CivPro, Jimenez, Spring 2009: Outline/Notes to Take...

CivPro, Jimenez, Spring 2009: Outline/Notes to Take into exam 1

Order of events:

Events giving rise to the COA P files complaint (& thereby Commences action) - 20 days after filing complaint = earliest time for Summary Judgment (56a1) Pre-trial motions: - Def files pre-trial motions (12b motions) - P may amend pleading once as a matter of course (15a1A) P’s last chance for an Amendment as a matter of course, before being served w/a responsive pleading

(15a1) D answers: - Lists affirmative defenses (8c) - ***Joins 3PD w/in 10 days of filing answer D’s last chance for an Amendment as a matter of course, before being served w/a responsive pleading

(15a1) 12c motion for judgment on the pleadings (may be filed as soon as pleadings are closed). Pre-Discovery conference (26f). Sanctions for failure to participate in good faith under 37f. Discovery: - Disclosures:

o Initial disclosures mandatory/automatic w/in 14 days after pre-discovery conference (26a1c= time for disclosure; Content is covered by 26a1A-general & 26a2-Expert witnesses & 26a3A-evidence)

o Expert testimony disclosures: Due at least 90 days before trial, or as the ct stipulates (per 26a2C, covering 26a2; w/timing exception in 26a2Cii).

o General disclosures mandatory/automatic w/in 30 days prior to trial (per 26a3B, covering 26a3) o Failure to Disclose: sanctions under 37c1

- Proactive Discovery: o Oral depositions (w/o leave 30a1; leave required if… 30a2)

Max # of depos = 10 (more OK if stipulated or court gives leave) (30a2Ai) Max time for depo = 7 hours in 1 day (30d1) Deposing Corporations: 30b6 Failure to appear at deposition: sanctions under 37d1Ai

o Written depositions (w/o leave 31a1; leave required if… 31a2) Max # of depos = 10 (more OK if stipulated or court gives leave) (30a2Ai) Deposing Corporations: per 31a4, look to 30b6 Failure to respond to written depositions: sanctions under 37d1Ai

o Interrogatories (33) Max # = 25 (more OK if stipulated or court ordered) (33a1) Interrrogatories must be answered by: the party to whom they are directed

(33b1A), or by an officer/agent of the corp to whom they are directed (33b1B) Failure to respond to interrogatories: sanctions under 37d1Aii

o Producing Documents/Tangible things/access to Land (34) Failure to produce/give access: sanctions under 37d1Aii

o Physical Examinations (35) – see class notes 3-18-09, p. 1 Failure to submit to examination: sanctions under 37b2B (referencing 37b2Ai-vii)

o Request for Admission (36) Effect of admission under 36 (see 36b) Failure to Admit: sanctions under 37c2


- Sanctions: 37 o Motion to Compel disclosure or discovery: 37a (allows it generally)

To compel Disclosure: 37a3A

Note: For purposes of compelling, an incomplete/evasive disclosure is treated as a failure to disclose (37a3C)

To compel Discovery: 37a3B o Sanctions If Motion to Compel is…

Granted: 37a5A Denied: 37a5B Granted in part & Denied in part: 37a5C

o Sanctions for Failure to Disclose (i.e., if you still refuse/fail to disclose after motion to compel is granted): 37c1 (referencing 37b2Ai-vii)

o Sanctions for Disobeying a court Discovery order: 37b2Ai-vii


Supplemental JX: 1) Can the Fed cts get subject matter JX over the additional claim on its own? (i.e., Is there an

independent basis for fed JX over the additional claim? Yes = Automatically In Fed ct on its own merits (via 1331, 1334, etc.) No = continue…

2) Is this additional claim “so related” that it forms part of same case/controversy as the original claim? i.e., Would the P be expected to try both the main Fed claim & this additional state claim in one proceeding?

a. Note: Crossclaims that meet the 13g requirements & Counterclaims that meet the 13a requirements are automatically “so related”

No = OUT (no Fed JX) Yes = continue…

3) Is the original claim in Fed ct under 1332? Yes ___AND Is this additional claim being brought by the original P? Yes ___AND Is the additional claim against a party who was joined via 14, 19, 20, 24? Yes___AND

Does the party against whom the additional claim is being brought ruin complete diversity (per 1332)?

YES TO ALL of #3 = OUT (no Fed JX, b/c excluded by 1367b) No to any of these in #3 = OK (Supplemental Fed JX over the additional claim, under 1367a)

1367c: Fed ct may decline supplemental JX that it would otherwise have under 1367a IF:

(1) State Clam raises a novel/complex issue of State law (2) State claim substantially predominates over the claim(s) over which the Fed ct has JX (3) Fed dist ct has dismissed all claims over which it had original Fed JX (i.e., no longer any Fed

claim to which this state claim may be supplementally connected) (4) Other compelling reasons (under exceptional circumstances)

***Characteristics of Pendent JX: Pendent JX = JX over claims by same P v. same D

Pendent JX is a doctrine of judicial discretion, not of P’s right. Whether pendent JX is properly assumed remains open throughout trial. - If , at any point in hearing, state law claims (that don’t depend on Fed questions for their

adjudication) appear to become the main body of the suit (to wh/the Fed questions are mere appendages) then state claim may be fairly dismissed.

- Considerations for judges: Judicial efficiency; convenience & fairness to parties (location & jury confusion per Rule 42(b)). If these not present, should lean toward not hearing in a fed ct

- If case dismissed from fed cts on this ground, can still refile in state ct. (i.e., no Res Judicata) Hypo: If JX is based on 1332, and Def(Cal) seeks to join a 3D(Cal) using 14(a), ct would have supplemental JX over the 14a claims, under §1367a (b/c 1367b doesn’t bar it, b/c complete diverstiy is maintained across the V).

- However, if Def sought to subsequently bring additional 18a claims against 3D, these claims would be barred (under a 12b1 challenge, b/c not “so related” under 1367a), unless the 18a claims had an independent basis for Fed JX.


Counterclaims, CrossClaims & Supplemental JX: - Always get supplemental JX over 13g crossclaims, b/c a 13g crossclaim is already “arising out of”

or “relates to any property that’s the subject matter of the original action”, ∴ automatically satisfies the “so related” clause of 1367a.

- A compulsory state counterclaim that is sufficient to meet 13a (i.e., is “arising from” same nexus of facts), automatically satisfies the “so related” clause of 1367a.

- A permissive state counterclaim may (or may not) satisfy the “so related” clause of 1367a, depending on the circumstances.

Hypo: RULE 13h & Supplemental JX B (P, landlord - NY) sues C (Def, tenant - NJ) for not paying rent, under 1332. C counterclaims (13a) for B not keeping up the property. A (NJ property owner who leased to DefC, who leased to PB). A is inherently involved in the suit. A not joined by B in original suit b/c it would defeat diversity. C wants to dismiss b/c of lack of joinder of a necessary party under 19a.

- C raises 12b7 motion to raise 19a problem. Court doesn’t want to dismiss – tells C to join A himself. How can C join A?

- 13h: Rules 19 & 20 govern the addition of a person as a party to a counterclaim/crossclaim. o 13h Allows you to join a party for the purposes of submitting a compulsory counterclaim

under 13a, so long as said party meets the requirements of 19 or 20. Still have the problem of the additional party defeating diversity. *Doesn’t matter whether you join using 20/19].

1367a gives supplementary JX over compulsory counterclaims, even under 1332; & 1367b doesn’t take supp JX away

A couldn’t have been a co-P under Strawbridge, but Def can solve this problem (if he wants to), by joining under 13h.


3rd Party Defendants: Rule 14 14a1: Allows a Def to bring in a 3PD who may be liable to the Def for all/some of the P’s claims against

Def. 14a2: 3PD has to consider doing the following:

- 3PD vs. Def/3PP: o 14a2A: MUST assert any Rule 12 defense it has against the Def/3PP o 14a2B: MUST assert any 13a Counterclaim against the Def/3PP o 14a2B: MAY assert any 13b Counterclaim against the Def/3PP

- 3PD vs. original P: (When 3PD attacks original P first) o 14a2C: MAY assert any defense that the 3PD has against the original P’s claim o 14a2D: 3PD MAY assert any claim against the original P, so long as it arises from the

same transaction as the P’s claim against the Def/3PP. - 3PD vs. another 3PD:

o 14a2B: MAY assert any 13g Crossclaim against another 3PD 14b: Allows a P to bring in a 3PD (e.g., to defend against a cross-claim/counterclaim), so long as a Def

would be allowed to do so under the same circumstances (i.e., //s 14a – if the P’s 3PD may be liable to the P for all/some of the Def’s claims against P)

original P v. 3PD: - 14a3: original P MAY assert any claim against Def’s 3PD, so long as the claim arises out of the

same transaction that is the subject of the original P’s claim against the Def/3PP. - 14a3: If original P attacks 3PD first, then 3PD MUST do the following:

o Assert any Rule 12 defense (14a3) o Assert any 13a (compulsory) Counterclaim (14a3)

- 14a3: If P attacks 3PD first, then 3PD MAY do the following: o Assert any 13b (permissive) Counterclaim (14a3) o Assert any 13g Crossclaim


Counterclaims & Crossclaims: 13 Compulsory CounterClaims: 13a A CounterClaim is compulsory IF (i.e., must be included in the relevant pleading IF), at the time the party was served, the basis for the counter claim existed (i.e., happened before the pleading is served) (13a1) AND…

- The counter claim arises out of the same transaction that is the subject of the opposing party’s existing claim (13a1A); AND

- Asserting this counter claim does not require adding another party that the Fed ct can’t get persona JX over (13a1B).

EXCEPTIONS: The counter claim is NOT compulsory IF: - The counter claim was already the subject of another pending action at the time this main

action was commenced (13a2A); OR - The opposing party (against whom this counter claim will be asserted) sued on it’s initial claim

by attachment or other process that didn’t establish personal JX over this pleader (e.g., definitely Quasi In Rem - or perhaps interpleader???), AND this pleader isn’t *otherwise subjecting himself to personal JX by] asserting any counterclaim under this rule (13a2B).

Permissive Counter Claims: 13b A CounterClaim is permissive IF it is not compulsory. “A pleading may state as a counterclaim against an opposing party any claim that isn’t compulsory.” CrossClaims: 13g Cross claims are valid under 13g IF: both #1 & #2 are YES

1) Cross claim is between coparties (i.e., parties on same side of the V); AND 2) …

a. The proposed cross claim arises out of the same transaction that is the subject of the original claim, or of an extant counter claim; OR

b. The proposed cross claim relates to any property that is the subject matter of the original action.

- Note: Cross claim can include a claim that one coparty is/may be liable to this crossclaimant for all/part of the claim asserted in the action against this crossclaimant (i.e., coparties can make crossclaims on derivative liability // to the subject of a 14a 3rd party derivative liability claim)

13h: If you want to bring in another party in the process of pursuing your counter claim/cross claim, THEN you can do so as long as the requirements under FRCP 19 or 20 are met.


INTERPLEADER: FRCP 22 & 28 USC 1335 First try 1335, then try FRCP 22 if 1335 doesn’t work. To get interpleader under FRCP 22, you must have:

1) A basis for federal subject matter JX under some other statute (e.g., 1331, 1332, etc.); AND 2) Pot of $ may be exposed to multiple liabilities if res judicata happens w/o joining the potential

adverse parties Basically, you only use FRCP 22 if all the adverse claimants are from the same state.

- Can use 22 as a P by proactively claiming against/impleading a group of Defs. (22a1) - Can use 22 as a Def by reactively cross claiming or counter claiming against/impleading a group

of adverse claimants (at least one of whom is an original P who’s suing you). (22a2) For 22 interpleader use: 1332 for subject matter JX; 1391a for venue; 4k1 for personal JX To get interpleader under 1335, you must have:

1) Pot of $ (or property) must be valued at $500 or more; AND a. Pot of $ has been paid into the registry of the court/given bond to the clerk of the court

2) 2 or more claimants are minimally diverse a. Note: To determine diversity under 1335, you only look at the adverse claimants (i.e.,

ignore the citizenship of the pot of $, UNLESS the party holding the pot of $ is also claiming ownership of it – if so, consider the citizenship of the pot of $ as an adverse claimant).

For 1335 interpleader use: 1335 for subject matter JX; 1397 for venue; 2361 for personal JX 1335’s venue statute: 1397: 1335 interpleader action may be brought in the judicial district in wh/one+ of the claimants reside. Personal JX for 1335 = 2361: if fed cts have subject matter JX under 1335, the personal JX is established by 2361 and supplemented by 4k1C.

o 2361: see text: per Jim – this section authorizes national service of process o 4k1C: Fed dist cts may serve process to establish personal JX…when authorized by

federal statute (e.g., when authorized by 2361) Problem: What if a state ct earlier renders a final judgment for one of the parties in the continuing interpleaded case in federal ct. Solution: 2361: Once a 1335 interpleader action is filed in fed ct, the filer should ask the fed ct to enjoin & restrain any of the parties from instituting or prosecuting parallel actions in any state or fed ct. Then the fed ct will determine the case, make the injunction permanent & enforce its judgment.

Hypo: JX via 1332; venue via 1391a. Original P(A- Calif) sues D(moneybags –NY). D impleads P(C-Calif) & P(D-Calif) using FRCP 22. Problem – still need personal JX over the other Ps (C&D).

- Solution: Def seeks a 1404a transfer to Calif & thereby gets personal JX.


Amendments: 15 a) Amending the pleading before trial (15a)

a. Party may amend it’s pleading ONCE as a matter of course (i.e., w/o needing permission from the ct) under these circumstances:

i. Before being served w/a responsive pleading (15a1A); OR ii. If a responsive pleading is not allowed to this one (the one you’re trying to amend), and the

action isn’t yet on the trial calendar, and it’s w/in 20 days after filing this pleading (that you’re trying to amend) (15a1B)

- Otherwise, party seeking to amend must seek ct’s permission (or other party’s written consent), & ct should freely give consent when justice requires (15a2)

b) Amendments during & after the trial (15b) a. During trial: Amendment to conform pleadings to include issues that would allow admission of

evidence you want to admit i. At trial, if a party objects that evidence is not w/in the issues raised in the pleadings, the ct

may permit the pleadings to be amended. Ct should allow this when so allowing will aid in presenting the merits & the objecting party fails to satisfy the ct that so allowing would prejudice the objecting party’s action or defense on the merits. (15b1)

ii. At or after trial (even after judgment rendered), a party may move to amend the pleadings to conform them to the evidence raised at trial, and to [thereby] raise an unpleaded issue. When an issue not raised by the pleadings is tried by the parties’ express or implied consent [b/c one party admits evidence relevant to the issue not pled, and the other party fails to object], said issue must be treated in all respects as if raised in the pleadings. (15b2)

c) When an amendment relates back to the date of the original pleading - Relationship between Amending pleadings & SOL. Rule 15(c): (numbering below is actual FRCP numbering) (1) Amendment relates back to the date of the original pleading when ANY of these:

(A) the law that provides the applicable SOL allows relation back (B) amendment asserts a claim or defense that arose out of the conduct/ transaction/ occurrence set

out (or attempted to be set out) in the original pleading (C) amendment changes the party, or the naming of the party against whom a claim is asserted, IF

15c1B is satisfied AND IF, w/in the time granted by 4(m) for service (120 days after complaint filed), the party to be brought in via the amendment… (i) rec’d notice of the action such that it won’t be prejudiced in defending on the merits, AND (ii) knew/should have known that the action would have been brought against it, but for a

mistake concerning the proper party’s identity d) 15d: Supplemental pleading: Use when you want to include additional events that have happened since the

time you filed your original pleading. - Ct may, on motion & reasonable notice, allow a party to serve a supplemental pleading IF the

Supplemental pleading sets out events that happened after the date of the pleading to be supplemented (usually the original pleading). (15d) …

o Ct may allow this even if the original pleading is defective in stating a claim or defense. (15d) o Ct may order that the opposing party plead to the [new] supplemental pleading w/in a specified

time. (15d)


Declaratory Judgment: 2201, 2202 ***Can you successfully get a declaratory judgment under 2201? 2201 is NOT jurisdictional, it’s merely remedial.

1) Does either party have a COA for coercive relief against the other? If Yes… 2) Does that COA arise under federal law? If Yes…

THEN: The action is of a type for which the ct will provide a declaratory judgment under 2201, even if the federal COA would only arise as a result of the Def’s defense *i.e., on the face of the Def’s answer+

Note 2: Declaratory Judgments (p.363) Declaratory judgment = §2201 (Federal Declaratory Judgment Act), potential P can request from a fed dist ct a declaration of rights “in a case of actual controversy w/in its JX.”

- Used to obtain an early determination of rights, in instance in wh/indiv would’ve possibly become a defendant if s/he had gone ahead w/contemplated acts

Rule: For declaratory judgments, federal Q JX cannot be determined by examining the actual complaint filed in the case. Must instead hypothesize what a complaint would have been filed against D (if P had merely acted to bring suit, rather than request a declaratory judgment) & determine whether a federal question of law might exist in the hypothetical complaint.

Reasoning: In a declaratory judgment scenario, P at bar is a potential D. ∴ should analyze the potential complaint as one of a potential Phypo against D(P). Since §1441 requires that the federal question be brought to bar via P’s complaint (in this case, Phypo’s hypothetical complaint), must examine Phypo’s imaginary complaint to determine whether there’s a federal question. (p.364).

Declaratory relief: plain declaration of who’s right/who’s wrong – elucidate the rights & obligations of the parties. 28 USC §2201 & 2202: - 2201: In a case of actual controversy w/in its JX, any ct of the US (if an appropriate pleading is filed)

may declare the rights & other legal relations of any interested party seeking such declaration, whether/not further relief is/could be sought. Any such declaration shall have a full res judicata effect.

- 2202: Further necessary/proper relief (based on a declaratory judgment in 2201), may be granted against any adverse party whose rights have been determined by said declaratory judgment, after reasonable notice & hearing.

o i.e., if the losing party in a 2201 decision doesn’t fulfill its declared rights/obligations, a ct may grant further relief to the winning party.

Hypo: (// to Beacon Theaters) B wants to sue A. B says to A: you’re violating my patent & I’m going to sue you. B also sends letters to

all of A’s customers that A is infringing on B’s patent rights. A seeks a declaratory judgment indicating that A isn’t infringing B’s rights. Issue: Can A sue for declaratory judgment prior to B suing A for patent infringement in federal ct? Only

if you can get federal JX otherwise – i.e., Only if the federal COA appears on the face of the P’s pleadings – GENERAL RULE: can’t base federal JX on a COA that’s based on what the Def is likely to do. EXCEPTION: RULE: Under 2201, P(potential Def) can get into federal ct seeking a declaratory judgment on the basis that the Def(potential P) has a federal COA against the P(potential Def). ∴ can’t get into federal ct, UNLESS there’s some way to do so, under FRCP 2201.


May federal cts give an advisory opinion? NO: Per, Article III, only “cases” – i.e., an active, live controversy.

- ***In relation to 2201, the possibility/probability of the 2201Def’s federal COA against the 2201P is sufficient to satisfy the “case”/ “active, live controversy” req’t of the well-pleaded complaint rule (8a) to trigger federal subject matter JX.

- Note: there may be an 11e problem for the 2201P later, but 2201P’s pleading is sufficient to get it to the next step.

o i.e., in Hypo above, A only has to plead that B is stating that B that arise under federal law

p. 1003:L 2201 & 2202, “while allowing prospective defendants to sue to establish their non-liability, [2201 & 2202] specifically preserves the right to jury trial for both parties.”


Pleading & Answers ***Where the complaint is ambiguous, the ct must construe it in favor of the pleader seeking ruling on motion presently at bar.

Only these pleadings are allowed: 7a P’s complaint must contain: 8a

1) Statement of the grounds for Fed subject matter JX a. If seeking subject matter JX under 1331, then the Well Pleaded Complaint Rule applies

(i.e., the basis for this suit “arising under” fed law per 1331 must be clear from the face of the P’s complaint – can’t anticipate that Fed subject matter JX will arise from the Def’s counterclaims/ defenses)

i. Exceptions: 1. 2201 Declaratory judgment 2. Even if there is no issue of federal law involved, the following may sue in

federal ct (by special statutes): a. A trustee in bankruptcy may sue in federal ct to marshall the

assets of the bankrupt as a prelude to distributing the assets among the creditors

b. Federally chartered corps that serve federal purposes (& ∴ deserve the protection of adjudication in sympathetic fed cts – policy argument; Osborn v. Bank of US; American Nat’l Red Cross v. S.G.)

2) Statement of showing that the P is entitled to relief (COA) a. Must be Sufficient to pass the 12b6 standard: RULE: Conley v. Gibson: A COMPLAINT

SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A CLAIM (12B6) UNLESS it appears beyond doubt that the P can prove no set of facts in support of his claim, which would entitle him to relief. [i.e., if there is more than one possible reading of a complaint, and one of the readings would provide a COA that met a 12b6 challenge, then read the complaint that way.]

3) Statement of the relief sought Exceptions to the general rule in 8a: FRCP 9b: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a persons’ mind may be alleged generally. FRCP 9a: If a Def will deny that the P has capacity to sue (under 17), must do so in a specific denial FRCP 9g: If an item of special damage is claimed, it must be specifically stated. FRCP 23.1: Shareholder derivative actions. 8(d): Pleading to be concise & direct; Alternative Statements; Inconsistency

(1) General: Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative claims/defenses: A party may set out 2+ statements of a claim or defense

alternatively or hypothetically, either in a single count or defense, or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistency: A party may state as many separate claims or defenses as he has, regardless of consistency.


Def’s Answer must contain: 8b 1) State defenses to each claim asserted in P’s complaint (8b1A), including

a. Affirmative defenses listed in 8c Affirmative defense ≠ denial. Aff’tive defense Avoids the COA. traditionally, def

would thereby admit all claims in P’s complaint, but nonetheless avoid the legal consequences (b/c of the effect of the affirmative defense)

2) Admit/deny the allegations asserted against it (8b1B) - Denials of P’s assertions create issues

o negative pregnant pleadings = pleadings in wh/def seeks to hide the ball (usually by general denials). This type of denial doesn’t fairly advise the P of the issues that you’ll seek to raise at trial, ∴ fails to put P on notice of what issues are in litigation

o IF defendant effectively denies the P’s complaint, the def places the burden of production/persuasion back onto the P. However, an ineffective denial doesn’t shift the burden back.

- Admissions: If claim is admitted, no issue. & no evidence relating to the admitted claim is admissible at bar (b/c it would go to prove a fact not at issue)

Filing an answer = a general appearance on the merits (which constitute submission to subject matter JX & personal JX) Pleading special stuff: FRCP 9 2 common uses of 12e:

- In response to Rule 9b pleadings (Will be on the exam) o ***RULE 9b: Pleading fraud or mistake has heightened pleading req’ts: party must state

w/particularity the circumstances constituting fraud or mistake. o in these instances, 12e would be more useful.

- In response to vague pleading that might be susceptible to SOF or SOL failure (i.e., complaint doesn’t state when alleged events happened, and Def thinks the SOL may have run – ∴ asks for 12e motion to clarify date).


Res Judicata & Collateral Estoppel 2 types of res judicata:

1) Claim preclusion 2) Collateral estoppel (requirement of direct attack on verdict)

Rule: To bar claim by res judicata, you need these 4 factors: In both suits (prior & current), all of these… (Davis v. DART)

1) Identical parties (same P, same D) 2) Ct of competent JX rendered the prior judgment 3) Prior judgment must have been final & on merits 4) Identical COA (Identical issue) raised by P

Rule: IS THERE COLLATERAL ESTOPPEL? Answer these:

1) Has there been a final judgment on the merits? (according to the latest judgment) a. Note: 12b6 dismissal is a dismissal on the merits & ∴ res judicata.

2) Is there identity of issue? a. Issue in prior proceeding must have been actually litigated & actually decided

i. i.e., must have been argued in an adversarial proceeding ii. NOT actually litigated if: one party conceded, parties stipulated to the issue

b. Full & fair opportunity for litigation in the prior proceeding c. Issue previously litigated must have been necessary to support a valid & final judgment

on the merits (for judicial efficiency) 3) Identity of party: Was the party against whom collateral estoppel is being sought a party to the

prior action/issue? a. Including any party in privity w/the party to the prior action & against whom collateral

estoppel is being sought 1. In privity if

a. party (in 2nd suit) has a proprietary interest in the prior suit. *NOTE: the fact of marriage ≠ privity+ (OR)

b. party (in 2nd suit) was in control of first suit ***Note: Collateral estoppel bars only issues that were actually litigated & actually resolved (not also issues that should have been litigated, as in res judicata) ***Note: Since these doctrines of preclusion are judge made common law, it may be reasonable to occasionally fudge the rules & make an exception to collateral estoppel. Rule: Res judicata bars all claims that were/could have been advanced in support of the COA on the occasion of its former adjudication. However, subsequent wrongs (after final judgment on earlier wrongs) by a Def constitute new COAs. (Davis v. DART) Doctrines of Bar & Merger: Once res judicata, the COA on which the P filed claim merges w/the judgment (& the P is barred from filing a subsequent suit on the same COA).

- To keep the rights under the judgment alive, one must engage in a direct attack (i.e., appeal) - Collateral attack – attacks on the judgment via another judicial avenue


How to get out of/get around a final judgment on the merits: Rule 60 – see text of rule Procedural options available to Ps to avoid res judicata:

- Wait to file initial pleading until after all Def’s wrongs have been completed - To include wrongs by Def after initial pleading, use Rule 15d: Supplemental pleading

Generally, most cts will allow you to make a special appearance to defend establishment of personal JX. However, once a ct has established JX, the res judicata is enforceable.

- Don’t make the Baldwin v. Travelling Men’s Association mistake! Adjudications of cases w/in personam JX are res judicata (once all appeals are exhausted). However, you may elect not to make a special appearance in the forum (i.e., don’t appear at all) &, if P

seeks to enforce the ensuing default judgment from that forum in your state (or another state), you are entitled to challenge the JX of the original forum.

If you lose, it is assumed that the original forum did have JX & ∴ their judgment is valid & must be enforced by the new forum.

If you win, it is assumed that the original forum did not have JX & ∴ their judgment is not enforceable in your new forum.

“Collateral attack”: When a separate and new lawsuit is filed to challenge some aspect of an earlier

and separate case, it is called a collateral attack on the earlier case. This is different than an appeal, which is a challenge to some aspect of a decision made in the same case.

An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it.

A defendant may make a collateral attack on a judgment entered against him or her in some instances.

If a default judgment is entered against the person, he or she may collaterally attack the authority of the issuing court to render it, claiming that there was a lack of personal jurisdiction.

Rule 13a2: Exceptions to Compulsory counterclaims: Pleader need not state the claim if:

A) When the action was commenced, the claim was the subject of another pending action; (OR) B) The opposing party sued on its claim by attachment (or other process that did not establish

personal JX over the pleader on that claim), & the pleader doesn’t assert any counterclaim under this rule [i.e., if Def sued P w/o personal JX & P made no counterclaim]

P’s w/proprietary interests in each other’s outcomes are generally barred from bringing suits on the same COA if the COA has been merged into the judgment of one of the Ps. Transactional Test: Per doctrine of merger, a prior judgment’s preclusive effect extends to all rights of

the P w/respect to all/part of the transaction/series of connected transactions out of which the original action arose.

Rule: Res judicata bars all claims that were/could have been advanced in support of the COA on the occasion of its former adjudication. However, subsequent wrongs (after final judgment on earlier wrongs) by a Def constitute new COAs. (Davis v. DART)


Rule: Staats v. County of Sawyer, RS(2d)Judgments: When a P brings an action on the claim in ct (either state or fed) in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them & judgment is entered w/respect to that claim, he may not maintain a 2nd action in which he tenders the other theory/ground. (Use it or lose it). Traps for the unwary:

a) So long as the forum in which the first suit is filed is jurisdictionally competent to hear the state & federal claims arising out of the COA, the p must assert all of his claims – both state & federal – in that first suit.

b) Choose the more jurisdictionally competent forum. If P has 2+ COAs and a choice between 2 courts (one that can hear all P’s claims & one that can hear only some of P’s claims), P should choose the more jurisdictionally competent forum. Choosing the jurisdictionally limited forum runs the risk that she won’t be able to bring her other COAs in the broader forum in a 2nd suit.

Collateral estoppel = a function of res judicata Res judicata bars entire claim. Collateral estoppel bars litigation of specific issues that have already been decided. ***In the event of inconsistent judgments, it is the last in time (most recent) that prevails. Hypo: Where it may be reasonable to make an exception to the collateral estoppel rule: Single accident, all Ps are suing on same grounds. Ps1-35 v. Def: J for Def P36 v. Def: J for P36 P37 v. Def:….is Def collaterally estopped from re-litigating the same issue? Technically, yes, but it’s likely that the ct would require that the issues be litigated anew, for reasons of fairness to the Def. (i.e., later P cannot coincidentally benefit according to the time when he files his suit). Q: May Def benefit from the prior adjudication?

1) Yes 2) NO 3) Yes ∴ NO

***3-part test must apply to each issue & each issue must be actually decided.

- E.g. if you’re seeking $1million & you get awarded $50, this is an indication that the jury didn’t actually decide the issue of damages, ∴ may be able to litigate it anew (by massaging the common law) b/c the issue is not yet decided.

***In Fed ct Collateral estoppel may be used as a shield, and NOT as a sword.

- Shield: Def may use collateral estoppel to protect self from further litigation by same P on overlapping COAs (i.e., b/c there are overlapping issues)

- Sword: Each successive P can use the prior issue judgment against Def to estop Def from relitigating adverse issue. - Feds & Calif have abandoned mutuality requirement (now allow non-mutual estoppel)

Issues must be identical - not just sort of identical/related to/etc.


RULE 12 Possible exam Q: Def raises 12e motion. P refuses (∴ case s/b dismissed due to 12b6). Would a 12b6 dismissal for failure to provide a more definite complaint be legal/appropriate? NO A 12e motion is really a challenge to the factual sufficiency of the complaint; whereas 12b6 is a challenge to the legal sufficiency of the complaint. ∴ it would be inappropriate to dismiss on 12b6, b/c it hasn’t been proved that the complaint is legally insufficient. RULE: 12b6 dismissal is a dismissal on the merits & ∴ res judicata.


Joinder & Severance of Parties: 19, 20, 21 Rule 21: allows severance Rule 19a: INDISPENSIBLE PARTIES: COMPULSORY JOINDER: 1) A person who is subject to service & whose joinder will not deprive the court of subject-matter JX

MUST be joined IF… (A) In that person’s absence court cannot provide complete relief among existing parties; OR (B) That person claims an interest relating to the subject of the action AND is so situated that

disposing of the action in the person’s absence may… (i) As a practical matter, impair or impede the person’s ability to protect the interest; OR (ii) Leave an existing party subject to a substantial risk of incurring

double/multiple/otherwise inconsistent obligations b/c of the interest. 2) If a person (from 19a1 above) party hasn’t been joined as required, the court must XXX… Rule 19b: When indispensible party cannot be joined (b/c refuses, etc.), the ct must determine whether

- NOTE: A dismissal under this rule (//to 12b7) is NOT a dismissal/judgment on the merits for the purposes of res judicata. [acts // to dismissal for lack of subject matter JX)

Temple v. Synthes: RULE: Joint tortfeasors are not automatically indispensible parties. Joint tortfeasor = a permissive party under 20a, unless 19a otherwise applies.

- Doesn’t prejudice the tortfeasor(Def1) originally at bar, b/c tortfeasor(Def1) can seek to enjoin other tortfeasors using 14a if he so chooses.

Rule 20a: Permissive joinder of parties

- If 2 Ps want to join together in a suit, they can do so, ONLY IF the claims they want to file arise out of the same transaction/occurrence/series of transactions & there is a question of fact or law common to all the Ps.

- Joinder of parties requires some kind of eventful relationship between the parties to be joined. P may join (as Defs) 2+ people, so long as the claims against each arise out of the same serious of transactions/occurrences.

19a: Indispensible parties:

- “and will not deprive the court of JX…” refers to: When diversity JX under 1332 & joinder of the indispensible parties would defeat diversity

- “Necessary people” = parties who s/b joined o People in whose absence the P can’t get relief o People whose absence from the action would deprive the absent party of due process

- If you can’t join the people who s/b joined under 19a (b/c can’t get, look to 19b to seek if you can restructure the suit to avoid the necessity of joining the impossible party

- If you still can’t join under 19b, then the suit must be dismissed (w/o prejudice). o Basically, the ct is saying they don’t have JX to proceed in the party’s absence


INTERVENTION as a matter of right:

Rule 24a: On timely motion, the court must permit anyone to intervene who…(2) claims an interest relating to the property/transaction that is the subject of the action, AND is so situated that disposing of the action may as a practical matter impair/impede the movant’s ability to protect its interest, UNLESS existing parties adequately represent that interest.

- If movant will not be affected by res judicata/collateral estoppel, how can it, practically, be impaired?

o Once an issue has been decided in a way that would be contrary to movant’s interest, given the logistics of the court (i.e., the requirement for getting an en banc hearing, or certeriori from the Sup Ct), movant would be practically foreclosed from overturning this stare decisis.

Atlantis Dev. Corp v. US RULE: 24(a)(2) Intervention as a matter of right requires both the existence of an interest which may be impaired as a practical matter, AND an absence of adequate representation of the intervenor’s interest by existing parties. ***24(a) not on the exam, except by reference in 1367b


Who may the Plaintiff be? Standing & Capacity

Party has standing to sue if: 2 Approaches

1) Is there a substantive right – i.e., have you set forth a claim for which relief can be granted & is the person setting forth the claim the person appropriate to bring the claim?

a. “nexus” to bring the claim 2) The person who has suffered the injury is the person who must sue

Rule 17: Capacity to sue: 17(a): Action must be prosecuted in the name of the real party in interest. The following may sue in their own names w/o joining the party for whose benefit the action is brought:

(A) Executor (B) Administrator (C) Guardian (D) Bailee (E) Trustee of an express trust (F) Party w/whom or in whose name a K has been made for another’s benefit (G) Party authorized by statute

Roberts v. Sparks: RULE: An insured tortfeasor is himself the defendant (but not the pleader for purposes of 13a & res judicata), rather than his insurance company.


DISCOVERY:

FRCP: 26b1 SCOPE of discovery (see notes in book).

- Anything that’s relevant, and not privileged may be sought/had via discovery. Hearsay generally NOT admissible into evidence.

- Hearsay = an unsworn statement out of court WHO PAYS FOR DISCOVERY? GOAL: Equitable distribution of the costs Once the parties agree that the info being sought is relevant… WHO PAYS? RULE: Presumption is that the party responding to the discovery request should pay the costs of discovery.

- EXCEPTION: Cost shifting s/b considered only when *electronic discovery+ imposes an “undue burden or expense” on the responding party.

- BALANCE TEST: To determine whether Discovery is an “undue burden or expense,” balance these factors (in order of importance) i) Extent to wh/the request is specifically tailored to discover relevant info ii) Availability of info sought from other sources iii) Total costs of production, compared to the amount in controversy iv) Total cost of production, compared to the resources available to each party v) Relative ability of each party to control costs & its incentive to do so vi) Importance of the issues at stake in the litigation (i.e., public policy interests served by the litigation

as a whole) vii) Relative benefits to the parties of obtaining the info

NOTE: Review/discovery of Info that’s in an ‘accessible’ medium s/b paid for by the party responding to the discovery request. Cost shifting s/b considered for those types of info that are in an “inaccessible” medium.

Cts apply the discovery laws of the state w/the “most significant contacts” …


35:

Rule: Generally, a party who puts his/her own physical/mental condition into issue waives his/her right to privacy. RULE: To determine whether a party must submit to a mental/physical exam: (FRCP 35)

1) Is the party’s mental/physical condition in controversy? a. The condition is in controversy if:

i. A party makes a claim (explicitly or implicitly) about the condition in her pleadings/defenses; AND

ii. The Other party denies the claim about the condition b. Rule: Shlagenhauf: One party’s unsubstantiated allegation can’t put the mental state of

another in controversy. 2) Is there good cause?

a. There is good cause if: i. The truth of the claims (about the mental/physical condition) is relevant to the

P’s COA; AND ii. Facts justifying the relevance of the mental/physical condition have been shown

w/specificity If a party must submit to a mental/physical exam… Regarding the SCOPE of the exam: RULE: The implicit waiver of a party’s constitutional rights (under Rule 35, e.g.), encompasses only discovery directly relevant to the plaintiff’s claim & essential to the fair resolution of the suit.

CivPro, Jimenez, Spring 2009: Outline/Notes to Take...

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