Civil Procedure Outline I. Notice & Opportunity to Be Heard A. Opportunity to Be Heard 1.

5th (fed-level) & 14th (state-level) Amendments guarantee “no person shall be deprived of life, liberty or property without due process of law.” [2 parts: (1) state action; (2) deprivation of life, liberty or property] 2. Mathews Test: (1) private interest; (2) government interest/burden; (3) risk of error vs. value of additional procedures a) Civil Detention ← Hamdi [Enemy Combatant]—In light of “fundamental nature” and “most elemental right” on the side of private interest balanced against “weighty and sensitive” governmental interest, Court retains/recognizes right to notice, counsel and meaningful opportunity to contest factual basis for detention in front of an impartial decision, but allows for lower evidentiary standards (hearsay) and shifting burden of proof. b) Prejudgment Remedies ← Sniadach [Garnishment case; by state statute, half of money held prior to D being served or having an opportunity to respond]: Statue held to violate the 14th Amendment—i.e., deprived of property w/o due process. Ct. notes:"There are other decisions to the effect that one may be deprived of property by summary administrative action taken before hearing when such action is essential to protect a vital governmental interest.” (Foreshadows Matthews test) c) Right to Counsel ← Lassiter [Child custody/parental termination]: Right to counsel determined case-by-case, but presumption against except for absolute liberty deprivation Walters [VA benefits appeal; provision prohibiting paying a lawyer more than $10]: Rehnquist cites heavily Congressional intent, that the administrative process “does not contemplate the adversary mode of dispute resolution” and “Congress desired that the proceedings be as informal and nonadversarial as possible. The regular introduction of lawyers in to the proceedings would be quite unlikely to further this goal.”

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B. Notice 1. Judgement only valid/binding if: (1) Service complied with Rule 4 (fed) or state law/rules (state), and (2) Received constitutionally adequate notice. 2. Rule 4 a) Valid types of service on domestic individuals • In-hand/personal service. See Rule 4(e)(2)(A). • Substitute service. See Rule 4(e)(2)(A). Leave with resident of “suitable age and discretion” at “dwelling house or usual place of abode” Khashoggi [arms dealer with multiple mansions]: NY residence was determined to be his dwelling house because he had made significant renovations and was living there at the time; court indicates no grounds for ruling had he not been present/residing at time of service. • Other options include: (i) service per state law in forum or service state (Rule 4(e)(1)); (ii) service on authorized agent (Rule 4(e)(2)(C)). b) Note special rules for service on: (i) individuals in foreign countries —Rule 4(f); (ii) domestic and foreign corporations—Rule 4(h); (iii) federal govt—Rule 4(i). c) Other key points: • Service must be made by non-party over 18. See Rule 4(c)(2). • Actual notice does not cure a Rule 4 defect. Khashoggi: Rule 4’s requirements to be strictly observed. Mid-Continent [Lumber supplier took 6+ years to collect on judgement]: • Defendant's actual notice of the litigation is insufficient to satisfy Rule 4's requirement and confer personal jurisdiction (citing Raviolo and Bennett) • Unwise for a court to make its own rule/test re: service. “The strength of this long-standing assumption [that federal courts cannot add to the scope of service authorized by Congress], and the network of statutory enactments and Judicial decisions tied to it, argue strongly against devising common law service of process provisions at this late date." • The extent to which the plaintiff "tried" to serve process should not be a factor as to whether a federal court has personal jurisdiction over a defendant; the facts of the case fall short of establishing clear and convincing evidence of evasion on the part of the defendant.
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• "Reasonably Close" standard is only applicable to cases in which "substantial compliance" is used to prevent a purely technical error (citing United Food)

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• Trickery, judicial-witness immunity may invalidate otherwise valid service of process. Wyman [Woman lied to get ex-lover to FL for service]: Service of process based on fraud is invalid in those states having a statute to that effect, and is ineffective in establishing personal jurisdiction. When the first court enters a default judgment, the defendant may raise the fraud or duress defense as part of a collateral attack when the judgment is enforced in another state. • Waiver: Party may waive rights under Rule 4 and agree to mail or other service; Ds with waiver requests face ‘carrots’ (longer response time) and ‘sticks’ (pay service costs if no good cause). See Rule 4(d). 3. Constitutionally Adequate Service a) Key Points • Actual notice not constitutionally necessary. See Greene. • Publication notice not constitutionally sufficient where party’s name and address are “reasonably ascertainable.” See Mullane. • Posting more likely valid for in rem actions (where dispute concerns property itself). See Greene. • Official must attempt alternative service where clear notice not achieved. See Jones v. Flowers. b) Mullane Standard: “Notice reasonably calculated, under all the circumstances, to apprise interested parties. . . and afford them an opportunity to present their objections.” ← Green [Tenants evicted after notice via posting]: “The reasonableness of the notice provided must be tested with reference to the existence of "feasible and customary" alternatives and supplements to the form of notice chosen (citing Mullane). C. Challenging Sufficiency of Due Process 1. Direct Attack a) In federal court, raise via Rule 12(b) motion, but denial not immediately appealable (see Burger King). b) In CA, OK, or other state court, typically done via motion to quash then extraordinary writ (e.g., mandamus) going over trial judge’s head if denied (see WWVW). 2. Collateral Attack—Risky, but raise issue via habeas petition or Rule 60(b) (or state equivalent) motion in separate action after trial on merits, default judgment, or in response to attempt to execute on prior judgment (e.g., Khashoggi).
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Note: In federal court a denial of dismissal based on jurisdiction challenge is

not immediately appealable—must have a full trial first. Implication is that findings of fact from the trial are held throughout the appeals process.

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Implication is that findings of fact from the trial are held throughout the appeals process. Personal Jurisdiction ← Note: In federal court a denial of dismissal based on jurisdiction challenge is not immediately appealable—must have a full trial first. It can be the duty of the second court to determine and/or question jurisdictional defects.e. Pennoyer [quasi-in rem action.. Jurisdiction A. Fair faith and credit clause requires state courts to respect each other's rulings (i. allowing a judgement in one state to be executed on in another). 4.D voluntarily appears 2. showing up to court) b) Property (1) In Rem-State has jurisdiction over all property in its boarders (2) Quasi in rem-state has jurisdiction over issues where property w/in its boarders has been attached in an unrelated claim c) Consent . • 100-mile “bulge jurisdiction provided by 4(k)(1)(b) ← ← contacts b) Constitutional Analysis (Minimum Contacts + Fairness Factors) (1) Easy Cases (a) Individuals: i)Forum-state domicile (current dwelling + intent to remain indefinitely) Rule 4(k)(1)(C): jurisdiction otherwise authorized by federal statute Rule 4(k)(2): In fed-question case only. personal service within the jurisdiction satisfies both Rule 4 and the Pennoyer test 3. but land was attached after the fact]: Court can exercise jurisdiction over a D in 3 circumstances a) Physical presence (i. Two-part Personal Jurisdiction Analysis a) State Long-Arm or Rule 4(K) Analysis—Does State long-arm extend to due process limits or something less? ← court sits • fed ct.e. but ONLY if personal jurisdiction has been established in the original case. Service of process v. will interpret state statutes according to the state supreme ct. 1.Civil Procedure 6 .In-hand. personal jurisdiction . substantial US but diffuse state Rule 4(k): Incorporates state long-arm in states where federal district __________________________________________________________________________________________ Gonzalez .II.

) Pennoyer [quasi-in rem action. (Brennan. (b) Corporations: Shoe [Multiple employees in WA. voices “hey. (2) Harder Cases = Foreign. but land was attached after the fact]: Court can exercise jurisdiction over a D in 3 circumstances: personal presence. sufficient). claim need not arise out of contacts. Helicopteros [Columbian co purchased helicopters from TX and some pilot training but no other connection to state]: In order to exercise general in personam jurisdiction over a party. __________________________________________________________________________________________ Gonzalez . Nonresident D (individual or corp) (a) Minimum Contacts: D purposefully established minimum contacts with forum state and claim arises out of contacts. dissenting from rational. or consent. but no sales.Milliken [recover profits from CO oil properties. The authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. emphasizing that only absent defendants are subject to Shoe. property. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. the party’s contacts with the forum state must be of a “continuous and systematic” nature.Civil Procedure 7 . ii) Tag Burnham [Husband served while visiting children in California]: Plurality opinion upholds traditional jurisdiction under personal presence (necessary v. Concurrence adds that the Court could invalidate if “severely out of line” (which Burnham is not) and that tag jurisdiction should only count where presence is intentional. i)state of incorporation ii) principal place of business (or substantial facilities) (c) Note: For general jurisdiction. jump on a plane” perspective. D was always domiciled in WY]: Service is adequate so far as due process is concerned if it is reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard. offices. or other business done there]: Minimum contacts in forum state allow for personal jursidiction.

BK) No Jurisdiction Suit Does Not Arise from Contacts 3: General Jurisdiction (Shoe.Civil Procedure 8 . building on foundations of Shoe. Asahi. WWVW.” Wold Wide VW [Car purchased in NY. but no sales. Foreseeability alone is not sufficient for personal jurisdiction. establishing the concept of minimum contacts allowing for personal jursidiction. __________________________________________________________________________________________ Gonzalez . accident in OK]: So as not to offend traditional notions of fair play and substantial justice.Relatedness Type of Contact Substantial Continuous and Systematic Contacts Continuous and Systematic Contacts Isolated and Irregular Contacts No Contacts Suit Arises from Contacts ——> 1: Specific Jurisdiction Type A (Shoe) 2: Specific Jurisdiction Type B(Shoe. or other business done there]: Fundamentally alters the test for personal jurisdiction. but that the defendant’s conduct and connection with the state are such that he should reasonably anticipate being haled into court there. Purposeful availment provides clear notice of jurisdiction. Helicopteros [Columbian co purchased helicopters from TX and some pilot training but no other connection to state]: “Even when the cause of action doesn’t arise out of or relate to the foreign corporation’s activities in the forum State. degree of foreseeability that must exist is not the mere likelihood that a product will find its way into the state. offices. Gray. The relationship between the party and the state must be such that it is reasonable to require the corporation to defend the particular suit which is brought there. due process is not offended by a State’s subjecting the corporation to its in personam jurisdiction when there are sufficient contracts between the State and the foreign corporation. Gives rise to state long-arm statutes. Helicopteros) 4: No Jurisdiction (Shoe) 5: No Jurisdiction (Shoe) No Jurisdiction Shoe [Multiple employees in WA.

Where there is no contesting the fact that the valves are widely used in Illinois on water heaters and thus reasonable use and consumption within the state. al are FL residents challenging CA’s personal jurisdiction over them]: A state has personal jurisdiction over any party whose actions intentionally reach another party in the state and are the basis for the cause of action. state-long arms can limit/expand personal jurisdiction as long as they fall within the constitutional limits of due process. establish min. contacts in) the forum.) Asahi also establishes 5-factor analysis for “traditional notions of fair play and substantial justice”: (i) D burden. (iv) comity.) Caulder suggests that there may be a "boost" from plaintiff's connection after minimum contacts have been established.. Def.. Accordingly.Civil Procedure 9 . but NH has longer statute of limitations]: Minimum contacts is the relationship between the defendant. Calder. shared state interest in “efficient resolution” and “furthering.” Grey [P injured in IL due to faulty water heater valve. no connection to forum state. valve manufactured in OH. (i. Option 1 (O’Conner): The mere awareness/expectation that a product may reach a remote jurisdiction when put in the stream of commerce is not sufficient to satisfy the requirement for minimum contacts. cause of action arises out of these contacts.e. it would be fundamentally unfair and unreasonable to require it to defend this suit in California. (iii) P interest. forum and the litigation. Publications sold in forum state. There is no necessity that the plaintiff have a connection to(i.. (ii) forum-state policies. attaching company stock as property in a quasi in rem action]: "All assertions of state-court jurisdiction must be evaluated according to the standards set forth in International __________________________________________________________________________________________ Gonzalez .” (However. Keeton [Libel action brought against Hustler magazine in NH. the manufacturer is responsible for the safety of the product. Minimum contacts require that there be additional conduct which would purposefully avail D of the privilege of conducting activities within the forum state..Asahi [cross-claim between international manufacturers after initial action settled]: Plurality opinion produces two options for assessing minimum contacts. Shaffer [Shareholders suing company officers. Option 2 (Brennan): It is sufficient to establish minimum contacts to show that D has intentionally placed products into the “stream of commerce. Caulder [Jones brought libel suit against National Inquirer in CA. et. when those products are used within a state. and thus must answer to any actions brought against it within that state.]: Even though a company may not sell products directly to a specific state. Therefore D benefits from the laws of the state and benefited from the protection the law gives to the marketing of hot water heaters. D continuously and deliberately exploited the NH market and therefore must reasonably anticipate being hauled into court there.e. heater assembled in PA and sold in IL.

e. Basically.e." Factors of consideration (1) prior negotiations. etc.) must now be evaluated before jurisdiction can be found. in rem actions remain sufficient. D "reached out beyond one state and create continuing relationships and obligations with citizens of another state" are are thus “subject to regulation and sanctions in the other State for the consequence of their activities. Burnham ["Tag" Jurisdiction . stock certificates are deemed insufficient to establish minimum contacts. (Brennan. ex ante..) However.e. is not discouraging legitimate claims from its customers)." Which means. Via K. If so. Shaffer dooms a quasi in rem action where no other contacts exist. sufficient).Husband served while visiting children in California]: Plurality opinion upholds traditional jurisdiction under personal presence (necessary v. dissenting from rational.. represented by counsel? Shute [Carnival Cruise Lines and enforceability of forumselection clause]: Shute test evaluates the (1) privity of contract (i..Civil Procedure 10 . voices “hey.Shoe and its progeny.. minimum contacts. and unrelated website owner]: Establishes a sliding scale for internet-based/website contacts. Concurrence adds that the Court could invalidate if “severely out of line” (which Burnham is not) and that tag jurisdiction should only count where presence is intentional. and (4) the parties' actual course of dealing in determining whether the D purposefully established minimum contacts within the forum. even though quasi in rem under Pennoyer doesn't require anything more for jurisdiction. jump on a plane” perspective. Zippo [Dispute over trademark dilution between lighter co. Specific questions to ask: choice of law provision? From where is contract supervised? Did contracting part know. and (3) terms of the contract (i. that she was contracting with an enterprise based primarily in the forum? Where are relevant notices and payments sent? Where were agreements made/enforced? Where were key negotiating decisions made? D sophisticated. (2) contemplated future consequences. Shoe analysis (i. reasonableness of notice) and (2) whether or not the forum-selection clause is enacted in good faith (i. choice of law or forum selection clauses).) Burger King [Franchisees challenge contacts based on contract (K) which also included a choice of law provision]: Evaluation of K based on contract incorporates all of the negotiations and interactions that went into establishing the K.e. (In Shaffer. since property is basis of contacts and the nexus of the conflict. emphasizing that only absent defendants are subject to Shoe. __________________________________________________________________________________________ Gonzalez . forum-selection clauses are presumptively valid and enforceable.

personal jurisdiction is proper.” Jurisdiction only arises if an intentional tort on the website(e. Factors = (i) D burden. “If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet.” (b) Special Contexts/Rules i) Out-of-state motorist generally subject to jurisdiction for harm caused.” 2)Passive websites—Provides information only. __________________________________________________________________________________________ Gonzalez .g. 3)Interactive websites—Permit the exchange of information between the host computer and visitors. “Jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. P need not have contacts. defamation) and is directed at the jurisdiction in question..1)Commercial websites—Dose a substantial volume of business over the Internet. forum. litigation. See Keeton.” ← i) Reasonableness: Subjecting D to suit would not offend “traditional notions of fair play and substantial justice”.social policies. customers in any location can immediately engage in business with the website owner. shared state interest in “efficient resolution” and “furthering. (ii) forum-state interest. (iii) P interest..Civil Procedure 11 .. ii) Contacts about D. “A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. (iv) comity. Hess [PA resident hits MA resident in MA accident]: A state has the power to legislate that non-residents who use its highways consent to the appointment of a third party as agent for the service of process in that state for actions arising from use of the highways.

Long-arm does not violate due process. if accident occurred within the state. provide the most convenient forum.. wholesaler-distributorretailer) versus unilateral consumer action. Implication is that findings of fact from the trial are held throughout the appeals process.Civil Procedure 12 . Compare WWVW with Asahi.C § 1332): Complete diversity + Amount in controversy a) Strawbridge [notes case]: Complete diversity (1) (a) (b) state 4 types of diversity recognized in § 1332(a)(1)-(4) Citizens of different States Citizens of a State and citizens or subjects of a foreign (c) Citizens of different States and in which citizens or subjects of a foreign state are additional parties (d) A foreign state as plaintiff and citizens of a State or of different States. NOTE: In federal court a denial of dismissal based on jurisdiction challenge is not immediately appealable—must have a full trial first. Diversity Jurisdiction (28 U.iii) Products liability “Gray” areas: Key distinction = stream of commerce (e.g. But unilateral action foreseeable if relatively proximate? Gray [water heater explosion due to faulty valve]: D who sells products that he knows will be used within a given forum may be required to defend an action within that forum state. Subject-Matter Jurisdiction 1. B. mere marketing awareness) versus O’Connor (stream-ofcommerce-plus.S. iv) Dueling Asahi pluralities: Brennan (stream-of-commerce. component-product. __________________________________________________________________________________________ Gonzalez . “additional conduct”). The test established in International Shoe has now been relaxed so that it is sufficient to satisfy due process if the act or transaction itself has a substantial connection with the forum state and state where injury occurred.

probate. control. invasion of privacy.. provided it is the actual center of direction. (ii) associations. etc. (iii) banks. and coordinate the corporation's activities—in other words its "nerve center. unions. certain in rem (b) Beware specific contexts: (i) resident aliens. (iv) trusts." In practice. the nerve center is normally the corporation's headquarters. (c) Partnerships: Citizen of every state where a partner resides (2) Exceptions and special contexts (a) Exception for domestic relations. Claiming personal Jdx in CA under “muscle test”]: Nerve center test established.(1) Determining Citizenship (a) Individuals: US citizen plus state domicile Mas [LA landlord. grad students from Fr. partnerships. (b) Corporations: State of incorporation and principal place of business Hertz [Employee class action in CA.Civil Procedure 13 . control. presumption of continuing domicile exists until affirmatively established in new state. and coordination. The term "principal place of business" refers to the place where a corporation's high level officers direct. and MS]: Domicile defined as current dwelling plus intent to remain. (v) stateless parties (c) Class Actions (3) Curing Jurisdiction defects: Time of filing and curing jurisdiction defects: may cure defect by adding or dropping __________________________________________________________________________________________ Gonzalez .

change of domicile during course of the case does not cure personal jurisdiction defects. joint property ownership) (2) Class action minimum: $5M 2.The stability provided by our time tested rule (of requiring diversity at the time of filing) weighs heavily against the approval of any new deviation. grad students from Fr. .. and collateral litigation on the point particularly wasteful. and MS]: Domicile established at time of filing. . .000 (1) Aggregation: can aggregate across distinct. laws. invasion of privacy. Grupo Dataflux [incomplete diversity at time of filing. or treaties of the United Federal-Question Jurisdiction a) 28 U.” ← Franchise Tax Board [CA dispute over state back taxes. non-diverse partners left during course of litigation]: Allowing diversity jurisdiction to change after a case is filed would create uncertainty and expensive litigation that dealt with jurisdiction rather than the merits of the case. separate claims. D argues protection under federal Employment Retirement Income Security Act]: WellPleaded Complaint Rule = FQ jurisdiction if federal issue appears on face of wellpleaded complaint b) Actual disputed question? Essential (i." ii) Amount in controversy must be over $75.e.. but post-filing change in party status cannot create or cure jurisdiction defect Mas [LA landlord.C. never across alternative claims or parties except where undivided interest (e.Civil Procedure 14 .S. “Uncertainty regarding the question of jurisdiction is particularly undesirable. necessarily raised)? __________________________________________________________________________________________ Gonzalez . § 1331: Fed Cts “shall have original jurisdiction of all civil actions arising under the Constitution.

” (qtd in Holmes) Cort [notes case]: Sets forth four factors relevant to a finding of an implied private right of action: (1) whether the statute was enacted for the benefit of a special class of which the plaintiff is a member.c) Easy Case: Express or implied private right of action ← ← American Well Works: “Suit arises under the law that creates the cause of action.Civil Procedure 15 . and (4) whether implying a private right of action is inappropriate because the subject matter involves an area basically of concern to all states. (3) whether finding a private right of action would frustrate the purpose of the legislative scheme. (2) whether the legislative history evinces an intent to create a private right of action. __________________________________________________________________________________________ Gonzalez .

Empire brought suit in fed court since the insurance policy was negotiated under Fed. Skelly Oil [notes case--Declaratory Judgment Act action—Mottley aftermath]: “No decision of this Court has squarely confronted and explicitly upheld federal-question jurisdiction on the basis of the anticipatory claim against which the declaratory-judgment plaintiff presents a nonfederal defense. there was no reason to depart from the ordinarily-governing state law and thus state court jurisdiction. disputed and worthy of federal discression it qualifies for FQ Jurisdiction. and rests upon a reasonable foundation” FQ Jurisdiction exists. No diversity and no other claim arising under federal law. counterclaims. (3) federal issue is contested. Grable [State quiet title claim hinges on resolution of an IRS debt issue]: If the federal issue raised in the case was substantial. declaratory judgment actions ← Mottley [Couple was giving unlimited train rides as compensation for injury. Grable Test [4-part inquiry]: (1) federal law constitutes essential element of pleaded claim.” e) Hardest Case: FQ as "ingredient" of state-law claim ← Merrell Dow [Multiple Ps suing pharma co. not the counterclaim. part of action based on violation of Federal Food. federal question is not substantial enough to confer FQ jurisdiction. A suit may be dismissed at the appellate level for lack of subject matter jurisdiction. and that such federal claim is not merely colorable. Drug and Cosmetic Act]: Where Congress did not intend a private cause of action. (2) case implicates substantial federal issue. Employees Health Benefits Act]: Absent that specific provision indicating fed Jurisdiction. later federal law prohibited this form of compensation]: The mere allegation of an anticipated defense that arises by some provision of the Constitution does not create a federal question giving a federal court jurisdiction. and (4) federal jurisdiction will not upset "division of labor” between state and federal courts as contemplated by Congress (turns on frequency with which issue will arise (Grable) and whether fact or law question (Empire Healthchoice) ← ← Smith [cited by DISSENT in Merrell Dow]: "The general rule is that where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States. __________________________________________________________________________________________ Gonzalez . Empire Health Choice [Insurance co seeking to recoup costs from beneficiary who won settlement against injuring party. or the need to resolve a substantial question of federal law in order to establish the P’s right to recovery. a significant conflict with an identifiable federal interest. private parties may not bring a suit solely on the basis of a violation of a federal act.Civil Procedure 16 ← ← ← ← . Mottley aftermath]: The well-pleaded complain. Holmes Group [notes case. determines whether a civil action “arises under” federal law.d) Harder Case: Fed question in anticipated defenses.

§ 1367(b) Carve-Out Rules: applies only in diversity cases where claims do not separately satisfy § 1332 P claims against parties joined under a) Rule 14 (third-party D). or d) Rule 24 (intervenor). 3. state claim (codifying Gibbs) b) federal claim. § 1367) 1.← ← C.C. 24. 23.Civil Procedure 17 . jurisdiction in “civil action” where federal court has original jurisdiction. and where claims share a “common nucleus of operative fact” 2. jurisdiction is discretionary under Common § 1367(a) Situations a) federal claim. b) Rule 19 (required joinder).S. ← 6. or e) claims by Ps proposed to be joined under Rule 19. Finley) 5. under-amount counter-claim e) federal claim. c) Rule 20 (permissive joinder). nondiverse or under-amount crossclaim d) diversity jurisdiction. § 1367(a) grants supp. state claim against additional non-diverse D (overruling Aldinger. state counterclaim c) diversity jurisdiction. § 1367(b) carve-out does *not* apply to under-amount claims of Ps proposed to be joined under Rule 20. Supplemental Jurisdiction (28 U. but *does* apply to nondiverse Ps in such position (Allapattah) __________________________________________________________________________________________ Gonzalez . § 1367(b) takes it away in particular diversity situations § 1367(c) supp. 4.

the suit should be dismissed as to those who fail to show that the requisite amount is involved. Clark [cited in Allapattah]: Proper practice requires that where each of several plaintiffs is bound to establish the jurisdictional amount in controversy with respect to his own claim. P sought to combine Ds in a civil plane crash action in federal court because it was the only place the federal government could be sued]: Parties that otherwise could not be sued in federal courts can not be brought into federal court solely on the basis of having their claims share the same facts as the claim mandated to the federal courts.← Allapattah [Exxon dealers suing Exxon corp for overcharging. • Findley [cited in Allapattah. Gibbs [cited in Allapattah]: Allows supplemental jdx over pendent state claims (??? not sure how this ends up under Allapattah) Zahn [cited in Allapattah]: “Any P w/o jdx amount must be dismissed fromt he case.Civil Procedure 18 . P claim against nondiverse third-party D (codifying Owen) P claim against nondiverse additional D underamount P claim against third-party D under-amount P claim against additional D • • • a) Common § 1367(b) Carve-Out Situations (1) (2) (3) (4) __________________________________________________________________________________________ Gonzalez . Section 1367 authorizes federal courts to exercise supplemental jurisdiction over related claims even if they do not meet the requirement. even though others allege jurisdictionally sufficient claims. ruling also applied to Star-Kissed Foods where family members attempted to join suit personal injury as additional plaintiffs claiming emotional distress]: As long one plaintiff meets the amount-in-controversy requirement for federal jurisdiction.

← General exceptions: Rivet [Notes case]: Exception 1—Congress has “so completely preempted. 30 day limit for remand motions – § 1447(c) C.. etc. D. Grubbs [cited in Caterpillar]: Validity of removal of action can not be raised for first time on appeal. 1.” Anderson [Notes case]: Exception 2—Congress expressly provided for the removal of particular actions asserting state law claims in state court. a federal law cause of action for a state one that plaintiff cannot avoid removal by declining to plead “necessary federal questions. Time Limits 1. judgment sustained so long as jurisdiction proper at judgment (Grubbs).III.. ← ← ← __________________________________________________________________________________________ Gonzalez . even where timely remand motion objecting to removal improperly denied (Caterpillar) ← Caterpillar [Case mistakenly removed from state to fed court. Notice of removal must be filed within 30 days of service or process or ascertainment of removability and.g. even if raising federal question (e. P is master of complaint.e. Requires unanimity amongst all Ds. Holmes Group) b) D may not remove in diversity context if state suit was filed in D’s home state [rational: no out-of-state bias to be remedied by fed jurisdiction] B. If a case could originally have been brought in federal court under § 1331 or § 1332. 1. Improper Removal: “All‟s well that ends well” – i. or entirely substituted. even though there is not complete diversity of citizenship]: A district court's error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered. 2. Exceptions: a) D claims (counterclaims.Civil Procedure 19 . Removal A. no more than one year after diversity action commences – § 1446(b) 2.) are never sufficient to allow for removal. it may be removed from state to federal court by the defendant’s motion under § 1441(b). in any event. thus P’s decision not to plead available federal-law claims will be respected with limited exceptions.

Filed in CA and removed by claiming “foreign sovereign status. price fixing. Federal Court May Remand Once Federal Claims Dismissed ← Carnegie-Mellon [Wrongful termination suit against university..g. original D removed. then appealed. and hence implies the power to remand the case. However. the remand is covered by § 1447(c) and thus shielded from review by §1447(d). the doctrine of pendent jurisdiction itself entails the court’s jurisdiction to decline jurisdiction by dismissing the state case. remand granted. Employee was granted leave to amend his complaint to remove the untenable federal question claim (leaving only the state claims). later. in some cases. Equitable exceptions (e. then dismissed after time had run out.]: §1441(c) does not give power to remand in this case. Ct. Burns [Notes case]: Congress knew when it passed the 1-year bar on removal that some Ps would attempt to defeat diversity jdx by fraudulently joining a non-diverse party. P added non-diverse D. 6 mo. Remand Orders ≠ Appealable Under § 1447(d) ← Powerex [Notes case. P can and will intentionally avoid federal jdx. F. Congress recognized and accepted that. denied remand]: P’s manipulation justifies application of an equitable exception in the form of estoppel. to removal time limits) can be found by court where P engages in manipulative conduct to defeat removal ← Tedford [Notes case. Employer removed under §1441(a). Employee brought a federal question claim and various other state-based contract and tort claims all arising out of the same transaction under pendent jurisdiction. E.Civil Procedure 20 .2.]: When a district court remands a properly removed case because it nonetheless lacks subject matter jurisdiction. ← __________________________________________________________________________________________ Gonzalez . energy co.

The Erie rule has never been invoked to void a Federal Rule. Track 1: Federal rule directly on point. enlarge. policy of having district court judges consider interests Congress has enumerated in a statute prevails over a state policy disapproving certain means by which venue might be decided. Track #2: No On-Point Federal Statute or Rule (Gasperini) a) Erie/RDA test (1) Are rules in conflict outcome-determinative? Guaranty Trust [Diversity suit. rule must only be “rationally capable of classification” as procedural ← Hanna [OH resident in accident in SC with MA resident. Choice of Law/Erie Doctrine A. Hard Cases: 2 doctrinal tracks 1. In this case. Erie Doctrine identifies governing law where state-law claims are brought in federal court (e. or modify any substantive rights” c) On (b). and irrespective of whether state or federal substantive law applies. The Federal Rules of Civil Procedure apply irrespective of the source of subject matter jurisdiction. D moved for transfer under 1404(a) and forum selection clause that listed NY AL refused to enforce forum selection]: The federal . no Rule has ever been adjudged to do so..IV. Shady Grove [summary]: 2. Service proper under Rule 4 but not under MA state rules]: The Erie doctrine does not apply to rules of procedure pertaining to service of process. This case is differentiated from York and Erie in that they never dealt with a federal rule conflicting with state law. Fed diversity suit filed in MA. and b) Must not “abridge. (2) More specifically. under diversity jurisdiction) or where there is conflict between federal and state law within a case. B. the federal court sitting with diversity jurisdiction must follow a state statute of limitations. question is rule’s validity under REA a) Need only be sufficiently broad to control. ← __________________________________________________________________________________________ Gonzalez . C.g. the federal court should use the outcome-determinative test to ensure that the outcome of the federal court’s application of law would not be different than the outcome if the state had tried the case.Civil Procedure 21 . motion for summary judgment based on state statute of limitations having run]: When there is diversity jurisdiction. Easiest Case: Federal statute directly on point ← Stewart [P filed in AL. would applying state law achieve Erie aims of discouraging forum-shopping and avoiding inequitable administration of laws? Hanna: A party would not choose a federal court simply because Rule 4(d)(1) has an easier method of service.

sorta state version of Erie) must conform to those prevailing in the state in which the federal court sits.court cases in making that prediction. large jury award questioned on appeal. Fed ct applied NY law to add pre-jmt interest to verdict. Otherwise. federal court asks WW state high court do. J. 3. the accident of diversity would disturb the equal protection clause between state courts and federal courts that sit across the street from each other. The conflict of law rules (i. or is there a countervailing federal interest? Byrd [summary]: The Erie doctrine does not mandate that state law be applied in determinations of rights regardless of conflict with federal law and the Constitution. the application of the outcome determinative test must be guided by the aims of the Erie Doctrine to discourage forum shopping and to avoid the inequitable administration of the law. Erie wanted to ensure that there were not two conflicting systems of law and the creation of substantive state law by federal courts should be avoided if that creation extends beyond constitutional limits. (4) Does state law affect primary decisions about human conduct? Hanna [summary]: (Harlan. diversity case. concurring) The test for deciding whether the Erie doctrine applies to a rule of procedure should be a determination of whether the choice of rule would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation. Ascertaining Applicable State Law 1. This is necessary for uniformity within states. If so.. Where no on-point decision of state high court.(3) Is state law bound up with state-created rights and obligations.e. 2.. If state law applies. federal court asks what law state court in state where federal court sits would apply ← Klaxon [Fed diversity breach of contract. (5) Is it possible to accommodate both state and federal interests? Gasperini [Fed. federal standard was “shock the conscious”]: Under Hanna. federal courts in diversity must respect the definitions of rights and obligations created by state law.Civil Procedure 22 . Erie and the Constitution require that the state rule prevail. Under the Erie doctrine. WWSHCD: On interpretive questions. even in the face of a conflicting federal rule. State law standard was “abuse of discretion”. Uniformity between states is not necessary due to our federal structure. photographer’s lost slides. The review of jury awards is a matter of substantive law since invoking a different standard would create substantial variations in jgmts. but state law cannot alter the essential function of the jury as provided by the 7th Am. __________________________________________________________________________________________ Gonzalez .]: Erie prohibits federal courts from independent determination of substantive general law extends to the field of conflict of laws. federal court can also look to lower. D.

§ 1406: venue improper in current district a) District court decides whether to transfer or dismiss b) Similar to § 1404. Events or Property a) “A judicial district in which a substantial part of the events. Venue (28 U.4. There is a strong interest in providing a forum for a plaintiff who has shown a desire to commence it. D can’t waive venue. court may transfer only to district where suit “could have been brought” c) Transfer may also be used to cure lack of PJ ← Goldlawr [Fed suit in PA... “may”.. 3. §§ 1391-1392) 1. “in the interests of justice”) c) Inquiry focuses on whether case’s center of gravity lies situated” B. Republic of Bolivia) 2. (1) Individual residence: generally speaking. however. SOL had run and NY dismissed because of original jdx issue.C. Residence a) Any judicial district where any D resides if all Ds reside in same state.g. or a substantial part of the property... regardless of the technicalities that may stand in the way of an expeditious and orderly adjudication of his case. Transfer 1. Choice of Law Default Rule: transferee court applies law transferor court would for § 1404 transfers. this is where a person is domiciled (2) Corporations: reside anywhere personal jurisdiction can be established §1391(c) 2.]: The language of 1406(a) does not forbid a court from transferring a case. § 1404: alternative venue would be more convenient a) District court may only transfer to district where suit “might have been brought”. A federal court must conform to an intervening state-court decision until final federal appeal is disposed of. etc.S. V. Venue..Civil Procedure 23 . even if it does not have personal jurisdiction. but applies law it would apply for § 1406 transfers __________________________________________________________________________________________ Gonzalez . no personal jdx.g. A. Ct transferred under 1406(a) NY where jdx ok. P’s choice of forum entitled to some weight d) § 1404 transfers usually D-initiated or sua sponte (e. even where state high court’s decision is handed down after the federal district court action is complete.occurred. PJ to win transfer b) Highly discretionary (e.

the cost of attendance of witnesses. D suit transferred to MA where there was a damages cap]: There is nothing in 1404(a) to justify its use by defendants to defeat the advantages accruing to plaintiffs who have chosen a forum which. 3. availability of compulsory process for the attendance of unwilling witnesses. The change of venue should be just a change of courtrooms and not substantive law. Under 1404(a).Civil Procedure 24 . forum non conveniens is often invoked when a case should more appropriately be heard in a different country. and the unfairness of burdening citizens in an unrelated forum with jury duty. the court may in the exercise of sound discretion dismiss the case by applying the list of private and public interest factors. expeditious. the avoidance of unnecessary problems in conflict of laws or the application of foreign law. the interest in having the trial in a forum that is familiar with the law governing the action. Three-part test: a) adequate alternative forum. or when the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal concerns. C. Forum Non Conveniens 1. and inexpensive. Private factors include the relative ease of access to sources of proof. and c) public interest factors ← ← Piper [Plane crash in Scottland]: When an alternative forum has jurisdiction to hear a case and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of proportion to the plaintiff’s convenience. the transferee court would be obligated to apply the substantive rule of the transferor state to avoid a significant affect on the outcome of the case. although inconvenient. the possibility of viewing the scene if appropriate to the action.) 2. Public factors include administrative difficulties of the courts. upon transfer of the action. a court should consider both private and public interest factors. Thus. In a motion to dismiss for forum non conveniens. interest in having local controversies adjudicated at home. plus balancing of b) private interest factors. was a proper venue. Permits court to dismiss case more appropriately brought in different judicial system (at the federal level. Change in substantive law does not factor into adequacy unless alternative forum offers clearly inadequate remedy or “no remedy at all” (see Piper) ← ← ← __________________________________________________________________________________________ Gonzalez .← Van Dusen [Plane crash/wrongful death. and other practical matters related to making the trial easy.

(iii) narrow issues for decision. Rule 8(b): defendant’s answer must admit or deny every element of the plaintiff’s claim 3.Civil Procedure 25 ← ← . which requires particularity when pleading "fraud or mistake" but allows "other conditions of a person’s mind [to] be alleged generally. and c) Demand for judgment.) 2. Rule 9(b). Pleading Purposes: (i) notice to D." did not require courts to credit a complaint's conclusory statements without reference to its factual context. (ii) plausible short and plain statement of claim. original Rule 8 interpretation]: The accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Twombly required "plausibility. Where. Complaints—Rule 8(a) ← Conley [referenced in Twombly.VI. Rule 8(a): Plaintiffs requirements for a claim a) “Short and plain” statement of jurisdiction b) “Short and plain” statement of the claim. (Also allows for relief in the alternative. 1. accepted as true. stricter standard of a pleading's required specificity. Conley-Twiqbal Rule 8 Pleading Standard a) Required Complaint Elements Under Rule 8: (i) jdx/venue. Iqbal indicates that Twombly should not be limited to its antitrust context. under Conley. (iv) guide parties. Twombly [Sherman Act claim against Bell Atlantic/phone companies alleging conspiracy to not compete]: Creates a new. Rule 8 calls for sufficient factual matter.” Meaning.” A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. a complaint need only state a "conceivable" set of facts to support its legal claims. court in conduct of case. Pleadings A. to “state a claim to relief that is plausible on its face. Rule 8(c) the defendant’s answer must state any affirmative defenses C. Rule 8 1. (ii) weed out sham claims. that inference alone did not entitle P to relief since the complaint does not contain facts plausibly showing that the governing policy was based on discriminatory factors. (iii) demand for relief __________________________________________________________________________________________ Gonzalez . suit claimed government officials were architects of discriminatory policies which gave rise to the conditions of his detention]: Even if the complaint's well-pleaded facts gave rise to a plausible inference of unconstitutional discrimination. so the plaintiff does not have to pre-guess the remedy most likely to be accepted by the court. (v) supply record of judgment for later preclusion purposes B. Iqbal [post-9/11 detainee alleging conditions of detention were unconstitutional.

Civil Procedure 26 .b) Implausibility means P failure to allege facts casting doubt on innocent inferences. not fanciful nature of factual allegations themselves! __________________________________________________________________________________________ Gonzalez .

f) Other Rules • Caption.g. (ii) concern mental states. complaint entirely omits allegations re: damages or breach) Sanders [summary]: (c) Purely conclusory allegations (e.g.g. At least a couple recent proposals reinforce Conley's "no set of facts" test. even though the proof of one negates any fault on the foundation of the other. against public officials)... lawful conduct. D moved for a directed verdict but was denied]: A complaint may contain inconsistent allegations..”) (d) The facts alleged preclude relief (e.. “D really annoys me. heightened pleading for fraud) • Pleading in the alternative = fine.Civil Procedure 27 .”) (b) Failure to make allegations that meet core elements of claim (e. (iii) make grave charges (e.. Church [cited in McCormick]: Alternative pleading is not permitted when the nature of things the pleader must know which of the inconsistent averments is true and which is false. facts establish beyond doubt constitute a winning defense) (2) Twiqbal’s Innovation: The facts alleged (as distinguished from conclusions) do not state a plausible claim for relief d) Beware of factual allegations that (i) defy reality. (iv) are also consistent with innocent. numbered paragraphs. or (v) assert claims with inherently subjective elements (“reasonably”) e) The Future: Much ado about nothing (Braden)? Congressional repeal? Even though Twombly and Iqbal proposed a change in the standard for pleading.. but only where genuine doubt about which is factually correct McCormick [Survivors of car accident victim sue bar which served victim alcohol before the accident.g.g. 2 counts in complaint were alternative pleadings. “He committed a tort against me. and separate counts if “promote clarity” – Rule 10(b) • Note special contexts under Rule 9 (e.g. __________________________________________________________________________________________ Gonzalez . Congress has proposed specific acts in recent years that contradict the Twiqbal holdings.c) Dismissal Grounds Under Rule 8(a): (1) Under Conley: (a) Failure to state valid legal claim even assuming fact allegations’ truth (e.

__________________________________________________________________________________________ Gonzalez .Civil Procedure 28 .

a denial must fairly meet the substance of the averments denied.D. Under FRCP 8(b). any other defense or avoidance that is: (i) extrinsic to or otherwise not embraced by the complaint. Affirmative Defenses a) Enumerated in Rule 8: accord and satisfaction. when a party seeks to deprive his opponent of the legitimate force and effect of material evidence by the bald admission of a probative fact. the introduction of evidence of admitted facts is permissible. 2. estoppel. statute of limitations. court allowed P to present evidence as to the nature of the accident—not just damages]: The introduction of evidence which is material solely to a matter excluded from a case by an admission is grounds for error. A general denial may be made only when the defendant intends in good faith to deny all of the plaintiff’s allegations. and an indication of which parts are true. laches. sued again for emotional trauma caused by the initial firing/allegations. arbitration and award. 3. contributory negligence.500) could not be said to be an unreasonable amount for the wrongful death of a child and the verdict does not indicate that the jury was unduly influenced by the errors. failure of consideration. Answers—Rule 8(b) 1. license.Civil Procedure 29 ← . __________________________________________________________________________________________ Gonzalez . previous owners made a general denial but did not specify mistaken identity issue until appeal]: A defendant who knowingly makes inaccurate statements may be estopped from denying those statements at trial. statute of frauds. surprise to other party. A denial of only part of the allegations requires a specific denial of the parts that are denied. ← Gomez [Wrongful termination suit against police department. Zielinski [Forklift accident. Short plain statement of defenses. or Statement of lack of knowledge/information 4. Since the award ($7. and waiver. D asserts qualified immunity]: A plaintiff is not required to anticipate in his complaint a defense that a defendant might raise in order to state a claim for relief. release. E. with special attention to (ii) matters or issues that are peculiarly within responding party’s knowledge and (iii) prejudice. payment. or plead insufficient information to answer different parts of a complaint. assumption of risk. deny. However. illegality. duress. Denials must “fairly respond to the substance of the allegation” or can be deemed admitted and are subject to other possible sanctions ← ← ← Rule 8(b)(2): Rule 11: Fuentes [Drunk driver killed teens. and Admissions or denials (in full or in part). Under FRCP 11 there is a requirement of good faith in pleading. D filed amended answer admitting liability the day before trial. A party can admit. res judicata. once rehired. b) Additionally. discharge in bankruptcy. Defenses—Rule 8(c) 1. injury by fellow servant. fraud.

venue. D lost and moved for reduction of damages based on state statutory cap but was ultimately denied]:Under Rule 8(c) of the Federal Rules of Civil Procedure. Failure-to-state-claim and failure-to-join-required-party can be raised later. Rule 12(h). D had no notice that πs were pursuing that particular type of discrimination claim and it would be unfair to Ds in terms of trial preparation. Rule 12(h).Civil Procedure 30 . 4. Personal Jdx. Subject-matter jurisdiction never waived.← Ingraham [Med-mal. Amendment and Relation Back—Rule 15(a) 1. Waiver Rules—Rule 12(h). G. and insufficient service of process are waived if not raised in answer or pre-answer motion. The major consideration behind the rule is preventing unfair surprise. Rule 12(h). insufficient process. Affirmative Defenses must be asserted in Answer or are waived under Rule 8(c) 2. F. affirmative defenses listed in the rule or “any other matter constituting an avoidance or affirmative defense” that are not raised in the answer are waived. but not for new claim against new party except in narrow cases of mistaken identity per Rule 15(c)(1)(C) ← Barcume [discrimination in hiring/promotion practices. Ct worries if one side has greater advantage over other – Test: How prejudiced are parties by the amended pleading? __________________________________________________________________________________________ Gonzalez . 3. Pleader may amend as matter of course as provided in Rule 15(a) a) Complaint relates back (and ducks SOL problem) if new claim arising out of same conduct against existing party per Rule 15(c)(1)(B). proposed amended complaint adding allegations of hostile workplace and sexual harassment]: Ct held new claims did NOT arise from old ones since there was no factual support for the second claims in the original complaint—thus. Rule 8(c) 1.

← __________________________________________________________________________________________ Gonzalez .Civil Procedure 31 .

dismissals w/ and w/o prejudice—Rule 41 Policing Pleadings (Rule 11) 1.) __________________________________________________________________________________________ Gonzalez .e. facts supported by evidence e) “Inquiry reasonable under the circumstances” (i. Rule 11 ensures that attorney’s practice candor and care by a) Requiring signed filings.H. I. properly filed the document.Civil Procedure 32 . but can’t “delay trial” 3. standard of reasonableness may be adjusted depending on time available for filing such as when SOL approaching. c) Not Discovery (which is addressed separately under Rule 26) d) Good-faith claims: Non-frivolous. not intended to harass or delay. Rule 11 Checklist a) Documents only b) Filed with the court. b) Imposing sanctions on attorney’s who fail to meet these standards 2. Voluntary dismissals. in good faith. etc.. Pre-Answer Motions a) Never waived—12(h)(3) b) Lack of subject-matter jurisdiction—12(b)(1) c) Waived if omitted from pre-answer motion or answer--12(h)(1) d) Lack of personal jurisdiction—12(b)(2) e) Improper venue—12(b)(3) f) Insufficient process—12(b)(4) g) Insufficient service of process—12(b)(5) h) Raisable later or at trial—12(h)(2) i) Failure to state a claim—12(b)(6) j) Failure to join a required party—12(b)(7) k) Raisable later (?) l) Forum non conveniens 2. which asserts that the attorney has done a reasonable investigation and have. Dismissals 1. Post-Answer Motions—12(c):Motion for judgment on the pleadings.

request for TRO supported by claim of 10 inaccuracies listings they had fed to competitor. Discretionary: judge “may” impose appropriate sanctions under Rule 11(c)(1) (compare to mandatory 1983 version) 4. the federal courts are not a forum for “protest” suits that have no merit. c) Nonfrivolous legal contentions __________________________________________________________________________________________ Gonzalez .Civil Procedure 33 ← ← ← . Rule 11 should not be used to chill enthusiasm or creativity in pursuit of truth. Ps attorney hired a private investigator who could not confirm nor discredit Ps claims of conspiracy. claiming “shameless self-promotion and deliberately seeking to embarrass D were improper purposes under Rule 11(b) (1). whether signatures were voluntary or mandated. but it did err in considering other instances of misconduct. court discovered 9 of 10 were erroneous claims]: “Signing is no longer a meaningless act.” Rule 11 imposed an objective standard of reasonable inquiry on represented parties who signed papers or pleadings. Business Guides [notes case. a court may impose sanctions upon an attorney if it determines that the allegations and factual contentions in any pleading. it denotes merit. Mattel [Attorney failed to check date stamped on Barbi doll that disproved claims of copyright infringement and refused to dismiss after being shown date stamp]: Court did not abuse its discretion in imposing sanctions related to attorney’s failure to investigate the status of D’s copyright. issuance of the writ].. attorney staged media event to “collect” from D]: court sanctioned attorney. but suggested Ds were hostile and something was definitely fishy]: Rule 11 sanction for alleged failure to investigate claim prior to suit was unwarranted where attorney had done everything possible to gather information by hiring a private investigator and instituted suit only after hostile attitude of potential defendants made it necessary to use discovery to gather additional information. Improper purpose need not be linked to the content of the actual document. b) No improper purpose ← Saltany [Libyan citizens filed protest suit against the US and UK for damaged caused by air strikes]: Where there is a violation of Rule 11. after judgment. but rather the conduct following the filing [i. motion. ← Core Requirements Under Rule 11(b): a) Reasonable inquiry Kraemer [Future in-laws took all of a woman’s belongings after her fiancee died.e.3. Under Rule 11. or other court submission are not supported by evidence or with reasonable opportunity to investigate are not likely to be supported by evidence. there must be sanctions. Court held that filing the complaint when counsel “surely knew” that the action had “no hope whatsoever of success” violated Rule 11 and warranted sanctions Whitehead [notes case. county sheriff assisted with eviction.

submitting. defenses. must only know facts (Frantz) c) Types. legally tenable. no sanctions. see Rule 11(c)(5) f) Safe Harbor: 21 days to withdraw pleading/paper under Rule 11(c)(2) __________________________________________________________________________________________ Gonzalez .← Saltany: Court also held the appeal from the dismissal of the United Kingdom as a party was frivolous. Frantz [disqualified weightlifters sued US Powerlifting Federation claiming conspiracy to monopolize the sport]: As long as each claim is supported and has been investigated and researched before filing. d) Actual or likely evidentiary support—claim is “well grounded in fact. Time-of-Filing Test: no “good heart empty head” defense b) Rule 11 does not require counsel to plead facts. sanction can be monetary or otherwise. or later advocating” paper 6. and other legal contentions” (not just pleading as a whole) ← Frantz [disqualified weightlifters]: As long as each claim is supported and has been investigated and researched before filing. Rule 11 did not authorize award of attorney's fees incurred on appeal.Civil Procedure 34 . no sanctions. Coverage: a) 11(b)(2) applies to individual “claims. Limits: a) No monetary sanctions against represented party for Rule 11(b)(2) (“legal contentions”) violations b) Rule 11 inapplicable to discovery under Rule 11(d) 7. rather. but no monetary sanctions unless initiated pre-termination. Purpose of Sanctions: under Rule 11(c). Other Key Rules: a) Objective. as necessary to “deter repetition” d) Entity Liability: law firm responsible for lawyer misconduct under Rule 11(c)(1) e) Judge-Initiated Sanctions: judge can sua sponte require party to show cause to avoid sanctions. see Rule 11(c)(3). filing. • Note also requirement of reasonable “denials” under Rule 11(b)(4) 5. warranting the assessment of costs and attorney fees. b) Also extends to act of “signing. and not interposed for any improper purpose” ← ← Cooter & Gell [lawyers filed an antitrust suit after calling men’s clothing stores in four cities and determining only one store actually sold D’s product]: District court could impose Rule 11 sanctions after plaintiff voluntarily dismissed action.

Civil Procedure 35 . but 11(c)(2) and (c)(3) override except for judge-initiated __________________________________________________________________________________________ Gonzalez .← Cooter [menswear antitrust]: voluntary dismissal doesn’t expunge.

Relevant to “any party’s claim or defense” (FRCP 26(b)(1)) – i. Attorney-Client Privilege Test a) Communication. 3.VII.Civil Procedure 36 . Properly requested using discovery tools C. tend “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Properly requested using discovery tools Relevant Non-privileged Non-work-Product Value proportional to cost Rule 26: Mandatory disclosures Rule 30. 2. Discovery (Rule 26. 4. 6.e.) A. 5. Comm. al. not underlying facts b) From client to layer c) Outside the presences of others d) For purpose of seeking legal advice ← Upjohn [Company internally investigating “payment to foreign governments”]: Corporate control-group test is rejected. Five Discovery Hoops 1. and the employees themselves were __________________________________________________________________________________________ Gonzalez . 5. “Any party’s claim or defense” seen by Adv.” (FRE 401). Non-privileged & Non-work-Product 1. 32: Depositions Rule 33: Request for Interrogatories Rule 34: Request for Production of Documents Rule 36: Request for Admissions Rule 45: 3rd-party subpoena B. Privilege applies to lowerlevel corporate employees where “communications concerned matters within the scope of employees’ corporate duties. 1. et. Relevant 1. 2.. ← OR 2. 4. “Reasonably calculated to lead to discovery of admissible evidence” (FRCP 26(b)(1)) ← BUT 3. discovery relevant only to “subject matter involved in the action” admissible only with court permission (FRCP 26(b)(1)) D. as tightening. 3.

The text of the rule does not only state that the work-product privilege applies to documents prepared for trial.sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.. and (ii) substantial equivalent cannot be obtained by other means (FRCP 26(b)(3)(A)(ii)) c) Dual purpose work product still covered so long as “because of” litigation. Discovery of written materials obtained or prepared by opposing counsel in preparation for possible litigation may not be had unless the party seeking discovery can establish that relevant and nonprivileged facts remain hidden in an attorney’s file. and where production of those facts is essential to the preparation of the party’s case. Adlman [notes case]: When a party is choosing whether to engage in an event that is almost certainly going to result in litigation and the party prepares documents. would not have been created in any event (e. Information prepared or obtained by counsel in preparation for litigation after a claim has arisen is not protected by the attorney-client privilege and is not protected from discovery on that basis.Civil Procedure 37 . There must be some showing of necessity or justification by the party seeking its discovery. Documents should be deemed prepared in anticipation of litigation. Adlman) __________________________________________________________________________________________ Gonzalez .g. the document can fairly be said to have been prepared or obtained because of the prospect of litigation [this is the “because of” formulation]. if in light of the nature of the document and the factual situation in the particular case.” ← 2.. b) Can be overcome where (i) substantial need. these documents may be protected under 26(b)(3). If relevant and non-privileged facts remain hidden in an attorney’s file and the production of those facts is essential to the preparation of a case.. The general policy against invading the privacy of an attorney’s course of preparation is so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.. and thus within the scope of the rule. Work-Product Rule a) Basic Rule (1) (2) (3) Document or Tangible thing Prepared in anticipation of litigation (circuit split. but it also refers to those prepared in anticipation of litigation. attorney pre-emptively interviewed potential witnesses and opposing side sought interview notes in discovery]: Oral and written statements or other information obtained in preparation for possible litigation after a claim has arisen are protected under work-product. discovery may be made.) By or for party or representative Hickman [tugboat sunk.

if significant amount. (1) Includes attorney selection of finite set of.d) Higher level of protection for attorney mental impressions. strategy Sporck [notes case]: An attorney's choice of documents qualifies as protected work “because identification of the documents as a group will reveal defense counsel's selection process. etc. 2) demonstrate that the attorney-client communications for which the production is sought are “sufficiently related to” and were made “in furtherance of the intended. or present. time to rectify error. Clients may be concerned about reputation. family. It does not protect disclosure of the underlying facts by those who communicated with the attorney. extent of disclosure. possibly similar communications as well (e. (2) Waiver/Exceptions: (a) Crime-Fraud Exception Napster [Notes case]: Piercing attorney-client privilege under the crime-fraud exception requires satisfaction of a two-part test. In re Keeper) ii) Court split on waiver for inadvertent disclosure. business matters. civil liability or possible harm to friends and family. with some finding waiver and others applying balancing (precautions taken. __________________________________________________________________________________________ Gonzalez . and thus his mental impressions. KL Group [Notes case]: lower court has discretion to order return of inadvertently disclosed material 3. documents or witnesses to interview because fact of selection conveys impressions. inter alia. continuing illegality” (b) Disclosure i) Core Rule = voluntary disclosure of particular communications waives privilege as to those communications and.g. but still not absolute (FRCP 26(b)(3)(B) ← Upjohn [internal corporate investigation]: The attorney-client privilege only protects disclosure of communications.. that would have impacts beyond their individual life. interests of justice) Sealed [Notes case]: inadvertence no grounds for relief from waiver VS.Civil Procedure 38 . ← Other Rule = Both A/C and W-P extend to grave Swidler [notes case]: There are “weighty reasons that counsel in favor of posthumous application. Clients may disclose sensitive information about personal. 1) party must show that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.

or can be obtained from some other source that is more convenient. Value proportional to cost—Rule 26(b)(2)(C) 1. the parties' resources. and the importance of the discovery in resolving the issues. b) Party seeking has had ample opportunity to otherwise obtain the information.Civil Procedure 39 .E. considering the needs of the case. __________________________________________________________________________________________ Gonzalez . On motion or sua sponte. less burdensome. the amount in controversy. or c) Burden or expense outweighs the likely benefit. court must limit frequency/extent of discovery if: a) Unreasonably cumulative or duplicative. or less expensive. the importance of the issues at stake in the action.

but documents were excluded as hearsay adn then granted motion for SJ. Whether a showing by a party opposing summary judgment. summary judgment may not be granted unless the nonmoving party can show that there is no genuine issue of fact. viewed in light most favorable to non-movant. show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ← ← ← ← ← __________________________________________________________________________________________ Gonzalez .Civil Procedure 40 .] A party moving for summary judgment does not necessarily bear the burden of supplying evidence showing the absence of a genuine dispute regarding a material fact. together with the affidavits. Summary judgment under Rule 56(c) is proper if the pleadings. Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case. Summary Judgement A. ← ← New Rule 56(a): Adickes [Civil rights action alleging police conspiracy. In an action based on conspiracy.VIII. show there is “no genuine issue as to any material fact” and movant (usually D) is entitled to judgment as matter of law (FRCP 56(c)(2). The moving party may show the absence of evidence supporting the nonmoving party’s case. answers to interrogatories. the Defendant failed to carry its burden of showing the absence of any genuine issue of fact. Basic Standard = Pre-trial dismissal appropriate where discovery and any affidavits. and on which that party will bear the burden of proof at trial. would be sufficient to carry that party’s burden of proof at trial should be determined by the Court of Appeals in the first instance. There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits. summary judgment was granted when P could not produce any evidence to support a conspiracy]: Summary judgment was improper here because the moving party. Celotex moved for summary judgment on the grounds there was no evidence to prove that V had been exposed to D’s asbestos products. and admissions on file. depositions. The moving party merely bears the burden of informing the court of the basis for its motion. P produced three documents as evidence. if any. (Overruled by Celotex) Celotex [asbestos. if reduced to admissible evidence.

Note new FRCP 56 on Dec. New FRCP 56(c)(1). Key Concept = interaction of burden of proof and burden of production Movant’s Initial Burden of Production (to shift Non-Movant’s Burden burden to non-movant) of Production Movant Has Movant must produce affirmative evidence Non-movant must produce Burden of demonstrating no genuine issue of fact (i. If non-movant meets her burden. the motion is denied without looking to non-movant’s proof and the case goes to trial. the motion is granted. but must make more than mere • Request time for additional conclusory assertion to that effect. (c)(4)) __________________________________________________________________________________________ Gonzalez . evidence showing there is a Proof at “any reasonable jury would find for me”). Prospective Admissibility: Evidence advanced to meet non-movant burden of production must ultimately be admissible in some form or another (e. FRCP 56(d)..” including claim elements (damages or liability).g.g.” • If movant fails to meet her burden of production. 2010 (but designed to codify Celotex and progeny on burden of”) by: Nonmovant. C. prospective admissibility. ←Notes: • In either route. or particular facts (e. – e. (4)) 2.. Other Rules: 1. Witness Credibility: Some courts categorically deny SJ where witness credibility at issue. movant is arguing that “no reasonable jury can find for non-movant. New FRCP 56(g)) 4.B. • Pointing to new evidence or Movant Has evidence movant ignored Burden of Route #2 (Celotex): Movant must “point • Rehabilitate evidence Proof at out” non-movant’s evidence is wanting on movant attacked or attack Trial issue as to which non-movant has burden of movant’s evidence proof at trial.e. If non-movant fails to meet her (shifted) burden of production.g. genuine issue of material fact Route #1 (Adickes): Movant must produce (“a reasonable jury could find for evidence negating a claim or defense of non. Hoff as witness to be called in eventual Celotex trial. etc. there is a genuine issue of material fact and the motion will be denied.) (FRCP 56(e)(1).Civil Procedure 41 . discovery (Rule 56(f)). (2). Partial SMJ: can be sought/entered as to “all or part of the claim... New FRCP 56(c)(1)(B). 1. (c)(2). etc. but most preclude SJ only where witness likely biased or plainly laboring under conflict of interest 3.

citing P’s lack of sufficient evidence]: Directed verdicts do not deprive litigants of their Seventh Amendment constitutional right to a jury trial. More importantly. 7th Amendment a) When do jury rights attach? (1) Approach #1: Was case tried by jury circa 1791? (2) Approach #2: (i) Was most similar 18th Century claim tried by jury? (ii) What remedy is being sought – equitable relief or damages? b) JMOL—does not violate 7th A. History and precedent support the conclusion that the Seventh Amendment of the Constitution was designed to preserve a jury trial in instances of the most fundamental elements. Here. the directed verdict practice was valid because of prior precedent and its presence in the FRCP. Jury 1. no evidence for 5-8 year span of time between key incidents. (ii) presentation of evidence (P then D). jury award overturned]: P failed to present evidence demonstrating that the safe violated industry standards. Verdicts: a) Types = general. verdict. (iii) closing arguments. Redman [coin collection stolen. p. which historically did not go to a jury.Civil Procedure 42 . (v) jury deliberation. The Seventh Amendment of the United States Constitution (Constitution) had no application in this case to begin with because it was for a monetary claim against the Government. 2. See p. left his claim vague and incomplete and therefore. as per the governing statute. JMOL granted for D. Trial Stages: (i) opening arguments. special. ← Galloway [Mental illness alleged to be caused by military service. Trial and Post-Trial Motion A. 776]: special verdict is discretionary. general with interrogatories FRCP 49 (b) b) Choice of verdict type is discretionary on judge’s part FRCP 49(a) (“may”) Skidmore [notes case. sued safe manufacture. government standards. 777 for ensuing policy discussion/tirade ← ← ← ← ← ← ← ← ← __________________________________________________________________________________________ Gonzalez . (iv) jury instructions. Speculation cannot substitute for probative facts. or reasonable consumer expectations. The P’s inability to meet the burden of proof. properly subjected to a directed verdict. (vi) post-trial motions B.IX.

On apparently fatal inconsistency among the jury’s findings. “Where there is a view of the case that makes the jury’s answers to special interrogatories consistent. (ii) within 28 days of judgment entry 4. (b)] 1. if conflict between general verdict and responses." Thus. Typical JMOL Timing = D moves after P evidence presentation. Renewed JMOL Motion Requirements: (i) party previously filed JMOL motion. P&D move after evidence closes 3. may be adequate to sustain a finding of liability for intentional discrimination under the ADEA. Standard for (Renewed) JMOLs = broadly similar to SJ standard: a) “no legally sufficient evidentiary basis to find for that party on that issue” FRCP 50(a) Reeves [Age discrimination case]:"[a] plaintiff's prima facie case of discrimination.c) Jury Inconsistencies: (1) In interpreting non-general jury verdicts. combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision. they must be resolved that way. (Renewed) Motions for JMOL [FRCP 50(a). an employer is liable to a former employee under the Age Discrimination in Employment Act of 1967 if a reasonable jury can find that the employer's explanation for the employee's dismissal was pretext for discrimination. and also contradictory general verdict and interrogatories FRCP 49(b) Gallicks [bug bites from standing water near RR]: Where there is conflict between special verdict interrogatories or general verdict. judge may have jury deliberate further or order new trial. jury is given benefit of doubt. (ii) nonmovant has have been fully heard on issue ← FRCP 50(a) 2.” (2) Where harmonization impossible. judge may also enter judgment notwithstanding verdict FRCP 49(b) C. JMOL Motion Requirements: (i) prior to jury submission.Civil Procedure 43 . courts should attempt to harmonize jury’s contradictory special verdict or interrogatory responses. if it possible under a fair reading of them. it is the duty of the courts to attempt to harmonize the answers. __________________________________________________________________________________________ Gonzalez . and it is the duty of courts to harmonize the verdict.

2. ← Sole Motion Requirement = within 28 days of entry of judgment Standard Applied Depends on Asserted Error Type: a) Process: un-curable prejudicial (not harmless) error Sanders-El [excessive force charge against police. for efficiency reasons D. Ct entered judgment for D on grounds of qualified immunity and P appealed]: Fact issues existed and precluded grant of judgment as a matter of law on issues underlying qualified immunity defense. appeals court uses same standard district court did) 6. but may credit witness testimony absent evident bias Karnes [traffic stop. P drop lengthy computer printout in front of jury while questioning about prior convictions]: Whether errors had significant prejudicial influence on jury in particular case is fine question of judgment as what may be harmless in case which strongly favors one party may be fatally prejudicial in close case. JMOL is unjustified.Civil Procedure 44 .g.e. Motions for New Trial (FRCP 59) 1. unreasonable search alleged—‘leaves all over the car’.. Where there is a genuine issue of fact underlying and issue of law.e.. Allied Chemical) 4. b) Outcome: “against the weight of the evidence” 3. JMOL Rarely Granted: district judges prefer to reserve JMOL issue. Appellate Review Standard = strong abuse of discretion (compare to JMOL’s de novo) • But see note on non-appealability. Appellate Review Standard = de novo (i. grant renewed motion for JMOL. and drawing inferences in her favor.. diversity action]: On motions for directed verdict and for judgment notwithstanding verdict. reasonable jury could not find for non-movant Boeing [Employment case. infra (e. Other = remittitur comes from conditional grant of Rule 59 motion (i. 5. court should consider all of the evidence—not just that evidence which supports nonmover's case—but in light and with all reasonable inferences most favorable to party opposed to motion and motion should be granted if facts and inferences point so strongly in favor of one party that court believes that reasonable men could not arrive at contrary verdict. “take lower damages or retrial”) __________________________________________________________________________________________ Gonzalez . (2) Judge may not weigh credibility.(1) Viewing all record evidence in light most favorable to nonmovant.

it cannot be said that litigant has no other adequate means to seek the relief desired. d) Both motions denied: movant may appeal. Under 59(c). appeals court may affirm JMOL.E. appellee may contest new trial denial in case of appellate reversal of JMOL. appeals court may order either JMOL or new trial ← FRCP 50(e): __________________________________________________________________________________________ Gonzalez . or order new trial ← FRCP 50(c)(2) b) Renewed JMOL motion granted. new trial proceeds ← Allied Chemical [summary]: (1) Only exceptional circumstances amounting to a judicial usurpation of power would justify invocation of mandamus. (3) authority to grant a new trial was confided almost entirely to exercise of discretion on part of the trial court. Appeal Scenarios: 1. and (4) where matter is committed to discretion. new trial motion conditionally denied: verdict winner may appeal. new trial usually proceeds if JMOL reversed. it cannot be said that a litigant's right to particular result is clear and undisputable. new trial motion conditionally granted: verdict winner may appeal. if any 2. appellee may contest new trial denial in case of appellate reversal of JMOL. “unless the appellate court orders otherwise” ← FRCP 50(c)(2) c) Renewed JMOL motion denied.Civil Procedure 45 . judge granting renewed JMOL motion must also conditionally rule on new trial motion. Result is four total appellate scenarios: a) Renewed JMOL motion granted. new trial motion granted: no final judgment. (2) because of the ability to challenge the grant of new trial on a direct appeal after final judgment. Rule 50/59 Complementarity. reverse JMOL and reinstate verdict. so no immediate appeal.

but possible exception where “arguable basis” for SMJ in first court Baella-Silva [Attorney filed state court action against successor counsel to recover portion of attorney fees following settlement of client's claims. unappealed judgment on the merits are not altered by the fact that he judgment may have been wrong or rested on a legal principle subsequently overruled in another case.]: District court's express or implicit determination that it has subject matter jurisdiction over dispute is open to direct review. Basic Rule = A valid. (2) Collateral Attacks on Jdx: (a) Rule #1 (PJ): No preclusion where first court lacked PJ. and imposition of monetary sanction was not abuse of discretion. but this generally means D took default judgment.Civil Procedure 46 .X. __________________________________________________________________________________________ Gonzalez . Claim Preclusion/Res Judicata: 1. since the first court’s finding that PJ was proper will itself have preclusive effect in subsequent suit (b) Rule #2 (SMJ): No preclusion. Doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time. Res judicata consequences of a final. it is a rule of fundamental and substantial justice. cannot be collaterally attacked. Preclusion Policy Rationales: (i) efficiency. There is no general equitable doctrine which countenances an exception to the finality of a party’s failure to appeal merely because his rights are “closely interwoven” with those of another party who successfully appeals. of public policy and private peace. whether or not it rests on error of law. (ii) repose/certainty. (iii) avoidance of inconsistent results B. Repose/Preclusion A. Plaintiff could not collaterally attack settlement judgment on ground that district court lacked subject matter jurisdiction. but it is res judicata when collaterally attacked. which should be cordially regarded and enforced by the courts. Baltimore Steamship [notes case]: Judgment. Five Moving Parts: a) Valid Judgment: (1) Change in law after final judgment does not undermine validity for res judicata purposes Moitie [notes case]: A final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in that action. voidable as based on erroneous view of law. Effect of judgment as res judicata is same. final judgment on the merits precludes relitigation of the same claim between the same parties 2. finding that plaintiff breached confidentiality clause of settlement agreement was not clearly erroneous.

venue. 12(b)(6) dismissal for failure to state claim. or because it is barred by the doctrine of claim preclusion.b) Final Judgment: (1) Final: judgment entered ending case (e. claiming franchise agreement violated antitrust act.]: Once a judgment has been rendered on a claim..g. JMOL. settled by having McDonald’s buy back the franchise. Restatement § 24: (2) Note special rules for: (a) Compulsory counterclaims FRCP 13 Restatement § 22 Martino [Franchise non-compete Mc-D. finances his Burger Chef for his son. entry of judgment on jury verdict. after time for any appeal had elapsed. and carried the force of res judicata barring husband's suit in federal court for his own injuries and medical expenses. case pending appeal (CA and other minority state courts only) c) On the Merits: (1) Excludes: dismissal for lack of jdx. Then Martino sued McDonald’s.g.Civil Procedure 47 . default judgment) (2) Not Final: partial SJ. Res judicata bars a claim where its prosecution would nullify rights established by the prior action (preserving integrity of judgment) (b) Installment contracts (c) Situation in which particular remedies unavailable in first forum __________________________________________________________________________________________ Gonzalez . grant of 12(b)(6) motion. McDonald’s argued that this claim should be barred either because it was a compulsory counterclaim under Rule 13(a). unless court specifies otherwise FRCP 41(b) d) Same Claim: (1) Transactional test: claim (i) arises out of same T/O. JMOL).. and (ii) was or could have been brought in prior proceeding McConnell [Husband and wife’s medical claims from accident split]: Louisiana court judgment dismissing with prejudice husband's suit for medical expenses paid for treatment of wife who had been injured in same accident with husband was. preliminary injunction. SJ. both final and definitive. failure to join indispensable party FRCP 41(a) (2) Includes: most other dismissals (e. all possible issues related to that claim are considered settled even if they weren’t brought up in the first suit.

attempt to keep it out of ensuing civil rights action against officers who conducted the search]: Collateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court.. D attempted to estopp under res judicata]: Ct recognizes an exception to res judicata ‘for later actions that assert claims or seek relief that could not have been pressed or recovered in the prior proceeding. Restatement § 26(1)(c)) e) Same Parties: Absolute rule. other problems in prior action prevented full adversarial testing c) Valid and Final Judgment: Same as for claim preclusion. Title VII suit filed after State EEOC hearing. Basic Rule = When an issue of fact or law is actually litigated and determined by a valid and final judgment. default judgments. Where a second action between same parties is upon a different cause or demand. in criminal trial. general jury verdicts). alternative grounds for judgment (e. Five Moving Parts: a) Issue of Fact/Law: Strict rule – issue must be identical in both actions b) Actually Litigated and Determined: (1) Basic requirement = issue was subjected to full adversarial testing Allen [Evidence excluded under 4th Am.Civil Procedure 48 . such doctrine only rarely precludes nonparties from litigating the same issues afresh. (b) low stakes. pretrial stipulations (3) Potential problems: (a) inscrutability of prior judgment. upon determination of which the finding or verdict was rendered. discovery admissions. But note that intervening change in law can preclude collateral estoppel ← Sunnen [summary]: Doctrine of collateral estoppel does not bar a later claim if there has been an intervening change in the law. Issue Preclusion/Collateral Estoppel: 1. judgment in prior action operates as an estoppel only as to those matters in issue or points controverted. no real exceptions. save successors-ininterest and certain privity relationships (e. (2) Excludes consent judgments.. trustee-beneficiary) ← Consumers Union [notes case?]: Doctrine of collateral estoppel binds parties to a previous suit to such determinations of material issues as are encompassed in the judgment. C.g. the determination is conclusive in a subsequent action between the parties 2.Nestor [notes case. however. __________________________________________________________________________________________ Gonzalez .g. and the determination is essential to the judgment.

Civil Procedure 49 .← Restatement § 28(2)(b) d) Essential to the Judgment: See above on inscrutability/alternative grounds __________________________________________________________________________________________ Gonzalez .

e) Between the Parties: (1) Mutuality: Some state courts (e. ND. FL.g. under which neither party could use a prior judgment against the other unless both parties were bound by the same judgment. but DP prevents a stranger to a prior action from being estopped from litigating an issue in a subsequent action Parklane [1979]: Offensive use of collateral estoppel occurs when plaintiff seeks to foreclose defendant from litigating an issue the defendant previously litigated unsuccessfully as an action with another party. MS. there is no further factfinding function to be performed.Civil Procedure 50 . and offensive use may also be unfair to defendant in various ways: the general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where the application of offensive estoppel would be unfair to defendant. Mutuality doctrine. according to recent study) still require mutuality – i. whereas defensive use occurs when defendant seeks to prevent plaintiff from asserting a claim plaintiff previously litigated and lost against another defendant It is a violation of due process for a judgment to be binding on a litigant who was not a party nor privy and therefor has never had an opportunity to be heard. on the contrary. the whole premise of collateral estoppel is that once an issue has been resolved in a prior proceeding. __________________________________________________________________________________________ Gonzalez . VA. Collateral estoppel does not involve the ‘re-examination’ of any fact decided by a jury. no longer applies. LA. GA. KS.. same-party rule akin to res judicata context (2) Non-Mutuality: Federal courts and most state courts have relaxed mutuality.. AL. Offensive use of collateral estoppel does not promote judicial economy in the same manner that it is promoted by defensive use. a trial judge in the exercise of his discretion should not allow the use of offensive collateral estoppel.e.

However. the plaintiff may overcome the defense with an adequate showing that he was deprived of a fair opportunity in the first trial due to lack of witnesses. However. wastes everyone’s resources.Civil Procedure 51 . and evidentially to pursue his claim the first time” is collaterally estopped from litigating the same claim against a different defendant in a new forum. the defendant may plead collateral estoppel even though he had no relation to the parties in the first action. Erie: Res judicata rules are substantive for Erie purposes 2. relatively smaller claim size in Suit #1. or crucial evidence. though given a fair opportunity “procedurally. Other Preclusion Rules: 1.. and (ii) estoppel would be unfair to D Parklane [see above] (1) Unfairness factors include: (a) Suit #1 forum lacked procedures or had other limitations (b) issue received less than full adversarial attention in Suit #1 (e. Thus. even among separate parties.e. Due process requires that a party who did not “have his day in court” may not be estopped from bringing evidence on an issue in a second action. is “wait-and-see” plaintiff).(a) Two basic types: i) Defensive Non-Mutual Collateral Estoppel (DNMCE): Federal courts (and most state courts that have relaxed mutuality) allow assertion of DNMCE Blonder-Tongue [Patent invalidated in first action action. counsel incompetence) (c) new evidence has become available since Suit #1 (d) differences/changes in applicable law between Suit #1 and Suit #2 (e) future litigation not foreseeable at time of Suit #1 D.. a plaintiff may not use collateral estoppel as an offensive weapon against a defendant who has already lost. ii) Offensive Non-Mutual Collateral Estoppel (ONMCE): federal courts (and some state courts that have relaxed mutuality) allow assertion of ONMCE except where (i) plaintiff could have joined action (i. collateral estoppel must be raised as affirmative defense or waived FRCP 8(c) __________________________________________________________________________________________ Gonzalez . Also. a plaintiff who already has lost. substantively. Mechanics: res judicata.g. against second D attempts to invoke DNMCE]: The relitigation of the same issue.

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