CIVIL PROCEDURE OUTLINE
Prof. Issacharoff
Fall 2008
Ethan Kent
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Table of Contents
CHAPTER 1 – INTRODUCTION ........................................................................................................................... 5
§1.01 – PURPOSES OF PROCEDURE ..................................................................................................................................... 5
§1.02 – COMMON LAW DISPUTES AND THE HOBBESIAN PARADIGM ........................................................................... 5
§1.03 – PREJUDICE................................................................................................................................................................. 5
CHAPTER 2 – DUE PROCESS ............................................................................................................................... 6
§2.01 – TWENTIETH CENTURY EVOLUTION OF DUE PROCESS ...................................................................................... 6
[A] – Foundational View .......................................................................................................................................................6
[B] – Instrumental View........................................................................................................................................................6
§2.02 – MATTHEWS TEST .................................................................................................................................................... 6
[A] – Elements ...........................................................................................................................................................................6
[B] – Applicability ....................................................................................................................................................................7
CHAPTER 3 – PLEADING A CLAIM .................................................................................................................... 8
§3.01 – COMMON LAW PLEADING ...................................................................................................................................... 8
§3.02 – GOALS OF MODERN PLEADING.............................................................................................................................. 8
§3.03 – NOTICE PLEADING ................................................................................................................................................... 8
§3.04 – RULE 9(B) AND FACT PLEADING .......................................................................................................................... 8
§3.05 – OTHER RULES .......................................................................................................................................................... 9
[A] – Commencing an Action: Rule 3 ..............................................................................................................................9
[B] – Notice / Summons: Rule 4 ........................................................................................................................................9
[C] – Computing and Extending Time: Rule 6.............................................................................................................9
CHAPTER 4 – THE DEFENDANT’S ANSWER ............................................................................................... 10
§4.01 – ADMISSIONS, DENIALS, AND LACKING KNOWLEDGE OR INFORMATION ...................................................... 10
[A] – Admissions .................................................................................................................................................................... 10
[B] – Denials and Lack of Information........................................................................................................................ 10
§4.02 – AFFIRMATIVE DEFENSES...................................................................................................................................... 10
§4.03 – CHALLENGING THE PLEADINGS ........................................................................................................................... 11
[A] – Motion to Dismiss for Failure to State a Claim: Rule 12(b)(6)............................................................. 11
[B] – Motion to Strike an Insufficient Answer: Rule 12(f).................................................................................. 11
[C] – Motion for a More Definite Statement: Rule 12(e)..................................................................................... 11
§4.04 – DEFAULT: RULE 55 ............................................................................................................................................... 11
[A] – Entry of Default .......................................................................................................................................................... 11
[B] – Default Judgment....................................................................................................................................................... 11
§4.05 – COUNTERCLAIM: RULE 13 ................................................................................................................................... 12
[A] – Compulsory Counterclaim ..................................................................................................................................... 13
[B] – Permissive Counterclaim ....................................................................................................................................... 13
§4.06 – CROSSCLAIM: RULE 13(G) ................................................................................................................................... 13
CHAPTER 5 – PARTIES AND PRECLUSION .................................................................................................. 15
§5.01 – CLAIM PRECLUSION............................................................................................................................................... 15
[A] – What Claims are Precluded? ................................................................................................................................ 15
[B] – Changes in Fact or Law .......................................................................................................................................... 16
§5.02 – ISSUE PRECLUSION ................................................................................................................................................ 17
[A] – In General ...................................................................................................................................................................... 17
[B] – Who is Precluded? ..................................................................................................................................................... 17
§5.03 – PARTIES IN GENERAL ............................................................................................................................................ 19
[A] – Common Law Origins .............................................................................................................................................. 19
[B] – Real Parties in Interest ........................................................................................................................................... 19
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§5.04 – JOINDER ................................................................................................................................................................... 19
[A] – Joinder of Claims: Rule 18 ...................................................................................................................................... 20
[B] – Joinder of Parties ....................................................................................................................................................... 20
§5.05 – IMPLEADER: RULE 14........................................................................................................................................... 22
§5.06 – INTERPLEADER: RULE 22 .................................................................................................................................... 22
§5.07 – INTERVENTION: RULE 24 .................................................................................................................................... 23
[A] – Intervention of Right: Rule 24(a) ....................................................................................................................... 23
[B] – Permissive Intervention: Rule 24(b) ................................................................................................................. 24
CHAPTER 6 – CLASS ACTIONS ......................................................................................................................... 25
§6.01 – PURPOSE AND HISTORY........................................................................................................................................ 25
§ 6.02 – CLASS ACTION PREREQUISITES .......................................................................................................................... 25
[A] – General: Rule 23(a)................................................................................................................................................... 25
[B] – Type of Class................................................................................................................................................................. 26
§6.03 – JURISDICTION ......................................................................................................................................................... 27
§6.04 – PROCEDURES .......................................................................................................................................................... 27
§ 6.05 – NOTICE ................................................................................................................................................................... 27
§ 6.06 – BINDING EFFECT .................................................................................................................................................. 27
CHAPTER 7 – DISCOVERY ................................................................................................................................. 29
§ 7.01 – RULE 30: DEPOSITION BY ORAL EXAMINATION ............................................................................................. 29
§ 7.02 – RULE 33: INTERROGATORIES TO PARTIES ....................................................................................................... 29
CHAPTER 8 – SUMMARY JUDGMENT AND BURDEN SHIFTING ........................................................... 30
§ 8.01 – BURDEN OF PERSUASION AND BURDEN OF PRODUCTION ............................................................................. 30
§ 8.02 – PROCEDURE FOR OBTAINING SUMMARY JUDGMENT...................................................................................... 30
§ 8.03 – STANDARD FOR GRANTING SUMMARY JUDGMENT ......................................................................................... 30
[A] – General ........................................................................................................................................................................... 30
[B] – Burden of Proof .......................................................................................................................................................... 31
§ 8.04 – MORE FRONTLOADING OF FACTS ...................................................................................................................... 31
CHAPTER 9 – JURISDICTION OVER THE PERSON..................................................................................... 32
§ 9.01 – GENERAL PERSONAL JURISDICTION .................................................................................................................. 32
§ 9.02 – SPECIFIC PERSONAL JURISDICTION ................................................................................................................... 32
[A] – Minimum Contacts .................................................................................................................................................... 32
[B] – Fair Play and Substantial Justice ....................................................................................................................... 32
§ 9.03 – IN STATE SERVICE ................................................................................................................................................ 33
§ 9.04 – IN REM JURISDICTION .......................................................................................................................................... 33
§ 9.05 – QUASI IN REM JURISDICTION .............................................................................................................................. 33
§ 9.06 – SPECIAL APPLICATIONS (AKA, THE COURT MESSES EVERYTHING UP)....................................................... 33
CHAPTER 10 – SUBJECT MATTER JURISDICTION .................................................................................... 34
§ 10.01 – DIVERSITY JURISDICTION.................................................................................................................................. 34
[A] – Diversity Requirement ............................................................................................................................................ 34
[B] – Amount in Controversy Requirement............................................................................................................... 34
§ 10.02 – FEDERAL QUESTION JURISDICTION................................................................................................................. 34
[A] – Well-Pleaded Complaint Rule .............................................................................................................................. 35
[B] – Federal Cause of Action .......................................................................................................................................... 35
[C] – Implied Federal Cause of Action ......................................................................................................................... 35
[D] – Federal Ingredient .................................................................................................................................................... 35
§ 10.03 – REMOVAL............................................................................................................................................................. 36
§ 10.04 – SUPPLEMENTAL JURISDICTION ........................................................................................................................ 36
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[A] – Supplemental Jurisdiction: Joinder of Claims ............................................................................................... 36
[B] – Supplemental Jurisdiction: Joinder of Parties .............................................................................................. 36
[C] – Class Actions................................................................................................................................................................. 37
CHAPTER 11 – STATE AND FEDERAL LAW ................................................................................................ 38
§ 11.01 – ERIE V. TOMPKINS ............................................................................................................................................. 38
§ 11.02 – SUBSEQUENT CASE LAW ................................................................................................................................... 38
[A] – Guaranty Trust v. York ............................................................................................................................................ 38
[B] – Hanna v. Plumer......................................................................................................................................................... 38
[C] – Gasperini v. Center for Humanities.................................................................................................................... 38
§ 11.03 – CURRENT STATE OF ERIE ................................................................................................................................. 38
CHAPTER 12 – ATTORNEYS AND CLIENTS ................................................................................................. 39
§ 12.01 – WORK PRODUCT DOCTRINE ............................................................................................................................ 39
§ 12.02 – COST SHIFTING ................................................................................................................................................... 39
§ 12.03 – SANCTIONS .......................................................................................................................................................... 39
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Chapter 1 – Introduction
Hobbes described the “state of nature,” a situation without government in which might would
make right and individuals could not fulfill their potential. Government, as the strongest entity,
could protect people, but there is the danger of government running amok with its superior power.
§1.01 – Purposes of Procedure
The goal of procedure is to provide a limit on state authority. Procedural justice is a means of
assuring substantive justice.
§1.02 – Common Law Disputes and the Hobbesian Paradigm
The Hobbesian Paradigm imagines a dispute between two parties with triadic representation: the
plaintiff, the defendant (both with benefit of counsel), and the impartial arbiter.
The common law image of a dispute was bipolar; retrospective; right and remedy were interdependent; and involved a self-contained episode and party autonomy. However, in common law
the effects of precedent undermine party autonomy and bipolarity.
For example, if A sues B for libel and B, who is suicidal, provides a minimal defense and is beheaded, the precedent will affect C and D.
§1.03 – Prejudice
“Prejudice is a harm or injury that results or may result from some action or judgment.” Generally, prejudice is when a party’s ability to prove its claim on the merits is harmed by something
not merits-based.
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Chapter 2 – Due Process
The fifth and fourteenth amendments guarantee that deprivations of life, liberty, and property
cannot occur without due process. The amount of process due varies based upon the situation.
§2.01 – Twentieth Century Evolution of Due Process
[A] – Foundational View
From the early- to mid-20th century, beginning with Goldberg v. Kelly, the Supreme Court took
a foundational view of due process. This meant that due process was a principle that took no account of cost – benefit analysis; instead, a high level of process was always due, with a narrow
and sometimes incoherent set of exceptions.
Goldberg (1970) held that welfare benefits could not be withdrawn without all the bells and
whistles of process. This raised the cost of welfare a great deal, but the court took a categorical
view and didn’t worry about the implications.
[B] – Instrumental View
Beginning with Matthews v. Goldberg, the court switched to an instrumental perspective. The
amount of process due was determined by a cost-benefit analysis: what is at stake and what is the
risk of error. The factors (e.g., bond, exigency, specific allegations, judge, post-deprivation
remedies) that had previously defined due process were now elements of evaluating the protection against error afforded by the level of process proposed in a particular circumstance.
Matthews (1976) considered what level of process was required in withdrawing Social Security
disability benefits, and determined the costs and risks must be taken into account.
§2.02 – Matthews Test
[A] – Elements
Example: Van Harken v. City of Chicago: challenge to the constitutionality of Chicago’s parking
ticket procedures.
(1) Interest of the party subject to deprivation – Low, because the expected loss is $100
per ticket, and most tickets are issued properly.
(2) Interest of the party seeking the deprivation – Low, because the fines are low and
parking violations are a relatively minor concern.
(3) The government interest – Here the government is the party seeking deprivation, so
the same analysis applies.
(4) Risk of error and costs / benefits of additional procedures – The risks of error are fairly low, and the costs are quite high. Element (4) now takes into account the factors
like bond, exigency, etc.
Conclusion: very little process is due because of the low stakes and the costs that would be necessary to decrease the already low risk of error.
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[B] – Applicability
The Matthews test governs the amount of process due even in extremely high-stakes situations:
the Supreme Court in Hamdi v. Rumsfeld proceeded with a Matthews analysis in determining the
process due enemy combatants in the war on terrorism.
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Chapter 3 – Pleading a Claim
Pleading is quite liberal today; the goal of civil procedure is to allow many claims into the system, and then filter them with more and more exacting standards through each stage of the process. The purpose of this is to allow claims to be resolved on the merits, and not to require the
plaintiff to gather information that may be difficult or impossible to attain before filing suit.
§3.01 – Common Law Pleading
Pleading used to be very complex and formal, and a technical mistake could cause the plaintiff to
lose his claim altogether. There were numerous writs, each for a particular cause of action. If
you were missing a cow and suspected your neighbor had it, but were uncertain as to whether it
wandered onto his land or he took it, you would lose your claim if you filed the writ corresponding to the wrong situation.
The representation was truly triadic – two parties locked in dispute and masters of their own fate,
and an impartial arbiter.
The problem with this approach is that it required a plaintiff to gather this information for himself. This undermines a foundational goal of civil procedure: to allow people to resolve their
disputes without resorting to force.
§3.02 – Goals of Modern Pleading
The Federal Rules of Civil Procedure (FRCP) seek to resolve claims on the merits. This is
achieved through liberal pleading, then increasing standards at each stage of the proceedings.
Rule 1 says that the FRCP “should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding.”
§3.03 – Notice Pleading
Rule 8 requires only "a short and plain statement of the grounds for the court's jurisdiction, ... the
claim showing that the pleader is entitled to relief; and ... a demand for the relief sought."
The purpose of pleading then is simply to put the other party on notice. This is an example of
the notice requirements under due process. Conley v. Gibson recognized this paradigm.
Defendants prefer to raise the costs of entry to litigation. The more specificity required by pleading rules, the more difficult it becomes to bring suit; thus, defendants may deploy various tactics
to increase the particularity of pleading requirements.
Rule 8(d)(3) allows a plaintiff to plead inconsistent claims.
§3.04 – Rule 9(b) and Fact Pleading
Rule 9(b): Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person's mind may be alleged generally.
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Rule 9(b) requires a plaintiff to plead “with particularity” when alleging fraud (or mistake, which
is not something that shows up much). The reasons for this are mostly economic. Fraud allows
a plaintiff with even a negative expected value for a lawsuit to make the costs of litigation very
high on the defendant. This raises the specter of in terrorem / extortionate / “strike” suits. As a
consequence, a defendant may be manipulated into settling a suit it would very likely win on the
merits.
Due to the costs of notice pleading, both defendants and courts sometimes look for ways to raise
the barriers to litigation. Rule 9(b) has been an appealing rule for lower courts, which have at
times interpreted it as exemplary of situations calling for heightened pleading rather than as an
exhaustive list. However, the Supreme Court has stated and restated the notice pleading standard
three times: Conley v. Gibson (1957), Leatherman v. Tarrant County (1993), and Swierkiewicz
v. Sorema (2002).
§3.05 – Other Rules
[A] – Commencing an Action: Rule 3
“A civil action is commenced by filing a complaint with the court.”
[B] – Notice / Summons: Rule 4
The summons must contain the name of the court and parties, give contact info for the plaintiff’s
attorney (or plaintiff if it’s pro se), say when / where the defendant must appear, notify the defendant that a default will be entered if he doesn’t appear, and must be signed by the clerk and
bear the court’s seal. The court can allow the summons to be amended.
The plaintiff files the complaint, then presents the summons to the clerk who must sign and seal
it if it’s properly completed.
Next, the plaintiff has the summons served within 120 days. The plaintiff can ask the defendant
to waive service of process. If the defendant refuses to do so and doesn’t have a good reason, the
court imposes the costs of service on the defendant. Additionally, if the defendant waives service he has 60 days to respond; if not, he has 20 days (Rule 12(a)(1)(A)(i) and (ii)).
[C] – Computing and Extending Time: Rule 6
The clock starts running the day after the summons (or whatever) is issued. If the time limit is
fewer than 11 days, omit the weekends and legal holidays. If the last day is a weekend or holiday, it’s the next day that isn’t a weekend or holiday.
The court can extend time for good cause.
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Chapter 4 – The Defendant’s Answer
Rule 8 governs the defendant’s answer: “In responding to a pleading, a party must: state in short
and plain terms its defenses to each claim asserted against it; and admit or deny the allegations
asserted against it by an opposing party.”
§4.01 – Admissions, Denials, and Lacking Knowledge or Information
[A] – Admissions
A defendant admits allegations either by stating in the answer that they are true, or by failing to
deny them properly. Once admitted to, the facts are binding at trial. If a defendant makes an error and fails to deny a particular allegation, he may be allowed to cure the defect by amending
the answer.
[B] – Denials and Lack of Information
A denial may be either general or specific. A general denial may consists of a single sentence,
along the lines of “The defendant denies each and every allegation of plaintiff’s complaint.” A
specific denial involves the denial of only those elements the defendant intends to contest.
The general denial may only be used in federal courts where the defendant truly intends to contest each and every allegation. This is quite unlikely, so the specific denial is most typically
used.
A defendant who uses a general denial when it is improper to do so may have the denial stricken
and the allegations deemed admitted. Most courts take a more liberal attitude than this, but a defendant who makes an improper general denial is taking this risk.
“A party that lacks knowledge or information sufficient to form a belief about the truth of an
allegation must so state, and the statement has the effect of a denial.” F.R.Civ.P. 9(b)(5).
However, if a party says it lacks information but does so incorrectly or in bad faith, the denial
may be improper and have the effect of an admission. See, e.g. Zielinski v. Philadelphia Piers.
A defendant may not refuse to admit or deny all allegations, insisting they be proved at trial; this
results in the admission of all allegations not denied.
§4.02 – Affirmative Defenses
Rule 8(c) requires the defendant to respond to a pleading with any affirmative defenses or she
may not use them at trial. Affirmative defenses are defenses the defendant has the burden of
proving.
“One can distinguish a matter that must be raised by affirmative defense from one that can
braised by denial merely by determining whether the particular fact controverts one of the plaintiff’s allegations or whether it deals with entirely new matter having nothing to do with whether
the plaintiff’s claims are or are not true.”i
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Pleas in abatement are challenges to some procedural matter, for example, improper venue.
These may be raised either as affirmative defenses or by motion.
Generally, the defendant’s answer also contains his counterclaims and cross-claims. If the defendant mistakenly designates these as affirmative defenses or vice-versa, Rule 8(c) allows the
court to ignore the erroneous label.
§4.03 – Challenging the Pleadings
[A] – Motion to Dismiss for Failure to State a Claim: Rule 12(b)(6)
A 12(b)(6) motion tests the legal sufficiency of the pleadings. It asks the court to dismiss the
claim on the grounds that even if all factual allegations are true, there is no legal basis for finding
liability. The standard courts employ is to assume all facts as alleged by and draw all inferences
in favor of the plaintiff. If no construction of the facts would allow judgment for the plaintiff,
the claim will be dismissed.
[B] – Motion to Strike an Insufficient Answer: Rule 12(f)
The 12(f) motion is something like the plaintiff’s equivalent of 12(b)(6): it allows a defense to be
struck if it is insufficient.
[C] – Motion for a More Definite Statement: Rule 12(e)
Rule 12(e) is not to be used as a back-door means of discovery; it only allows for clarification of
pleadings that are so unclear or ambiguous as to prevent a proper response.
§4.04 – Default: Rule 55
If a defendant doesn’t show up to defend, default may be entered. Entry of default and default
judgment are two different things.
[A] – Entry of Default
Entry of default is a ministerial task carried out pursuant to Rule 55(a): “When a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must enter the party's default.”
The entry of default precludes the defaulting party from making any new defenses regarding liability.
[B] – Default Judgment
There are three circumstances under which a default judgment may be entered.
[1] – The Defendant Never Appears or Answers (Situation 1)
In this circumstance, the defendant is not entitled to any notice for the entry of default judgment,
whether entered by the court or clerk.
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[2] – The Defendant Appears but Fails to File a Formal Answer (Situation 2)
In this circumstance, the defendant is given three days’ notice of the default judgment if it is a
default judgment entered by the court. There is no such requirement if the default judgment is
entered by the clerk.
[3] – The Defendant Fails to Comply with a Procedural Requirement (Situation 3)
This sort of a default is punitive in nature, and used to force compliance or cooperation at the
pretrial conference stage. Rule 37(b)(2)(vi) allows an entry of default as a penalty for failure to
comply with a court order, for example.
[4] – Default Entry by the Clerk or by the Court
Rule 55(b)(1) states that “If the plaintiff's claim is for a sum certain or a sum that can be made
certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the
amount due—must enter judgment for that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an incompetent person.”
For example, in a contracts case with liquidated damages, an entry of default judgment may be
automatic once the clerk is presented with an affidavit.
[5] – Setting Aside an Entry of Default or Default Judgment
Rule 55(c) allows the setting aside of an entry of default “for good cause.” Courts are fairly liberal in setting aside an entry of default because of the public policies of resolving claims on their
merits and not punishing defendants for their lawyers’ errors.
There is a three-part test for setting aside an entry of default
1. Is there prejudice to the plaintiff?
2. Is there a meritorious defense?
3. Is there culpable conduct?
Conduct is not culpable where the defendant was lazy or neglected reply. Indeed, culpable conduct is conduct undertaken to prejudice the plaintiff.
Rule 55(c) provides that default judgments may be set aside under Rule 60(b). While 60(b)(6)
articulates a similar standard (“any other reason that justifies relief”), final judgments are less
liberally overturned. Thus, a defendant has a better chance of having an entry of default overturned than a default judgment.
§4.05 – Counterclaim: Rule 13
“A counterclaim is an affirmative claim for relief asserted by a pleader—typically the defendant—in the defensive pleadings against an opposing party—typically the plaintiff.”ii There are
two types of counterclaims: compulsory and permissive.
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[A] – Compulsory Counterclaim
A compulsory counterclaim is not truly compulsory. It is compulsory only in the sense that the
claim will be precluded from subsequent litigation. The bounds of what constitutes a compulsory counterclaim are set with reference to tension between two sets of policies: the desire for judicial efficiency and the avoidance of inconsistent verdicts on the one hand, and the avoidance of
overly-complicated lawsuits on the other.
Rule 13(a) states that a “pleading must state as a counterclaim any claim that—at the time of its
service—the pleader has against an opposing party if the claim arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim; and does not require adding
another party over whom the court cannot acquire jurisdiction.”
Defining “transaction or occurrence” is similar to the analysis for res judicata purposes, but it
applies to the defendant. Courts have articulate four sets of tests that may be used:
1. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory
counterclaim rule?
2. Are the issues of fact and law raised by the claim and counterclaim largely the same?
3. Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?
4. Is there any logical relationship between the claim and the counterclaim?
The first test is the most conservative. The second test is either narrow (if it requires identity of
issues) or unhelpful (if identity of issues is unnecessary) for lack of specific guidance. The third
test excludes claims that arise from the same events but that would be supported by different evidence.
The fourth test is most widely adopted by the courts because it allows the court to be flexible and
determine what comes before it. Thus, although it is somewhat vague, it allows the court to decide for itself what claims would promote judicial efficiency.iii
Notwithstanding the discussion above, a counterclaim is not compulsory if it has not matured at
the time the answer is filed, if it is subject to another pending action, or if it would require a third
party over whom personal jurisdiction cannot be obtained.
See § ___, supplementary jurisdiction, for jurisdiction over counterclaims.
[B] – Permissive Counterclaim
The permissive counterclaim rules are liberal, and allow the defendant to counterclaim an entirely different claim with respect to law and equity, subject matter, etc. It’s even possible for a
plaintiff to add a counterclaim that matures or is acquired after the filing of the initial answer.
The purpose of the liberality is to promote judicial efficiency: the parties are already before the
court, so why not resolve all claims between them?
§4.06 – Crossclaim: Rule 13(g)
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“A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises
out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action.
The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for
all or part of a claim asserted in the action against the cross-claimant.”
The rationale for cross-claim is similar to that for compulsory counterclaim; however, there is no
preclusive effect of failing to raise a cross-claim. As such, the analysis for determining whether
a crossclaim is permitted is similar to the analysis for determining whether a counterclaim is
compulsory.
Although the requirement for the same transaction or occurrence limits the initial crossclaim,
claim joinder under Rule 18 may be used to join additional claims between the coparties.
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Chapter 5 – Parties and Preclusion
§5.01 – Claim Preclusion
Claim preclusion, also known as res judicata (a thing already judged), prevents relitigating the
same claim. “[a] final judgment on the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in that actioniv.”
The purposes of claim preclusion are to allow the defendant repose (i.e., to have things decided
once and for all) and to encourage efficiency in the legal system. Repose / finality is the most
important of these. These goals are in tension with due process concerns.
The law wants to protect the final judgment in a lawsuit from being upset (transactional completion). However, if the situation changes, additional litigation may not be precluded.
“A prior judgment ends litigation not only ‘as to every ground of recover that was actually presented in the action, but also as to every ground which might have been presented.’v” Thus, parties must estimate what issues might be raised during the course of the litigation to anticipate
what will be within the scope of claim preclusion afterwards, or risk losing those claims.
Additionally, claim preclusion is applied almost mechanically, so that regardless of the correctness of the decision, future litigation is precluded.
Hypothetical: A holds the patent on widgets. B manufactures widgets. A sues B for violating
his patent. If A loses, A cannot simply file suit against B again for infringing his widget patent.
[A] – What Claims are Precluded?
[1] – Judgment on the Merits
First, the judgment must be based upon the facts. A FRCP 12(b)(6) dismissal does not preclude
a claim from being refiled, but a summary judgment does, for example. The judgment must also
be valid, meaning jurisdictionally correct, etc.
If a plaintiff voluntarily dismisses a claim under rule 41, s/he may refile it once without prejudice, but the policy objective of judicial efficiency means that the second voluntary dismissal
precludes the claim from being brought again.
Courts will sometimes specify whether a suit is being dismissed with or without prejudice. This
means whether the claim is or is not precluded.
In the hypothetical, if A’s suit were dismissed for improper venue, claim preclusion would not
apply to A refiling suit in the proper venue.
[2] – Identity of Claims
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Second, claim preclusion prevents relitigating same claim. What constitutes the same claim is
more difficult to define. The claims precluded are generally those that were raised or could have
been raised on the basis of the same transactions or occurrences.
Restatement (Second) of Judgments § 24 explains that “[w]hen a valid and final judgment rendered in an action extinguishes the plaintiff's claim … the claim extinguished includes all rights
of the plaintiff to remedies against the defendant with respect to all or any part of the transaction,
or series of connected transactions, out of which the action arose,” with the transactions “to be
determined pragmatically, giving weight to such considerations as whether the facts are related
in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties' expectations or business understanding or usage.”
Courts have also articulated transaction as “the same nucleus of operative facts” or “a natural
grouping or common nucleus of operative facts.”
The types of claims precluded interact with the rules of pleading, joinder, etc. Under the FRCP,
where joinder and pleading are liberal, the reach of claim preclusion is broad. Under state rules
of civil procedure that are narrower, the appropriate reach of claim preclusion is narrower as
well. This is because where pleading and joinder are liberal, the parties can take advantage of
those rules to litigate all their claims in order to attain finality and efficiency.
Defendants are bound by claim preclusion as well. Defendants must assert every available defense in the first suit. Defendants are not required to assert permissive counterclaims, crossclaims, or third party claims, those claims are subject to claim preclusion if raisedvi.
In the hypothetical, A would not be precluded from suing B for infringing a different patent that
A holds.
[3] – Identity of Parties
Due process considerations require that parties have the right to pursue their own claim. However, if a party has had a claim resolved on the merits, a party in privity is claim precluded. There
are also res judicata effects to class action litigation (see Chapter 6).
In the hypothetical, A would not be precluded from suing C for violating his patent, unless C was
in privity with B. Also, D would not be prevented from suing B for violating her patent.
[B] – Changes in Fact or Law
Claim preclusion prevents a final judgment from being upset. However, this does not apply in
the situation of a material change in law or fact.
In the hypothetical above, if A sued B and lost because his patent was still pending, A would not
be precluded from suing after the patent was granted. This is an example of a change in fact.
If instead A lost because widgets could not be patented under the law, and the law changed to
allow widgets to be patented, A would not be claim precluded from suing again. This is an example of a change in law.
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§5.02 – Issue Preclusion
[A] – In General
“When an issue of fact or law is actually litigated and determined by a valid and final judgment,
and the determination is essential to the judgment, the determination is conclusive in a subsequent action … whether on the same or a different claim.” Restatement (Second) Judgments §
27. There is no longer an identity of parties requirement.
The purposes of issue preclusion are similar to those of claim preclusion: repose and efficiency.
These goals, as in claim preclusion, are in tension with due process concerns. However, to a
greater extent than with claim preclusion, issue preclusion is concerned with efficiency—with
the courts asking ‘haven’t we already decided this issue?’
Issues that are precluded are based upon considerations such as factual identity, legal standards,
and the burden of proof imposed on the parties in each lawsuitvii.
Hypothetical: A sues B for manufacturing widgets that A alleges violates his patent. Finding for
B, the court determines that A does not hold the patent. B opens a second factory manufacturing
widgets. A is precluded from raising the issue that he owns the patent on widgets.
[B] – Who is Precluded?
Issue preclusion only applies to parties against whom an issue has been decided adversely.
[1] – Historically
Issue preclusion originally only applied in cases of “mutuality of obligation.”
In the hypothetical, if B won the lawsuit because A was not found to hold the patent, A could sue
C and would not be precluded from relitigating the issue of whether he held the patent. This is
because C had no obligation not to raise any particular issues, so it was thought that fairness and
due process required that A not be precluded either.
[2] – Blonder-Tongue: Precluding the Plaintiff from Relitigating an Issue
In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971),
the Supreme Court precluded a plaintiff from relitigating a claim decided adversely to it against a
different defendant.
In the hypothetical, A would be precluded from relitigating the issue of the patent against C.
Here, the efficiency to be gained by precluding relitigation of an issue that the plaintiff had a full
and fair opportunity to litigate previously convinced the court to do away with the mutuality of
obligation requirement.
Note, however, that if A won, C would not be precluded from challenging A’s right to the patent:
due process requires that C have the opportunity to litigate this issue herself.
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[3] – Parklane Hosiery: Precluding the Defendant from Relitigating an Issue
In Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), the Supreme Court continued to expand
the scope of issues that could be precluded. Here, the defendant had previously been sued (by
the SEC) and lost on an issue (whether it had made fraudulent statements to investors). The defendant was the precluded from relitigating the issue in defending against a subsequent plaintiff
(i.e., was precluded from asserting it had not made fraudulent statements).
The Parklane Hosiery holding is more complicated. In precluding a plaintiff from relitigating
issues (i.e., Blonder-Tongue-style preclusion), the plaintiff had the opportunity to choose the
claim, forum, etc. In Parklane Hosier the defendant was sued at a time and place of the plaintiff’s choosing, and yet issues resolved in that proceeding had a binding effect on subsequent litigation.
Hypothetical: A,B, and C are travelling in three different cars. C crashes into A’s car and then
immediately into B’s. A suffers a broken finger and incurs $500 of hospital bills; B breaks both
legs and incurs $50,000 of hospital bills. A sues C. Because of the low stakes, C hires the
cheapest lawyer he can find, is found negligent, and loses. B sues C. C is precluded from arguing he wasn’t negligent. B wins a $50,000 judgment.
Here, C would have to consider the effects of an adverse judgment in foreclosing his right to argue that he was not negligent, and pursue the $500 claim more vigorously than would otherwise
make sense.
Whereas precluding a plaintiff from relitigating the adverse judgment of an issue is nearly automatic, the holding in Parklane Hosiery expressed concern over the ‘wait and see’ plaintiff—that
is, a plaintiff who waits on the sidelines to see what happens in the litigation at hand, then brings
suit. The Supreme Court suggested that courts should use caution in allowing a plaintiff who
could have joined the initial suit to take advantage of issue preclusion.
The calculus is especially complicated as the pool of prospective plaintiffs grows larger, and the
prospect of ‘winning one case or losing them all’ grows more daunting, plaintiffs must sometimes spend more in defending a case than they stand to lose because of the effects on subsequent litigation (e.g., tobacco litigation). A group of plaintiffs might prefer the most sympathetic
plaintiff to litigate the first case, so that the favorable effects of issue preclusion can assist the
entire group.
The Court articulated four factors that must be weighed in order to balance efficiency with fairness and concerns for due process.
(1) Could the non-party have joined the prior litigation?
(2) Was the subsequent litigation foreseeable at the time of the first suit so that the defendant had every incentive to defend that action vigorously?
(3) Is the judgment being relied upon consistent with prior judgments against this defendant so that there need be no fear of the multiple-claimant phenomenon?
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(4) Are there any procedural opportunities available to the defendant in the second action
that did not exist in the first, so that a different result might ensue if the issues are retried?viii
[4] – Parties not Subject to Issue Preclusion
Due process does not allow issue preclusion to apply to a party who has not had that issue decided adversely to him.
A sues B and loses. If C sues B, B cannot preclude C from relitigating the issues decided against
A in the first case. That is, B cannot use an issue decided in her favor in the previous case, because C has not had a chance to litigate this himself.
X sues Y and wins. If X sues Z, X cannot preclude Z from raising the issues decided against Y
in the first case. X cannot take advantage of the issue decided in his favor in the previous case,
because Z has not had the chance to litigate this herself.
§5.03 – Parties in General
[A] – Common Law Origins
As described in §1.02, common law visualizes disputes as between two parties before an impartial arbiter. The modern rules recognize the greater complexity entailed by our system of civil
procedure. Intervention and class actions, in particular, represent large departures from the
common law vision of dispute resolution.
[B] – Real Parties in Interest
“Any party asserting a claim … must be shown to be the real party in interest.... [T]he rule insists
that the named plaintiff possess, under the governing substantive law, the right sought to be enforced. It does not speak to what parties must be joined to the action; it merely ensures that those
present are proper parties.”ix
In order to be the real party in interest, it is not necessary that the party stand to gain from the
litigation; instead, the inquiry is whether the party has the right it seeks to enforce. For example,
the executor of an estate can bring suit on behalf of the estate.
FRCP Rule 17(a) requires that suit be brought in the name of the real party in interest. There are
a few exceptions under which claims may be brought anonymously, and other circumstances in
which an organization can bring suit on behalf of its members.
There are sometimes tactical considerations in who brings suit. A jury may be more sympathetic, for example, if suit is brought in the name of the insured instead of the insurance company
that stands to benefit.
§5.04 – Joinder
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Courts have broad discretion in fashioning the litigation. The rules of joinder with respect both
to parties and claims are liberal. The Supreme Court wrote “Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties;
joinder of claims, parties, and remedies is strongly encouraged.”x
[A] – Joinder of Claims: Rule 18
It is easier to join claims than parties. This is because there is a policy reason for making it easier to bring claims against an existing party than to make new people party to the suit. There is
also a judicial efficiency motive to resolve all the claims possible while the parties are already in
court.
While there is no such thing as “Compulsory Claim Joinder,” there is still the concern of losing a
claim that may have been asserted to claim preclusion. It can be difficult to foresee what the
preclusive effects will be at the end of the litigation; thus, there is an incentive to join claims up
front.
The major restriction on the joiner of claims result from jurisdiction and venue rules. In federal
court, each claim generally must have an independent basis for subject-matter jurisdiction, personal jurisdiction, and venue.
[B] – Joinder of Parties
While joinder of parties is liberal, there are several constraints. (1) the action must be brought by
the real party in interest; (2) the parties must have the “capacity” to sue or be sued; (3) persons
joined must be “proper” parties if the joinder is to be permitted; (4) persons so related to the dispute that their joinder is “necessary if feasible” must be joined if that can be reasonably accomplished; and (5) actions may not proceed if persons “indispensible” to the litigation cannot be
joinedxi.
[1] – Required Joinder of Parties: Rule 19
Rule 19 uses strange terminology. Rule 19(a) discusses who is a “Required Party.” Rule 19(b)
allows for the possibility that a “Required Party” might not be joined, and that the action can still
be sustained. To keep the terminology clear, commentators refer to parties whose nonjoinder
will result in dismissal as “essential.”
Rule 19(a) is quite restrictive—it defines required parties narrowly. Only if a party is required
does analysis proceed to rule 19(b). Rule 19(b) gives the courts more discretion in proceeding in
the absence of a party that is “required” by 19(a). Because of this, courts sometimes fudge the
analysis of 19(a) in order to get to 19(b) and weigh the factors described therein.
[a] – Rule 19(a) – The Narrow Gatekeeper
In determining whether a party is necessary, courts evaluate the strength of the nonparty’s interest in the pending litigation. This inquiry can be broken into three questions.
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1. In the absence of joinder, can complete relief be accorded those already parties to the action?
Example: an injured party sues an insurer of a nonparty. The insurer only covers losses
above a certain dollar amount. If that dollar amount is not reached, the verdict would
be worthless, and a second suit would have to be filed against the insured on the same
facts.
2. Will a judgment in the absence of the nonparty as a practical matter impair that individual’s interest in the subject matter of the action?
Example: a nonparty has an interest in a lump-sum insurance payment.
3. Will those already parties be subject to a substantial risk of incurring inconsistent obligations in separate suits?
Example: A claims to be half owner, with nonparty B, of stock held by bank C. A sues C
for conversion of the stock. All of the stock is in B’s name. If A wins, C has to pay A.
Then B could sue C for the stock (because he is not bound by the results of A and C’s
suit), and C would have to B. Thus, B must be joined if feasible.
If the answer to any of these questions is yes, the nonparty must be joined “if feasible.”xii
[b] – Rule 19(b) – The Balancing Test
Sometimes a court cannot join a nonparty. This could be because joinder would defeat subjectmatter jurisdiction, because the court cannot gain personal jurisdiction, or because the party has a
valid objection to the venue of the court.
The court must then apply Rule 19(b)’s four-point balancing test to determine whether the litigation can continue without the joinder of that party:
(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
Example: a court could order payment against a limited fund be delayed until all litigation concerning that fund has been concluded.
Example: a court could give money damages in lieu of a requested rescission of a transaction involving the nonparty
(3) whether a judgment rendered in the person's absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for
nonjoinder.
Example: if a particular case were dismissed in federal court, the state court would be
unable to hear the case, leaving the plaintiff unable to obtain relief
Dismissal for non-joinder is a significant departure from the triadic model and undermines a tenet of Anglo-American jurisprudence. A lawsuit between two people can be dismissed because of
the absence of a third. This is “an admission by the legal system that a cognizable and ripe legal
claim … can be thrown out because of third-party effects.”xiii
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Dismissal for non-joinder is usually without prejudice. Thus, the claim may be brought in the
future if the difficulties in joining the essential party can be overcome at a later time.
[2] – Permissive Joinder of Parties: Rule 20
Permissive party joinder is allowed if the party asserts a right or if a right is asserted against it
“arising out of the same transaction, occurrence, or series of transactions or occurrences.” There
must also be a common question of law or fact common to all the coparties.
The transaction-or-occurrence test again frequently uses the “logical relationship” standard,
functioning as shorthand for judicial efficiency. This is similar to its use in compulsory counterclaim.
The rule requires only a common question of law or fact. The standard is fairly low: “a plaintiff
was allowed to join six voting registrars in a discrimination suit in which the only common question of law was whether a number of acts that were separate both chronologically and geographically constituted discrimination.”xiv
§5.05 – Impleader: Rule 14
Impleader, sometimes called “third-party practice,” allows a defendant to join a party and assert
that, ‘to the extent that I am liable to the plaintiff, the third-party defendant is liable to me for
some or all of the damages.’
Impleader claims are permissive. They are allowed because the original defendant may be unable to withstand the liability while the separate suit is pending, and in order to promote judicial
efficiency.
Theories of liability in third-party practice are indemnity, contribution, breach of warranty, or
any other legal theory supporting derivative liability. The impleader claim requires transfer of
liability on the plaintiff’s original claim. The third-party plaintiff’s claim does not accrue until
and unless the plaintiff in the original claim is successful.
Impleader cannot be used to bring in a defendant who is directly liable to the plaintiff. If A sues
B for punching him in the face, but B knows that it was actually C who punched A, B cannot implead C.
The court must weight the possible prejudice to the plaintiff in allowing a third-party action; if
the probability of prejudice is high, the court can order the impleader action to be tried separately.
§5.06 – Interpleader: Rule 22
Interpleader essentially allows a res to ask, “are you my daddy?” The stakeholder of a fixed
stake (e.g., an insurance policy) says to the court, ‘I don’t know whose this is, but I don’t want to
owe it to more than one person.’
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Interpleader procedure has two phases. In the first, the stakeholder applies for an order to interplead, which is reviewed by the court. Once granted, the court considers the merits of the claimants in the second phase. If the stakeholder has no interest in the stake, she’s done after the first
phase.
A stakeholder can also assert a claim to the stake. For example, an insurance company can submit an insurance policy to an interpleader action, then dispute whether any of the claimants are
actually entitled to it.
Interpleader is governed both by Rule 24 and by 28 U.S.C. § 1335. The differences primarily
involve jurisdiction and venue requirements.
Diversity
Venue
Service
Rule Interpleader
Between stakeholder &
all claimants (complete
diversity)
Residences of all defendants, or
where events occurred or property
located.
As under rule 4
Statutory Interpleader
Between two or more
claimants (minimal diversity)
Residece of one or more claimants
Nationwide
§5.07 – Intervention: Rule 24
Intervention allows someone who is not party to the suit to join the litigation to protect his interests. This is a huge departure from the common law model of triadic disputes. Intervention can
be Of Right or Permissive.
“Today, the liberality of joinder of parties and claims coupled with the increased incidence of
complex substantive regulations have provided a fertile soil for multiparty, multi-issue litigation.
This has diminished the power of the original parties to control the lawsuit, and correspondingly
increased the discretionary power of the trial judge to determine who are the appropriate participants in the litigation. The increasing availability of intervention is a concomitant of the attempt
to satisfy the growing demands for economy and sensitivity to due-process concerns in the administration of the judicial system.”xv
Courts can tailor the level of involvement for an intervening party in ways that would be impermissible for the original participants—no motions of a particular sort, for example. Intervenors
are also bound by what’s happened before—orders, etc.
[A] – Intervention of Right: Rule 24(a)
“When the intervention is of right, there is an implicit judgment that the nonparty’s right to participate should predominate”xvi over the rights of the original parties.
A party may have a statutory right to intervene. Otherwise, the standards for intervention of
right can be split into three:
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1. The potential intervenor must have an interest relating to the property or transaction that
is the subject of the action.
2. Disposition of the action in the intervenor’s absence, as a practical matter, must be likely
to impair the intervenor’s ability to protect that interest.
3. It must be shown that the existing parties to the action do not adequately represent the intervenor’s interests.
The standard is designed to be pragmatic and flexible. Courts can use it in order to invite in people useful to the court in deciding the issue. Thus, this rule helps courts manage cases and seek
efficiency.
In large part, these tests are dependant upon whether the lawsuit is public or private. While the
rules don’t refer to this dichotomy, intervention is more frequently allowed when the lawsuit is
public in nature. Thus, the Catholic Church will not be allowed to intervene in everyday divorce
proceedings, but Planned Parenthood may be allowed to intervene in a lawsuit that has implications for abortion rights nationwide.
[B] – Permissive Intervention: Rule 24(b)
When “the intervention is declared to be permissive only, the court first must ascertain whether
the interest of the original parties will be prejudiced by allowing the outsider access to the litigation.”xvii
Permissive intervention is allowed either where a party has a statutory right to permissive intervention or “has a claim or defense that shares with the main action a common question of law or
fact.”
Granting permissive intervention is at the trial court’s discretion. The court weighs the benefits
of the intervention against the effects of increased complexity, delay, or expense of the trial and
any prejudice to the parties. The court will limit the intervenor’s attempts to raise issues that are
remote from the mainstream of the original action.xviii
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Chapter 6 – Class Actions
§6.01 – Purpose and History
Class actions emerged from courts of equity, and originally were only available in suits of equity. It was unclear whether class actions bound absent class members—this was clarified somewhat in Supreme Tribe of Ben Hur v. Cauble 255 U.S. 356 (1921). There, all the members of a
beneficial organization were bound by the judgment. The original version of Rule 23 was confusing, referring to different types of classes with nebulous distinctions. There was also no requirement that common issues predominate, so efficiency gains went unrealized.
§ 6.02 – Class Action Prerequisites
[A] – General: Rule 23(a)
The first stage is to determine whether the following prerequisites are satisfied:
1. Is there an identifiable class?
 The class members need not be named
 It’s only required that it is feasible for the court to determine if someone’s a
member of the class
2. Are those purporting to represent that class members of it?
3. Is the class so large that joinder is impracticable (numerosity)?
 Not a requirement for impossibility of joining everyone
 Factors other than number
o Nature and complexity of action
o Size of individual claims
o Geographic distribution of class members
4. Are there questions of law or fact common to all the class members (commonality)?
5. Are the claims or defenses of the representatives of the class typical of those of other
class members (typicality)?
6. Will the representatives adequately represent and protect the interests of the absent class
members (adequacy)?
 Not based upon how many representatives
 Based on quality of representatives and their lawyers
 Must be situated to persevere through the litigation
 Do not need the permission of absent class members
There is no requirement that the class demonstrate that it is likely to win on the merits.
The adequacy of representation has important due process implications. By allowing absent
class members to be bound, courts relax the ‘day in court’ requirement. If the representative is
not suitable, absent class members can challenge on constitutional grounds and destroy the efficiency gains from class action litigation.
The most critical factor for the adequacy of representation is whether there are conflicting or antagonistic interests. Hansberry v. Lee, 311 U.S. 32 (1940) is the leading case—it held that an
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African-American family opposing a racially restrictive covenant was not bound by a prior
judgment involving a class of homeowners in the area that had sought to uphold the covenant.
[B] – Type of Class
[1] – 23(b)(1) Class: Limited Fund / Anti-Prejudice
There is some similarity between classes certified under 23(b)(1) and required parties under Rule
19.
Rule 23(b)(1)(A) allows certification of a class where the party opposing the class would be subject to prejudice or varying obligations. To qualify under 23(b)(1), the party opposing the class
must actually be in danger of being subject to prejudice: there must be the possibility of separate
actions exists, so as to give rise to the danger that by following its legal duty to some class members, it will violate its duty to others.
23(b)(1)(B) allows certification where the litigation would be dispositive of the interests of other
members of the class. The criteria are not so strict as to require that litigants would be subject to
claim or issue preclusion, but the potential of stare decisis is insufficient to allow such a class.
This is often used where there is a limited common fund that will be exhausted if the claims are
litigated individually and on a first-come, first-served basis. 23(b)(1)(B) therefore functions like
the opposite of an interpleader claim.
[2] – 23(b)(2) Class: Indivisible Relief / Civil Rights
This involves a class seeking indivisible relief in the form of an injunction or declaratory relief.
This type of class action is appropriate if the defendant has acted in a consistent manner towards
all the class members, or where a regulatory scheme affects all members of the class. Seeking
incidental damages does not defeat a 23(b)(2) class.
[3] – 23(b)(3) Class: Damages Class
Three prerequisites additional prerequisites
1. Common questions of law or fact must predominate over questions that only affect individual class members (predominance)
2. The class action procedure must be superior to other means of adjudicating the controversy
3. The best notice practicable must be given to the class members of the institution and nature of the action and of their right to exclude themselves from the class (23(c)(2))
Two opposing policies: efficiency in resolution v. due process concerns in having your interest
represented by the class lawyer. This gives rise to the requirement for common question of law
or fact predominating. Shareholder suits are often permissible because the defendant’s classwide course of conduct overshadows damages, for example. On the other hand, issues like causation and individual circumstances often thwart products liability class actions—e.g., Amchem
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Products Inc. v. Windsor, 521 U.S. 591 (1997) (holding predominance criterion not fulfilled in
asbestos settlement class and that representation was inadequate).
In determining whether the class action is the superior means of adjudication, the court must
consider other procedures: joinder, individual adjudication, allowing a test case to proceed, etc.
See 23(b)(3)(A)–(D).
Finally, under a 23(b)(3) class action, the court must give the best notice practicable to identifiable class members and allow them the right to opt out. Notice is required for each class member
whose identity is ascertainable with a reasonable effort.
§6.03 – Jurisdiction
The burdens and protections afforded to the class members subjects them to the court’s personal
jurisdiction where the class seeks money damages.
Diversity jurisdiction is premised only upon the name plaintiffs and defendants; to do otherwise
would be to prevent many class actions.
§6.04 – Procedures
The judge has wide latitude in fashioning the litigation. He can allow the court to proceed with
regard to particular issues, divide the class in to subclasses, etc. There is a need for judges to
take charge in complex class action litigation to prevent it from languishing on the docket and
eventually consuming more resources than would have been expended if the judge had been firm
in the first place.
The judge must approve compromise or dismissal of the suit. This is to avoid collusion or faintheartedness on the part of the class representatives. Courts can require a second opportunity for
class members to opt out before settlement. Notice of a proposed settlement must be given so
that class members can intervene or object.
§ 6.05 – Notice
23(c)(2) requires the best notice practicable be given in 23(b)(3) classes. This is a case-by-case
determination. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), held that individual notice
was required even at $225k per plaintiff. The notice requirements are based upon Mullane, a
previous SCOTUS case involving notification (not in a class action). The burden of identifying
the class members is upon the plaintiff.
23(d)(1)(B) sets forth the notice requirements for 23(b)(1) & (2) classes. These requirements are
more discretionary, and are typically less stringent due to greater cohesiveness among class
members.
§ 6.06 – Binding Effect
If all prerequisites are satisfied, a class action is binding on all class members, whether present or
not. The Supreme Court articulated four requirements for absent class members outside the
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court’s jurisdiction to be bound: (1) notice (2) consistent with Mullane (3) opportunity to opt out
(4) the class must have been adequate to represent their interests.
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Chapter 7 – Discovery
The key problem of discovery is that it is cheap and easy to request, but very expensive to produce. A theory like “mutually assured destruction” operates somewhat to limit the discovery requests because of the adversary’s ability to visit the same sort of treatment in return. However,
this doesn’t work perfectly.
There has been reform to discovery in recent years: required disclosure, cap on discovery requests, etc.
Issacharoff seemingly is uninterested in this stuff.
§ 7.01 – Rule 30: Deposition by Oral Examination
This is the most significant of the discovery devices. They allow the attorney to react and ask
follow up questions in a way other discovery devices do not. The downside is high expense.
They are often videotaped and recorded by a court reporter.
Each side in a federal lawsuit gets 10 depositions; each deposition is limited to one day of seven
hours unless the court gives special dispensation.
§ 7.02 – Rule 33: Interrogatories to Parties
Unlike depositions, interrogatories pass through the attorney as an intermediary. Thus, they are
useful for discovering information, but not good for catching witnesses.
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Chapter 8 – Summary Judgment and Burden Shifting
§ 8.01 – Burden of Persuasion and Burden of Production
The burden of persuasion falls on the party attempting to change the status quo. In most cases
this is the plaintiff; for affirmative defenses it is the defense. This burden does not change
throughout the claim.
The burden of production may shift back and forth. As an intermediate question, the burden of
production is one of law: has the party with the intermediate burden of production produced legally sufficient evidence to shift the burden. If parties meet the burden of production, the issue
may go to the jury for a factual determination of whether the burden of proof is satisfied. If the
party does not meet its burden of production, judgment as a matter of law is appropriate.
§ 8.02 – Procedure for Obtaining Summary Judgment
Summary judgment is typically granted upon motion of one of the parties. A plaintiff must wait
20 days after the commencement of the action (or immediately after the defendant’s motion) to
allow the defendant time to obtain legal counsel and investigate. The motion must be filed at
least 10 days before the hearing.
Most federal courts seem to allow sua sponte summary judgment, or summary judgment against
the moving party without motion by the non-moving party.
Any evidence admissible at trial is in concept admissible in a summary judgment motion. For
the most part, however, everything is submitted by affidavit.
Courts may allow further discovery under Rule 56(f).
§ 8.03 – Standard for Granting Summary Judgment
[A] – General
Summary judgment is appropriate where there is no genuine issue of material fact, and where the
movant is entitled to judgment as a matter of law. The standard is compared to Rule 50, judgment as a matter of law.
Courts have little difficulty when they are presented with evidence bearing directly on the fact at
issue. The problem is more difficult when it comes to drawing inferences. Courts generally
leave this to the factfinder, viewing their role as deciding whether any factual issues exist, not
resolving them.
Where competing inferences are offered, the court can make plausibility determinations. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). This does not equate to
the court drawing its own inferences; the court merely weighs the competing inferences. Where
two equally plausible factual inferences are available, the trier of fact must decide.
30
Courts are not permitted to compare opposing evidence. The judge need only determine whether
the nonmovant’s evidence is “facially plausible and capable of being accepted by a rational factfinder.”
[B] – Burden of Proof
[1] – Burden of Persuasion
The movant bears the burden of persuasion on summary judgment, irrespective of the movant’s
burden at trial. If the movant fails to establish that there exists no issue of material fact, the motion fails.
[2] – Burden of Production
When the plaintiff moves for summary judgment, the plaintiff’s burden of production at summary judgment is equivalent to his burden at trial (the same is true with respect to defendants and
affirmative defenses). There is some question as to what the defendant’s burden of production is
at summary judgment—nothing, or some threshold level to avoid abuse.
Currie’s Theory (no burden on defendant): the defendant at trial will be able simply to sit back
and wait for the plaintiff to shift her burden of production. Thus, says Prof. Currie, the defendant
should be able to require the plaintiff to come forward with its evidence in order to resist summary judgment.
Louis’ Theory (some burden on the defendant): Prof Louis fears that this will lead to abuse,
whereby the defendant will have the strategic advantage of previewing the plaintiff’s trial package prior to producing any evidence. Thus, the defendant should be able either to (1) summarize
all the evidence on the record to show there is no genuine issue of material fact or (2) point out
where the plaintiff’s case is deficient.
In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Rehnquist, writing for the plurality, seemed to
endorse Currie’s theory. Brennan, in dissent, seemed to endorse Currie’s theory.
Thus, the state of the law appears to allow the summary judgment movant who will not have the
burden of persuasion at trial simply to shift the burden of production simply by making an allegation that the nonmovant’s evidence is inadequate.
§ 8.04 – More Frontloading of Facts
Two cases suggest that the trend towards ever-earlier factual determinations will continue. In
Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), the Supreme Court held that judges would interpret the meaning of words in patent litigation, converting what once seemed a
question of fact to one of law amenable to 12(b)(6). This has thus far been applied only to patent
litigation, but nothing in the opinion limits it this way. In Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (1997), the Supreme Court seemed to undermine Conley and elevate the standard for
pleadings. The implications of this case are still unclear.
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Chapter 9 – Jurisdiction over the Person
§ 9.01 – General Personal Jurisdiction
Courts can exercise general personal jurisdiction over a person or corporation if they are “of” the
state. For example, GM and Michigan go together in an obvious way. Domicile gives rise to
personal jurisdiction over an individual. Some factors for general jurisdiction over a business are
1.
2.
3.
4.
5.
6.
Location of headquarters
Where the majority of business takes place
Continuous presence
Continuous economic activity
Tailoring of products
Licensing
It is possible to contract into jurisdiction. Some states require that as a prerequisite for a business
being licensed, they agree to submit to general personal jurisdiction. See also Carnival Cruise
Lines v. Shute, 499 U.S. 585 (1991).
§ 9.02 – Specific Personal Jurisdiction
[A] – Minimum Contacts
A person’s minimum contacts with the forum state must be transactionally related to the claim.
Under current law, the minimum contacts analysis of International Shoe Co. v. Washington, 326
U.S. 310 (1945) is applied broadly. Courts typically employ a three-step test.
1. Did the defendant purposefully avail himself of the forum state?
2. Did the cause of action arise from the defendant’s contacts with the forum state?
3. Would the exercise of personal jurisdiction be reasonable?
Foreseeability is a large factor in this analysis. In World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980), the Supreme Court held that a New York dealership had not “appoint[ed]
the [car the dealer sold] his agent for service of process,” and that therefore he did not have minimum contacts with Okl., where the car had wrecked.
However, in stream of commerce cases, it is usually adequate that the stream of commerce carries a product into the forum state by some normal means.
[B] – Fair Play and Substantial Justice
In Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), the Supreme Court announced a Matthews test-like framework for analyzing fair play and substantial justice.
1.
2.
3.
4.
What is the plaintiff’s interest?
What is the defendant’s interest?
What is the state’s interest?
What are the costs and benefits with respect to judicial efficiency?
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§ 9.03 – In State Service
The Supreme Court affirmed in-state service of process as sufficient to allow personal jurisdiction in Burnham v. Superior Court of Calif., 495 U.S. 604 (1990).
§ 9.04 – In Rem Jurisdiction
In rem jurisdiction allows a plaintiff to sue an in-state res.
§ 9.05 – Quasi In Rem Jurisdiction
Quasi in rem allows a plaintiff to sue exercise jurisdiction over a res to unrelated to the claim but
owned by the defendant (over whom the court may not have jurisdiction).
§ 9.06 – Special Applications (AKA, the Court messes everything up)
The International Shoe / Asahi analysis applies to in rem and quasi in rem actions. In Shaffer v.
Heitner, 433 U.S. 186 (1977), the Supreme Court refused to allow quasi in rem jurisdiction over
stock certificates in a bank in Deleware by applying the due process analysis of the personal jurisdiction cases.
However, in Burnham, the Scalia majority refused to allow the International Shoe due process
analysis to in state service because in state service preexists Pennoyer and can be inferred to
comport with due process; contra Shaffer, concerned with quasi in rem jurisdiction, which did
not exist in 1868.
Internet cases are unique (I think I’ve got this down from the memo).
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Chapter 10 – Subject Matter Jurisdiction
§ 10.01 – Diversity Jurisdiction
Diversity jurisdiction is controversial, although it’s the earlier basis for federal subject matter
jurisdiction. The courts have sought to discourage its use by maintaining an amount in controversy requirement and requiring complete diversity.
The rationale for diversity jurisdiction is that it prevents prejudice against out-of-jurisdiction litigants. However, Issacharoff, arguing for Justice Story’s interpretation, says that it’s really to
provide for stability in markets by preventing systematic bias in favor of locals against out-ofjurisdiction creditors.
Diversity is governed by 28 U.S.C. § 1332.
[A] – Diversity Requirement
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806) requires complete diversity. This means
that everyone on one side of the ‘v.’ must be diverse from everyone on the other side of the ‘v.’
The only exception is for claims brought under the interpleader statute.
Domicile for the purposes of diversity is based, for a person, on residence in fact combined with
the intention of making the place of residence one’s home for an indefinite period. Domicile can
only be supplanted by a new domicile. A business is domiciled in its principle place of business
as defined by several tests.
[B] – Amount in Controversy Requirement
28 U.S.C. § 1332 requires that $75,000 or more be in controversy. This does not include costs or
attorneys fees. The sum claimed by the plaintiff, if made in good faith, presumptively controls.
However, the defendant or court can challenge the amount, requiring a factual inquiry.
In cases of injunctive or declaratory relief, the measure of damages is from the plaintiff’s perspective. Thus, if the value to the plaintiff of removing an obstruction from a road is $100,000
of increased commerce, whereas the cost of removing the obstruction for the defendant is
$50,000, the amount in controversy requirement is fulfilled.
With multiple plaintiffs or defendants, each plaintiff must sue for the minimum, or the plaintiff
must sue each defendant for the minimum. Only where two plaintiffs sue jointly for an indivisible interest is the common value tabulated.
§ 10.02 – Federal Question Jurisdiction
Although federal question jurisdiction came into existence later than diversity jurisdiction, federal courts now prefer this as the basis of subject matter jurisdiction. This is because federal courts
are better at interpreting federal law, and because they have a stake in creating a consistent body
of federal law. The competing priority is to preserve the right of state courts to hear state law
claims with marginal federal components; to avoid, e.g., federalizing tort law.
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Federal question jurisdiction is based upon 28 U.S.C. § 1331. In addition to § 1331, some federal statutes explicitly grant jurisdiction over themselves to the federal courts or exclusively to the
federal courts.
[A] – Well-Pleaded Complaint Rule
The well-pleaded complaint rule, articulated in Louisville & Nashville R.R. Co. v. Mottley, 211
U.S. 149 (1908), requires that the court look within the four corners of the complaint for the federal claim. Even if the defendant is certain to raise a defense based in federal law, it’s the plaintiff’s complaint on which subject matter jurisdiction must be based.
The purpose of this doctrine is to allow an efficient threshold jurisdictional determination. The
federal issue must be a substantial one, however; courts must dismiss claims that are utterly frivolous or without merit.
A corollary of the well-pleaded complaint rule is that a plaintiff cannot avoid removal by “omitting to plead necessary federal questions.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470
(1998). A court may thus refuse to hear “artfully pleaded” claims.
[B] – Federal Cause of Action
A claim based upon a federal statute that gives rise to a cause of action clearly allows federal
question subject matter jurisdiction. This is the “Holmes Test.” This applies to statutes (such as
Title VII) that explicitly provide for a private cause of action, as well as general right of action
statutes like 42 U.S.C. § 1983.
[C] – Implied Federal Cause of Action
A claim based upon a statute that gives an implied federal cause of action is also appropriate under federal question subject matter jurisdiction. The framework for evaluating whether a federal
cause of action contains an implied private right of action is a four-part test:
1.
2.
3.
4.
Are the plaintiffs part of a class for whose special benefit the statute was passed?
Is there evidence of a legislative test to create or not create a private right of action?
Would a federal cause of action further the underlying purpose of the legislation?
Is the subject of the statute on not typically relegated to state law?
[D] – Federal Ingredient
In Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986), the Supreme Court
split five to four on the definition of the federal ingredient. The majority would require a
demonstration that allowing lawsuits by private parties would advance the statutory scheme. The
effect of this was more or less to collapse the federal ingredient test into the test for implied right
of action.
In Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005), Souter, writing for
the unanimous court, articulated a three-part test for federal-question subject matter jurisdiction:
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1. The importance of obtaining an interpretation of the federal statute
2. The government’s interest in having a federal forum to settle such disputes
3. The lack of detrimental effect on the division between federal and state functions
This is basically an inquiry into the courts’ proper division of labor. Souter is trying to create a
win-win, whereby the balancing test picks up cases properly in federal court but missed by disallowing federal ingredient claims.
Thus in considering whether a case contains a federal ingredient sufficient to allow federal subject matter jurisdiction, courts must perform a balancing test. The difficulty is that this destroys
the certainty (Issacharoff: “Just give me a goddamn rule, I don’t care what”).
This is especially problematic in subject matter jurisdiction cases, because it is the “most preferred defense” that can be raised for the first time on appeal. Thus, for example, after five years
and millions of dollars, the court of appeals could throw a case out of the federal system as a nullity.
§ 10.03 – Removal
28 U.S.C. § 1441 provides for removal jurisdiction. An action is removable only if it originally
could have been brought in federal court.
§ 10.04 – Supplemental Jurisdiction
Supplemental jurisdiction asks what to do if a claim contains aspects of state and federal law.
The original types of jurisdiction were “pendent” and “ancillary.” Today, they are codified in 28
U.S.C. § 1367 under the common heading of supplemental jurisdiction.
The key to interpreting supplemental jurisdiction is to remember that federal courts want to hear
claims arising under federal law and do not want to hear claims arising under state law.
[A] – Supplemental Jurisdiction: Joinder of Claims
Pendent jurisdiction is used where one plaintiff has both state and federal law claims in the same
action. It is related to the federal question jurisdiction.
Because federal courts want to hear federal claims, the courts are permissive of unitary litigation
where federal claims make up a substantial part of the litigation. Thus, § 1367 provides that
[I]n any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution … The district courts
may decline to exercise supplemental jurisdiction over a claim … if the claim raises a
novel or complex issue of State law, the claim substantially predominates over the claim
or claims over which the district court has original jurisdiction…
[B] – Supplemental Jurisdiction: Joinder of Parties
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Ancillary jurisdiction is used where new parties are brought into the litigation. It is related to
diversity jurisdiction.
It operates to allow the defendant’s party joinder and third party claims, as well as intervention,
to be litigated as part of the original claim without destroying diversity. However, it works to
prevent the plaintiff from joining any parties that destroy diversity.
[I]n any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. In any civil action of which the district courts have original jurisdiction founded
solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection over claims by plaintiffs against persons made parties under
Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons
proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as
plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over
such claims would be inconsistent with the jurisdictional requirements of section 1332.
[C] – Class Actions
28 U.S.C. § 1367 controls over class actions as well, allowing claims of absent class members to
be permitted by supplemental jurisdiction. The Class Action Fairness Act allows federal courts
to exercise jurisdiction over class actions for more than $5,000,000 (and subject to some other
conditions) even if not independent basis exists.
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Chapter 11 – State and Federal Law
§ 11.01 – Erie v. Tompkins
1938 – Rules Enabling Act and Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Erie held that
federal courts sitting in diversity must act as state courts and are bound to apply state substantive
law. Where there is no decisional law on point, the court cannot make its own law but must be
faithful to what the highest state court would say.
Erie has two primary concerns. The first is to avoid forum shopping, and the second is to avoid
inequitable administration of the laws.
§ 11.02 – Subsequent Case Law
[A] – Guaranty Trust v. York
In Guaranty Trust Co. v. York, 326 U.S. 99 (1945), the Supreme Court held that Erie wasn’t
about substantive v. procedural law; it was concerned only with whether a particular rule was
“outcome determinative.” The court asked “does it significantly affect the result of a litigation
for a federal court to disregard a law of a State that would be controlling in an action upon the
same claim by the same parties in a State court?” Id. at 109.
This went to far, however, because even the colors of the covers of briefs can affect the result.
[B] – Hanna v. Plumer
Hanna v. Plumer, 380 U.S. 460 (1965) held that where a federal rule is directly on point, the
court should apply that. Warren’s opinion doesn’t say what to do where there is no rule directly
on point, however.
Harlan, in concurrence, offered an answer. People must base their primary conduct upon expectations of the law. Thus, the test must be that if the law affects primary conduct, it is substantive.
This is an examination of ex ante incentives. A statute of limitations is substantive, because it
might lead a party to buy insurance. The colors of brief filings is procedural, because nobody
will structure her behavior on the basis of this.
[C] – Gasperini v. Center for Humanities
In Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996), Ginsburg (Issacharoff suggests
using her notes as a professor from before Hanna) suggested an “outcome affective” test. This
test seems to combine the “outcome determinative” test from York and a weighing test in Byrd.
§ 11.03 – Current State of Erie
Ginsburg is the only Justice to cite Gasperini in subsequent opinions. Academics have treated
this as a “sport.” Thus, Hanna is still the best analytical framework, although Gasperini should
be kept in mind.
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Chapter 12 – Attorneys and Clients
There exist rival conceptions of the roles of the attorney: agent of the client and agent of the
court.
§ 12.01 – Work Product Doctrine
Under Hickman v. Taylor, 329 U.S. 495 (1947), an attorney’s “work product” is immune from
discovery. The exception is for good cause. Most commonly this will exist where a witness is
unavailable—he cannot be located, has died, etc.
If the work product doctrine did not exist, defendants would be prejudiced. This is because the
defendant has more information about his liability. By requiring the defense lawyer to turn over
her work product, the rule would systematically prejudice defendants even if the plaintiff also
turned over information.
Other problems arise where people get cute with this privilege. For example, what if the CEO is
also an attorney for the board members. Does this make a board meeting a “work product?”
§ 12.02 – Cost Shifting
While the U.S. primarily requires litigants to pay their own freight, there are certain statutory
grants of attorneys fees. These represent Congressional efforts to incent certain types of lawsuits—e.g., civil rights litigation. This policy is in tension with the courts’ desire to reduce
docket congestion and encourage litigants to settle.
In Marek v. Chesny, 473 U.S. 1 (1985) and Evans v. Jeff D., 475 U.S. 717 (1986), the Supreme
Court can be seen to have undermined the effectiveness of fee shifting, playing the lawyer off the
client for the purposes of efficiency.
In Marek, the Court allowed the Rule 68 awarding of post-settlement offer costs (where one party refuses a settlement offer and then receives a less favorable verdict) to include the attorneys
fees granted by statute. This created pressure for plaintiff’s attorneys to settle, and on a broader
scale reduced the attractiveness of civil rights litigation.
In Evans, the Court further allowed different incentives to operate on attorneys and clients in order to settle litigation. The Court permitted the defendant to offer a generous settlement in exchange for the attorney not seeking the fees to which he was statutorily entitled if he had won.
The attorney, acting in his clients’ interest, could not turn this offer down. However, this creates
the possibility that defendants can thwart Congress’ intent in its fee shifting statutes. Issacharoff
thinks there’s no way of handling this.
§ 12.03 – Sanctions
Rule 11 has evolved over time. It was very strict after the 1983 amendment, leading to “out of
the box” Rule 11 motions after one side lost. This was based in part on a shift whereby the attorney’s signature represented vouching for the soundness of the facts and law. However, after
39
the 1993 amendment, which explained that sanctions are to serve a deterrent rather than compensatory function, and which provided a 21 day safe harbor provision, they lost their teeth.
Hornbook = Friedenthal, Kane, & Miller. Endnotes are not exhaustive of included info from
book.
i
Hornbook p. 308
ii
Hornbook pp. 368-69
iii
Hornbook pp. 371-72
iv
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981), Issacharoff p 146
v
Hornbook p. 654
vi
Hornbook p. 674
vii
Hornbook p. 699
viii
Hornbook p. 728, citing Parklane Hosiery
ix
Hornbook p. 340
x
United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966)
xi
Hornbook p. 334
xii
Hornbook p. 359
xiii
Issacharoff lecture notes, class 10
xiv
Hornbook p. 354, citing U.S. v. Mississippi, 380 U.S. 128 (1965)
xv
Hornbook p. 386
xvi
Id.
xvii
Id.
xviii
Hornbook p. 392
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