Civil Procedure Review

IV. Res
I. Jurisdiction II. Erie III. Joinder
Judicata

1. Subject Matter 1.
Jurisdiction Joinder of Claims
Permissive Joinder of 1. Res Judicata
Parties (Claim Preclusion)
2. Personal Compulsory Joinder of
Jurisdiction Parties
2. Collateral
3. Due Process Estoppel
2.
Counterclaim (Issue Preclusion)
4. Service of Crossclaim
Process (Notice) 3rd Party Claims
3. Parties
Who is subject to
5. Venue claim or issue
3. preclusion?
Intervention
Interpleader  (Not on
6. Removal Final)
Class Action
7. Waiver

Civil-Procedure-Holy-Grail.doc -1-
 I. Jurisdiction Checklist

Is There
Subject Matter
Jurisdiction?

United States Constitution, Article III: Federal Courts Are Courts of Limited

1 2 3 4 5
Federal Diversity Alienage Admiralty Disputes Between
Question 18 U.S.C. §1332 18 U.S.C. §1333 18 U.S.C. §1333 States, Counsels, and
18 U.S.C. §1331 Ambassadors

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

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

Federal Question Flow Chart

Yes Does the π’s well pleaded complaint allege an express or implied No
federal cause of action?

Does the π’s well pleaded complaint allege a state law cause of action
Yes in which federal law is an essential element?

Does the federal law that is an element authorize a private right of

action? No

Don’t rely too much on this. I derived this rule from Smith
Yes v. Kansas City Title and Merrell Dow v. Thompson.
Aronovsky says the COA are still split and the SC has not There is
There is FQJ ruled. So, in some circuits this would work but don’t treat NO FQJ.
it as a hard and fast rule.
Civil-Procedure-Holy-Grail.doc -2-
 IS THERE
SUBJECT MATTER
JURISDICTION?

United States Constitution, Article III: Federal Courts Are Courts of Limited
Jurisdiction:

1 2 3 4 5
Federal Question Diversity Alienage Admiralty Disputes Between
18 U.S.C. §1331 18 U.S.C. §1332 18 U.S.C. §1333 18 U.S.C. §1333 States, Counsels, and
Ambassadors

DIVERSITY OF CITIZENSHIP BASICS

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

SUPPLEMENTAL JURISDICTION CREATED BY JUDICIAL INTERPRETATION

AND CODIFIED IN 28 U.S.C. §1367

1 2 2a 3 4 5
Federal Diversity Supplemental Alienage Admiralty Disputes Between
Question 18 U.S.C. (Pendant & 18 U.S.C. 18 U.S.C. States, Counsels, and
18 U.S.C. §1332 Ancillary) §1333 §1333 Ambassadors
§1331 18 U.S.C. §1367

SUPPLEMENTAL JURISDICTION BASICS

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

Civil-Procedure-Holy-Grail.doc -4-
 Supplemental Jurisdiction
Flowchart
18 U.S.C. §1367

Same case or No This is a basic

No SMJ requirement of
controversy?
§1367(a).

Yes

Federal Question Fed. Ques.

§1367(b) limitation
or does not apply to Fed
Diversity? SM
Ques.
J

Diversity

Claim by π or ? §1367(b) limitation
does not apply to
SM
claims brought by .
J

Party added under 14 19 20 () This is the §1367(b)

No SMJ limitation.
what Rule?

20(π), 23

The literal language of §1367 lets the

claim in. But the legislative history
indicates that Congress wants the claim
TROUBL to stay out. The Courts of Appeal are
E! split. The Supreme Court granted
certiorari in 2000, Justice O’Connor

Civil-Procedure-Holy-Grail.doc -5-
 PERSONAL JURISDICTION

Constitutional Bases: Statutory Basis MODERN SERVICE

Rule 4 (a-e, h, n)
14TH AMENDMENT ARTICLE IV, §1: State Federal
DUE PROCESS FULL FAITH & CREDIT Long Arm Rule 4(k) Reasonably Calculated
REQUIREMENT CLAUSE Statute (2) Under the Circumstances to
Notice And Full Faith and Credit Can Restrict Constitutional Give Notice
Opportunity to Be Will Be Given in Each Personal Jurisdiction But Mullane v. Central
Heard State Hanover Bank
Traditional Bases of Personal
Jurisdiction
CONSENT PHYSICAL PRESENCE IN
EXPRESS: Carnival Cruise Lines DOMICILE STATE
Gordon v. Steele: Kid at Tag Jurisdiction Lives!
IMPLIED: Hess v. Pawloski
College
WAIVER: Insurance Corp of Ireland Burnham v. Superior Court
Milliken: WY Domicile Served
Contract / Agent Appointment / Shows up in CO Ex-Husband Served While
to Litigate Visiting Kids

MODERN BASIS OF PERSONAL JURISDICTION

 must have sufficient minimum contacts within the forum state such that
maintenance of the suit does not offend traditional notions of fair play and
substantial justice.
International Shoe Co. v. Washington

S U F F I C I E N T M I N I M U M C ON TACT S F AI R P L AY AN DS U B S TAN TI AL J U S TI C E
(CAPFI) (BLIM FEW)

1. Cause of Action: Where did the cause of action
arise?
2. Activities: Scrutinize these activities in the
forum state:
a. Systematic & Continuous = General
Jurisdiction
b. Sporadic = Specific Jurisdiction
c. Direct vs. Indirect
d. Dangerous activity?
3. Purposeful Availement: Has  purposefully
availed itself of the benefits & protections of
forum’s laws? Hanson v. Denkla.
Civil-Procedure-Holy-Grail.doc
1. Burden on the Parties: Economic, time, relative
burdens.
2. Law: What forum’s law?
3. Interest of the State: in providing a forum for &
protecting its citizens.
4. Multiplicity of Suits: Will they all be resolved?
5. Forum: Alternative forum available? Fair &
convenient?
6. Evidence: Where is the bulk of the evidence?
7. Witnesses: Where are the witnesses?
-6-

Underlying Policies:  Judicial Efficiency;  Limit Forum Shopping; 
Possible Exam Questions
Venue Rules: 28 U.S.C. §1391
Venue in diversity cases. §
1391(a).
1. Any dist. where any  resides, if
all ’s reside in the same state.
2. Any dist. Where a substantial
part of the controverted events
occurred or where the disputed
property is located. Can have
venue in multiple locations.
3. Where any  is subject to PJ
Venue in all other cases. §
1391(b).
1. Same as in diversity cases,
above.
2. Same as in diversity cases,
above.
3. Where any  can be found only
Venue of corporate ’s §
1391(c).
1. Anywhere corp. is subject to
Venue for aliens 28 U.S.C. §
1391(d).
1. Any alien, incl. alien corps., can
Civil-Procedure-Holy-Grail.doc
VENUE:
Transfer of Venue: 28 U.S.C.
Federal Courts NEVER transfer
to State Courts. Use FNC in such
case.
State Courts NEVER transfer to
federal Courts or to different
States. Use FNC in such case.
§1404 Balancing Test
Convenience of parties & witnesses
+ Interests of justice must
substantially outweigh π’s interest
in choice of forum.
Choice of Law: Diversity Cases
Only
Laws of the transferring state apply
unless venue was improper, in
Venue Exam Tricks
Transferring Court can only send a
case to a court where the “action
could have been commenced or
initiated.” Therefore, the receiving
Court must have all 3, even if the
transferring Court doesn’t:.
1. Subject Matter Jurisdiction
2. Personal Jurisdiction
3. Venue
Forum Non Conveniens
Public vs. Private Factors -
Balancing Test
Private Interest Factors
1. Access to sources of proof
2. Ability to compel attendance of
witnesses
3. Convenience to voluntary
witnesses
4. Difference in substantive law that
will be applied in new forum is
not decisive in dismissing on
grounds of FNC, but could be
relevant if the law in the
alternative forum were
completely inadequate. Piper.
Public Interest Factors
1. Local interest in having disputes
resolved locally
2. Court congestion
General Rule
FNC is tough on π’s, especially in
light of statutes of limitation and
Pers. Juris. Courts know this and
won’t grant FNC unless:
1. There is an alternative forum;
2.  waives statute of limitations
defense; -7-
3.  consents to jurisdiction in
 Removal: 28 U.S.C. §1441
STATE Court FEDERAL Court

4. State to Federal ONLY; 1. Completely Discretionary

5. ALL ’s must consent; 2. Must have been qualified to grant
6. ORIGINAL ’s only; no original jurisdiction.
counterclaim ’s 3. May grant supplemental
jurisdiction as long as at least one
separate and independent federal
No Removal for In-State claim eligible for removal.
Defendants in Diversity-
Federal Question Claims Non- Federal Question Claims
Pass Through Federal Question Pass Through Supplemental
Filter Jurisdiction Filter
28 U.S.C. §1331 28 U.S.C. §1367

Federal Question Flow Chart Same Case or

Common Nucleus of
Yes Does the π’s well pleaded complaint N
allege an express or implied federal o
cause of action? Meets Supplemental
Jurisdiction
Does the π’s well pleaded complaint Requirements under
Yes allege a state law cause of action in §1367?
which federal law is an essential
element? Yes No
Does the federal law that is an
element authorize a private right of No §1441(a) Not Part of Same
action?
Court May Constitutional
Exercise or Decline Case
Yes Per Authority
Granted under Separate &
There Independent
There is NO Claim?
is FQJ FQJ.

Civil-Procedure-Holy-Grail.doc -8-
 §1441(c)
§1441(a) Court May Keep
Court Must Or
Hear Court May
Remand

Civil-Procedure-Holy-Grail.doc -9-
 Waiver

Consolidation of
What May NEVER Be Waived? What May Be Waived? Defenses
Rules 12(g) and 12(h)

SMJ Is A Constitutional Issue and Cannot Be Personal Jurisdiction

Waived. Notice
Parties to an Action May NEVER Consent to Service of Process
Waiver of SMJ Venue

Civil-Procedure-Holy-Grail.doc - 10 -
 Erie Doctrine Flowchart
The discouragement of forum shopping and avoidance of inequitable
administration of the laws

Is state law Fed Rule on Point? Possibly/ Do BOTH

substantive / N (look at twin aims of No
black letter O Erie before deciding) (Grey
law? Area)
YES Byrd Test Hanna Dicta
Is state rule bound Analyze in light of
YES Hanna Holding up with twin aims of Erie.
Apply Fed Rule if it’s (implementing of) 1. Forum Shopping?
valid. state created rights& 2. Inequitable admin.
obligations? Does it of the laws?
State law regulate primary
applies (f/ Erie behavior?
Valid if reasonable Y N Y N
& RDA)
person would consider
it procedural State Rule of State Fed law
law form & law
mode.
BALANCE

Fed. Outcome
Countervailing determinative
Interests (for fed test (for state
law) law)
(always have If outcome would
uniformity, but be different
weak on its own. depending on which
Byrd was judge/jury law applies (i.e.
relationship which statute of
outweighed limitations is very
outcome determinative if its
determinacy) run in state and not
fed)

Civil-Procedure-Holy-Grail.doc - 11 -
 III. Joinder

Joinder of Claims
3 Sentences at most on exam:
1. In federal practice a π can join any claims he or
she has against the .
2. In a state following the FRCP, a π can join any
claims he or she has against the  because
those are the Federal Rules.
3. If state X follows the more traditional rule of
demanding a transactional relationship, use
Permissive Joinder of Parties: 2 Prong Test
1 ¶ at most on exam.
T&O + CQ = Permissive Party Joinder
1. Claims or defenses stem from the same
transaction; AND
2. There is a common question of law or fact

Compulsory Joinder of Parties

Rule 19(a)
1. Who is necessary and should be joined if
possible?
a. Will parties be injured by failure to join
outsider?
b. Will outsiders be prejudiced by result?
Exam Tip: Probably only situation in which
outsider is not compulsory is tort action. Joint
tortfeasors are NOT compulsory; π may only
want or need to sue the rich .
2. Can you join the outsider? If not, why not?
Exam Tip: look out! Reason could be SMJ and/
or PJ. If so, be ready to perform the entire
analysis.
3. I can’t join this guy; what do I do now?

Civil-Procedure-Holy-Grail.doc - 12 -

FRCP
Joinder by 
Or
Claims 18 (a) Parties 20 (a)
A party asserting 20(a) Permissive
a claim to relief as
an original claim,
Joinder. All persons
may join in one
counterclaim, action as plaintiffs
cross-claim, or if they assert any
third-party claim, right to relief …
may join, as arising out of the
many claims as same transaction,
the party has occurrence, or
against an series of
opposing party. transactions or
occurrences and if
any common
question of law or
fact common to all
these persons will
arise in the action.
All persons may be
joined in one action
as defendants if
there is asserted
against them any
Definitions right to relief …
arising out of the
same transaction,
Real Party in interest:
occurrence, or
one who will benefit
series of
from action, one who
transactions or
has a substantial 20(b) Separate
interest. occurrences and if
Trials. The court
Original claims: any common
may make such
claims by ’s question of law or
orders as will
against ’s. fact common to all
prevent a party
Counterclaims: these persons will
from being
made by ’s against arise in the action.
embarrassed,
’s, it is an
delayed, or put to
independent cause
expense by the
of action.
inclusion of a party
Cross-claims:
against whom the
claims between co-
party asserts no
parties.
rd claim and who
3 Parties: a party
brought into the
asserts no claim
action by a current
against the party,
and may order
.
separate trials or
3rd Party claims: make other orders
claim by  acting as
rd Civil-Procedure-Holy-Grail.doc
to prevent delay or
3 Party , to join a prejudice.
3rd party.
Joinder- Big Picture
Must satisfy both FRCP and SM Jx.
Subject Matter Jx
AND
Joinder by  §1331- Federal §1332- Diversity §1367-
Questions and $ Amount Or Supplemental Jx
- District courts shall $75,000.01 Where DC has
Claims 13 (a, b, g) Parties 14, 19 have original Jx arising minimum original Jx, they
(a) Compulsory O
14(a) When Defendant May
under the Constitution
etc.
&
COMPLETE
shall have supp.
Jx over all other
Bring in Third Party. At any Note: this is not
Counterclaims - A
pleading shall state
r
time after commencement
of the action a defending exclusive JX Diversity claims that are
party, as a third-party related to the
as a counterclaim “Arising Under” In Amount claimed in
plaintiff, may cause a original claim
any claim it has summons and complaint to order to invoke federal good faith is when they are
against any opposing be served upon a person not court jurisdiction the relevant, not
a party to the action who is federal issue must be a amount the court
part of the same
party, if it arises out
or may be liable to the third- sufficient or central part awards, UNLESS claim or
of the transaction or party plaintiff for all or part of the dispute. to a legal certainty controversy.
EXCEPT- when
occurrence that is of the plaintiff's claim
against thePlaintiff
third-party  cannot recover they original
the subject matter of 14(b) When May Well Pleaded $75k. Claim must
plaintiff.
Bring in Third Party. When a Complaint Rule- For a claim arises
the opposing party's exceed 75,000 not
counterclaim is asserted litigant to invoke federal SOLELY under
claim and does not against a plaintiff, the question jur. It is actual award.
Diversity must §1332 the DC
require for its plaintiff may cause a third necessary both that the
party to be brought in under case “arise under” the exist at the time WILL NOT have
adjudication the
circumstances which under constitution or some the complaint is Jx over claims
presence of third this rule would entitle a other aspect of federal
filed with the made by ’s
parties of whom the defendant to do so. law and that this fact
19(a) Persons to be Joined if appear on the face of a clerk. It need against persons
court cannot acquire
Feasible. A person who is well pleaded complaint. not exist at the under RULE 14,
jurisdiction. But … subject to service of process If a substantial issue is
(b) Permissive time of trial or 19, 20, or 24.
(see exception). and whose joinder will not not raised as a
Thesee
DC may also
Counterclaims. A deprive the court of legitimate part of the when the cause §1367(b)
decline supp. Jx if:
pleading may state jurisdiction over the subject plaintiffs own claim for
matter of the action shall relief there is no federal Aof action
plaintiff arose
can often 1) A novel or
as a counterclaim complex state law
be joined as a party in the question jurisdiction cure the lack of
any claim against an action if under the statute. Issue issue
diversity problem
opposing party not (1) in the person's absence that the D raises in the 2) Claim dominates
complete relief cannot be answer or that the by dismissing non-
arising out of the the claim which
accorded among those plaintiff anticipates
Merrell Dow-A are diverse parties. original Jx was
transaction or already parties, or irrelevant
complaint for a
alleging
based.
occurrence that is (2) the person claims an jurisdictional
violation of apurposes.
federal
interest relating to the statute in a state cause 3) Dc has
the subject matter of
subject of the action and is of action, when dismissed claims
the opposing party's so situated that the congress has under DC’s
(g) Cross-claim
claim. disposition of the action in determined that there original Jx.
the person's absence may :
Against Co-Party. A should be no private, 4) Other
(i) as a practical matter federal, cause of action
pleading may state impair or impede the compelling
for the violation does Original Claim
as a cross-claim any person's ability to protect not state a claim reasons.
Counter Claim
that interest or
claim by one party “arising under” the Cross Claim
(ii) leave any of the Constitution or Laws of
against a co-party persons already parties 3rd party Claim
the United States.
arising out of the subject to a substantial risk Claim by 3rd P
19(b) Determination
of incurring double, by Court Whenever Joinder Not
transaction or Feasible. If aorperson as described in subdivision (a)(1) - (2)
multiple, otherwise
occurrence that is hereof cannot be
inconsistent obligations made abyparty, the court shall determine
whether the action should proceed among the parties 
the subject matter reason of the claimed
either of the original
before it,interest.
or should be dismissed, the absent person being
thus regarded as indispensable. The factors to be

action or of a considered by the court include: first, to what extent a
judgment rendered in the person's absence might be
counterclaim therein
prejudicial to the person or those already parties; second, 3rd
or relating to any the extent to which, by protective provisions in the  Part
property that is the judgment, by the shaping of relief, or other measures, the 
subject matter of the prejudice can be lessened or avoided; third, whether a y
judgment rendered in the person's absence will be
original action. adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.
- 13 -
 Counterclaims, Crossclaims, and 3rd Party Claims
(Impleader)

Counterclaims
1. Compulsory: Rule 13(a); use it or lose it. Underlying policy concerns: efficiency and economy. A counter
claim is compulsory if it “arises out of the same transaction or occurrence” that is the subject matter of the ’s
claim (counterclaim must be pleaded)
2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same
transaction: (from Plant v. Blazer Financial Services) State Courts will usually respect Rule 13(a); but it is
not guaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will
probably not allow a new suit on the same facts.
a. Are the issues of fact and law raised by the claim and counterclaim largely the same?
b. Would res judicata bar a subsequent suit on ’s claim absent the compulsory counterclaim rule?
c. Will substantially the same evidence support or refute ’s claim as well as ’s counterclaim?
d. Is there any logical relation between the claim and the counterclaim?
3. Permissive: Rule 13(b); everything else.
4. Exam Tip: Rule 13 pretty much allows a  to counterclaim against a π for anything he wants. Remember
Pugsley said the title “plaintiff” doesn’t mean squat in Tort law; it just means you filed first.
5. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no
diversity), invoke §1367 Supplemental Jurisdiction and be sure to use the buzzwords:
a. Common Nucleus of Facts
Cross-Claims
Rule 13(g) ( vs. )
1. Always Permissive
2. Can invoke §1367 if claim won’t stand alone.
3. Exam Tip: When in doubt, examine Transaction & Occurrence; it’s pretty much the basis of everything in
CivPro, so if you’re blanking out, start writing about T&O.

3rd Party Claims (Impleader)

Rule 14
1. Adding New Parties: Theoretically, an infinite number of parties may be added to the action, from retailer to
manufacturer, to each-and-every supplier involved along the way.
2. Exam Tip: Remember that every party added means you must establish personal jurisdiction over all these
parties. Big exam points here.
3. Can invoke §1367 if claim won’t stand alone.
4. 3rd party ’s counterclaiming back will probably be compulsory because permissive counterclaims are usually
transactionally related and therefore NOT subject to supplemental jurisdiction.
5. Rule 14(a) Amendment: original π may amend complaint to directly assert claim against newly impleaded 3 rd
party .
6. Kroger Rule: Original π cannot assert supplemental §1367 claim against parties brought under Rule 14 (third
party practice); Rule 19 & 20 (Basic Joinder Rules); and Rule 24 (Intervention). It does NOT say anything
about Rule 13 (counterclaim and cross-claim).
Civil-Procedure-Holy-Grail.doc - 14 -
 JOINDER DIAGRAMS

Rule 13(a) Compulsory Counterclaim Rule 13(b) Permissive Counterclaim

 Negligence or
Tort 
 Negligence or 
Permissive
Tort Counterclaim
for
Compulsory Negligence or
Counterclaim Tort
for

A counter claim is compulsory if it “arises out of the

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

Civil-Procedure-Holy-Grail.doc - 15 -
 JOINDER DIAGRAMS

Rule 13(h) Joinder of Additional Parties to Crossclaims or Counterclaims

Rule 14(a) S1 – Adding Third Party Defendant

 Negligence or 

Tort Negligence or
 (3rd Party
Negligence or Tort )
Tort Crossclaim

Contribution
Existing Co- or Indemnity
(Party to Original Claim
Action)

Joinder of
Additional Parties 3rd Party
(Not In Original 
Action)

In this example, an
original  crossclaims
against another
original  AND joins a
3rd party  as well.
3rd Party
(Newly
Joined)

Civil-Procedure-Holy-Grail.doc - 16 -
 JOINDER DIAGRAMS

Rule 14(a) S6 – TPD Can Assert Claim Rule 14(a) S7 –  Can Assert Claim
Against  Against TPD

 
 (3rd Party )  (3rd Party )
Negligence or Tort Negligence or Tort
m
m
Clai
ai
mnity
cl
Inde
ss
on or
ro
ributi
C
Requires same Transaction
Cont
or Occurrence as ’s claim Counterclaim
against 3rd Party 
3rd Party  3rd Party 

Requires same Transaction

or Occurrence as ’s claim TPD MUST assert
against 3rd Party  all defenses
available under
Rule 12 and
counterclaims and
crossclaims under
Rule 13.

Civil-Procedure-Holy-Grail.doc - 17 -
 JOINDER DIAGRAMS

Rule 14(a) S9 – TPD Joining Another Third

Party Defendant Rule 18(a) Joinder of Claims

  Negligence or
 Negligence or (3rd Party Tort 
Tort )
Breach of
Contract

Contribution
or Indemnity
Claim

3rd Party


Contribution
or Indemnity
Claim

3rd Party


Civil-Procedure-Holy-Grail.doc - 18 -
 JOINDER OF PARTIES DIAGRAMS

Rule 20(a) S1 Joinder of Parties - ’s Rule 20(a) S2 Joinder of Parties – ’s

 Negligence or Negligence or
Tort  Tort 


Co -  Negligence or Negligence or
Tort Tort Co-

Permissive Joinder of Parties: 2 Prong Test
1 ¶ at most on exam.
TO + CQ = Permissive Party Joinder
Claims or defenses stem from the same transaction;
AND
There is a common question of law or fact binding
the parties.
Permissive Joinder of Parties: 2 Prong Test
1 ¶ at most on exam.
TO + CQ = Permissive Party Joinder
Claims or defenses stem from the same transaction;
AND
There is a common question of law or fact binding
the parties.

Civil-Procedure-Holy-Grail.doc - 19 -
 Interpleader Rule 22, 28 U.S.C. §1335

“You all figure out who I need to pay if I am liable (which I

may not be)”

Interpleader Basics
Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) the
ownership of which is or may be claimed by more than one party. It is a device to resolve at one time the claims of
many persons to one piece of property or sum of money, such as a bank account claimed by more than one person.

Policy Objective: So that the stakeholder will not have to pay the same claim twice.

Practical Application: Interpleader is a ’s tool to join all claimants at once; but may be employed by a  through
use of cross-claim [Rule 13(g)], compulsory counterclaim [Rule 13(a)], or permissive counterclaim [Rule 13(b)].

Issue 28 U.S.C. §1335 Rule 22

Subject Matter
Jurisdiction
- Diversity Minimal diversity; determined between Complete diversity; stakeholder on one
claimants. (At least 2 claimants diverse) side and claimants on the other
- Amount $500 in controversy $75,000+

Personal Jurisdiction Nationwide service of process Need personal Jurisdiction; service

and under Rule 4
Service of process
Venue Residence of one or more claimants Residence of any claimants (if all from one
state); district where dispute arose;
district where property is; district where
any claimant found if no other basis for
venue
Injunctions Statutory authority for injunctions (28 USC Only basis is provision in 28 USC §2283
§2361) for stay “where necessary in aid of . . .
jurisdiction”
How to Invoke: Post a bond with the Court to cover value of Deposit controverted property with the
stakeholder invokes controverted property. Court.
and is called 
Remember, you need PJ over all the
claimants in order for Rule 22
interpleader to work!
Civil-Procedure-Holy-Grail.doc - 20 -
 Intervention Rule 24

“I wasn’t invited, but I am coming anyway”

Rule 24(a): Intervention of Right

Automatic, uncontestable right if:
1. Unconditional Right Granted by Federal Statute; OR
2. Applicant has interest in transaction or property + disposition will impair his interest - no existing party can
adequately represent his interest

Rule 24(b): Permissive Intervention

At discretion of Court if:
1. Conditional Right Granted by Statute; OR
2. Common Question of Law or Fact; OR
3. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting
scope of protective orders and confidentiality agreements. Example: Environmental Lawyers intervene to
contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader

Rule 24(b¹): Limited Purpose Intervention

Judicial Expansion of Rule 24(b):
1. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting
scope of protective orders and confidentiality agreements.
2. Example: Environmental lawyers intervene to contest Oil Co. settlement agreement ordering destruction of
discovery documents which may show broader pattern of abuse, suppression of which arguably would be
contrary to public policy.

Civil-Procedure-Holy-Grail.doc - 21 -
 Intervention Flowchart

Step 1:
STATUTORY ANALYSIS

Does a Federal Statute grant Yes

MUST Grant
unconditional right of
This is Rule 24(a).
intervention?

MAY Grant
Does a Federal Statute grant Yes This is Rule 24(b)
conditional right of Court will consider delay or
intervention? prejudice to original
parties.

Step 2:
CAN’T SOMEONE ELSE DO IT?

Is there a party to the case

who will adequately
represent the applicant’s Yes MUST Grant
legitimate interest in the
This is Rule 24(a).
controverted matter?
(Can an existing party cover
your ass? )

Step 3:
CONSIDERATIONS OF JUDICIAL EFFICIENCY AND PUBLIC POLICY.

Is there: MAY Grant

A common question of law or This is Rule 24(b)
fact? Yes
- or - Court will consider delay or
A limited purpose that would prejudice to original
serve public policy? parties.
Civil-Procedure-Holy-Grail.doc - 22 -
 Class Actions Rule 23: “We Were All Screwed Over!”

23(A) CLASS PREREQUISITES (CEN C TAB) JURISDICTION

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

23(B) TYPES OF CLASSES

Class Defined Policy Objective Practical Application

23(b)  Mass version of Rule 19 joinder. Avoid inconsistent decisions or In a limited fund case; if suits
(1)  Class members may NOT opt out impairment of interests of class brought individually, first π takes it
and are BOUND by the holding. members. Avoid harm to ’s and all. Class Action protects other π’s.
absentees.
23(b)  Limited to Injunctive or Protect rights where large numbers Civil rights cases.
(2) Declaratory Relief of persons are affected.
 No $ damages
 Class members may NOT opt out
23(b)  $ Monetary Damages  Judicial efficiency Class action for everyone who was
(3)  Must be superior to other  Allows relief where individual π’s overcharged 10 cents on every can of
available methods could not economically pursue tuna they bought at Ralph’s. No one

Civil-Procedure-Holy-Grail.doc - 23 -
  Must present common questions of action would sue individually. But as a class
law or
PET M fact. (Predominance of  Could be only effective method of it would make sense and Ralph’s
NIL
common question) deterring
IV: RESbehavior
JUDICATAof some ’s would have to react.
Same P  rimary
 bearsrights
cost of notice to all class (many small violations). Issue Necessary to the
involved?members. first action?
Same E Notice must inform members “Go
 vidence? mayAway, Leave Me Alone, I Don’t Want Identical Issues?
opt-out. To Talk About It Anymore!”
Same Transaction or

Collateral Mutuality of Estoppel

Res Judicata Res Judicata Basics
Estoppel (Who or which parties are subject to claim or
(Claim
1. Preclusion)
Definition: RJ means you cannot re-litigate a matter that you previously litigated or could have litigated.
(Issue Preclusion) issue preclusion?
2. Merger & Bar: The controverted matter (cause of action) is like a poker chip, you only get two choices: bet it or
don’t bet it. You can’t break it in half and play part now and part later. Additional theories that could have been plead
but weren’t are merged into the first judgment and further litigation is barred by RJ.
3. Claim for Relief is The Key: So, what’s the claim for relief (cause of action)? Is it litigation to preserve a right or to
remedy a wrong? Courts have held both ways and a minority of jurisdictions still use the right-wrong test. But the
majority position is to focus on the transaction. On the exam, focus on transaction & occurrence. If the claim arises
from the same transaction or occurrence, it’s probably covered by RJ.
a. Example: In-other-words, if  bought a toaster that exploded and killed her pet iguana, she’s probably got half
a dozen theories of recovery under tort and contract law (strict liability, warranty, breach, etc.). But all those
actions arise from the same occurrence – the toaster explosion. Most Courts would rule this a single cause-of-
action for RJ purposes.
4. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand its
central importance to the concept of res judicata.
5. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage
multiple litigation (judicial efficiency). But Courts will interpret claims narrowly if they are concerned about the
harshness of preclusion and the burden on the .

Collateral Estoppel Basics

1. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. If RJ is a
meat cleaver, lopping off the entire claim, CE is a scalpel, severing only the issues previously adjudicated. There are 3
requirements for CE:
a. Same Issue
b. Actually Litigated
c. Necessarily Decided (This is important. The issue may previously have been decided but was not necessary to
resolution of that case.
2. Example: Driver A hits Driver B, sues B for negligence, and wins. Assume that there was no compulsory
counterclaim rule, so B never counterclaimed against A. Now Driver B wants to sue Driver A for his injuries.
a. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence,
claims are specific to the , so that single accident gave rise to valid claims for both A and B.
Civil-Procedure-Holy-Grail.doc - 24 -
b. But B will be estopped from asserting a claim of negligence against A. This is because A actually litigated and
necessarily determined that B was the negligent driver in the accident. For purposes of the exam, don’t worry
about comparative negligence claims.
 RES JUDICATA (CLAIM PRECLUSION) FLOWCHART

Do the issues in the current case stem from the same

transaction or occurrence as a previously litigated
case?

Yes
Was there a final judgment in the previous case?
(Final means all steps in the adjudication except No
execution & appeal.) No
Jurisdiction
Yes Venue
Was it considered “on the merits”? Joinder of an Indispensable
Party

Yes
12(b)(6)
Default judgment or Consent decree
Summary judgment & Directed Verdict
(JMOL)

Was it valid?
Yes
Proper court with subject matter and personal
jurisdiction?
No
§1738 “Full Faith & Credit” valid state court
decisions are binding in federal court unless state
court lacked competency.

Does 2nd Action Involve Same

Yes Parties or Those In
Privity?
(Privity requires a legal relationship between the No
parties)

Civil-Procedure-Holy-Grail.doc NO CLAIM PRECLUSION - 25 -

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

Civil-Procedure-Holy-Grail.doc - 26 -