CIVIL PROCEDURE CHEAT SHEET
Fall 2009
GENERAL
Rules Enabling Act §§2071-77  1) Only regulates procedure; 2) must not abridge, enlarge, or modify any
substantive right
Sibbach v. Wilson & Co. (1941)  Rule 35 is a procedural issue here; since it’s procedural, it’s valid under REA; case
would have been different if she had sued in Indiana
PLEADING
Choice of venue  P has choice of court (can go for fed or state); removal lets D have a say in venue but can’t go
back to state court after removal
Rule 8  Purpose is to facilitate an informed discovery; provide basis for settlement; identify non-disputed facts
and contentions
Rule 8(a)  short and plain statement of claim that shows P is entitled to relief
Rule 8(b)  any allegation not denied is admitted
Rule 8(c)  allocates burden of proof; lists things D must assert in answer; affirmative defenses (if not
asserted then waived)
Rule 8(d)  plain and simple pleadings; alternative and inconsistent claims or defenses
Sierocisnksi v. E.I. Du Pont de Nemours & Co. (3rd Circuit 1939)  injured by blasting cap, gets to amend complaint so
it states claim; have to accept statement of claim as is and proceed as if it is valid; appeal 2 is dismissed because no
reasonable person could have found for P
Notice Pleading  Is there any set of facts consistent with allegations that would justify a recovery for P? (set in
Conley v. Gibson)
Plausibility Pleading  Disregard conclusory allegations, then look at rest of pleading to see if allegations are
plausible (Iqbal); upholds notice pleading in Erickson but wants plausibility in Twombly; looks like there might be
different pleading standard for different types of claims and parties; not clear how this is applied in district courts
(Madison)
PROBLEMS  Moves question of plausibility from judge to jury; often need discovery for plausibility
Bell Atlantic Corp. v. Twombly (2007)  Antitrust suit that would have involved expensive discovery; COURT says
claim didn’t nudge allegations from the possible to plausible
Erickson v. Pardus (2007)  notice pleading is system we have, use it! NOTE: pro se litigant in jail might be different
Ashcroft v. Iqbal (2009)  Claims against AG and FBI director need to be plausible and not conclusory
Madison v. City of Chicago  P’s pleadings are pretty vague but judge says they’re enough; city can take discovery if it
needs it
Rule 10(c)  Exhibits with pleading are considered part of pleading
Rule 11 and Pleading  Deter frivolous claims without deterring meritorious claims; attorney certifies that he has
read the pleading and after reasonable inquiry thinks it’s grounded in existing law or there might be a good case for
changing the law
Rule 11(c)(2)  Safe harbor; serve motion for sanctions but don’t file it unless opponent doesn’t amend or
withdraw offending pleading within 21 days
Murphy v. Cuomo (NDNY 1996)  P claims Zarc conspired with NYPD; Zarc moves for SJ and Rule 11 sanctions,
which are granted because claim is frivolous and attorney should have looked into claims more thoroughly before
certifying
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DEFENSES; REPLYING
Interposing defenses and objections  D must take action against complaint or default judgment will be entered
in P’s favor; only a good plan if you are positive there’s no TJ; can use 55 or 60(b) to have it set aside, but need a
good reason
Time calculation  12(a) 21 days to make a motion or file answer (MOTION NOT A PLEADING); motion
denied, clock for filing answer is reset to 10 days (12(a)(4))
Rule 6(a)  if due date is on weekend or holiday, time extends to following Monday
Rule 6(b)  extending deadlines for good cause or excusable neglect
Rule 12  Tells D how to make objections and motions. Typically D moves against complaint on various 12
grounds; if motion denied, then submit answer
12(b)  how to present defenses  pretty much always make 12(b)(6) motion; TJ, SMJ, PJ, venue, failure
to join; use affidavits to support
12(e) and (f)  Court may ask for more definite statement, have 10 days; motion to strike redundant claims;
must be filed before responsive pleading because you can’t answer without more definite information
12(h)  waive lack of personal jurisdiction, improper venue, insufficient process, insufficient service of
process if don’t raise in first answer (motion or answer or in both); can raise 12(b)(6) at any point until trial;
lack of SMJ can be raised at any time AND by court (sua sponte); have chance to amend once through
15(a)(1)
Rule 7  Enumerates the various pleadings allowed; P may not reply to affirmative defenses unless court orders
reply 7(a)(7)
Coleman v. Frierson (NDIL 1985)  D tries to get judgment set aside but all of their defenses (claim preclusion,
12(b)(6)) should have come in original pleadings so court says no
Statute of Limitations  Want to prevent evidence from going stale and give D peace of mind; starts running as
soon as last event has occurred; usually a bright-line rule that bars claim
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COUNTERCLAIMS; AMENDMENTS; JOINDER OF CLAIMS
Rule 13: Counterclaims  if counterclaim comes out of same transaction or occurrence, it is timely even if SOL
has run
(a)  COMPULSORY: have to make counterclaim if it arises from same transaction or occurrence (is the
evidence the same?)
(b)  PERMISSIVE: D can raise if he wants but doesn’t have to; not barred from bringing it later but a
good idea to bring them all at once
(g)  CROSSCLAIMS: Co-parties assert claims against on another that bear relation to controversy at
hand; involves judicial discretion; can’t bring in parties that aren’t already joined
Transaction and occurrence  same evidence to support or refute opposing claims? “Whatever may be done by
one person which affects another’s rights and out of which a cause of action may arise.”
Williams v. Robinson (D.C. 1940)  Husband says Mr. X should have counterclaimed in divorce proceeding
Rule 18(a): Joinder of claims  Ps may join as many factually unrelated claims (independent or alternative) as
they have against D
Rule 15: Amendments  Lets you fix things you forgot to put in the pleading; get to amend by right once before
the responsive pleading is served  motion is NOT a pleading for these purposes; also new rules say that you get
21 days to amend as soon as a 12(b), (e), or (f) motion is served
(a)  Amendments before trial; get to amend once by right; after that have to seek leave of court who
gives it when justice so requires; if P amends complaint D gets to amend answer within longer of 14
days or remaining time
(b)  Amendments during and after trial; reframe case if different than you thought it was; trial by
consent lets you try things if both sides new issue existed but forgot to put it in pleadings
(c)  Relation back of amendments; (1)(A) if state law allows you to relate back when SOL has run, then
it’s ok to amend the claim; (1)(B) covers asserting a new claim out against same D out of same T or O;
and (C) lets you change party or naming of party
Beeck v. Aquaslide (8th Circuit 1977)  D initially admits making slide then sees it and moves to amend answer to
deny making it; D says D had no bad faith and have to consider prejudice against them if denied motion to amend
Blair v. Durham (6th Circuit 1943)  amendment did not state a new claim so SOL tolled
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DISCOVERY
Purpose  lets parties find out all relevant facts, contentions, and proof. Facilitates settlement and creates more
effective SJ; encourages broad joinder
How discovery unfolds  Parties confer under 26(f) & make proposed discovery plan; Submit written discovery
plan, exchange initial disclosures; 16(b) scheduling order
Rule 26(f)  conferences that set terms of timing and sequence of discovery as required under 26(d)
26(a)(1)  initial disclosures that everyone is going to want no matter what; 26(b)(1)  can only take relevant
discovery
Rule 16(b)  scheduling order covers joinder, amendments, motions, and discovery; makes judge mange
everything
Rules 30-32: Depositions  10 presumptive depositions per side, limited to one 7-hour day; written questions
given ahead of time; live depositions have attorneys sitting in; HAVE TO NOTE OBJECTIONS AT TIME
Umprehes v. Shell Oil Co. (what is conspiracy?); Brandenberg v. El Al (BA asks to elaborate on claims; has to answer
because facts)
Rule 33: Interrogatories  limited number of written questions answered by responding party and lawyer
together; can ask for facts and contentions
O’Brien v. International Brotherhood  seek an application of law to fats, and this is fine because attorney is present at
all times; not unfair
Rule 35: Physical and Mental Examinations  condition must be in controversy in the action and movant must
show good cause; Schlagenhauf v. Holder (applies to Ps and Ds, but have to make sure not a fishing expedition)
Rule 36: Requests for admission  ask other party to admit truth separately set for or to admit genuineness;
denial better be for a good reason or there will be sanctions; more binding than interrogatories
Freed v. Lackawanna Railway  D says train outside limits in interrogatory, says inside limits in trial. D was supposed
to tell P, but interrogatory isn’t binding so it’s ok
Evidentiary Privilege  Work-product: must have been created when litigation had already begun or was
reasonably expected, can get it if there is substantial need for materials; only waived when giving it to 3rd party
means opponent might get it; Attorney-client: protects communications in both directions between attorney and
client; can waive it if disclose to any TP
Electronic Discovery  rules amended so court takes control and costs don’t spiral out of control
PRE-TRIAL
Rule 16: Pre-trial Conferences  (a): let’s court take control of way trial is run; (b) scheduling: sets time limits for
pleadings, motions, discovery, etc.; (c): can have one or more relatively early to address concerns; (e): final
conference just before trial to make trial plan including admission of evidence, also last chance for settlement
Identiseal v. Positive ID Systems  Judge compels discovery, this is not OK
Pre-trial disclosures (37(c)(1))  If don’t give opponent witness lists, etc. then unlikely you can use evidence at
trial
Schuber v. S.S. Kresge Co.  No indication that P’s husband will be witness, so P can’t amend to include what
husband says; bound by pre-trial procedures; RULE 11 sanctions
Rule 68: Settlement  If P turns down D’s offer and actual settlement is less, P has to pay D’s costs; can’t use
settlement offer against other side to prove liability; Class actions have some exceptions
Kothe v. Smith  don’t settle malpractice suit, judge imposes sanctions for not settling, Ct. App says only parties get
to settle cases, not judges
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TERMINATING LITIGATION WITHOUT TRIAL
Rule 12(c): Motion for judgment on the pleadings  like a delayed 12(b)(6) that can be made by either party at
end of pleading stage; solely on matters of law with disputed facts considered to benefit non-movant
Rule 56: Summary Judgment  No evidence to support a claim, no support for trial = SJ; can only concern
pleadings and discovery and allege no material facts in dispute; supported by affidavits; use caution because based
on paper evidence; take as true then look in light favorable to non-movant; SCOTUS wants courts to use SJ
(trilogy)
Summary Judgment vs. 12(b)(6) motion  12(b)(6) = no claim; SJ = question of fact?
AA v. Ulen  Judge grants SJ because there’s no question of fact; usually this case would have gone to jury because
it was about negligence and that’s a classic mixture of law and fact
Scott v. Harris  Reasonable force when ramming car; 8 justices say yes, no dispute of material fact
JURIES
Rules 38 and 39  Can waive right to jury trial if don’t bring it up within specified time; generally no right when
based in equity; 7th Amendment doesn’t cover state governments, so might not have right to jury trials there
Rules 47 and 49  Selection of jurors
TRIAL
Evidence  Only admit relevant evidence (but this is often ruling on substantive law); exclude out of court
statements offered to prove truth of matter asserted (hearsay); object as soon as you realize something is wrong
(want it taken out or noted so can appeal later); impeach evidence to combat it
Rule 51: Jury instructions  given by judge by both parties allowed to submit instructions they want judge to
use; have to object as soon as judge give you opportunity or as soon as you find out what instructions will be
Rule 49: Verdict (General and Special)  special is written finding on each issue of fact
Rule 50: Judgment as a matter of law  at trial and immediate post-judgment equivalent of SJ; based on live
testimony; have to file under 50(a) before jury so non-moving party can fix problems first; try once before then
again within 10 days after trial (RJMOL); can get JMOL for each issue
SJ vs. JMOL  TIMING; also paper as opposed to real evidence
Rule 59: Granting a new trial; altering/amending judgments  might give it if you think jury should decide
one way but don’t want to use JMOL; verdict must be against great weight of evidence; can also move to have
judgment set aside
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JUDGMENT; APPEAL
Entry of final judgment  starts clock for appeal, give preclusive effect, puts into place disposition of law suit
Rule 58: Entering judgment  (a): separate documents; (c): outer time limit for when appeals time starts running
Rule 54: Judgment; Costs  (b): direct final judgment to your claim if there are multiple parties so you can get
out sooner; (d): nominal cost shifting, but can seek them if you want; should do it sooner rather than later
Rule 50(b): RJMOL  renew JMOL as long as made it before judgment to upset the judgment now
Rule 59: Motion for a new trial  can also use 59(e) to try and alter or vacate judgment
Rule 60: Relief from a Judgment or Order  use when outside time for JMOL or new trial; (b) changes
substance of judgment; harder to get relief because notion of finality is pretty strong; judgment is void because no
TJ, SMJ or DP
Remedies  Damages; 57: DJ: gives you determination of legal rights and obligations before doing anything that
renders you liable; injunctive relief
Appeals  §1291: can only appeal when final judgment; also interlocutory appeals (need DC judge’s certification
and Ct. App’s approval)
Dilly v. S.S. Kresge  D appeals SJ and denial of motion to amend but court says no because not final judgment nor
interlocutory appeal; doesn’t have jurisdiction to hear it
Ways around final judgment rule  Interlocutory appeal; class action appeals (23(f)); Extraordinary writs
(mandamus); Collateral order
JOINDER
Rule 19: Required Joinder  (a): necessary parties (bring in if can); (b): indispensible parties (take a harder look
to see if really can proceed without them; balancing test); want to craft relief to limit prejudice to unjoined party
Rule 20: Permissive Joinder  can join actions of multiple Ps as long as same T & O; also join multiple Ds with
same T & O but pay attention to service of process, TJ, and diversity
Rule 14: Third Party Practice (Impleader)  Allows D to sue third party and become TPP; original P can assert
claims against TPD if from T & O; look into TJ and diversity; file within 10 days of answer or seek leave to amend
Rule 22: Interpleader  don’t want double liability; works for Ps and Ds
Rule 24: Intervention  (a): as of right, court MUST let you join if you have substantial interest in outcome; (b):
can join if have a claim or defense that shares common question of law or fact; no destroying SMJ
Rule 23: Class Action  (a): numerosity, commonality, typicality, adequacy; (b): have to meet at least one of the
tests; must get court’s permission to settle; members of class must get notice and have opportunity to opt out
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ERIE DOCTRINE
Five Step Analysis  1) Arguably procedural?; 2) Conflict?; 3) On point (Walker, Hanna)?; 4) Outcome
determinative (twin aims of Erie, Hanna; inequitable administration, Walker)?; 5) Federal interest in applying fed law
(Byrd, Gasperini)?
Erie  Fed courts must apply state statutes OR common law for states in cases of diversity jurisdiction; state law
governs outcome of claims that are decided on state law; no federal common law
State Law  highest court, certification, predictions, Bernhardt v. Polygraphic Co. (old VT law on books, follow it)
Choice of Law  fed courts sitting in diversity and those hearing supplemental state law claims use choice of laws
rules that would be applied by court of the state in which it sits (Klaxon)
Outcome determinative test  York says to apply state law if there is a fed procedure different from state law
that would affect litigation result; BUT Hanna says that you have to look to the twin goals of Erie
York  use state or fed SOL  apply state if have different results
Ragan  Conflict with KS law for when action commences and fed  Rule 3 not on point, use KS  longer life
Hanna v. Plumer  Service by state or federal rules  twin aims of Erie
Twin Goals of Erie  forum shopping: don’t want law to make a difference to where P decides to bring suit;
inequitable administration: will the result be unfair? (Walker)
Walker  Allowing Rule 3 to govern would result in longer life for claim  not fair
West v. Conrail  No SOL in fed labor relations so use NRLA  Rule 3 is on point
State vs. Federal Interests  Byrd says if there’s an overriding federal interest in applying fed law then use it!;
Gasperini: balance interests of state and fed
Szantay v. Beech  not really any state interests (uses Byrd)  federal practice
Day & Zimmerman  Have to apply TX COL rules under Klaxon  can’t just make things up (use Cambodia laws)
Gasperini  state standard in trial court, fed standard for appellate review of abuse of discretion  hybrid of both
interests
Prior  Swift v. Tyson (federal common law, creates forum shopping)
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SUBJECT MATTER JURISDICTION
Article III  Creates SCOTUS and authorizes them to hear certain types of claims; rest is up to Congress
§ 1331: Federal Question Jurisdiction  P’s well-pleaded claim must raise a question of fed law OR state law
claim that turns on an important question of fed law AND fed jurisdiction wouldn’t upset balance of power;
Satisfied 1) Explicitly; 2) Implicitly (Bell v. Hood); 3) state law with important fed question (Smith, Grable)
Mottley  Want lifetime of free RR passes because of accident; federal questions must come in P’s original claim
Bell v. Hood  4th and 5th amendment violations by FBI; P doesn’t have to show that claim is valid, just that it arises
under fed law BUT can’t be wholly insubstantial and frivolous
Smith v. Kansas City  does element turn on an important question of fed law?; Grable v. Darue  State law turns on
federal question AND it wouldn’t destroy balance of powers AND wouldn’t swamp courts
§ 1367: Supplemental Jurisdiction  1) Own reason for being in fed court under §1331/1332?; 2) Supplemental
claim arise from common nucleus of fact (Gibbs test)? 3) Fall under one of §1367(b) exceptions (14, 19, 20, 24)?
(only for Ds AND diversity; if diversity is met, then fine)
Owen Equipment v. Kroger  Carter Lake; Supplemental jurisdiction destroys diversity; also P chose where to sue,
don’t want way to circumvent diversity; D could bring impleader claim without destroying diversity because didn’t
choose to be there
UMW v. Gibbs  Common nucleus of operative fact
§ 1332: Diversity Jurisdiction  Amount in controversy > $75,000, can legal possibility that can exceed even if
don’t claim full amount, can add multiple claims from one P against one D, can’t add two Ps’ claims against one D
unless common and undivided interests; complete diversity necessary
St. Paul Mercury v. Red Cab  failure to recover jurisdictional amt is not grounds for dismissal  just have to claim
the amount
Aggregation of claims  Can aggregate for purposes of meeting amt in controversy in supplemental jurisdiction
as long as you are a P and one of the Ps meets the amount in his own; parties must be diverse, though (Allapattah)
Citizenship  can’t improperly or collusively join parties to get diversity (§ 1359, Kramer v. Caribbean Mills);
fraudulent joinder doctrine (no factual basis for claims; P has no intent to pursue claims but joined Ds to prevent
removal), Rose v. Giamatti
Domicile  mind and behind; intent to remain indefinitely, physically present in state OR place where have been
most recently physically present; place where born  Baker v. Keck (moves to OK with intention of staying)
Removal  Ds can remove based on SMJ or diversity; unrelated counterclaim shouldn’t be removed; rule of
unanimity says all Ds have to agree to removal
§ 1441: Actions Removable Generally  (a): could P have brought it there originally? (b) Diversity only ok if
none of Ds seeking removal is citizen of state in which action is brought; (c) remove whole case, including claims
that wouldn’t be in district court’s jurisdiction
Shamrock  P tries to remove, but can’t because § 1441(a) says removal by defendants NOT Ps
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TERRITORIAL JURISDICTION
Two Prong Test (that leads to more tests)  1) Authorized by government that created court? (look to
4(k)(1)(a)); 2) Constitutional?  Minimum contacts (Shoe), Reasonableness (Asahi)
Minimum contacts  number of contacts and degree of relatedness; one contact is enough if it directly relates to
suit
International Shoe  minimum contacts test  number of contacts and degree of relatedness between suit and
contacts with the state
McGee  Reaching out into state by mailing contract meets minimum contacts; purposeful availment
Hanson v. Denckla  unilateral move by other party is not enough to meet minimum contacts
Burnham v. Superior Court  being served while in state confers jurisdiction because 1) in-hand service is good
enough OR 2) there are minimum contacts because he’s been driving around CA for 3 days
Gray v. American Radiator  stream of commerce argument  knew it would get there
WWV  First minimum contacts, then reasonableness; Stream of commerce  D didn’t offer product with the
expectation that they would be purchased by consumers in forum state; foreseeability is not enough
Asahi  Even if minimum contacts met still have to look at REASONABLENESS  not met
BK  link between minimum contacts and reasonableness  strong showing of contacts means it’s more
reasonable for him to be sued there
DeJames  Can aggregate national contacts according to 5th amendment but still need statutory authority for service
of process
Kulko v. Superior Court  Need voluntary contacts
Omni Capital v. Rudolf Wolff  FCEA doesn’t provide authorization required under 4(k)(1)(a)
Rule 4: Summons  if it’s ok for a state court to hear case, then it’s ok for fed court to hear it; 4(k)(2) aggregate
claims with US for minimum contacts, still have to do constitutionality
In rem jurisdiction  still need minimum contacts (Shaffer)
Pennoyer  territorial jurisdiction dependent upon presence in state
Harris v. Balk  Debt travels with H
Schaffer v. Heitner  do the Shoe minimum contacts analysis for quasi in rem type 2
Mullane  jurisdiction by necessity, also goes through analysis of various parties’ interests
Rush v. Savchuck  just because IC is in state doesn’t mean R has minimum contacts; nothing to do with him
Full Faith and Credit Clause  Article IV, Section 1  states have to enforce each other’s valid judgments
Full Faith and Credit Statute  § 1738  Federal courts have to enforce state court judgments
Bases for general jurisdiction  Presence: Darrah (in VA); Grace (in plane); NO Wyman (fraudulently induced to
FL); Domicile: Milliken; Consent: Hess v. Pawloski (MA driving), Adam v. Saenger (P can’t object to jurisdiction
because brought suit there); Continuous and systematic contacts: Helicopteros, Perkins (“doing business”)
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VENUE
§ 1391: Venue generally  Diversity (where any D lives, substantial portion of events occurred); SMJ (where any
D lives, substantial portion of events occurred); where any D is subject to PJ or where they may be found if no
other district  escape hatch; can sue aliens; do a reasonableness test
Forum non conveniens  court won’t hear case because of serious inappropriateness of forum; today just for
foreign Ds
Gulf Oil  Do a reasonableness test
§ 1404: Change of Venue  when venue was proper to begin with; to any venue where the action might have
been brought (look to 1391 and 1441); use original venue’s laws; convenience of parties and in the interest of
justice; for Ps and Ds
Van Dusen  Have to apply state law from original venue
Norwood  §1404(a) transfer less stringent than dismissal, use more discretion
Hoffman v. Blaski  actions of D after suit was brought have no bearing on which forums are appropriate
Ferens v. John Deere  Have to apply old laws no matter who transfers; bad system, not bad statute
§ 1406: Cure or Waiver of Defects  transfer when venue was wrong; apply laws of new state; venue where it
could have been brought originally; for both Ps and Ds; works even when transferor court can’t obtain PJ even if
venue is proper
Goldlarr  transfer allowed no matter how wrong P’s choice was and whether or not court had PJ
Martin v. Stokes  transferee law applies
§ 1631: Venue transfer to cure want of jurisdiction  transfer to venue in which claim might have been brought
to cure want of jurisdiction
DUE PROCESS
Procedural due process  5th amendment for fed, 14th for states  notice and opportunity to e heard BEFORE
government impairs property or liberty interests; in-hand service always good; notice must be reasonably calculated
to actually notify them; try to notify like you really want to notify them
Service of Process  follow state law requirements in state; Rule 4 for fed; notice must be reasonably calculated
to notify parties and give them chance to voice objections; take steps if you know it’s failed
Mullane  notice must be reasonably calculated to notify parties as you would if you actually wanted to notify them
Mennonite v. Adams  even if certified mail failed, take more reasonable steps like personal service
Jones v. Flowers  tax office knew it wasn’t delivered, should have tried harder
Rule 4(k): Territorial Limits of Effective Service  tells you when and how you can serve people (within 100
miles of issuing court, within a judicial district)
SEIZURE
Notice before seizure  interim remedies (D might take it away, destroy it, etc.); safeguards (bonds, sanctions,
affidavits, specific allegations, judge); give D hearing
Balancing Test  Matthews v. Eldridge  1) What is nature of deprivation; 2) How big a risk is there that
government will screw it up? 3) What is government’s interest in doing it this way instead of having more
safeguards?
Sniadach v. Family Finance Corp.  Wages are special; provide notice and opportunity to be heard before garnishment
Fuents v. Shevin  procedure failed 14th amendment because didn’t give notice and opportunity to be heard
BEFORE seizure
Mitchell v. W.T. Grant  D can seek immediate dissolution of seizure, which is fine because includes constitutional
accommodation of conflicting interests of parties
North Georgia Finishing  No provision for an early hearing after seizure and need procedures to guard against
errors; bank account NOT an appliance; clerk NOT a judge
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CLAIM PRECLUSION
Second cause of action is the same if it refers to all the same grounds for relief as first suit
Counterclaim also subject to claim preclusion  not if brought in court where D couldn’t get full relief and D
couldn’t transfer
Elements  1) Valid and final judgment (no TJ and lack of DP means D can collaterally attack); 2) On the merits;
3) Same or related claim; 4) Same parties/privies
Remember!  Preclusion can still attach while appealing; if judgment vacated, preclusive effect gone
Williamson v. Columbia Gas  Claims are for same thing with different theory, PRECLUSION (JOINDER,
PEOPLE!)
Smith v. Kirkpatrick  Actions concern different theories with different elements of proof and evidence  not
preclusive
O’Brien v. City of Syracuse  same action  barred
Sutcliffe Storage v. US  Preclusion because same cause of action each time and could have brought them all together
Commercial Box Lumber v. Uniroyal  two different claims out of different actions = NO preclusion  COULD have
joined under 18(a) bud didn’t HAVE to
Harrington v. Vandalia-Butler  Second suit should have been pleaded in first claim; doesn’t matter that law changed
in middle because could have claimed it first time
Adjudication not on the merits  judgment on some question of law or fact not something insubstantial 
41(b) (outline)
Waterhouse v. Levine  only determination was that it was prematurely brought  not on merits, not preclusive
Keidatz v. Albany  judgment entered by demurrer is not enough to grant claim preclusion
Rinehart v. Locke  Same claims but with one missing allegation  barred because of claim preclusion, P should
have APPEALED
Counterclaim  Where you supposed to assert a compulsory counterclaim? If you didn’t, tough luck
Horne v. Woolever  Barred because H was supposed to bring car crash injuries claim under 13(a)
Menard v. Liteway  P should have brought payment counterclaim in first suit  preclusion; simply collateral attack
in disguise
Dindo v. Whitney  NOT claim preclusion because D had a bad lawyer and didn’t know he could assert the claim
Schwabe v. Chantilly  didn’t have to counterclaim when they asserted fraud; also don’t want to upset judgment #1
Estoppel  Equitable: acted inconsistently at an earlier time with what they’re trying to do in this lawsuit and
there was detrimental reliance on part of estopping party; Judicial: Took a prior inconsistent position in a prior
judicial proceeding (tension with alternative and inconsistent theories in Rule 8. Court might make you pick one)
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ISSUE PRECLUSION
Elements  1) Valid and final judgment; 2) Issue (fact/fact & law); actually litigated and actually determined; 3)
Necessary to judgment; 4) Same parties/privies EXCEPT non-mutual
Exceptions to Issue Preclusion  1) lots of alternative judgments each of which is sufficient to fulfill the
judgment; 2) burden switches from one suit to the other; 3) limited jurisdiction; 4) public interest; 5) different
procedures; 6) party couldn’t have appealed; 7) special posture; 8) strong policy against limiting exceptions
Little v. Blue Goose  Issue preclusion because judgment in suit 1 required finding BG was no negligent for them to
recover
Cambria v. Jeffrey  No issue preclusion because #1 was determined on J’s contributory negligence NOT C’s
negligence
Home Owners  relaxes Cambria but MA goes back to it
Halpern v. Schwartz  judgment resting on three alternative grounds is not preclusive as to any of the grounds (not
common)
Malloy v. Trombley  Can apply issue preclusion even if it is an alternative as long as it was fully litigated AND the
trial court decision was very careful
Jacobson v. Miller  execution wasn’t a fact actually litigated and determined in first suit, so J isn’t barred from
contesting execution in #2
Exceptions to rule  If facts on ground or governing law have changed in such a way that we’re no longer talking
about the same issue, then we should conclude that issue preclusion does not apply
Moser  Civil War dude, same facts  preclusion
Montana  Income tax, issues same  preclusion
Courts of limited jurisdiction  issue preclusion might apply if previous court didn’t have authority, but who
knows?
Inconsistent judgments  Last judgment in time is controlling (Donald v. J.J. Lumber, Berlitz v. Everest House)
Unforeseeability of future litigation  Court will not apply issue preclusion if application was unforeseeable at
time of initial action and unforeseeability may have affected how hard party litigated matter (Evergreens v. Nunan,
Spilker, Federated Department Stores)
Special Posture  If P is in special posture in litigation without full and fair opportunity to litigated case no issue
preclusion  think trustee
Privity  Shorthand for saying that someone has a relationship with someone who was a party in suit 1 so that
preclusion works; (Taylor v. Sturgell) can have privity if there are overlapping interests and a relationship if interests
are aligned and party looked out for absent party’s interests
Show-World Center v. Walsh  No privity between landlord and Show-World because no legal relationship and
different interest
Neenan v. Woodside Astoria Transportation  Not a party nor in privity  no issue preclusion
NON-MUTUAL ISSUE PRECLUSION
Defensive
Coke v. Pepsi  P deliberately selects forum and unsuccessfully presents proofs if bound by adverse judgment in
second suit with identical decided issues
Bernhard v. Bank of America  serving exact same interests and exact same set of people  issue preclusion
Blonder-Tongue Laboratories  Don’t want to have D present full defense on merits to something P already litigated
and lost
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Taylor v. Hawkinson  No issue preclusion because original verdicts were compromise verdicts
Offensive  1) Could person who wants to use it have joined in first suit? 2) Are there procedural opportunities
available in suit 2 that weren’t available in suit 1 that could lead to a different outcome? 3) Are there other reasons
why it would be unfair to D? (Parklane Hosiery)
Preclusion and the Government  Can’t use offensive non-mutual issue preclusion in suits where US is a party;
don’t want to appeal everything (no resources); more cases against US than anyone else; SCOTUS would have to
change cert process (US v. Mendoza)
ISSUES CHECKLIST
1. Personal Jurisdiction Issue?
2. Subject Matter Jurisdiction Issue?
a. Removal? Remand?
3. Venue Issue? Transfer?
4. Erie Doctrine Issue?
5. Pleadings Issue?
6. Motion Issue?
7. Discovery Issue?
8. Class Action?
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