Alyse Civ Pro Outline[1] PAGE-6

8/6/2019 Alyse Civ Pro Outline[1] PAGE-6

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CIVIL PROCEDURE

Page Spring 2008

I. Personal JurisdictionA. Introduction 1B. In Person Jurisdiction 1C. In Rem Jurisdiction 2D. Raising Claims of Personal Jurisdiction 2E. Consent: Substitute for Power 3F. Notice G. Self-Imposed Restraints on Judicial Power 3

II. Subject Matter JurisdictionA. Basic Principles 5B. Federal Question Jurisdiction 5C. Diversity Jurisdiction 5D. Supplemental Jurisdiction 6E. Removal 6

III. The Eerie ProblemA. Easy Eerie 7B. Eerie Erie 7

IV. Incentives to LitigateA. Substitutionary Remedies 8B. Specific Remedies 8C. Declaratory Relief 8D. Provisional Remedies 8

V. PleadingA. Common Law 9B. Initial Pleadings 9C. Responding to the Complaint 10D. Amendments 11

VI. DiscoveryA. Discovery Scope 12B. Limitations on Discovery 12C. Required Efforts by Parties 12D. Procedure and Methods 13E. Ensuring Compliance 14

VII.Resolution Before TrialA. Pre-Answer Motion 16B. Default Judgment and Dismissals 16C. Summary Judgment 16

VIII.TrialA. Judgment as a Matter of Law 18B. New Trial

IX. Respect for Judgments The One Shot RuleA. Res Judicata: Claim Preclusion 20B. Collateral Estoppel: Issue Preclusion 20

X. JoinderA. Joinder of Claims 21

B. Joinder of Parties 21

C. Misjoinder and Joinder of Nonparties 21

D. Intervention 22

E. Supplemental Jurisdiction 22

XI. MiscellaneousA. Appeals 23

B. Right to a Jury 23


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I.PERSONAL JURISDICTION

A. Introductiony Citizenship: person is a citizen of state where they are domiciled: residence plus intent to remain

o intent to remain: dont have definite intention to leave at some future pointo when filing as personal representative, use citizenship of decedent at time of death

y 2 Part Analysis(1) State Long Arm Statue how far the state is willing to go

(2) Constitution what is allowed under due process (nexus and notice)

y Pennoyer v. Neff: The Origins of Personal Jurisdictiono for state to assert personal jurisdiction, must be within the state or there must be waiver

once you step foot within the state for any reason, can be served and subject to jurisdictiono Types of Jurisdiction (at the time)

in personam adjucating person within the forum state in rem adjucating property in the forum state quasi in rem - property in forum state, attach to be able to adjucate person outside forum state

property must be attached at the time suit is filed; if done, constructive notice OKo to assert jurisdiction, must have power and notice

in personam: serving process to individual within the state establishes both quasi in rem: attaching establishes power, attachment and constructive notice give notice

o required to give full faith and credit to another states judgment unless that state did not have jurisdictionB. In Personam Jurisdiction: power over the ( himself

1. Two Types: the extent of(s contact with the forum state determines what type of jurisdiction they are subject to

a. General: ( can be sued n that forum on a claim that arose anywhere in the world

appropriate where ( has continuous and systematic or substantial ties with the forum state domicile in the form corporation is incorporated in the forum

if non-resident it served while temporarily in the state, the court will have general jurisdiction personal service of process sufficient, even if no minimum contacts [Burnham]

Rule 4(k)(2) Federal Claims Outside State Court Jurisdictions when claim arises under federal law, and ( does not have sufficient minimum contacts with

any individual state but jurisdiction is consistent with US Const/laws, serving a summons or

filing waiver establishes jurisdiction [sufficient contacts with US as whole, not with any state]y extending minimum contacts to national level in international realm

b. Specific: the( is being sued on a claim that arises from activities in the form

can be discreet and insular contact ie Car Accident2. Constitutional Test

a. Traditional Bases of in Personam Jurisdiction (fromPennoyer)

Presence: if( served with process in the forum, it gives the forum general personal jurisdiction Agent: service of process of(s agent in the forum creates general jurisdiction Domicile: ( is domiciled in the forum gives general jurisdiction Consent: ( consents to personal jurisdiction

b. New Standard: Minimum Contacts and Fair Play and Traditional Notions of Fair Play

International Shoe: to be subject to a states jurisdiction, must have certain minimum contacts suchthat maintenance of suit does not offend traditional notions of fair play and substantial justice

Two Part Assessment: (1) Contacts and (2) Fairness Factors:

(1) presence in the state

(2) systematic and continuous activities within the state

(3) enjoys the benefits and protections of state laws

(4) whether it is reasonable to expect the ( to defend itself in the state

Frequency v. RelatednessGives Rise to Claim Unrelated to Claim

Isolated and Casual II Usually III NO

Continuous and Systematic I YES IV ? (more uncertain)


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(1) Minimum Contacts

Sufficiency of Contacts Relatedness and Purposeful Availmenty Relatedness: claim must be related to contact with forum (gives rise to specific

jurisdiction)

y Purposeful Availment: ( must have caused the contact of the stateo Hanson: essential there be some act by which ( purposefully avails itself of

privilege of conducing activities within the forum, thus invoking its benefits

and protections

Foreseeability:y foreseeability alone is insufficient must see if(s conduct and connection with

forum state are such that a reasonable person should anticipate being hauled into

court there

o VW: buy Audi from VW in NY, crashed in OK cant bring productsliability suit in O when VW wasnt selling/manufacturing/servicing there

y Stream of Commerce: when a company puts product into the stream of commerce,when are minimum contacts satisfied? [Asahi 4-4 split]

o Brennan: (1) put into stream of commerce, (2) could reasonably anticipatethat would reach the forum state

o OConnor: (1) put into stream of commerce, (3) could reasonablyanticipate that would reach the forum state, (3) intent or purpose to serve

that state

Effects: you dont have to actually step in the forum if you can reasonably expect to have aneffect in the forum which would expose you to lawsuit [Jones defamation in newspaper]

(2) Reasonableness: courts look at

burden on the ( 4s interest and convenience interest of the forum state interstate judicial system in efficient resolution

Internet Cases look at the interactiveness of the website and the commercial nature of the exchange of

information that occurs and determine if analogous to a store front

y Factors: interactivity, traditional business contacts, sales generated, use by residents Palovich: provided the source code to get around a copyright program, court determined no

jurisdiction just because knew CA residents would be harmedy here: passive website, merely provided information

C. In Rem Jurisdiction1. Old Rule: attachment at the outset of litigation sufficient [Pennoyer]

2. New Rule: where there is property in the state that serves as a basis for jurisdiction but is unrelated to the cause of action,

there must be sufficient minimum contacts with the state to support jurisdiction over the ( [Shaffer]

o makes quasi in rem and in rem insufficiento physical presence of property within the state is relevant because provides evidence of minimum contacts

presumption that there is contact between the owner and the property property in forum ma still suffice to create general jurisdiction under minimum contacts assessment

D. Raising Claims of Personal Jurisdictiony Common Law: special appearance allows( to come into state solely for purpose of contesting jurisdiction

o if enter state and fail to make special appearance or raise other issues = consenty Rule 12 rules less strict than special appearance

(b) defense can be raised in the answer or in pre-trial motion, can combine with others

(h): waived if( doesnt raise objection in response to complaint

y if challenged, 4must prove personal jurisdiction by preponderance of the evidenceo some states allow interlocutory appeal, others and federal courts generally do not

y Attacks:o Direct: appear to the original action at the beginning of the suit and objecto Collateral: ignore original suit entirely and challenge jurisdiction in the court enforcing default judgment


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E. Consent: Substitute for Powery informed consenty unconscious consent

o ie: entering state to contest jurisdiction but fail to make special appearancey implied consent

o many states have statutes that by driving on highways, consent to have state official represent you in any actionresulting from collision in that state

o gives rise to specific jurisdictiony contractual consent

o forum selection clauses will generally be upheld (ie: cruise tickets), even if venue would not be proper under1391

o exceptions: bad faith motive, accession obtained by fraud/overreaching, no noticeF. Notice [Service of Process]

y Constitutional Requirement: reasonablenesso must be reasonably certain to inform those affectedo when not possible, has to be as good as any of the other alternatives available

notice by publication: unknown beneficiaries sufficient because no better alternative known beneficiaries insufficient because if address known, ways more likely to make aware

o sufficient notice depends upon the defendants, nature of litigation, and likelihood of reaching ie: mail likely insufficient in 1-on-1 litigation but will suffice in the situation where a lot of individuals

participating and their interests are aligned

y Rule 4: Summons(a) Contents: name court and parties, be directed at (, state name and address of4s atty, state time which must

appear and defend, notify that failure will result in default judgment, signed by clerk and have the courts seal

(c) Service: must be served within 120 days by someone over 18 years of age who is not a party

(d) Waiving Service: send form by mail requesting ( waive service include request for waiver and waiver itself

duty to avoid unnecessary costs; if no good reason to deny, will pay costs; allowed 60 days to answer(e) Service Procedures (Individual Within U.S.)

(1) follow state law for serving summons (state where the ( is being served) or

(2) deliver personally, leave copy at house with someone of suitable age, deliver to authorized agent

(k)(1) Federal Long Arm Statuteserving summons or filing waiver of service establishes jurisdiction over a defendant:

(A) who is subject to jurisdiction in state court in which the federal court is located

federal courts use the state long arm statute of state in which they are sitting(B) who is joined as an additional party (under 14 or 19) and lives within 100 miles

(C) when authorized by federal statute

(m) service of property must be made within 120 days of filing complaint or action may be dismissed

G. Self-Imposed Restraints on Judicial Power1. Long-Arm Statutes: state statutes defining the jurisdiction of a court [must look at before constitutional issue]

o some states grant jurisdiction up to the Constitutional limit while others enumerate jurisdiction based on certaintypes of contacts with a state

o Personal Jurisdiction Analysis 2 Prongs(1) 4 must show sufficient jurisdictional facts to bring ( within long-arm statute.

(2) If (1) shown, must show sufficient minimum contacts to comply with due process

o Florida (48.193): long arm statute more stringent than Constitutional limits(1) Specific Jurisdiction if action arising from: (a) business, (b) committed tort in FL, (f)

tortuous act outside state but engaged in interstate activity, (c) property in state

(2) General Jurisdiction: engaged in substantial and not isolated activity in state

o Filing claim subjects 4 to jurisdiction of the court if the ( decides to counter-claim in same proceeding. FL: current (s prior decision to bring suit in state does not act indefinitely as a sword hanging over

their head if they later challenge jurisdiction in separate suit.

o Rule 4(k)(1)(A): federal courts apply the long arm statutes of state they are sitting in


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2. Venue

o 1331: gives jurisdiction to all district courts (at least for federal question cases)o 1391: Venue

(a) A civil action where jurisdiction founded only on diversity may be brought in

(1) if all (s live in same state, a district in which any ( resides (domicile test)

(2) district where substantial part of the events/ omissions giving rise to claim occurred, or a

substantial part of property that is the subject of action is situated

(3) if neither (1) or (2) an option: district in which any ( is subject to personal jurisdiction at the

time action is commenced

(b) A civil action where jurisdiction is not founded solely on diversity may be brought in(1) if all (s live in same state, a district in which any ( resides (domicile test)

(2) district where substantial part of the events/ omissions giving rise to claim occurred, or a

substantial part of property that is the subject of action is situated

(3) if neither (1) or (2) an option: district in which any ( is may be found at the time action is

commenced (definitely service in district, though less may suffice)

(c)Corporate ( is resident of any state in which subject to personal jurisdiction; if state has more than 1

district, pretend each is separate state and see if sufficient min. contacts

Note; can be found wherever they conduct business.(d) An alien may be sued in any district. (must be subject to personal jurisdiction).

Note: alien cannot bring suit in any jurisdiction3. Transfer: Change of Venue

o General Rules: used to go from one court to another, no dismissal required available to both parties applies only to federal courts

o 1404: Change of Venue for convenience of parties and in the interest of justice, can transfer to any districtwhere action would have been proper originally

o 1406: Cure or Waiver of Defect if improper venue: dismiss or, in interest of justice, transfer to proper venue if no timely and sufficient objection, then the court will have jurisdiction

o 1631: Transfer to Cure Want of Jurisdiction if action or appeal filed in improper court, the court shall, ifproper in interest of justice, transfer to court where should have been brought with the date that it was originally

(improperly filed) used for timing purposes

4. Forum Non Conveniens:o General Rules

used to go from one court system to another; dismissal & refiling not listed under 12(b) not waived if not immediately raised

only available to defendants applies to state and federal cases

o Consider a Number of Factors (less discretion to court, more to plaintiff not if alien) Private Factors:

relative ease of access to sources of proof availability and costs of obtaining witnesses possibility of view of premises

Public Factors: court congestion local interest in having local trials at home interest in having diversity case in forum that is aware of the laws avoidance of unnecessary problems in conflict of laws or in the application of foreign laws unfairness of burdening citizens of unrelated forum with jury duty


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II.SUBJECT MATTERJURISDICTION OF THE FEDERAL COURTS

A. Basic Principlesy Citizenship: person is a citizen of state where they are domiciled: residence plus intent to remain

o intent to remain: dont have definite intention to leave at some future pointo when filing as personal representative, use citizenship of decedent at time of death

y Basis for Federal Subject Matter Jurisdiction: Art. III, 2y if court is found to lack subject matter jurisdiction, whatever decision may have been rendered is void

B. Federal Question Jurisdiction:y 1331: original jurisdiction for actions arising under the Constitution, laws or treaties of USy issue can be raised by the defendant or court itself (under 12(h) not waived if( fails to object)

o also, not basis for re-trial if adjucated and then ( wants to raise as defense ct. deemed to have conducted theinquiry

y Tests:o Constitutional Test: is there any federal issue in the case? (NOT ADOPTED)

falls within federal jurisdiction so long as raised in claim/defenseo Well Pleaded Complaint Rule: the federal question must be properly pleaded in the original complaint

(anticipating the federal question will be raised in the defense insufficient)

o Holmes: suit arises under law which creates cause of action (must provide substantive law) usually provides the same result as Mottley, but not always (ie: breach of duty to shareholders breach

is state action, but the duty arises under federal law) if meets Holmes test, generally satisfies well-pleaded complaint rule

y Dismissal 2 Optionso Rule 12(b)(1): no jurisdiction because no claim arising under federal lawo Rule 12(b)(6): no federal claim

if any basis for federal claim, courts should examine as 12(b)(6) motion to dismiss substantive claim will bar bringing that federal claim in state court in the future

C. Diversity Jurisdiction: complete diversity is required at the time the suit is brought.y 1332: Diversity of Citizenship

(a) district courts have original jurisdiction if amount in controversy > $75,000 and between

(1) citizens of a different state

(2) citizens of a state and citizens or subjects of a foreign state(3) citizens of different states and citizens or subjects of a foreign state are addtl. parties

(4) foreign state as 4 and citizens of a state of different state

- Alien admitted to US for permanent residence is citizen of the state in which domiciled.

If lawsuit is between aliens, complete diversity is destroyed, even if one alien as permanent residentimmigration status

(c)(1) Corporate citizenship

citizen of any state in which incorporated citizen in the state in which it has its principal place of business

nerve center test : where the managers meet day to day to run the business corporate activities test: where managers activities take place but also take into account bulk

of where corporations business takes place and production

total activities test: consider variety of factorsy $75,000 Amount in Controversy

o allegations of pleading are pretty much controlling, must appear to alegal certainty that claim is really for lessto justify dismissal

1332(b): failure to recover the $75,000 does not show bad faith or oust jurisdiction, however doespresent the possibility of a penalty

o Aggregation single 4 asserts 2 or more claims against single (: can aggregate single 4 asserts against multiple (s: cant aggregate (must meet individually) single (, each 4 asserts claim below $75,000: cant aggregate single (, at least 1 4 asserts claim over $75,000: can aggregate (see Supp. Jurisd.)

y Grupo: must have complete jurisdiction at the time of filing adding/removing or movie during trial insufficient


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D. Supplemental Jurisdiction: 1367(a) Federal and Diversity Cases: when have claim that is within federal jurisdiction, brings with it all other claims that are

so related that they form part of same case or controversy under Art. III - includes claims involving joinder or

intervention of additional parties

o if federal question is original basis for jurisdiction, doesnt matter if there is lack of diversityo 2 Part Test:

(1) do the claims derive from a common nucleus of operative fact?

(2) do the interests of judicial economy, convenience, and fairness support?

(b) Diversity Cases: even if court meets supplemental jurisdiction under (a), if4s claim under Rule 14 (3rd Party Practice),

19 (Required Joinder), 20 (Permissive Joinder) or 24 (Intervention), then no jurisdiction when exercising would beinconsistent with the jurisdictional requirement of 1332.

o When well pleaded complaint contains at least one claim that satisfies the amount-in-controversy requirement,and there are no other jurisdictional defects, the district court has original jurisdiction over that claim.

(c) Discretion: courts may decline if (1) novel or complex issue of state law, (2) state claim substantially predominates, (3)

district court dismissed all federal claims, (4) other compelling reasons

E. Removal: moving from state court to federal court (entire suit gets moved, not just claims giving rise to removal supp. jurisd.)y 1441: Removal in General

(a) any can brought in state court can be removed to federal if the action could have been filed in

the federal court to begin with (federal court must have original jurisdiction)

only once choice for court: the federal district court for the district and division embracing the placewhere such action is pending in the state court

(b) Diversity Cases: removable only if none of the (s are citizens of state in which 4 brought action originally

(f) federal court not precluded from hearing case just because state court it was removed form lacked jurisdiction

y 1446: Procedure for Removal(a) where case originally filed in state court, ( must provide short and plain statement of grounds

for removal plus copy of all process, pleadings, and orders served upon such ((s)

signed pursuant to Rule 11 open up possibility for sanctions(b) 30 days to file from the date of initial complaint

if the initial complaint not removable, ( has 30 days from date that 4 amends Diversity Cases: cannot remove amore than 1 year after the action commenced

y 1447: Procedure After Removal (Challenging Removal)(c) 4 has 30 days to make remand motion or it is waived

exception: remand on the basis of lack of SMJ may be made at any time before final judgment


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III.THE ERIE DOCTRINE

A. Easy Eriey Erie: In diversity cases, federal courts must apply the substantive law that would be applied by the courts of the state in

which they sit (both the statutory and decisional law) because they are equal expressions of the states sovereign.

y Erie Guess: when there is no law in the state on the issue, the federal court must make an educated guess about that thestates highest court would say

B. Eerie Eriey 2702: Federal Rules Enabling Act

(a): Supreme Court has power to proscribe general rules of practice and procedure

(b): shall not abridge, enlarge, or modify any substantive right

incidental effects not enough to invalidate, must have a serious direct effecty Hanna: Announced 2 Part test to apply when state and federal procedures apparently conflict:

Is there a federal rule (adopted pursuant to REA 28 U.S.C. 2702) or procedural statute?

Yes: No

Is the federal rule or statute broad (Court Practice?)

enough to cover the case?

Yes: NoIs rule or statute valid?

(Statute: Const? Rule: REA?)

Yes No

Apply Federal Is the state procedure outcome determinative?

(would applying it affect4s choice of forum?)

No: Yes:Does federal interest

outweigh state?

Apply Federal

Yes No

Apply Federal Apply State

|_____________________________________________||____________________________________________|

Hanna Part II Not an Erie Question at All Hanna Part I Erie Applied in These Cases


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IV.INCENTIVES TO LITIGATE

A. Substitutionary Remedies1. Compensatory Damages:4 must allege and prove any damages

o Economic Harmo Non-Economic Harm (ie pain and suffering)

2. Liquidated/Statutory Damages: way of avoiding damage estimates at trial; decision is made upfront

3. Punitive Damages: nominally named at punishment with a goal of deterrence; 3 Factors considered:

(1) degree of reprehensibility of(s conduct

(2) disparity between actual or potential harm suffered and the punitive damage award in practice, few awards exceeding single digit ratio will satisfy due process

(3) difference between punitive damage award and civil penalties for comparable cases

B. Specific Damages:y the determination whether to issue a specific remedy involves a balancing of the interest of the parties who might be

affected by the courts decision

y the hardship on the 4 if relief is denied as opposed to the hardship on the ( if it is grantedo also take into account the difficult in calculating the harm (speculations)

C. Declaratory Relief:y a potential ( asks the court to find that they are in the right prematurely before 4 has brought suity Benefit: allows the person seeking the judgment to choose the place, forum, and time of suit

D. Provisional Remedies: Preliminary Injunctions and Temporary Restraining Ordersy Court requires that each of the following is shown:

o 4 will suffer irreparable injury if injunctive relief is not grantedo 4 will probably prevail on the merits

if harm sufficiently serious only necessary that there be a fair chance 4 will wino in balancing the equities, ( will not be harmed more than 4 helped by the injunctiono granting is in the public interest

y FRCP 65: Injunctions and Restraining Orders(a): Preliminary Injunctions: requires notice and adversary process

(b): Temporary Restraining Order: issued without notice because defeats purpose

this is for extreme forms of irreparable harm adversary process would take too long

generally limited to a maximum of 10 days


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V.PLEADING

A. Common Law: goal of pleading was to produce only one issue4 (

Declaration Demurrer (issue of law) //

Plea

- Dilarory

- Preemptroy

- Traverse (denial becomes new issue) //

Demurrer // - Confession and Avoidance (new fact)????

- Traverse/ /

- Confession and Avoidance Demurrer //

Rejoinder

- Traverse //

Demurrer// - Confession and Avoidance

Surjoinder

- Traverse //

- Confession and Avoidance ....

B. Initial Pleadings1. General Rule: Notice Pleading

o 2 basic objectives of the pleadings: (1) give notice to parties and (2) screen out cases that dont belong in courto Rule 7: federal rules do not require that the parties plead until there is only 1 issue (different from Eng. C/L)o Rule 8(a) Claim for Relief: requires only

(1) short and plain statement on grounds for jurisdiction

(2) a short and plain statement of claim showing that 4 entitled to relief

(3) a demand for the relief sought

o ie: Form 9: only requires that allege negligence, no need to say how negligento Haddle: in addition to stating parallel conduct, must state some fact to show or infer agreement

Page: may have raised requirement for conspiracy theory high costs of discovery, special acto Haddle: court should not dismiss a complaint for failure to state a claim unless it is clear that the 4 can prove

no set of facts in support of his claim which would entitle him to relief

2.Exceptions: Specificity in Pleadingso Rule 9: Pleading Special Matters

(b): Fraud or Mistake: party alleging must state with particularity the circumstances constituting

fraud or mistake

Conditions of Mind: malice, intent, knowledge and other conditions of mind may be alleged generally

(c) Conditions Precedent (and subsequent):

claiming occurred or performed: suffices to allege generally denying occurrence or performance: must be done with particularity

(g): items of special damages must be specifically stated

o BellAtlantic: in notice pleading for conspiracy, must state enough facts to allow for plausible inference the Court has allowed conclusory allegations of negligence but not allowing for conspiracies

o Specificity: requires time, place, and nature [Stradford insufficient to just claim false, must claim how]3. Consistency in Pleading:

o CL: plead had to worry about the consistency of his complainto Rule 8(d): Alternative Statements and Inconsistency

(2): party may set forth 2 or more statements of a claim or defense alternatively or hypothetically

(3): party may state as many separate claims or defenses that he has regardless of consistency

o Rule 10(b): Form of Pleadings must stated claims or defenses in numbered paragraphs, limited as far as practicable to single set of

circumstances [8(d) complaints all arise from same account or occurrence same set of circumstances]

only circumstances when required to use separate counts is separate transaction and promotes clarity4. Rule 11: Signing Pleadings, Motions, &Other Papers; Representations to the Court; Sanctions [excludes discovery]

(a): must be signed by attorney of record or the party (if they are representing themself)


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(b): by signing, attest that conducted inquiry reasonable under the circumstances and that:

(1) not being presented for improper purposes

(2) claims, defenses are warranted by existing law or are non-frivolous arguments for extending

(3) factual contention have evidentiary support or likely will after further investigation/discovery

(4) denials of fact are warranted in same manner as above

(c): Sanctions

(1) If violate rule 11(b), the court may impose sanctions on any attorney, law firm, or party that violated the

rule or is responsible for the violation

(2) Safe Harbor Provision: party against whom sanctions are sought must be given 21 days to cure

(4) must be limited to what suffices to deter repetition of the conduct or comparable conduct by otherssimilarly situated [Bridges: not a fee shifting statute]

(5) court must not impose monetary sanction against a represented party for violating 11(b)(2) cant be

held responsible for lawyers failure to conduct a reasonable investigation

5. Allocating the Elements:

o Burden of Production: required to produce evidence to support the pleading; otherwise case will be dismissedo Burden of Persuasion: if both parties have admitted evidence, and the jury finds equally credible, whoever had

burden of persuasion loses

o Determining Who Bears Burden: generally, the party who is required to plead the element will be required to prove it courts will look at: alleging something out of the ordinary; because of nature, one party better situated

to prove; stipulated by law; look at more probable state of affairs

C. Responding to the Complaint:

Common Law Responses Modern Counterparts How Can Defense Be Raised

Demurrer Failure to State a Claim 12(b) Pre-Answer Motion

Answer 8(a)

Diliatory Pleas Lack of Jurisdiction, Venue, etc. 12(b) Pre-Answer Motion

Answer 8(a)

Traverse Denial Answer 8(b)

Confession and Avoidance Affirmative Defense Answer 8(c)

1. Pre-Answer Motions:(12)(b) motions to dismiss are alternatives to answering the complainto Rule 12(b): every defense must be asserted in responsive pleading; certain defenses may be asserted by motion

(1) lack of subject matter jurisdiction

(2) lack of personal jurisdiction

(3) improper venue

(4) insufficient process

(5) insufficient service of process

(6) failure to state a claim upon which relief can be granted

(7) failure to join a party under Rule 19

o 12(g): Joining Motions(1): a motion under Rule 12 may be joined with any other Rule 12 motion

federal courts: do not have to make special appearance challenge personal jurisdiction(2): if make one Rule 12 motion, cannot make another such motion if that defense or objection was

available at the time of the first

exception: under 12(h)(2) or 12(h)(3)o 12(h): Waiving and Preserving Certain Defenses

(1) defenses 12(b)(2)-(5) [excludes SMJ, failure to state a claim, and failure to join] are waived if

omitted from a 12(g) motion fail to either (a) make a Rule 12 motion or (b)include in a responsive pleading or Rule 15

amendment allowed as a matter of course

(2) SMJ, failure to state claim, and failure to join can be raised: (a) motion, (b) responsive pleading, (c) trial

(3) SMJ: if at any time court determines that lacking, must dismiss the action

2. Answer

o Rule 12(a): ( required to serve an answer to the complaint within 20 days of receiving it


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12(a)(4): if 12(b) motion has been made, ( has 10 days from decision to serve responsive pleadingo Rule 8(b): Denials

(1): in responding to pleading, party must state its defenses and admit or deny the allegations asserted

(3): General and Specific Denials

general denial: party intends to deny in good faith all allegations (including jurisdiction) specific denial: party that does not intend to deny all allegations must either specifically deny

designated allegations or generally deny all except those specifically admitted

(6): Effect of Failing to Deny

responsive pleading required: considered admitted no responsive pleading required: considered denied or avoided

o Rule (8)(c): Affirmative Defenses(1) in answer, party must affirmatively state any avoidance or affirmative defense

to have an affirmative defense, need both confession and avoidance if simply denying other partys claim, entitled to prove any fact to show no legal existence

(2) Mistaken Designation: if party mistakenly designates affirmative defense as counterclaim or vice versa

the court must, if just so requires, treat the pleading as though it were correctly designated

if not included in responsive pleading waived3. Rule 13: Crossclaims and Counterclaims

D. Rule 15: Amendments

(a) Amendments Before Trial

(1) As a Matter of Course: party may amend pleadingonce as a matter of course (A) before being servedwith a responsive pleading or (B) within 20 days of serving pleading if responsive pleading not allowed

(2) All Others: allowed with opposing partys consent or courts leave freely given when justice so requires

to overcome this presumption, need evidence of bad faith, prejudice, or undue delay(3) Time to Respond: longer of the time left on original pleading and 10 days after served with amended pleaded

(c) Relation Back of Amendments

(1)(B) New Claim: relates back if arises from the same conduct, transaction, or occurrence (same nucleus of facts)

has been given all the protection that the SOL is designed to afford appropriate if factual situation upon which action depends remains the same and has been brought to

the partys attention in original complaint

(C): New Party: 3 Requirements

arises from the same conduct, transaction or occurrence

had notice, within the period for delivery of original complaint, that the original complaint was filed within 120 days after the complaint was filed [Rule 4(m)]

knew or should have known that, but for mistake as to identity of proper party, would have beenagainst them


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VI.DISCOVERY

A. 26(b)(1): Discovery Scopey allowed, without court approval, to seek discovery of any matter, not privileged, that relevant to claim or defensey if party shows good cause, court may grant even broader discovery of any matter relevant to the subject mattery information need not be admissible to be discoverable, just reasonably calculated to lead to admissible evidence

B. Limitations on Discovery1. Rule 26(b)(1): privileged material is not discoverable

2. Rule 26(b)(2): limitations on frequency and extent (will limit if unreasonably cumulative or duplicative; obtainable fromanother source that is more convenient, less burdensome, or less expensive; or the burden outweighs the benefit

o court may order the party requesting to bear part of the costs of compliance3. Rule 26(b)(3): Work Product (Hickman: items made in anticipation undiscoverable unless sufficient showing of need)

a. documents made in anticipation of litigation that can be reasonably attained by other means: discovery barred

b. documents made in anticipation of litigation, requesting party cannot reasonably attain by other means without

substantial hardship, and the requesting party demonstrates substantial need: court may order productions

c. opposing counsels thought process in preparing case (ie: opinion WP): discovery barred (extends Hickman)

4. Rule 26(b)(5):Claiming Privilege or Protecting WPD

(A) information withheld: must expressly make the claim and describe the nature

(B) information produced: must notify the party produced to as well as basis

notified party must immediately return, sequester, or destroy; cant use or disclose5. Rule 26(c): Protective Orders:court may, for good cause, issue to protect party from annoyance, embarrassment,

oppression, or undue burden

o if denied, the court, may on just terms, order discoveryo Court will allow discovery of private information but may limit use of discovery to that litigation and bar

disclosure to 3rd parties (Kmart: needed to discovery sexual history with employee to show that encouraged that

activity)

6. Expert Information: testifying to an opinion based on specified knowledge court conducts flexible inquiry

I. All Experts:

26(b)(1)

II. Experts Who May Testify III. Retained Experts:

26(a)(1)(A) A. Testifying B. Consulting

26(a)(2)(A) 26(a)(2)B) 26(b)(4)(B)26(b)(1)(A) 26(b)(4)(B) (in exceptional cases)

o Rule 26(a): Required Disclosures(1)(A): must give the name of any person with information and the subject matter

(2): Disclosure of Expert Testimony

(A): disclose identity of any expert that may be used at trial to present evidence (essentially overlaps)

(B): 26(2)(A) disclosure must be accompanied by written report if retained to provide expert testimony

o Rule 26(b): Scope and Limits(1)(A): scope includes any persons who know of relevant, nonpriveleged matter thus includes experts

(4)(A): testifying experts must submit to deposition

(B): consulting experts protected unless 35(b) examiners report or WPD-like exceptional circumstances

C. Required Efforts by Parties: [discovery is conducted by the parties court merely there to assist and resolve disputes]o Rules assume that parties will use the tools available to them for discovery before going to the court

y Rule 26(f): Planning for Discoveryo parties must confer as soon as possible, and at least 21 days prior to scheduling conference and devise plan

y Rule 16(b): Scheduling: limit time to join other parties, amend the pleadings, complete discovery, file motions


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y Rule 26(a)(1)(C): Timing and Sequence for Initial Disclosureso Timing: within 14 days of 26(f) conference unless another time set by stipulation or court ordero Sequence: may be used in any order

( Served ( Appears 26(f) Conference Disclosure 16(b) Conference

14 Days 26(a)(1)

21 Days 26(f)

90 Days 16(b)

120 Days 16(b)

D. Procedures and Methods1. Rule 26(a): Required Disclosures

(1) Initial: without being asked, must provide name address and telephone of witnesses and copies of documents

that intend to use to prove claim or defense within 10 days (excludes damaging info not presenting at trial)

exempt if solely for impeachment: conflicting testimony challenging reputation or truthfulness if there is any substantive value for your case, then it is not solely for impeachment

(2) Expert Testimony

(3) Pretrial: what the party is actually going to use in the case [unless it is to be use solely for impeachment]

(4) Methods

2.Interrogatories and Depositions

o Difference: Deposition: not required to do any work, just answer the questions Interrogatories: may require party being questioned to conduct a reasonable investigation

can only give interrogatories to partieso Rule 30: Deposition by Oral Examination the taking of testimony from witness (nonparty) under oath

(b)(6) Corporations: may name an organization (company, partnership, etc) who must then designate one

or more officers to testify on its behalf

(c) Examination and Cross Examination

conducted as they would be at trial Objections: noted in the record by the question must still be answered (reviewed later)

y Exception: necessary to preserve privilege(d) Duration: limited to 1, 7 hour day

o Rule 33: Interrogatories to Parties(a)(1): Number: party may serve any other party no more than 25 interrogatories

(2): Scope: any matter that may be required to under 26(b) [privileged and relevant ]

not objectionable merely because asks an opinion or contention that relates to fact or theapplication of law to fact

(b) Answers and Objections

(1) must be answered by (a) party to whom directed or (b) if organization, any officer or agent

(2) must serve answers and objections within 30 days of being served the interrogatory

y cannot simply not answer if they serve with more than 25(d) Option to Produce Business Records: if answer to interrogatory involves analyzing business records,

and the burden of deriving/ascertaining answer is substantially the same for both parties, responder may

(1) may specify the records that must be reviewed in sufficient detail so that the other party could

locate and identify them as easily as the responding party and

(2) give interrogating part reasonable opportunity to examine and audit the records

3. Examining Things and People

o Rule 26(a)(1)(A)(ii): Required Initial Disclosure: must produce a copy, or description, of all documents inpossession that party may use to support its claims or defenses, unless the use would be solely for impeachment

o Rule 34: Producing Documents, Electronically Stored Information and Tangible Things(b)(1): Contents of Request:

must describe with reasonable particularity each item or category of item to be requested must specify a reasonable time, place, and manner for inspection may specify the form(s) in which electronically stored information should be produced

o Rule 35: Physical and Mental Examinations(a) Order for Examination

(1) Court may order when physical or mental condition is in controversy


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(2) The Order

(A) must be made by motion requires good cause and notice to all parties

(B) must specify the time, place, manner, conditions and scope of examination

o this is determined by the initial complaint/answer whats at issue?(b) Examiners Report

(1) Request by the Party or Person Examined: the moving party must deliver copy upon request

(2) Request by the Moving Party: may request and is entitled to receive, from the party against

whom examination was made, like reports of earlier or later examinations of same condition

(3) Waiver of Privilege: by requesting and obtaining, the party examined waives privilege in that

action or any other action involving the same controversy about that condition4. Rule 36: Requests for Admission

(a)(5) Objections: grounds must be stated cant object solely on ground that presents genuine issue for trial

(b) Effect of Admission: once admitted, it is conclusively established {unless court allows withdraw/amendment)

only applies for purposes of that case, cannot be deemed admission at a later trialE. Ensuring Compliance

y Rule 11: specifically inapplicable to discoveryy Rule 26(g) Signing Disclosures and Discovery Requests, Responses and Objections

(1) must be signed by attorney or party (if unrepresented) attests to reasonable investigation under circumstances

(A) Disclosures: attesting complete and correct

(B) Discovery Request, Response or Objection:

consistent with the Rules and warranted by existing law (or nonfrivolous reason for...) not interposed for improper purpose neither unreasonable nor unduly burdensome or expensive

(2) Failure to Sign other parties have no duty to act

(3) Sanction for Improper Certification: court, on motion or on its own, must impose appropriate sanction on the

signor, the party on whose behalf the signor was acting, or both

y Rule 37: Failure to Make Disclosure or to Cooperate in Discovery and Sanctions.(a) Motions for an Order Compelling Disclosure or Discovery

(1) in making motion, attesting that has made good faith effort to work it out between the parties

(3) Grounds for Motions to Compel

failure to answer deposition questions or interrogatories grounds for motion to compel [33](5) Who Pays? objecting party has reasonable grounds, moving party pays; if not, falls on objecting party

(b) Failure to Comply with a Court Order(1) Deposition: failure may be treated as contempt of court

(2)(A) Not Obeying Discovery Order: court may issue further just orders [see Rule for list]

(B) Not Producing Person for Examination (under 35): court may issue the orders available for failure to

obey discovery order (except contempt) unless disobedient party shows cannot produce

(C) Payment of Expenses: in either of above cases, court must order disobedient party/attorney to pay

(c) Failure to Disclose, to Supplement and Earlier Response, or To Admit

(1) Failure to Disclose or Supplement [Rule 26: Required/Supplement Disclosures of Docs & Witnesses]

if fail to produce information or identify witness as required by 26(a) or 26(e) cannot usethem on a motion, at hearing, or at trial unless failure was substantially justified or is harmless

also: the court on motion and after hearing may:y order payment of the reasonable expenses caused by the failurey may inform jury of the partys failurey may impose appropriate sanctions.

(2) Failure to Admit [Rule 36: Requests for Admissions] if fail to admit and the requesting party later

proves a document to be genuine or matter true:

requesting party may move to have covered the reasonable expenses incurred in making thatproof

Court must order unless: (i) request was objectionable under 36(a); (ii) admission was of nosubstantial importance; (iii) party failing to admit had reasonable ground to believe they might

prevail other good cause for failure to admit

(d) Failure to Attend Deposition/Serve Answers to Interrogatories/Respond to Requests for Insp [Rls 30-34]

(1)(A) Sanctions Appropriate When:

party fails, after being served with notice, to appear to deposition


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party ignores properly served interrogatories or requests for inspection(2) failure is not excused on the ground that the discovery sought was objectionable unless the party has

pending action for a protective order [under 26(c)]


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VII.RESOLUTION BEFORE TRIAL

A. Pre-Answer Motion: Rule 12(b)(6) Dismissal for Failure to State a Claimy allows judge to enter judgment for( on the grounds that 4s complaint does not state a legal claim for relief

B. Default Judgments and Dismissals1. FL: requires some sort of settlement or negotiation by the parties before taking the case to trial

2. Rule 55: Default and Default Judgments

(a) Entering a Default: clerk must enter partys default if the party against whom judgment for affirmative relief is

sought has failed to plead or ortherwise defend and that failure is shown(b) Entering a Default Judgment:

(1) By the Clerk: if4s claim is for a sum certain or a sum that can be made certain, clerk must enter

(2) By the Court: all other cases, must apply to the court

(c) Setting Aside

Default: court may set aside for good cause Default Judgment: dictated by 60(b)

3. Rule 60(b):Setting Aside Default Judgment: on motion, and just terms, the court may relieve party from final

judgment, order, or proceeding for enumerated reasons plus provision for any other reason that justifies relief

o Peralta:( did not show up for trial (invalid service of process), default judgment entered;4 contends wouldhave lost anyways but the Court reverses nonetheless

where a person has been deprived of property in a manner contrary to due process, it is no answer tosay that in his particular case, due process would have lef to the same result because he had noadequate defense upon the merits

4. Rule 41: Dismissal of Actions

(a) Voluntary Dismissal

(1) By Plaintiff

(A) Without Court Order: permitted if filed (i) before ( serves answer or makes motion for SJ or

(ii) all parties agree to dismissal

(B) Effect: presumption is dismissal without prejudice (unless notice/stipulation says otherwise)

y if4 previously dismissed any action based on, or including, the same claim, a noticeof dismissal operated as an adjucation on the merits

(2) By Court Order: unless allowed under (a), action may be dismissed at 4s request only by court order

if( has counterclaimed before being served, action may only be dismissed over(s objectionif the counterclaim can remain pending for independent adjucation

unless otherwise stated, dismissed without prejudice(b) Involuntary Dismissal: if4 fails to prosecute or comply with court rules/order, ( may move to dismiss claim

involuntary dismissal, unless it states other wise, is an adjucation on the merits any other dismissal not under this rule except for lack of jurisdiction, im

(d) Costs of Previously Dismissed Action: if4 who previously dismissed in any court files an action based on the

same claim against the same (, the court may order the 4 to pay all or part of the costs of the previous action

and may stay the proceedings until the 4 has complied

5. Effects of Dismissals:

o Voluntary Without Court Order: presumption is dismissal without prejudice

if claim previously dismissed in any court, adjucation on the merits By Court Order: dismissed without prejudice unless stated otherwise

o Involuntary: adjucation on the merits unless stated otherwiseo Lack of Jurisdiction: dismissal without prejudiceo Improper Venue: dismissal without prejudiceo Failure to Join Under Rule 19: dismissal without prejudiceo Anything Else: adjucation on the merits unless stated otherwise

C. Rule 56: Summary Judgment(a) By a Claiming Party: may move for summary judgment, with or without supporting affidavits any time after

(1) 20 ds have passed from commencement of the action

(2) the opposing party serves a motion for summary judgment

(b) By a Defending Party: may move at any time for summary judgment on all or part of the claim, with or without


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supporting affidavits

o Celotex: if4 has the burden of production, ( can win on SJ simply by pointing out gaps in 4s proofo Bias (unusual case): when ( asserted an affirmative defense to show not insurable, the Court shifted the burden

to 4 to prove that he was or would lose on SJ

the Court determined that uncontroverted evidence because witness had not stake in the case(c) Serving the Motion; Proceedings

o must be served at least 10 days before the day set for hearingo opposing party may swerve opposing affidavits before the hearing day

y Difference from Rule 12(b)(6) Failure to State a Claimo 12(b)(6): only tests whether the complaint itself states a legally sufficient claim

dismissal in these cases is a drastic measure as the 4will never have the opportunity to present hiscase to jury to to gather evidence through the discovery process

o 56: weeds out the cases in which a proper cause of action has been alleged but the 4 cannot prove his claim


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VIII. TRIAL

A. Judgment as a Matter of Law1. Rule 50: Motion for Judgment as a Matter of Law

(a) Directed Verdicts (During Trial)

against 4: ( only needs to show that there is an element of the case where the jury could not find for 4 against (: 4 must show that the jury could not find in (s favor on any of the claims/issues Timing:

4 presents case - ( may move for judgment as a matter of law If denied, ( present case either( or4 may move for judgment as a matter of law

(b) JNOV (After Trial) - must have made a motion for directed verdict under 50(a) and must be filed within 10

days of entry of judgment on the jurys verdict

3 options(1) allow the judgment on the verdict

(2) order a new trial

(3) direct the entry of judgment as a matter of law

o Reid: if the evidence is such that there are equally plausible inferences, the party who bears the burden ofpersuasion on that issue should lose on a motion for judgment as a matter of law

if party puts forth no evidence, they have failed their burden of production and should loseo Celotex: moving party does not need their own evidence, simply needs to point opponents lack of evidence

2. States of the Evidence Giving Rise To Motion for Directed Verdict

(1) no evidence from which the jury could infer a fact essential to the non-moving partys case(2) evidence is so overwhelmingly weak that the court should not permit a jury to find the fact

typically, where there is conflicting testimony, the jury will resolve (only in rare circumstances arethey not allowed to evaluate and determine the credibility of the evidence)

Penn. RR: if the witness is testifying to something that could not possibly know (not simply unlikely)then the court may dismiss without going to the jury

(3) no real dispute on the facts; issue is applying law to the facts thus no reason to go to the jury

if the legal standard requires application to facts (ie negligence reasonableness) will go to the jury3. Rule 52(c): Judgment on Partial Findings

o motion for judgment as a matter of law for bench trialsB. New Trial

1. Rule 59(a): Motion for New Trial(1) Grounds for New Trial: court may, on motion, grant a new trial on all or some of the issues, and to any party

whether trial was by jury or not

Possible Basis for Granting (not stated within the rule itself)(1) trial court recognizes some mistake or prejudicial error during the trial (procedural error)

y Rule 61: only if court decides that significant error should it go to the extreme ofgranting a new trial

(2) court determines that the jury has returned a verdict that is against the weight of the evidence

y where jury is confused because of confusing informationo greater deference is given to trial courts grantingo better answer: grant judgment as matter of law with conditional motion on

new trial

y where jury is not confused and it is a common question such as whether to believe awitness

o the trial courts decision to grant receives heightened scrutinyo trial court should not substitute its view of the evidence for that of the ju\y

(2) Further Action After a Nonjury Trial: allows the court the flexibility to correct itself on bench trials

court may open judgment, take additional testimony, and either amend findings of fact andconclusions, or make new ones, and then direct judgment be entered

o Appealing: not immediately appealable because not a final order can appeal the final judgment from the new trial


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2. Rule 50(c): Conditional Ruling on a Motion for a New Trial

(1) if judge confronted with a combined motion for JNOV and motion for new trial must rule on the JNOV

motion and make a conditional ruling on the alternative motion for a new trial

this is done in case wrong in granting JNOV the appellate court then determines the appropriatenessin granting the new trial

(2) Effect: does not affect the judgments finality if reversed, new trial must proceed unless ruled otherwise

if the motion for new trial was conditionally denied, the appellee may assert error in that denial3. Combining FRCP 50(c) and (e)

o Four Possibilities(1) court grants JNOV and conditionally grants new trial(2) court denies both JNOV and new trial

(3) denies JNOV and grants new trial

(4) court grants JNOV and conditionally denies the new

o On Appeal (of whatever course of action the court takes): each side gets to argue for best position andconditionally for its second best position

Moving Party: (1) JNOV, (2) New Trial, (3) Verdict Non-Moving Party: (1) Verdict, (2) New Trial, (3) JNOV

o Lind: if jury is totally wrong, grant JNOV; if only a little wrong, grant new trial4. Remittitur and Additur

a. Remittitur: ( moves for new trial; instead of simply granting, court gives 4 the option of reducing award amount

promotes efficiency saves another trial permitted in federal courts constitutional as it does not intrude on jurys function (reducing to what is

reasonable)

b. Additur:4moves for new trial; instead of simply granting, court gives ( option to increase verdict amount

not permitted in federal system adding to jurys decision in an unconstitutional intrusion on the juryfunction


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IX.RESPECT FORJUDGMENTSTHE ONE SHOT RULE

A. Res Judicata: Claim Preclusion1. Precludes the Same Claim

o precludes bringing a claim that is part of the same cause of action as an already litigated claimo claims need not have been actually litigated; they need only have been available to the 4 at time of the first suit

any claims arising out of the same transaction or occurrence must be brought together or the 4 will befound to have split the cause of action

mirrors the scope of compulsory joinder and counterclaim ruleso Common Law Compulsory Counterclaim Rule: if the ( does not answer, thus no compulsory counterclaim, the

raising of a claim arising from the same transaction or occurrence will later be barred if it might allow a

judgment inconsistent with the first judgment

Rule 21 has been interpreted to give the courts discretion in severing2. Between the Same Parties: only applies to the parties of the original action and parties in privity with them

3. After Final Judgment on the Merits

a. Res Judicata Only Attaches to Final Judgments

b. Res Judicata Only Applies to Judgments on the Merits

Includes consent judgment dismissals with prejudice: 2nd voluntary, involuntary, anything not without prejudice

Does Not Include dismissals without prejudice: voluntary, lack of subject matter jurisdiction, improper venue,

failure to join under Rule 19

B. Collateral Estoppel: Issue Preclusion (Only applies if res judicata not applicable)1. issue must be the same as that in the first case

2. issue must have actually been litigated

3. issue must have been actually decided

4. issue in the prior action must have been necessary for the judgment

a. If the case could have been decided on more than one ground, and it is impossible to determine how the jury

ruled on the issues, then none of the issues are given collateral estoppel effect.

b. Where 2 issues are actually decided in the case, but one is not necessary for the result (does not independently

support the judgment), then the one that is not necessary is not given collateral estoppel effect.

c. Where there are 2 alternate grounds, either of which would support the result independently, and you know howthe jury viewed the issue:

Majority: both given collateral estoppel effect Restatement: neither are given collateral estoppel effect (Exception: if appeal and affirmance)

Result

Initial Trial Jurys Finding 2nd Action C/E Effect

ReasonAs Neg Bs Neg As Neg Bs Neg

J/B gen. verdict, no evid of As neg ? No No Yes Gen. Rule

J/B gen. verdict ? ? No No 1

J/B with interrogatories Yes Yes Yes No 2

J/B with interrogatories Yes NoMaj: Yes

Rst: No

Maj: Yes

Rst: No3

J/A gen. verdict No Yes Yes Yes Gen. Rule /2

J/B with interrogatories No No No Yes 23. Which Parties?: Mutuality, and Nonmutuality, of Estoppel

a. Defensive Use : 14, 2 4s

4 wins on issue against (1 4may not collaterally estop (2 on issue (universal rule DP) 4 loses on issue against (1

Mutuality of Estoppel (FL) (2 may not collaterally estop 4 on issue Defensive Nomutual Estoppel (fed. cts.) - (2 may collaterally estop 4 on issue

b.Offensive Use : 2 4s, 1 4s

41 loses on issue against ( ( may not collaterally estop 42 on issue (universal rule DP) 41 loses on issue against (

Mutuality of Estoppel (FL) 42 may not collaterally estop ( on issue Offensive Nonmutual Estoppel (fed. cts.) - 42 may collaterally estop ( on issue


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X.JOINDER

A. Joinder of Claims1. By Plaintiff Rule 18: Joinder of Claims

(a) A party asserting a claim, crossclaim, counterclaim, or 3rd party claim may join, as independent or alternative

claims, as many claims as it has against an opposing party.

res judicata: prohibits splitting causes of action so if part of the same action, compulsory joinder jurisdiction: must have jurisdictional basis, either on it own or supplemental to assert foot in the door: applies to all types of claims (including 3rd party) so that once you meet the

requirement for one claim, you can raise all claims against that party

2. By Defendant Rule 13: Crossclaims and Counterclaims(a) Compulsory Counterclaim: must assert counterclaim if arises out of the same transaction or occurrence and

the party knows about at the time of its service

not compulsory if requires adding a party against whom the court cannot acquire jurisdiction compulsory counterclaims automatically meet the requirements of supplemental jurisdiction

only comes into play if make a responsive pleading(b) Permissive Counterclaim: may assert any claim, even if not arising out of the same transaction or occurrence

(g) Crossclaims Against Coparty: may assert if arises out of the same transaction or occurrence as original claim

(but note required to assert crossclaims)

Rule 20 would than allow brining in additional parties if arose out of same transaction or occurrence(h) Joining Additional Parties: if you are asserting counterclaim against original party, may join another party to

assert the same claim against them (if it arises out of the same transaction or occurrence)

B. Joinder of Parties1. By Plaintiff Rule 20: Permissive Joinder

(a) Two Part Test:

(1) same transaction or occurrence

Bridgeport Music: sampling by 700 (s was similar, but not same transaction or occurrence Mosley: if there is a company policy so that each individual act can be said to be part of this

broader practice, then will be deemed part of the same transaction or occurrence

(2) common question of law or fact

(b) judge may order separate trials if would embarrass, delay or put to great expense

2. By Defendants Rule 14: Third-Party Practice

(a)(1): ( may, as 3rd-party 4, serve a summons on a nonparty who is or may be liable to it for all or party of the

claim against it not enough that it arises out of the same transaction or occurrence must be derivative or secondarily liable (must be joining 3rd party to have them indemnify)

(2): 3rd-Party Defendants Claims and Defenses

(A) must assert any defense against 3rd-party4 under Rule 12

(B) must assert any counterclaim against 3rd-party4 under 13(a); may assert any counterclaim under 13(b);

and may assert any crossclaim against another 3rd-party ( under 13(g)

(C) may assert against original 4 any defense that the 3rdparty ( has to 4s claim

allowed because the original ( has no incentive to try if they know will be indemnifiedo Venue (1391): third parties are disregarded in determining whether venue is proper

3. Rule 19: Compulsory Joinder - looks to whether the absence of the absent party would prejudice those parties in the

complaint or the absent party himself

o necessary party: one who should be joined if feasibleo indispensable party: if the person is so important that the case should not proceed without them that the court

will dismiss rather than go on

C. Rule 21: Misjoinder and Joinder of Nonparties

y misjoinder is not grounds for dismissal rather dropped or severedy see Rule 42: allows for ordering of separate trials for convenience

o just because same 4 and acts similar in nature does not mean that joinder necessaryo ie: court determined that joinder of 770 (s in music copyright infringement was inappropriate


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D. Intervention

1. Rule 24: Intervention allows someone outside of action to invite themselves in (4 or()

(a) Intervention of Right court must permit if given unconditional right by statute or their presence is necessary to

protect their interests

(b) Permissive Intervention may permit if given conditional right by statute or they have a claim or defense that

shares a common question of law or fact with the main action

2. Rule 22:Interpleader deals with situation where have 2 parties that want something but you dont

o ie: ins. co. will interplead 2 people claiming to be beneficiaries of life ins. policyE. Supplemental Jurisdiction

y 1367(b) Diversity Cases: if4s claim under Rule 14 (3rd Party Practice), 19 (Required Joinder), 20 (PermissiveJoinder) or 24 (Intervention), then no jurisdiction when exercising would be inconsistent with the jurisdictional

requirement of 1332 (complete diversity plus amount in controversy)


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XI. MISCELLANEOUS

A. Appealsy interlocutory (intermediate) orders generally not appealable (aka discovery orders)

o all orders of magistrate judges are reviewable by the district judge (not considered appeals)o though not immediately appealable, can be reviewed once final judgment rendered (assuming the issue has been

preserved)

o 1292: if DC makes interlocutory decision worthy of review, CoA has option though the option is available exercising by CoA is very rare

y Immediately Appealable:o Yes: judgment from a severed trial, granting motion to dismiss or motion for summary judgment, order denying

immunity when the ( has qualified immunity from suit

o No: judgment from a separate trial, orders (and denials) for production of orders, denying motion to dismiss or amotion for summary judgment, motions for new trial

y Standard of Reviewo Issue of Law: de novo reviewo Issue of Fact Rule 52(a)(6) must be clearly erroneous to set asid

B. Right to A Jury Trialy 7th Amdt: applicable only to the federal government

o in suits at common law, where the value on controversy over $20, right to trial by jury is preservedo no fact tried by jury shall be reexamined in any court of the US other than according to rules of common law

y Determined Based on Righto Legal Remedy: generally, right to a jury trial

Includes: damages, trover, replevin, ejectiono Equitable Remedy: generally, no right to a jury trial

Includes: specific performance, injunction, damages associated with wrongful possession of land(mense profits), restitution

y Main Problems Today With Right to a Jury Trialo New Rights of Action

Congress may give statutory right to trial if not, analogize to a common law right of action

o Circumstances Where Multiple Claims Being Asserted Common Law Doctrine of Equitable Clean Up: 4 could sue in equity &( counterclaim for damages Court could make ( wait on counterclaim until equity action was over

Court could require ( to bring its case over to the equity court (and lose right to jury trial) Today:

Some States: look to the dominant claim Federal Courts: go claim by claim, or issue by issue, to determine right to a jury trial

y all common issues that must be tried by jury are either tried together firsty any separate claims limited only to the equitable issues are then decided by the court

y Rule 38: Right to a Jury Trial(b) must be demanded either party may demand if it is an option based upon the claims being presented

(d) waived if not demanded courts are strict on this; federal courts make it very easy to inadvertently waive

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