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Federal Courts Flowcharts

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Civil Procedure Review

I. Jurisdiction 1. Subject Matter Jurisdiction 2. Personal Jurisdiction 3. Due Process 4. Service of Process (Notice) 5. Venue 6. Removal 7. Waiver

II. Erie

III. Joinder 1. Joinder of Claims Permissive Joinder of Parties Compulsory Joinder of Parties 2. Counterclaim Crossclaim 3rd Party Claims

IV. Res Judicata

1. Res Judicata (Claim Preclusion)

2. Collateral Estoppel (Issue Preclusion)

3. Intervention Interpleader  (Not on Final) Class Action

3. Parties Who is subject to claim or issue preclusion?

84957121.doc

-1-

I. Jurisdiction Checklist

Is There Subject Matter Jurisdiction? United States Constitution, Article III: Federal Courts Are Courts of Limited Jurisdiction:

1 Federal Question 18 U.S.C. §1331

2 Diversity 18 U.S.C. §1332

3 Alienage 18 U.S.C. §1333

4 Admiralty 18 U.S.C. §1333

5 Disputes Between States, Counsels, and Ambassadors

Federal Question Basics: 28 U.S.C. §1331
    

Does the claim arise under the constitution, treaties, or laws of the U.S.? Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ? Remember, NO $ Amount limit: Can have SMJ over a $1 dispute. Federal Jurisdiction may be exclusive to federal court (e.g., patent or copyright claims); or Federal Jurisdiction may be concurrent with state court jurisdiction (e.g., civil rights or federal employment liability act (FELA) claims), subject to the right of removal. Federal Question Flow Chart Yes Does the π’s well pleaded complaint allege an express or implied federal cause of action? No

Yes

Does the π’s well pleaded complaint allege a state law cause of action in which federal law is an essential element? No

Does the federal law that is an element authorize a private right of action? Yes There is FQJ 84957121.doc Don’t rely too much on this. I derived this rule from Smith v. Kansas City Title and Merrell Dow v. Thompson. Aronovsky says the COA are still split and the SC has not ruled. So, in some circuits this would work but don’t treat it as a hard and fast rule.

There is NO FQJ. -2-

4) AMOUNT IN CONTROVERSY: must be over $75. probate.S. a national labor union like the Teamsters could never pass the federal diversity test because it has members in all 50 states. and Ambassadors DIVERSITY OF CITIZENSHIP BASICS 1) COMPLETENESS: Diversity must be complete. 5) AGGREGATION RULES: 84957121.C. All π’s must be different from all ∆ ’s. or derivative actions or class action suits: i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative. 2) DATE: Diversity is calculated as of the date the action was instituted. partnerships): Cumulate domiciliary state of each member. So. iii) If person has multiple homes in different states. representative of a child. d) PARTIES IN REPRESENTATIVE ACTIONS (e. ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party. 3) CITIZENSHIP (Domicile) a) PERSONS: Where you were born and continues through your life unless: i) You physically change your state. exclusive of interest and costs but inclusive of punitive damages.C. and ii) You have the intention of remaining in the new state for the indefinite future. Article III: Federal Courts Are Courts of Limited Jurisdiction: 1 Federal Question 18 U. §1331 2 Diversity 18 U.S.Is There Subject Matter Jurisdiction? United States Constitution. labor unions.. look of that person’s center of gravity by looking at: (1) Where does the person live? (2) Where is the family? (3) Where does the person pay taxes? (4) Where does that person work? (5) Where are the cars licensed? (6) Where does the person vote? b) CORPORATIONS:: Every corporation has two domiciles: i) state of incorporation.g. There cannot be anyone on the left of the “v” and the right.S.doc -3- . Counsels.C.g.S. or (2) Muscle (Plurality) Test ..place where the corporation does most of its manufacturing or service providing. Two tests for principle place of business: (1) Nerve Center Test – place where corporate decisions are made. §1333 4 Admiralty 18 U. c) UNINCORPORATED Associations (e.C.000. §1332 3 Alienage 18 U. §1333 5 Disputes Between States. and ii) its principle place of business (usually where the corporate headquarters is located.

(2) Rule 19 (Compulsory Joinder of Parties) (3) Rule 20 (Permissive Joinder of Parties) (4) Rule 24 (Intervention) c) §1367(c) — gives Ct discretion to hear cases (like Gibbs — but not clear whether list is illustrative or exhaustive) i) Says that the Ct may decline to exercise j if: (1) Claim raises a novel or complex issue of state law (2) The claim substantially predominates over the claim(s) over which the dc has original jurisdiction (3) The Court has dismissed all claims over which it has original jurisdiction (4) In exceptional circumstances – other reasons 84957121. limits reach of jurisdiction only in diversity only cases — exercise of jurisdiction must be consistent w/§1332 (diversity statute) §1367(b) applies Remember.C. §1333 4 Admiralty 18 U. and 3rd party claims. cross-claims.S.C.Is There Subject Matter Jurisdiction? Supplemental Jurisdiction Created by Judicial Interpretation and Codified in 28 U. Congress codified Gibbs in §1367. and Ambassadors SUPPLEMENTAL JURISDICTION BASICS 1) Pendant & Ancillary Jurisdiction: United Mine Workers v. expanded the definition of case and controversy under Article III. called the pendant doctrine. i) No supplemental jurisdiction. §1331 2 Diversity 18 U. a) Ancillary claims doctrine allowed π’s to bring a case and allowed ∆ ’s to assert jurisdictionally insufficient compulsory counter-claims. §1367 1 Federal Question 18 U. 2) §1367: After some restrictions in Owens and Finley.S.C.C. Supreme Court ruled that federal court could assume jurisdiction over state claim because they all emanated from the same set of facts. §1333 5 Disputes Between States. a) §1367(a): Matters originating from a common nucleus of operative facts are now considered part of the same case or controversy for Article III purposes. Counsels. §1367 3 Alienage 18 U.doc -4- .S.S. §1332 2a Supplemental (Pendant & Ancillary) 18 U. b) §1367(b): Codifies Kroger but rejects Finley.C. must have independentdiversity is the sole by Π against persons made parties by: ONLY if jurisdiction for claims (1) Rule 14 (Impleader) basis for being in federal court.S. This ruling. Gibbs – state tort claim added to federal employment question.S.C.

But the legislative history indicates that Congress wants the claim to stay out. Justice O’Connor 14 19 20 (∆ ) 24 This is the §1367(b) limitation. Diversity Only Claim by π or ∆ ? ∆ SM J §1367(b) limitation does not apply to claims brought by ∆ .doc -5- . The Courts of Appeal are split.Supplemental Jurisdiction Flowchart 18 U. SM J No No SMJ This is a basic requirement of §1367(a). Ques. 23 The literal language of §1367 lets the claim in. §1367 Same case or controversy? Yes Federal Question or Diversity? Fed. No SMJ TROUBL E! 84957121. The Supreme Court granted certiorari in 2000.C. §1367(b) limitation does not apply to Fed Ques.S. π Party added under what Rule? 20(π).

h. Washington SUFFICIENT MINIMUM CONTACTS (CAPFI) 1. §1: FULL FAITH & CREDIT CLAUSE Full Faith and Credit Will Be Given in Each State Consent Express: Carnival Cruise Lines Implied: Hess v. Cause of Action: Where did the cause of action arise? 2. Pawloski Waiver: Insurance Corp of Ireland Contract / Agent Appointment / Shows up to Litigate Traditional Bases of Personal Jurisdiction Domicile Gordon v. n) Reasonably Calculated Under the Circumstances to Give Notice Mullane v. Witnesses: Where are the witnesses? -6- . Evidence: Where is the bulk of the evidence? 7. Activities: Scrutinize these activities in the forum state: a. Forum: Alternative forum available? Fair & convenient? 6. Dangerous activity? 3. Direct vs. International Shoe Co. Interest of the State: in providing a forum for & protecting its citizens. Denkla. Law: What forum’s law? 3. Purposeful Availement: Has ∆ purposefully availed itself of the benefits & protections of forum’s laws? Hanson v. 84957121. Sporadic = Specific Jurisdiction c. Systematic & Continuous = General Jurisdiction b. 2.doc FAIR PLAY AND SUBSTANTIAL JUSTICE (BLIM FEW) 1. Central Hanover Bank ARTICLE IV. Multiplicity of Suits: Will they all be resolved? 5. time. relative burdens. Burden on the Parties: Economic. Steele: Kid at College Milliken: WY Domicile Served in CO Physical Presence in State Tag Jurisdiction Lives! Burnham v. v. Indirect d. Superior Court Ex-Husband Served While Visiting Kids Modern Basis of Personal Jurisdiction ∆ must have sufficient minimum contacts within the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.PERSONAL JURISDICTION CONSTITUTIONAL BASES: 14 AMENDMENT DUE PROCESS REQUIREMENT Notice And Opportunity to Be Heard TH STATUTORY BASIS State Federal Long Arm Rule 4(k) Statute (2) Can Restrict Constitutional Personal Jurisdiction But MODERN SERVICE Rule 4 (a-e. 4.

Ability to compel attendance of witnesses 3. 1. 1.C. 1. Subject Matter Jurisdiction 2. Any alien. Local interest in having disputes resolved locally 2. above.. Courts know this and won’t grant FNC unless: 1.S. Piper. 2. §1404 Balancing Test Convenience of parties & witnesses + Interests of justice must substantially outweigh π’s interest in choice of forum. ∆ waives statute of limitations defense. Any dist. Personal Jurisdiction 3.C. Difference in substantive law that will be applied in new forum is not decisive in dismissing on grounds of FNC. State Courts NEVER transfer to federal Courts or to different States. Can have venue in multiple locations. Use FNC in such case.  Possible Exam Questions Venue Rules: 28 U. There is an alternative forum. Public Interest Factors 1. Same as in diversity cases.S. Use FNC in such case. § 1391(d). Convenience to voluntary witnesses 4.VENUE: Underlying Policies:  Judicial Efficiency. in Venue Exam Tricks Transferring Court can only send a case to a court where the “action could have been commenced or initiated. Any dist.” Therefore. Juris. 2. is subject to PJ. Anywhere corp. § 1391(b).C. Same as in diversity cases. Access to sources of proof 2. Court congestion General Rule FNC is tough on π’s. 2. Choice of Law: Diversity Cases Only Laws of the transferring state apply unless venue was improper. Where any ∆ can be found only Venue of corporate ∆ ’s § 1391(c). but could be relevant if the law in the alternative forum were completely inadequate. 1. 3. §1391 Venue in diversity cases.S. where any ∆ resides.doc Transfer of Venue: 28 U. Federal Courts NEVER transfer to State Courts. Where a substantial part of the controverted events occurred or where the disputed property is located. Venue for aliens 28 U. especially in light of statutes of limitation and Pers. if all ∆ ’s reside in the same state. § 1391(a). even if the transferring Court doesn’t:. can 84957121. alien corps. Private Factors Balancing Test Private Interest Factors 1. 1.  Limit Forum Shopping. incl. the receiving Court must have all 3. above. Venue Forum Non Conveniens Public vs. Venue in all other cases. -7- .

Non.doc No There is NO FQJ.S. 3. ALL ∆ ’s must consent.C. no counterclaim ∆ ’s No Removal for In-State Defendants in DiversityOnly Cases Federal Question Claims Pass Through Federal Question Filter 28 U. §1441(a) Court May Exercise or Decline Per Authority Granted under §1367(c) Not Part of Same Constitutional Case Separate & Independent Claim? -8- . Completely Discretionary 2. §1331 Federal Question Flow Chart Does the π’s well pleaded complaint allege an express or implied federal cause of action? N o FEDERAL Court 1. Must have been qualified to grant original jurisdiction. May grant supplemental jurisdiction as long as at least one separate and independent federal claim eligible for removal.Removal: 28 U. §1441 STATE Court 4.Federal Question Claims Pass Through Supplemental Jurisdiction Filter 28 U. State to Federal ONLY. ORIGINAL ∆ ’s only. 5.S.S. §1367 Same Case or Common Nucleus of Meets Supplemental Jurisdiction Requirements under §1367? Yes No Yes Yes Does the π’s well pleaded complaint allege a state law cause of action in which federal law is an essential element? Does the federal law that is an element authorize a private right of action? Yes There is FQJ 84957121. 6.C.C.

doc -9- .§1441(a) Court Must Hear §1441(c) Court May Keep Or Court May Remand 84957121.

doc .Waiver What May NEVER Be Waived? What May Be Waived? Consolidation of Defenses Rules 12(g) and 12(h) SMJ Is A Constitutional Issue and Cannot Be Waived.10 - . Parties to an Action May NEVER Consent to Waiver of SMJ Personal Jurisdiction Notice Service of Process Venue 84957121.

BALANCE Do BOTH State law applies (f/ Erie & RDA) Hanna Dicta Analyze in light of twin aims of Erie. Byrd was judge/jury relationship which outweighed outcome determinacy) Outcome determinative test (for state law) If outcome would be different depending on which law applies (i.e.Erie Doctrine Flowchart The discouragement of forum shopping and avoidance of inequitable administration of the laws Is state law substantive / black letter law? N O Fed Rule on Point? (look at twin aims of Erie before deciding) YES YES Hanna Holding Apply Fed Rule if it’s valid. Forum Shopping? 2. Inequitable admin. statute of limitations is very determinative if its run in state and not fed) 84957121. Countervailing Interests (for fed law) (always have uniformity. 1.11 - .doc . but weak on its own. of the laws? Y State law N Fed law Valid if reasonable person would consider it procedural Fed. Possibly/N o (Grey Area) Byrd Test Is state rule bound up with (implementing of) state created rights& obligations? Does it regulate primary behavior? Y State law N Rule of form & mode.

There is a common question of law or fact Compulsory Joinder of Parties Rule 19(a) 1. T&O + CQ = Permissive Party Joinder 1. 2. why not? Exam Tip: look out! Reason could be SMJ and/or PJ. In federal practice a π can join any claims he or she has against the ∆ .III. In a state following the FRCP. Will parties be injured by failure to join outsider? b. what do I do now? 84957121. If state X follows the more traditional rule of Permissive Joinder of Parties: 2 Prong Test 1 ¶ at most on exam. be ready to perform the entire analysis. AND 2. I can’t join this guy. Will outsiders be prejudiced by result? Exam Tip: Probably only situation in which outsider is not compulsory is tort action. If so. 2. π may only want or need to sue the rich ∆ . a π can join any claims he or she has against the ∆ because those are the Federal Rules. 3.12 - . Joinder Joinder of Claims 3 Sentences at most on exam: 1. Who is necessary and should be joined if possible? a. Claims or defenses stem from the same transaction. Joint tortfeasors are NOT compulsory. Can you join the outsider? If not. 3.doc .

When a litigant to invoke federal counterclaim is asserted question jur. The court fact common to all may make such these persons will orders as will arise in the party prevent a action. UNLESS to a legal certainty Π cannot recover $75k. It is against a plaintiff. At any time after commencement of the action a defending party. Joinder by ∆ Or Claims 13 (a. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. may join. and may order separate trials or make other orders to prevent delay or prejudice. as many claims as the party has against an opposing party. by protective provisions in the judgment.000.Big Picture Must satisfy both FRCP and SM Jx.A pleading shall state as a counterclaim any claim it has against any opposing party. Or Definitions Real Party in interest: one who will benefit from action. §1332. Well Pleaded against the third-party 14(b) When Plaintiff May Complaint Rule. 3) Dc has dismissed claims under DC’s original Jx. cause of person's ability to protect action for the violation that interest or does not state a claim (ii) leave any of the “arising under” the persons already parties Constitution or Laws of subject to a substantial risk the United States. Claim must exceed 75. Bring in Third Party. described in subdivision (a)(1) . or third-party claim. as a third-party plaintiff. occurrence. O r Diversity must exist at the time the complaint is filed with the clerk. or series of transactions or occurrences and if any common question of law or fact common to all these persons will arise in the action. delayed. or series of transactions or occurrences and if any Separate 20(b) common question of law or Trials. whether a judgment rendered in the person's absence will be adequate. 14(a) When Defendant May Bring in Third Party.000 not actual award. and whose joinder will not If a substantial issue is deprive the court of not raised as a jurisdiction over the subject legitimate part of the matter of the action shall plaintiffs own claim for be joined as a party in the relief there is no federal action if question jurisdiction (1) in the person's absence under the statute.Federal Questions Parties 14. or other measures.doc . from being embarrassed. §1367Supplemental Jx Where DC has original Jx.District courts shall have original Jx arising under the Constitution etc. of incurring double. g) (a) Compulsory Counterclaims . Jx over all other claims that are related to the original claim when they are part of the same claim or EXCEPT. Jx if: 1) A novel or complex state law issue 2) Claim dominates the claim which original Jx was based. It need not exist at the time of trial or when the cause of action arose A plaintiff can often cure the lack of diversity problem by dismissing nondiverse parties. fourth. occurrence. may cause a “Arising Under” In summons and complaint to be served upon a person not order to invoke federal a party to the action who is court jurisdiction the or may be liable to the thirdfederal issue must be a party plaintiff for all or part sufficient or central part of the plaintiff's claim of the dispute. one who has a substantial interest. Cross-claims: claims between coparties. multiple.13 3rd Part y 84957121. But … (b) exception). may also The DC20. (g) Cross-claim Against Co-Party. the necessary both that the plaintiff may cause a third case “arise under” the party to be brought in under constitution or some circumstances which under other aspect of federal 19(a) Persons to be Joined if this rule would entitle a law and that this fact Feasible. counterclaim. the court shall determine whether the action should proceed among the parties before it.when controversy. third. second. or should be dismissed. or plaintiff anticipates are (2) the person claims an irrelevant for Merrell Dow-A interest relating to the jurisdictional purposes. Original claims: claims by Π ’s against ∆ ’s. FRCP Subject Matter Jx §1331. 19 . Note: this is not exclusive JX AND Joinder by 20(a) Permissive Π AClaims 18 (a) party asserting a claim to relief as an original claim. to join a 3rd party. 3rd Parties: a party brought into the action by a current ∆. If a interest. 4) Other compelling reasons. when congress the person's absence may : has determined that (i) as a practical matter there should be no impair or impede the private. to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties. Joinder. Issue complete relief cannot be that the D raises in the accorded among those answer or that the already parties. whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. cross-claim. A person who is defendant to do so. Original Claim Counter Claim Cross Claim 3rd party Claim Claim by 3rd P Π Π ∆ ∆ . appear on the face of a subject to service of process well pleaded complaint. All persons may join20 one Parties in (a) action as plaintiffs if they assert any right to relief … arising out of the same transaction. federal. by the shaping of relief. the prejudice can be lessened or avoided.For a plaintiff. the extent to which. or 24. they shall have supp. the absent person being thus regarded as indispensable. All persons may be joined in one action as defendants if there is asserted against them any right to relief … arising out of the same transaction. or otherwise inconsistent obligations by reason of theCourt Whenever Joinder Not 19(b) Determination by claimed person as Feasible. b.Joinder. complaint alleging a subject of the action and is violation of a federal so situated that the statute in a state cause disposition of the action in of action. 3rd Party claims: claim by ∆ acting as 3rd Party Π . they original claim arises SOLELY under §1332 the DC WILL NOT have Jx over claims made by Π ’s against persons under RULE 14. or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party. it is an independent cause of action. (see Permissive Counterclaims.01 minimum & COMPLETE Diversity Amount claimed in good faith is relevant. see §1367(b) decline supp. The factors to be considered by the court include: first. not amount the court awards.Diversity and $ Amount $75. if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Counterclaims: made by ∆ ’s against Π ’s.(2) hereof cannot be made a party. 19. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

Always Permissive 2. Can invoke §1367 if claim won’t stand alone. 4. Blazer Financial Services) State Courts will usually respect Rule 13(a). Adding New Parties: Theoretically. 5. it’s pretty much the basis of everything in CivPro. Is there any logical relation between the claim and the counterclaim? 3.14 - . to each-and-every supplier involved along the way. 4. invoke §1367 Supplemental Jurisdiction and be sure to use the buzzwords: a. 6. Big exam points here. 2. 3. 3. Rule 14(a) Amendment: original π may amend complaint to directly assert claim against newly impleaded 3rd party ∆ .e. Remember Pugsley said the title “plaintiff” doesn’t mean squat in Tort law. a. 3rd Party Claims (Impleader) Rule 14 1. and 3rd Party Claims (Impleader) Counterclaims 1. it just means you filed first. Are the issues of fact and law raised by the claim and counterclaim largely the same? b.. Kroger Rule: Original π cannot assert supplemental §1367 claim against parties brought under Rule 14 (third party practice). and Rule 24 (Intervention). Would res judicata bar a subsequent suit on ∆ ’s claim absent the compulsory counterclaim rule? c. 3rd party ∆ ’s counterclaiming back will probably be compulsory because permissive counterclaims are usually transactionally related and therefore NOT subject to supplemental jurisdiction. It does NOT say anything about Rule 13 (counterclaim and cross-claim). 84957121. A counter claim is compulsory if it “arises out of the same transaction or occurrence” that is the subject matter of the π ’s claim (counterclaim must be pleaded) 2. start writing about T&O. everything else. if you fail to pursue your compulsory counterclaim in federal Court. ∆ ) 1. from retailer to manufacturer. Common Nucleus of Facts Cross-Claims Rule 13(g) (∆ vs.Counterclaims.doc . Crossclaims. Can invoke §1367 if claim won’t stand alone. I. examine Transaction & Occurrence. so if you’re blanking out. state Court will probably not allow a new suit on the same facts. Compulsory: Rule 13(a). Underlying policy concerns: efficiency and economy. Permissive: Rule 13(b). Exam Tip: Remember that every party added means you must establish personal jurisdiction over all these parties. Rule 19 & 20 (Basic Joinder Rules). use it or lose it. but it is not guaranteed. Will substantially the same evidence support or refute π ’s claim as well as ∆ ’s counterclaim? d. an infinite number of parties may be added to the action. 5. Exam Tip: Rule 13 pretty much allows a ∆ to counterclaim against a π for anything he wants. Exam Tip: When in doubt. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no diversity). 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same transaction: (from Plant v.

JOINDER DIAGRAMS Rule 13(a) Compulsory Counterclaim Rule 13(b) Permissive Counterclaim π Negligence or Tort Permissive Counterclaim for Negligence or Tort ∆ π Negligence or Tort Compulsory Counterclaim for ∆ A counter claim is compulsory if it “arises out of the same transaction or occurrence” that is the subject matter of the π ’s claim (counterclaim must be pleaded) 4 Part Test to define when a claim or counterclaim arises from the same transaction: (from Plant v. Blazer Financial Services) 1) Are the issues of fact and law raised by the claim and counterclaim largely the same? 2) Would res judicata bar a subsequent suit on ∆ ’s claim absent the compulsory counterclaim rule? 3) Will substantially the same evidence support or refute π ’s claim as well as ∆ ’s counterclaim? Rule 13(g) Crossclaims π Negligence or Tort Negligence or Tort Crossclaim for Product Liability Existing Co-∆ (Party to Original Action) ∆ 84957121.doc .15 - .

3rd Party (Newly Joined) 84957121.16 - .JOINDER DIAGRAMS Rule 13(h) Joinder of Additional Parties to Crossclaims or Counterclaims – Adding Third Party Defendant Rule 14(a) S1 π Negligence or Tort Negligence or Tort Crossclaim ∆ π Negligence or Tort ∆ (3rd Party π ) Existing Co-∆ (Party to Original Action) Joinder of Additional Parties (Not In Original Action) Contribution or Indemnity Claim 3rd Party ∆ In this example. an original ∆ crossclaims against another original ∆ AND joins a 3rd party ∆ as well.doc .

JOINDER DIAGRAMS Rule 14(a) S6 – TPD Can Assert Claim Against π π ∆ (3 Party π ) rd Rule 14(a) S7 – π Can Assert Claim Against TPD ∆ (3rd Party π ) Negligence or Tort π Negligence or Tort Requires same Transaction or Occurrence as π ’s claim against 3rd Party π Counterclaim 3rd Party ∆ Requires same Transaction or Occurrence as π ’s claim against 3rd Party π 3rd Party ∆ TPD MUST assert all defenses available under Rule 12 and counterclaims and crossclaims under Rule 13. 84957121.17 - C ro ss cl ai m Contr ibutio n or Inde mnity Claim .doc .

doc .JOINDER DIAGRAMS Rule 14(a) S9 – TPD Joining Another Third Party Defendant ∆ (3rd Party π ) Rule 18(a) Joinder of Claims π Negligence or Tort Breach of Contract ∆ π Negligence or Tort Contribution or Indemnity Claim 3rd Party ∆ Contribution or Indemnity Claim 3rd Party ∆ 84957121.18 - .

AND There is a common question of law or fact binding the parties.doc .π ’s Rule 20(a) S2 Joinder of Parties – ∆ ’s π Negligence or Tort Negligence or Tort ∆ π Negligence or Tort Negligence or Tort ∆ Co .19 - . Permissive Joinder of Parties: 2 Prong Test 1 ¶ at most on exam. AND There is a common question of law or fact binding the parties.π Co-∆ Permissive Joinder of Parties: 2 Prong Test 1 ¶ at most on exam. TO + CQ = Permissive Party Joinder Claims or defenses stem from the same transaction. TO + CQ = Permissive Party Joinder Claims or defenses stem from the same transaction.JOINDER OF PARTIES DIAGRAMS Rule 20(a) S1 Joinder of Parties . 84957121.

Policy Objective: So that the stakeholder will not have to pay the same claim twice.S. district where any claimant found if no other basis for venue Only basis is provision in 28 USC §2283 for stay “where necessary in aid of .000+ Need personal Jurisdiction. Practical Application: Interpleader is a π ’s tool to join all claimants at once.S.Amount Personal Jurisdiction and Service of process Venue 28 U. Injunctions Statutory authority for injunctions (28 USC §2361) Post a bond with the Court to cover value of controverted property. . . It is a device to resolve at one time the claims of many persons to one piece of property or sum of money. jurisdiction” Deposit controverted property with the Court. such as a bank account claimed by more than one person. compulsory counterclaim [Rule 13(a)]. district where property is. (At least 2 claimants diverse) $500 in controversy Nationwide service of process Residence of one or more claimants Rule 22 Complete diversity. 28 U. but may be employed by a ∆ through use of cross-claim [Rule 13(g)].C.C. district where dispute arose.20 - . How to Invoke: stakeholder invokes and is called π 84957121. stakeholder on one side and claimants on the other $75. Issue Subject Matter Jurisdiction . determined between claimants.doc .Diversity . §1335 Minimal diversity. or permissive counterclaim [Rule 13(b)]. §1335 “You all figure out who I need to pay if I am liable (which I may not be)” Interpleader Basics Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) the ownership of which is or may be claimed by more than one party.Interpleader Rule 22. service under Rule 4 Residence of any claimants (if all from one state).

3. OR Common Question of Law or Fact.doc . Rule 24(b): Permissive Intervention discretion of Court if: Conditional Right Granted by Statute. such as contesting scope of protective orders and confidentiality agreements.Intervention Rule 24 Remember. Applicant has interest in transaction or property + disposition will impair his interest . Example: Environmental Lawyers intervene to contest Oil Co. uncontestable right if: 1. OR Limited Purpose Intervention: Courts my grant intervention for limited purposes.no existing party can adequately represent his interest At 1. settlement agreement ordering destruction of discovery documents which may show broader pattern of . 2. you am coming anyway” “I wasn’t invited. OR 2. but I need PJ over all the claimants in order for Rule 22 interpleader to work! Rule 24(a): Intervention of Right Automatic.21 - 84957121. Unconditional Right Granted by Federal Statute.

such as contesting scope Step 1: of protective orders and confidentiality agreements.22 - . settlement agreement ordering destruction of discovery documents which may show broader pattern of abuse. Limited Purpose Intervention: Courts my grant intervention for limited purposes. . Example: Environmental lawyers intervene to contest Oil Co.Rule 24(b¹): Limited Purpose Intervention Intervention Flowchart Judicial Expansion of Rule 24(b): 1. intervention? Does a Federal Statute grant conditional right of intervention? Yes MAY Grant This is Rule 24(b) Court will consider delay or prejudice to original parties. Step 3: CONSIDERATIONS OF JUDICIAL EFFICIENCY AND PUBLIC POLICY. Is there: A common question of law or fact? 84957121. Yes Does a Federal Statute grant MUST Grant unconditional right of This is Rule 24(a). STATUTORY ANALYSIS 2. Step 2: CAN’T SOMEONE ELSE DO IT? Is there a party to the case who will adequately represent the applicant’s legitimate interest in the controverted matter? (Can an existing party cover your ass? ) Yes MUST Grant This is Rule 24(a).or A limited purpose that would serve public policy? Yes MAY Grant This is Rule 24(b) Court will consider delay or prejudice to original parties.doc . suppression of which arguably would be contrary to public policy.

84957121.23 - .doc .

COMMON LEGAL THEORY: Claims have a Common legal theory or arise out of the same transaction or occurrence. JURISDICTION Federal Question: Normal Rule Applies Diversity: Class action is a representative action. 3. 7. 6.  But in a 23(b)(3) case you’d have a big problem if your individual claims were not each over the $75k requirement. 4.doc . 5.  Diversity is based on the representative. Just make sure you pick a π from another state. ADEQUACY OF REPRESENTATION: Named parties must Adequately represent the class. B RULE 23(B): Action must fall within one of three categories of Fed Rule 23(b)  Identifiable Class  Named π s (or ∆ s) are members of the class  Numerosity 84957121. Focuses mostly on notice. For 23(b)(3) damages case. 2.Class Actions Rule 23: “We Were All Screwed Over!” 23(A) CLASS PREREQUISITES (CEN C TAB) 1.  Amount in Controversy cannot be aggregated. Denkla. Personal Jurisdiction: Not the Shoe. VW test. TYPICAL: Claim of named π must be Typical of the class. CLASS: is roughly definable and π is a member.  If it’s classified as a 23(b)(2) injunctive claim. requires:  Adequate representative  Notice Right to opt out. you would value the injunction and that could get you over the $75k  Or you could file it in state court. NUMEROUS: Potential π ’s too numerous for joinder. ECONOMY: Judicial Economy is Served. Not required for 23(b)(1) or (2) cases.24 - .

If RJ is a meat cleaver. etc. . But Courts will interpret claims narrowly if they are concerned about the harshness of preclusion and the burden on the π . actions arise from the same occurrence – the toaster explosion. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage multiple litigation (judicial efficiency). Collateral Estoppel Basics 1. The issue may previously have been decided but was not necessary to resolution of that case. This is because A actually litigated and necessarily determined that B was the negligent driver in the accident. For purposes of the exam. so B never counterclaimed against A.doc . 23(b) Protect rights where large numbers of Civil rights cases. 4. a. breach. warranty. I Don’t Want To Talk About It Anymore!” NIL Issue Necessary to the first action? Identical Issues? 23(B) TYPES OF CLASSES Collateral Objective Mutuality of Estoppel Class Defined Policy Practical Application Res Judicata Estoppel inconsistent decisions or (Who or whichlimited fund subject to claim or 23(b) Avoid In a parties are case. Definition: RJ means you cannot re-litigate a matter that you previously litigated or could have litigated. Necessarily Decided (This is important. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. tuna they bought at Ralph’s.25 b. Same Issue b. But all those Notice theories of members may opt-out. (Claim Preclusion) (Issue Preclusion) of interests of class issue preclusion? (1) impairment individually. sues B for negligence. don’t worry about comparative negligence claims. Merger$& Bar: The Damages or (3) overcharged 10 cents on every can of  Must Yousuperior to other be can’t break it in half and play part now and where individual π’s theories that could have been plead  Allows relief part later. Additional don’t bet it. No one available methods could not economically pursue but weren’t are merged into the first judgment and further litigation is barred by RJ. members. There are 3 requirements for CE: a. absentees.). severing only the issues previously adjudicated. first π takes it all. lopping off the entire claim. deterring behavior of some ∆ ’s majority position is to focus On the exam. she’s probably got half  a dozenmust inform recovery under tort and contract law (strict liability.PET M Same Primary rights involved? Same Evidence? Same Transaction or IV: RES JUDICATA “Go Away. 5. Actually Litigated c. and wins.  Limited to Injunctive or (2) persons are affected. Declaratory Relief  No $ damages Res Judicata Basics  Class members may NOT opt out 1. 84957121. 2. Assume that there was no compulsory counterclaim rule. Example: Driver A hits Driver B. you only get two choices: bet itwho was  Judicial efficiency 2. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand its central importance to the concept of res judicata. focus on transaction & occurrence. But as a action  for Relief is The Key: questions ofthe claim for relief (cause of action)? Is it litigation to preserve a right or to class Must present common So.Courts have held both ways and a minority of jurisdictions still use the right-wrongsense and the (Predominance of  Could be only effective method of remedy a wrong? test. Claim it would make Ralph’s law or fact. CE is a scalpel. it’s probably small violations). if suits brought  Mass version of Rule 19 joinder. Leave Me Alone. Class  Class members may NOT opt out Action protects other π’s. 23(b) Class action for everyone  Monetary controverted matter (cause of action) is like a poker chip. But would have to react. claims are specific to the π . Now Driver B wants to sue Driver A for his injuries. so that single accident gave rise to valid claims for both A and B. Most Courts would rule this a single cause-ofaction for RJ purposes. what’s 3. common question) on the transaction. from the same transaction or occurrence. Avoid harm to ∆ ’s and and are BOUND by the holding. a. But B will be estopped from asserting a claim of negligence against A. If the claim arises  π bears cost of notice to all class (many covered by RJ. members. Example: In-other-words. would sue individually. if π bought a toaster that exploded and killed her pet iguana.

26 RJ won’t apply if the matter hasn’t been finally and validly decided by a proper Court! .) Was it considered “on the merits”? RES JUDICATA (CLAIM PRECLUSION) FLOWCHART Yes 12(b)(6) Default judgment or Consent decree Summary judgment & Directed Verdict (JMOL) Yes Was it valid? Proper court with subject matter and personal jurisdiction? §1738 “Full Faith & Credit” valid state court decisions Yes are binding in federal court unless state court lacked competency. Does 2nd Action Involve Same Parties or Those In Privity? (Privity requires a legal relationship between the parties) 84957121.doc CLAIM PRECLUSION Entire claim is precluded. No No Jurisdiction Venue Joinder of an Indispensable Party NO CLAIM PRECLUSION .Do the issues in the current case stem from the same transaction or occurrence as a previously litigated case? Was there a final judgment in the previous case? (Final means all steps in the adjudication except execution & appeal. including matters that were or should have been litigated.

doc .27 - .Yes No Yes No Yes 84957121.

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