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?

51663461.doc

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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 51663461.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-

ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party. iii) If person has multiple homes in different states.. representative of a child. 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.C. 5) AGGREGATION RULES: 51663461. §1333 5 Disputes Between States. 4) AMOUNT IN CONTROVERSY: must be over $75. There cannot be anyone on the left of the “v” and the right.000. and ii) its principle place of business (usually where the corporate headquarters is located.S. and Ambassadors DIVERSITY OF CITIZENSHIP BASICS 1) COMPLETENESS: Diversity must be complete. d) PARTIES IN REPRESENTATIVE ACTIONS (e..S.g. 3) CITIZENSHIP (Domicile) a) PERSONS: Where you were born and continues through your life unless: i) You physically change your state. labor unions. §1331 2 Diversity 18 U. and ii) You have the intention of remaining in the new state for the indefinite future.C. a national labor union like the Teamsters could never pass the federal diversity test because it has members in all 50 states.g. or (2) Muscle (Plurality) Test . partnerships): Cumulate domiciliary state of each member. Two tests for principle place of business: (1) Nerve Center Test – place where corporate decisions are made. §1332 3 Alienage 18 U. So.Is There Subject Matter Jurisdiction? United States Constitution.C. 2) DATE: Diversity is calculated as of the date the action was instituted.S. probate.doc -3- .place where the corporation does most of its manufacturing or service providing.C.S. Counsels. §1333 4 Admiralty 18 U. exclusive of interest and costs but inclusive of punitive damages. c) UNINCORPORATED Associations (e. 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. Article III: Federal Courts Are Courts of Limited Jurisdiction: 1 Federal Question 18 U.

Gibbs – state tort claim added to federal employment question.C. §1333 4 Admiralty 18 U. Supreme Court ruled that federal court could assume jurisdiction over state claim because they all emanated from the same set of facts.S.S.C. b) §1367(b): Codifies Kroger but rejects Finley.C. cross-claims. 2) §1367: After some restrictions in Owens and Finley. and Ambassadors SUPPLEMENTAL JURISDICTION BASICS 1) Pendant & Ancillary Jurisdiction: United Mine Workers v. a) Ancillary claims doctrine allowed π’s to bring a case and allowed ∆ ’s to assert jurisdictionally insufficient compulsory counter-claims. §1367 3 Alienage 18 U.C.doc -4- . called the pendant doctrine. This ruling. (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 51663461.S.S. limits reach of jurisdiction only in diversity only cases — exercise of jurisdiction must be consistent w/§1332 (diversity statute) §1367(b) applies Remember. 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. Counsels. §1367 1 Federal Question 18 U.S.Is There Subject Matter Jurisdiction? Supplemental Jurisdiction Created by Judicial Interpretation and Codified in 28 U. §1332 2a Supplemental (Pendant & Ancillary) 18 U.C.C. i) No supplemental jurisdiction.S. Congress codified Gibbs in §1367. expanded the definition of case and controversy under Article III. §1331 2 Diversity 18 U. §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. and 3rd party claims.

C. §1367(b) limitation does not apply to Fed Ques. The Courts of Appeal are split. 23 The literal language of §1367 lets the claim in.Supplemental Jurisdiction Flowchart 18 U.doc -5- . §1367 Same case or controversy? Yes Federal Question or Diversity? Fed.S. Diversity Only Claim by π or ∆ ? ∆ SM J §1367(b) limitation does not apply to claims brought by ∆ . But the legislative history indicates that Congress wants the claim to stay out. No SMJ TROUBL E! 51663461. Ques. The Supreme Court granted certiorari in 2000. Justice O’Connor 14 19 20 (∆ ) 24 This is the §1367(b) limitation. SM J No No SMJ This is a basic requirement of §1367(a). π Party added under what Rule? 20(π).

time. Evidence: Where is the bulk of the evidence? 7. v. Denkla. Forum: Alternative forum available? Fair & convenient? 6. 2. 4. Multiplicity of Suits: Will they all be resolved? 5. Dangerous activity? 3. Central Hanover Bank ARTICLE IV. n) Reasonably Calculated Under the Circumstances to Give Notice Mullane v. Law: What forum’s law? 3. 51663461. Interest of the State: in providing a forum for & protecting its citizens. h. Purposeful Availement: Has ∆ purposefully availed itself of the benefits & protections of forum’s laws? Hanson v. 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. Indirect d. Activities: Scrutinize these activities in the forum state: a.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. relative burdens. Witnesses: Where are the witnesses? -6- . Systematic & Continuous = General Jurisdiction b. Washington SUFFICIENT MINIMUM CONTACTS (CAPFI) 1. Pawloski Waiver: Insurance Corp of Ireland Contract / Agent Appointment / Shows up to Litigate Traditional Bases of Personal Jurisdiction Domicile Gordon v.doc FAIR PLAY AND SUBSTANTIAL JUSTICE (BLIM FEW) 1. Steele: Kid at College Milliken: WY Domicile Served in CO Physical Presence in State Tag Jurisdiction Lives! Burnham v. Sporadic = Specific Jurisdiction c. §1: FULL FAITH & CREDIT CLAUSE Full Faith and Credit Will Be Given in Each State Consent Express: Carnival Cruise Lines Implied: Hess v. Burden on the Parties: Economic. International Shoe Co. Direct vs. Cause of Action: Where did the cause of action arise? 2.

Private Factors Balancing Test Private Interest Factors 1. §1391 Venue in diversity cases. Same as in diversity cases. Can have venue in multiple locations. incl. where any ∆ resides. Access to sources of proof 2. Federal Courts NEVER transfer to State Courts. Venue for aliens 28 U. 2.” Therefore. §1404 Balancing Test Convenience of parties & witnesses + Interests of justice must substantially outweigh π’s interest in choice of forum. § 1391(a).VENUE: Underlying Policies:  Judicial Efficiency. Courts know this and won’t grant FNC unless: 1. Personal Jurisdiction 3. if all ∆ ’s reside in the same state. Same as in diversity cases. 1. State Courts NEVER transfer to federal Courts or to different States. 3. § 1391(d).doc Transfer of Venue: 28 U. 1. Choice of Law: Diversity Cases Only Laws of the transferring state apply unless venue was improper. especially in light of statutes of limitation and Pers. in Venue Exam Tricks Transferring Court can only send a case to a court where the “action could have been commenced or initiated. above. -7- . alien corps.  Possible Exam Questions Venue Rules: 28 U. but could be relevant if the law in the alternative forum were completely inadequate. even if the transferring Court doesn’t:. Difference in substantive law that will be applied in new forum is not decisive in dismissing on grounds of FNC. Any alien. Juris. 1. 1.S. Use FNC in such case. Public Interest Factors 1. Convenience to voluntary witnesses 4. There is an alternative forum. Ability to compel attendance of witnesses 3. Venue in all other cases. ∆ waives statute of limitations defense. Use FNC in such case. the receiving Court must have all 3. Court congestion General Rule FNC is tough on π’s. Any dist. above. Local interest in having disputes resolved locally 2. Where a substantial part of the controverted events occurred or where the disputed property is located. § 1391(b). Venue Forum Non Conveniens Public vs. 2.C. 2. Where any ∆ can be found only Venue of corporate ∆ ’s § 1391(c).C.C. Any dist. Piper.. is subject to PJ. Subject Matter Jurisdiction 2. 1.S. Anywhere corp.S. can 51663461.  Limit Forum Shopping.

Non. §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 51663461.S.C. 6. ALL ∆ ’s must consent.S. §1441 STATE Court 4. no counterclaim ∆ ’s No Removal for In-State Defendants in DiversityOnly Cases Federal Question Claims Pass Through Federal Question Filter 28 U. Completely Discretionary 2. May grant supplemental jurisdiction as long as at least one separate and independent federal claim eligible for removal. 5. State to Federal ONLY. Must have been qualified to grant original jurisdiction.Removal: 28 U. ORIGINAL ∆ ’s only.C.doc No There is NO FQJ.S. §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.Federal Question Claims Pass Through Supplemental Jurisdiction 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- .C. 3.

doc -9- .§1441(a) Court Must Hear §1441(c) Court May Keep Or Court May Remand 51663461.

doc . Parties to an Action May NEVER Consent to Waiver of SMJ Personal Jurisdiction Notice Service of Process Venue 51663461.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 - .

Countervailing Interests (for fed law) (always have uniformity. 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. 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. but weak on its own. of the laws? Y State law N Fed law Valid if reasonable person would consider it procedural Fed. statute of limitations is very determinative if its run in state and not fed) 51663461.doc .11 - . Forum Shopping? 2. 1. Inequitable admin. BALANCE Do BOTH State law applies (f/ Erie & RDA) Hanna Dicta Analyze in light of twin aims of Erie.

doc . Can you join the outsider? If not. what do I do now? 51663461. In a state following the FRCP. Joinder Joinder of Claims 3 Sentences at most on exam: 1.III. a π can join any claims he or she has against the ∆ because those are the Federal Rules. If so. 3. 2. Will outsiders be prejudiced by result? Exam Tip: Probably only situation in which outsider is not compulsory is tort action. In federal practice a π can join any claims he or she has against the ∆ . 3. Who is necessary and should be joined if possible? a. I can’t join this guy. There is a common question of law or fact Compulsory Joinder of Parties Rule 19(a) 1.12 - . T&O + CQ = Permissive Party Joinder 1. 2. Claims or defenses stem from the same transaction. AND 2. Will parties be injured by failure to join outsider? b. If state X follows the more traditional rule of Permissive Joinder of Parties: 2 Prong Test 1 ¶ at most on exam. Joint tortfeasors are NOT compulsory. π may only want or need to sue the rich ∆ . be ready to perform the entire analysis. why not? Exam Tip: look out! Reason could be SMJ and/or PJ.

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. g) (a) Compulsory Counterclaims . b. 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. If a interest. multiple.District courts shall have original Jx arising under the Constitution etc. occurrence.(2) hereof cannot be made a party. A person who is defendant to do so. 14(a) When Defendant May Bring in Third Party. 19. appear on the face of a subject to service of process well pleaded complaint. 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. to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties. may join. the prejudice can be lessened or avoided. Well Pleaded against the third-party 14(b) When Plaintiff May Complaint Rule. the court shall determine whether the action should proceed among the parties before it. second. Jx over all other claims that are related to the original claim when they are part of the same claim or EXCEPT. it is an independent cause of action. or 24. The court fact common to all may make such these persons will orders as will arise in the party prevent a action. and may order separate trials or make other orders to prevent delay or prejudice. occurrence. federal. Or Definitions Real Party in interest: one who will benefit from action.01 minimum & COMPLETE Diversity Amount claimed in good faith is relevant.13 3rd Part y 51663461. of incurring double. 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. see §1367(b) decline supp. 3rd Parties: a party brought into the action by a current ∆. may also The DC20.000 not actual award. Jx if: 1) A novel or complex state law issue 2) Claim dominates the claim which original Jx was based. 3) Dc has dismissed claims under DC’s original Jx. O r Diversity must exist at the time the complaint is filed with the clerk. as many claims as the party has against an opposing party. fourth. When a litigant to invoke federal counterclaim is asserted question jur. 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. whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. when congress the person's absence may : has determined that (i) as a practical matter there should be no impair or impede the private.Federal Questions Parties 14. 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. not amount the court awards. by the shaping of relief. 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. 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.000. 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. It is against a plaintiff. to join a 3rd party. 4) Other compelling reasons. Original claims: claims by Π ’s against ∆ ’s. counterclaim. or other measures. or series of transactions or occurrences and if any Separate 20(b) common question of law or Trials. The factors to be considered by the court include: first. 3rd Party claims: claim by ∆ acting as 3rd Party Π . or should be dismissed. Issue complete relief cannot be that the D raises in the accorded among those answer or that the already parties. as a third-party plaintiff. 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. FRCP Subject Matter Jx §1331. the extent to which. delayed. 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. At any time after commencement of the action a defending party. (see Permissive Counterclaims. they shall have supp. or plaintiff anticipates are (2) the person claims an irrelevant for Merrell Dow-A interest relating to the jurisdictional purposes. or third-party claim. Cross-claims: claims between coparties. But … (b) exception). Joinder. third. UNLESS to a legal certainty Π cannot recover $75k.Big Picture Must satisfy both FRCP and SM Jx. Claim must exceed 75. or otherwise inconsistent obligations by reason of theCourt Whenever Joinder Not 19(b) Determination by claimed person as Feasible. Joinder by ∆ Or Claims 13 (a. cross-claim. one who has a substantial interest. from being embarrassed. §1332.For a plaintiff.when controversy. whether a judgment rendered in the person's absence will be adequate. 19 . (g) Cross-claim Against Co-Party. All persons may join20 one Parties in (a) action as plaintiffs if they assert any right to relief … arising out of the same transaction. Bring in Third Party. described in subdivision (a)(1) . the absent person being thus regarded as indispensable. §1367Supplemental Jx Where DC has original Jx.A pleading shall state as a counterclaim any claim it has against any opposing party.doc . by protective provisions in the judgment.Diversity and $ Amount $75.Joinder. Original Claim Counter Claim Cross Claim 3rd party Claim Claim by 3rd P Π 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. 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. 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. Counterclaims: made by ∆ ’s against Π ’s.

4. everything else. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no diversity). Rule 19 & 20 (Basic Joinder Rules). 3rd Party Claims (Impleader) Rule 14 1. Exam Tip: Rule 13 pretty much allows a ∆ to counterclaim against a π for anything he wants. Common Nucleus of Facts Cross-Claims Rule 13(g) (∆ vs. 5. 3rd party ∆ ’s counterclaiming back will probably be compulsory because permissive counterclaims are usually transactionally related and therefore NOT subject to supplemental jurisdiction. examine Transaction & Occurrence. and 3rd Party Claims (Impleader) Counterclaims 1. if you fail to pursue your compulsory counterclaim in federal Court. Adding New Parties: Theoretically. Are the issues of fact and law raised by the claim and counterclaim largely the same? b.Counterclaims. to each-and-every supplier involved along the way. Is there any logical relation between the claim and the counterclaim? 3. Can invoke §1367 if claim won’t stand alone. Exam Tip: Remember that every party added means you must establish personal jurisdiction over all these parties. 3. Exam Tip: When in doubt. Would res judicata bar a subsequent suit on ∆ ’s claim absent the compulsory counterclaim rule? c. Remember Pugsley said the title “plaintiff” doesn’t mean squat in Tort law. invoke §1367 Supplemental Jurisdiction and be sure to use the buzzwords: a. Can invoke §1367 if claim won’t stand alone.14 - . but it is not guaranteed. 4. 6. from retailer to manufacturer. 51663461.e. a. Crossclaims. Rule 14(a) Amendment: original π may amend complaint to directly assert claim against newly impleaded 3rd party ∆ . use it or lose it. so if you’re blanking out. Will substantially the same evidence support or refute π ’s claim as well as ∆ ’s counterclaim? d. start writing about T&O. Compulsory: Rule 13(a). I. it just means you filed first. Kroger Rule: Original π cannot assert supplemental §1367 claim against parties brought under Rule 14 (third party practice). 5. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same transaction: (from Plant v. ∆ ) 1. Permissive: Rule 13(b). Blazer Financial Services) State Courts will usually respect Rule 13(a). 3. an infinite number of parties may be added to the action. Big exam points here. Underlying policy concerns: efficiency and economy. Always Permissive 2.. it’s pretty much the basis of everything in CivPro. state Court will probably not allow a new suit on the same facts. 2. It does NOT say anything about Rule 13 (counterclaim and cross-claim). and Rule 24 (Intervention). 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.doc .

doc .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.15 - . 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) ∆ 51663461.

3rd Party (Newly Joined) 51663461.doc .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.16 - .

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.doc . 51663461.17 - C ro ss cl ai m Contr ibutio n or Inde mnity Claim .

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 ∆ 51663461.doc .18 - .

AND There is a common question of law or fact binding the parties. 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.19 - .JOINDER OF PARTIES DIAGRAMS Rule 20(a) S1 Joinder of 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. 51663461.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 .doc . TO + CQ = Permissive Party Joinder Claims or defenses stem from the same transaction.

district where property is. 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 . . It is a device to resolve at one time the claims of many persons to one piece of property or sum of money. How to Invoke: stakeholder invokes and is called π 51663461.Amount Personal Jurisdiction and Service of process Venue 28 U.S.Diversity . or permissive counterclaim [Rule 13(b)]. determined between claimants.000+ Need personal Jurisdiction.C. Injunctions Statutory authority for injunctions (28 USC §2361) Post a bond with the Court to cover value of controverted property. Issue Subject Matter Jurisdiction . stakeholder on one side and claimants on the other $75. service under Rule 4 Residence of any claimants (if all from one state). but may be employed by a ∆ through use of cross-claim [Rule 13(g)].20 - . jurisdiction” Deposit controverted property with the Court.Interpleader Rule 22.S. (At least 2 claimants diverse) $500 in controversy Nationwide service of process Residence of one or more claimants Rule 22 Complete diversity. compulsory counterclaim [Rule 13(a)].doc . . district where dispute arose. Policy Objective: So that the stakeholder will not have to pay the same claim twice. such as a bank account claimed by more than one person. Practical Application: Interpleader is a π ’s tool to join all claimants at once. §1335 Minimal diversity. 28 U. §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.C.

such as contesting scope of protective orders and confidentiality agreements. OR Limited Purpose Intervention: Courts my grant intervention for limited purposes. Unconditional Right Granted by Federal Statute.21 - 51663461. Example: Environmental Lawyers intervene to contest Oil Co.doc . OR 2. 3. you am coming anyway” “I wasn’t invited.no existing party can adequately represent his interest At 1. OR Common Question of Law or Fact. 2. Rule 24(b): Permissive Intervention discretion of Court if: Conditional Right Granted by Statute. but I need PJ over all the claimants in order for Rule 22 interpleader to work! Rule 24(a): Intervention of Right Automatic. settlement agreement ordering destruction of discovery documents which may show broader pattern of .Intervention Rule 24 Remember. Applicant has interest in transaction or property + disposition will impair his interest . uncontestable right if: 1.

suppression of which arguably would be contrary to public policy. Yes Does a Federal Statute grant MUST Grant unconditional right of This is Rule 24(a). 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.22 - .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. such as contesting scope Step 1: of protective orders and confidentiality agreements. STATUTORY ANALYSIS 2.doc .Rule 24(b¹): Limited Purpose Intervention Intervention Flowchart Judicial Expansion of Rule 24(b): 1. settlement agreement ordering destruction of discovery documents which may show broader pattern of abuse. Is there: A common question of law or fact? 51663461. 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). . Example: Environmental lawyers intervene to contest Oil Co. Limited Purpose Intervention: Courts my grant intervention for limited purposes.

doc .23 - .51663461.

Focuses mostly on notice. CLASS: is roughly definable and π is a member. Denkla. you would value the injunction and that could get you over the $75k  Or you could file it in state court. TYPICAL: Claim of named π must be Typical of the class. For 23(b)(3) damages case. Just make sure you pick a π from another state.  Diversity is based on the representative. 5. ECONOMY: Judicial Economy is Served. 6. 2.  But in a 23(b)(3) case you’d have a big problem if your individual claims were not each over the $75k requirement.doc . 4. 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 51663461. Personal Jurisdiction: Not the Shoe. COMMON LEGAL THEORY: Claims have a Common legal theory or arise out of the same transaction or occurrence. VW test. 7. JURISDICTION Federal Question: Normal Rule Applies Diversity: Class action is a representative action. NUMEROUS: Potential π ’s too numerous for joinder.  If it’s classified as a 23(b)(2) injunctive claim. Not required for 23(b)(1) or (2) cases.  Amount in Controversy cannot be aggregated. requires:  Adequate representative  Notice Right to opt out.Class Actions Rule 23: “We Were All Screwed Over!” 23(A) CLASS PREREQUISITES (CEN C TAB) 1.24 - . 3.

claims are specific to the π . absentees. Actually Litigated c. But all those Notice theories of members may opt-out. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage multiple litigation (judicial efficiency). But would have to react. Collateral Estoppel Basics 1. 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. Avoid harm to ∆ ’s and and are BOUND by the holding. This is because A actually litigated and necessarily determined that B was the negligent driver in the accident. don’t worry about comparative negligence claims. focus on transaction & occurrence. and wins.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. Now Driver B wants to sue Driver A for his injuries. Class  Class members may NOT opt out Action protects other π’s. a. But Courts will interpret claims narrowly if they are concerned about the harshness of preclusion and the burden on the π .). warranty. 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.25 b. so B never counterclaimed against A. a. it’s probably small violations). lopping off the entire claim. would sue individually. Claim it would make Ralph’s law or fact. members. CE is a scalpel. if π bought a toaster that exploded and killed her pet iguana.doc . Example: Driver A hits Driver B. 51663461. she’s probably got half  a dozenmust inform recovery under tort and contract law (strict liability. 5. Assume that there was no compulsory counterclaim rule. . For purposes of the exam. 4. 23(b) Class action for everyone  Monetary controverted matter (cause of action) is like a poker chip. Declaratory Relief  No $ damages Res Judicata Basics  Class members may NOT opt out 1. 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. There are 3 requirements for CE: a. actions arise from the same occurrence – the toaster explosion. Example: In-other-words. tuna they bought at Ralph’s. so that single accident gave rise to valid claims for both A and B. (Claim Preclusion) (Issue Preclusion) of interests of class issue preclusion? (1) impairment individually. breach. if suits brought  Mass version of Rule 19 joinder. The issue may previously have been decided but was not necessary to resolution of that case. severing only the issues previously adjudicated.PET M Same Primary rights involved? Same Evidence? Same Transaction or IV: RES JUDICATA “Go Away. members. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. first π takes it all. No one available methods could not economically pursue but weren’t are merged into the first judgment and further litigation is barred by RJ. from the same transaction or occurrence. sues B for negligence. Necessarily Decided (This is important. Definition: RJ means you cannot re-litigate a matter that you previously litigated or could have litigated. 23(b) Protect rights where large numbers of Civil rights cases. deterring behavior of some ∆ ’s majority position is to focus On the exam. Same Issue b. If the claim arises  π bears cost of notice to all class (many covered by RJ. etc. what’s 3. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence. If RJ is a meat cleaver. But B will be estopped from asserting a claim of negligence against A.  Limited to Injunctive or (2) persons are affected. Most Courts would rule this a single cause-ofaction for RJ purposes. 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. Leave Me Alone. 2. Additional don’t bet it. you only get two choices: bet itwho was  Judicial efficiency 2. common question) on the transaction.

) 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) 51663461. including matters that were or should have been litigated.26 RJ won’t apply if the matter hasn’t been finally and validly decided by a proper Court! . 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.doc CLAIM PRECLUSION Entire claim is precluded.

doc .Yes No Yes No Yes 51663461.27 - .

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