or dismiss the action.
F. Jurisdictional Statutes
1. Long-arm statutes
a. two-part analysis approach:
1) does the activity fall within the state statute coverage as
interpreted by the state courts
2) are there “minimum contacts” so as to make the exercise
of jurisdiction reasonable (constitutional due process
requirement).
b. ex: Illinois Long-arm statute:
1) applies to any defendant, corporate, partnership, or
natural person
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2) claim must be related to the in-state activity (not going to
the limits of due process)
3) transaction of business (different than “doing business” requires less activity, could be a single act)
4) tortious act - focus is on the word “act” not “tort”
5) ownership or possession of land - absentee landlords and
tenants
6) insurance contract covering property that was in-state at
the time of contract formation
7) service is nationwide
8) grants immunity for other non-related claims.
G. Personal Jurisdiction in Federal Court
1. 5th amendment only requires “minimum contacts” with the U.S. (As a
whole) so nationwide service is possible.
a. service outside the U.S. may be made under 4(k)(2) on foreign
defendant with insufficient contacts with any one particular state,
but with sufficient minimum contacts with the nation as a whole,
and if there exists a federal statute authorizing service
1) the Omni gap - can’t get personal jurisdiction over a
foreign defendant who has insufficient contacts with the
state to be subject to its long-arm statute, and where no
federal statute authorizing service exists. (Not solved by
4(k)(2) alone).
b. also, QIR type II jurisdiction is available (provided there are also
some “minimum contacts” with the U.S.) under 4(n)(2). Good if
defendant is hiding, and thus can’t be reasonably served under
4(k)(2).
X. Venue
A. Forum non-conveniens
1. Assumes that subject matter jursidiction, jurisdiction over the person,
and venue are all okay.
2. “local action doctrine” - case law created doctrine
a. where the action is necessarily local because it could only have
taken place in that locality
1) ex: trespass of land
2) ex: in-rem actions
b. can lead to a dismissal even if the ∆ does not object (or waives),
unlike regular venue considerations
3. unfavorable change in π law is not a weighty concern in determining
new forum - Piper
a. result is foreign π is discriminated against because he can not
take the law of the inconvenient forum with him abroad - §1404(a)
only applies to transfers between “districts” not countries.
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b. judge has discretion to require ∆ to waive statute of limitations
before transfer in order to prevent bar by π.
B. §1404(a) transfer provision - either party can use
1. transfer to where the action “might have been brought”
a. destination forum limited to those where subject matter
jurisdiction, jurisdiction over the person, and venue would have
been proper for a non-waiving ∆ at the time the action was brought.
(Hoffman).
b. other considerations, such as statute of limitations, capacity to
sue, etc., are not required to have been proper in order to transfer,
because the law of the original court applies. (Van Dusen), even
though it may be the π who is moving to transfer to bring the
advantageous law with him (Ferens).
2. assumes smj, jop, and venue are all correct.
C. §1406(a) transfer provision 1. the court transfers the action (rather than dismissing it) if π lays venue
in the wrong district.
a. applies even if statute of limitations has since run in the
destination forum - Goldlawr
b. applies even if jurisdiction over the person is bad in the original
forum but venue was okay - Martin v. Stokes
2. law of the destination forum applies
D. §1631 allows transfer from a federal court lacking subject matter jurisdiction
to a federal court with proper subject matter jurisdiction.
XI. Notice
A. due process requires notice to be “reasonably calculated under all the
circumstances” to give actual notice and afford an opportunity to be heard. Mullane
1. personal service or mail service is clearly sufficient, even if it lacks the
compulsoriness of jurisdiction.
2. mere publication in a newspaper alone is insufficient if the parties
addresses are reasonably ascertainable.
a. publication may be accompanied by attachment or seizure of
land and it would be sufficient for parties of unknown location
because everyone is assumed to know the status of their land.
b. publication is sufficient by necessity only if identity and
addresses of parties are unascertainable.
3. mail service to all known members of a class is sufficient as to the
unknown members because the common interest is likely to be protected.
- Rule 23(c)(2).
B. Seizure of property as a provisional remedy - notice required
1. prejudgment garnishment of wages is unconstitutional without notice
and opportunity to be heard - Sniadach
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a. wages are a “specialized type of property”
2. prejudgment seizure of possessory interest in property is
unconsitutional without prior notice and hearing unless there are other
adequate safeguards - Fuentes
a. Sniadach is not limited to wages
b. not okay to hold immediate post-seizure hearing because a
temporary deprivation is still a deprivation.
3. a secured creditor may seize property without prior notice and a
hearing as long as other adequate safeguards are provided such as:
a. need a court order issued by a judge (not a clerk)
b. need affadavit which alleges facts (not conclusions) signed by
one with personal knowledge.
c. creditor must post a bond (probably double value)
d. debtor has the right to post a counter-bond to regain possession
e. prompt post-seizure hearing must require dissolution of the writ
of seizure unless the creditor can prove the facts alleged in
affadavit that are basis for the seizure.
4. a commercial party can contractually waive prior notice and hearing if
there is not otherwise a great imbalance of bargaining power.
5. for attachment of real property, there is no deprivation of possession,
only a cloud on the title, so a “balancing test” is required:
a. interest of person whose property is seized - magnitude of
possible damage
b. risk of mistake - probable value of procedural safeguards
c. interest of person who wants seizure - likelihood of empty
judgment in absence of seizure.
XII. Res Judicata
A. Claim preclusion (“no splitting”)
1. merger of claim - π wins, claim is merged with judgment
a. ex: accidental death policy provides for base amount plus a
bonus. If π brings first action for base amount only, and wins, he
can not bring second action for the bonus money, even though it
was not actually litigated.
2. doctrine of bar - π loses, claim is barred from being rebrought
a. must have been “on the merits.”
3. the scope of the word “claim” is important - broad under restatement “all rights of the plaintiff to remedies against the defendant with respect
to all or part of the transaction or series of connected
transactions...determined pragmatically”
a. broad definition of claim is good for π for 15(c) amendments
because 15(c) allows claims to relate back to before the statute of
limitations
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b. however, broad definition of claim is bad for π for res judicata
because it operates more broadly.
1) ex: can’t bring a separate action for violation of several
different but consecutive leases on the same property if they
are for same motivation and would be expected to be
litigated together. -Sutcliffe
4. doesn’t matter if the action was based on different legal theories of
recovery if it is the same “claim” and both legal theories could have been
brought in the first action.
a. this is true even if the legal theories are inconsistent because rule
8(e)(2) allows inconsistent pleadings - Hennepin
5. doesn’t matter if the action that is barred by res judicata was brought
before the action that was first decided as long as the theory was available
in the first action. - Williamson
6. doesn’t matter if the remedy (legal vs. equitable) is different between
the two actions, if it is the same claim and both could have been brought
in the first action - Hennepin
7. dismissal for failure to state a claim is a bar unless the court otherwise
specifies by operation of Rule 41(b).
a. however, voluntary dismissal 41(a), dismissal for lack of
jurisdiction, improper venue, failure to join a party under rule 19
(and similarly where ∆ is not put to burden of defending twice) are
not with prejudice and thus not a bar.
8. counter claims are likewise barred unless the ∆ is unable to recover fully
in the first action.
a. ex: counterclaim for more than recovery limit of the court
b. ex: π is an assignee and ∆’s counter claim is against the assignor ∆’s claim against π is limited to offsetting π’s claim.
9. if ∆ fails to assert a permissive counterclaim, no merger, and no bar,
regardless of whether he pleaded grounds for the counterclaim as an
affirmative defense
a. however, Issue preclusion might later apply if he pled the
affirmative defense
10. if ∆ fails to assert a compulsory counterclaim, there is claim preclusion
in either of two ways:
a. by operation of rule similar to rule 13(a), or
b. by common law if ∆’s success in the second action would
“nullify” π’s success in the first action.
1) ex: π sues for breach of contract, and wins. ∆ is precluded
from bringing a second action for restitution because it
would nullify π’s victory in action #1.
11. the judgment in the prior action must have been a final judgment,
otherwise, only question is one of wavier or estoppel.
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B. Issue Preclusion - issue must be “actually litigated and determined” and
“essential to that judgment”
1. direct estoppel - same claim, same issue already determined
2. collateral estoppel - different claim, same issue already determined.
a. ex: husband sues for separation and wins. wife can not then
bring action for anullment because the issue of a valid marriage
was necessarily litigated and determined in the separation action,
and was essential.
3. the scope of the “issue” determined depends on the amount of overlap
between the way it was actually litigated, and the way it is presented in
the new action
a. ex: in negligence action for car accident, the issue of negligence is
determined with respect to all grounds of negligence (i.e. both
speeding, and being drunk)
4. failure to bring a then available defense in the first action does not bar it
from being brought in the second action because it was neither actually
litigated nor essential.
a. policy: don’t encourage overlitigation, no increased burden
because it was not actually litigated.
5. definition of “essential” to the first judgment:
a. “non-essential determination rule” - if the judgment was made
on other grounds, and the issue is determined only in dicta, it is not
“essential”
b. cumulative determination - if more than one issue was essential
to the determination of the first action, then of course, both are
precluded in the second action.
c. ambiguous determination - if it is not possible to tell which
essential basis for determination was used because either would be
sufficient, then neither issue is precluded
d. alternative determination - because you can’t tell which was
reasoned well, and which was just thrown in to prevent reversal,
neither is precluded.
1) preclusion attaches if the action is appealed and
determined.
6. only parties in strict privity with a party to the first action can be bound
(burdened) by issue preclusion because of due process.
7. at common law, only parties with “mutuality” could benefit from issue
preclusion (i.e. only can use issue preclusion against someone who could
use it against you had the first action come out the other way).
a. however, mutuality has been abandoned by most courts, and so
collateral estoppel may be used offensively if:
1) the burdened party had a full and fair opportunity to
litigate the issue in the first action
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2) there are no changes in procedure that would make it
inequitable
3) there is no risk of an inconsistent judgment.
8. the law of the rendering court determines the scope and effect of the
judgment.
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