Civ Pro Yeazell SP 2004 3

THIS OUTLINE IS THE INTELLECTUAL PROPERTY OF ANJULI MCREYNOLDS,
mcreynolds2006@lawnet.ucla.edu. PLEASE ASK ME BEFORE SHARING IT.

HAVE FUN
Yeazell Civ Pro Outline-Notes Summary (Spring 2004)
I.
Incentives to Litigate
A. Demography and Economy

-most lawsuits about traffic/ordinance violations
-civil cases are 41% of non-traffic cases, slightly more than criminal; civil litigation rates are
positively correlated to population and economic activity
-of civil cases, 56% contract, 44% tort
-of torts cases, most are related to auto-accidents, and torts are more likely to go to trial w/ a jury
(contract cases settle, or decided by judge more often)
-in torts, Ds win slightly more often; in contracts Ps win more
-median torts verdict: 31K; median for contracts is 37K
-almost all civil litigation takes place in state courts (so state courts are busier, move faster)
-courts decide (through some kind of judgment or ruling) about 30% of civil cases in federal
courts. Not clear about state courts.
-about 3% of cases to go trial (70% before jury); jury trials are more expensive and take a little
longer than bench trials (generally)
-most cases end with settlement or abandonment
-most common type of contracts case is unpaid debt
B. Litigation Dynamics
1. Importance of Damages
-for compensatory damages courts will be concerned about their ability to quantify if there is no
market for the harm, if the P didnt have access to that market, and w/ efforts to individualize
damages (are statutory schemes a better approach?)
-liquidated damages in contracts-cant agree to them unless the actual damages would be difficult
to calculate
-minimum damage provisions-offset costs of litigation in areas where awards will be low,
encourage Ps to bring suit to enforce the rule
-punitive damages usually require willful or malicious conduct. The due process clause places
some outer limits on punitive damages
2. State Farm
a) Facts
SF refused to settle Ds claim, D got adverse judgment. D sued for bad faith failure to settle,
brought evidence of other bad SF behavior in other states/areas and won. 1M compensatory
damages, 145M punitive.
b) Rules and Reasoning

-three guideposts for courts reviewing punitive damages: 1) degree of reprehensibility of Ds
conduct; 2) disparity btw actual harm and punitive award; 3) difference btw punitive award and
civil penalties for comparable cases.
-punitive damages here violate due process
-also cant allow evidence of behavior in unrelated areas/other states for punitive damages. Must
be related to Ds harm.
-few punitive damage awards exceeding a single digit ratio of punitive to compensatory will
satisfy due process. May be more if very egregious conduct, less if compensatory damages are
very substantial.
-wealth of D cant justify otherwise unconstitutional damages award
c) Issues
-implications for litigation-lawyers might be less likely to take punitive damage cases where
compensatories are low; but they might invest more in proving compensatory damages
-can wealth be considered? Not clear
-Court rejected the argument that the 8th A limits punitive damages; but punitive damages are
limited by due process
C. Remedies
1. Types
-substitutionary-damages (most common), constructive trust (treat the D as if you had undertaken
to be the Ps trustee, so D has to turn over all the increased value D got for betraying Ps trust)
-specific-the court orders a party to do/not do something; replevin, ejectment, injunction,
reformation (order by court to alter a contract to conform to the actual intent of the parties),
mandamus (ordering an officer to do his duty), habeas corpus (present the body or explain
authority for holding them)
-legal-available in common law courts; damages, ejectment, replevin, mandamus, habeas corpus
-equitable-meant the Court of Chancery could issue them; injunction, rescission, reformation,
quiet title, constructive trust, clean-up damages (incidental damages to injunction)
-declaratory relief-the court is asked to give a declaration as to parties rights; limited in federal
courts b/c hypothetical questions cant be answered, there must be actual controversy
2. Sigma v. Harris
a) Facts
D signed non-competition agreement w/ P. Then went to work w/ competitor, used company
secrets. P wants injunction.
The court balances the interests of both parties; the legal remedy must be inadequate. Sigma
would have greater hardship if injunction not granted.
c) Issues
-generally, rule for specific remedies is that plaintiff who prevails on the merits can get equitable
remedy only if she shows greater balance of hardship and inadequacy of the legal remedy (but
inadequacy req is more limited today)
-injunction is like a tailor-made criminal statute, so courts often careful about using them
-remember, P here probably cant enforce the injunction to stop Harris from using company
secrets, so think practical outcomes too
-cases in equity historically decided by judge, not jury
D. Financing Lawsuits
1. Costs
-disputes over fact more expensive than law b/c our system requires parties to drive litigation,
discover/investigate facts themselves; requires longer trial (jury)
-direct expenses-legal fees, discovery (court reporter, document production); expert witnesses;
investigators; filing fees; process servers; transportation costs, photocopy
-indirect-loss of party and witness time/focus
2. Payment Methods
1-each party pays for own lawyer (American Rule)-common for most commercial litigation; less
need for legal insurance b/c most covered by auto insurance (most common lawsuit); hourly rate
2-each party, sharing costs w/ similarly situated parties through insurance or contingent fees
(remember, can get this only w/ damages, not specific remedy)
3-prevailing party gets lawyer fees from other side (English Rule)-malicious prosecution at
common law; today generally imposed by statute for some public interest claims, ex: civil
rights/discrimination
4-philanthropy or public subsidy-legal aid, pro bono, good for people wanting specific remedy;
two biggest categories for legal aid: divorce and eviction defense
-types of claims that fall through: small damage claims (class actions a possible solution); nonmonitory relief in non-fee-shifting cases; uninsured defendants (tenants in possession)
3. Evans v. Jeff D
a) Facts
Ps seeking injunctive relief for institutionalized children. Ds offered settlement of everything Ps
asked, but asked for waiver of attorney fees (fee-shifting statute would have covered). The court
must approve all class action settlements (Rule 23e); must they reject it?
Court says no ethical dilemma involved b/c Ps got what they wanted. But what about the lawyers
other legal aid clients? Is this an ethical dilemma?
c) Issues
-if lawyers dont get paid, the incentives to litigate will change and some people may or may not
have access to the legal system
-some lawyers have clients sign agreement not to settle w/o attorneys fees--wrong?
4. Buckhannon
a) Facts
Ps sued state for self-preservation (fire safety) law. Say law violates FHAA and ADA. D repealed
the laws, so the suit is moot. P says they are prevailing party, should get legal fees.

BUT there must be a judgment or court-ordered consent decree for attorney to get fee-shift. Court
says there was no prevailing party here.
c) Issues
-what can lawyers do? Prevent mootness by asking for damages (by increasing labor costs to
follow law for example); but there are ethical concerns (lawyer shouldnt focus on payment)
-usually prevailing party only applies to plaintiffs (D cant get fees)
E. Preliminary Remedies
-courts can grant some remedies at the beginning of the trial process, instead of waiting till end
-concerns: inadequate information, denial of due process
1. William Inglis v. ITT
a) Facts
P wants prelim injunc to stop Ds from under-pricing bread.
-district court test: irreparable injury if injunctive relief not granted; plaintiff will probably prevail
on merits; defendant wont be harmed more than P helped; in the public interest
-court gives alternative test: moving party must show a either a combination of probable success
and the possibility of irreparable injury, OR that serious questions are raised and the balance of
hardships tips sharply in his favor
c) Issues
-shows concern of balancing interests when using eq remedy
-often a decision about prelim injunc will end the case
-Rule 65-(a) requires notice, allows consolidation of hearing w/ trial on merits, maybe to address
concern of inadq info; (c) plaintiff must post a bond to cover Ds losses if D wins, but some
courts waive or decrease amount w/ hardship
-provisional monetary relief can also be granted: attachment to property or garnishment of
income
-*important exception to final judgment rule: interlocutory appeals of grant/denial of preliminary
relief
2. Fuentes v. Shevin
a) Facts
D got writ of replevin, state seized Ps goods w/o notice or opportunity to challenge it. Violates
due process of 14 A?
Adverse party must have notice and opportunity to be heard at meaningful time and manner. DPC
protects significant property interests (P had possessory interest). No notice might be ok in
extraordinary situations, where there is compelling govt or public interest. Detailed waiver of
right maybe ok.
c) Issues
-this does not require a hearing; just a chance for one
-temporary restraining orders-sometimes issued w/o notice or a hearing (Rule 65b)
-use of DPC requires state action; private party can use self-help as long as it doesnt breach the
peace
-Mathews test for determining whether notice/hearing necessary: 1) strength of private interest
involved; 2) risk of erroneous deprivation; 3) govt interest involved including fiscal/admin
burden
II. Pleading
A. Functions of Pleading
1. Other Styles of Pleading

-old style legal pleading focused more on writs and law than facts
-but in Court of Chancery (equity) the pleadings were very detailed
-code pleading was an early reform-facts constituting a cause of action (more detail in facts,
specificity)
-today we have elements of both; minimal facts, but no formulas
2. Notice Pleading
-concerned more with allowing claims to go forward to discovery than w/ screening out weak
claims
-Rule 8a-pleading requires statement of jurisdiction, short and plain statement of the claim
showing pleader entitled to relief, demand for judgment the pleader seeks
-contrast old style of pleading-very formalistic, concerned w/ getting D to appear and fitting the
claim into specific writs and actions
-still some remnants of formal pleading, such as stating cause of action in specific substantive law
category; but must also sketch a factual scenario that falls w/in that body of law (cant be too
specific or too conclusory)
3. Types
a) Dilatory pleadings
-these pleadings do not deal w/ facts or law, do not resolve the merits of the case (found today in
Rule 12b)
-jurisdiction
-pleas in suspension (challenges Ps right to bring action until some problem resolved)
-pleas in abatement (various other defects in complaint, must be fixed first)
b) Preemptory pleadings
-resting on either facts or law to dismiss on the merits
-demurrer-concedes truth but challenges legal sufficiency (12(b)(6)-you just have to assume facts
for sake of arguments)
-traverse-legally sufficient but facts not true (denial)
-confession and avoidance-concedes facts and law, but introduces new facts (affirmative defense)
c) Modern Pleadings
-12b6 (really a preanswer motion), denial, affirmative defense (Rules 8 and 12)
B. Movement Through Courts

1. Haddle v. Garrison Complaint
-claims that D conspired to fire him in violation of statute
-problem? D says no damages were stated b/c the statute requires harm to person or property.
Since P was at-will, no property interest.
-they raise this argument in 12b6 motion to dismiss
-demurrer requires court to assume Ps facts are true, evaluate the legal claim.
2. Haddle v. Garrison
a) Facts
District court grants motion, appeals affirms. SC grants cert. Requires 4 justices to approve.
Court says at-will employees have property interest.
c) Issues
-remember the 12b6 assumes all the Ps facts are true; this happens before the D makes an answer
-but a 12b6 motion must be decided on the pleadings alone; no other evidence can be submitted
(that would have to be a motion for summary judgment)
-*Rule 8e-allows parties to make alternative or hypothetical statements that may be inconsistent;
b/c pleading requires lawyers to make allegations b4 being certain of facts/law
C. Rule 11
1. Background of Laws governing Lawyers
-most broad: general laws
-laws applying to professionals (malpractice)
-laws applying to lawyers as lawyers (ethical standards imposed by state bars, associations)
-lawyers in particular fields have special constraints applicable to their work in those fields
-Rule 11 applies to civil litigators in particular situations; imposed by courts, but substantively
based on other laws governing lawyers
2. Reading the Rule
-purpose: solving some problems created by the adversarial system, getting rid of incentives to
act in bad faith; deter unjustified litigation positions
-scope: pleadings, motions, papers, representations to court (signing, filing, submitting, later
advocating papers) and defenses; requires signing of the document. So if lawyer or party didnt
sign it, it doesnt violate rule 11 but it wont be accepted. Excludes discovery.
-addressee: civil litigators, courts, unrepresented parties, law firms, parties (but cant impose
monetary damages on parties)
-commands: signing, and b 1-3
-exceptions: reasonable under circumstances, doesnt have to be exactly based on current law,
facts that are likely to have support w/ reasonable discovery, doesnt apply to discovery or oral
presentation to court, gives 21 day safe harbor period
-consequences: sanctions (possibly including attorneys fees for opposing party bring the rule 11
motion) limited to what is sufficient to deter repetition; sanction is presumptively attorneys fees
3. Walker & Christian

-Rule 11(b)(2) applies to lack of legal support ; 11(b)(3) to factual investigation
D. Specificity in Pleading
1. Stradford
a) Facts
P lapsed in insurance payments; then resumed and filed large claim. D insurance co wont pay; P
sues, D counterclaims fraud. P moving to dismiss b/c D didnt state claim w/ specificity required
by Rule 9(b)
Pleading of fraud must include the time, place, nature of the misrepresentations. Primary purpose
is to give P notice of the factual basis. Court gives D leave to amend.
c) Issues
-why did D counterclaim, instead of pleading fraud as defense? If defense, Rule 9 would not
apply. BUT this way they can get damages
-Rule 9 is only Rule requiring such specificity, but some other state and federal laws do
-some laws also forbid specificity in some pleadings
-remember, plaintiff doesnt need to present evidence to prove the pleading
E. Burdens
1. Definitions
-pleading-party must allege that element of the claim or defense; cant expect the other to do so
-production-at trial party must produce evidence that tends to demonstrate the proposition at stake
-persuasion-party must persuade the trier of fact that his version is more likely than not to be true
2. Gomez
a) Facts
Civil rights case, P claims fired w/o hearing. D says he must allege that act was done in bad faith.
P says this is defense, D has burden of pleading.
SC says qualified immunity is affirmative defense so D has burden of pleading. Not mentioned in
statute, D has greater knowledge. Maybe real reason is court wants to make it easier for
plaintiffs?
c) Issues
-why take this to SC? Burden of pleading may mean burden of production/persuasion at trial
-affirmative defense-brings up new facts that are not part of the claim; not really that clear which
things are affirm defenses; not elements of the plaintiffs claim
F.
Responding to the Complaint
1. Possible Actions by D
-nothing: default judgment against D per Rule 55 (often debt-collection action, even if D doesnt
have assets now the creditor could reach future assets)
-pre-answer motion: D gets more time to answer, decision on issue raised by motion, see Rule 12
(most of these can be included in the answer, except request for clarification or more info, but 12e
motion is rare)
-answer: admit, denial (general or specific), affirmative defenses; further proceedings
2. Zielinski
a) Facts
P making personal injury claim based on forklift accident. Sues D as employer; D makes general
denial and P doesnt realize that someone else was employer. P couldnt sue correct party b/c stat
of limits had run, but both covered by same insurance.
Court says D should have been more specific in answer. But maybe this was bad complaint b/c it
put all the allegations in one paragraph?
c) Issues
-injustice a big factor here-no concern b/c same insurer covered D and the correct employer
-Rule 7-defines motion as a request to the court for an order
-Rule 8(b)-averments in a pleading are admitted when not denied (cant just say, make P prove it)
3. Layman
a) Facts
P suing D for trespass. D says they had easement; but didnt raise this in answer. Is it affirmative
defense that D must plead in the answer?
Court decides easement is affirmative defense b/c license is, and that is similar. So D cant argue
that evidence (will amend complaint)
c) Issues
-not clear how court decided this was affirmative defense-maybe more about surprise during
trial? If P had found out during discovery and interrogatory, then court might say differently.
-Rule 8(c) lists affirmative defenses
-good idea for D to plead doubtful matters as affirmative defenses to avoid waiver, though some
courts think D has burden of proof if he pleaded it as affirm def
-pleadings usually predictable; but if there is something unexpected or surprising, then the
pleaders should make that clear. Pleading rules are about fairness and notice
-most action happens in discovery, so if unusual story is learned then, there is no surprise and
wont be too picky about pleading
-if P wants to challenge an affirmative defense, he can make a Rule 12(f) motion to strike (this
motion works like a 12b6 for a single allegation, works for P or D)
4. Reply
-Rule 7(a)-requires reply if the answer contains a counterclaim denominated as such
-technically not required if the potential counterclaim is given as affirmative defense
-court may also order reply on its own motion, or motion of a party
G. Amendments
1. Rule 15
a) Amendments
-party may amend at any time before responsive pleading served; otherwise party can amend if
you have leave of court or written consent of adverse party; court should freely give leave when
justice so requires
-so when does justice so require? Factors-Will other side have a chance to prepare a response?
Was this a result of factors outside their control? Should they have fixed this earlier, or found it
out earlier? How much will it harm other side?
-why allow amendments? b/c notice pleading isnt supposed to have all the facts; focus on
discovery
2. Beeck v. Aquaslide
a) Facts
P sues for product defect. D says the manufactured the slide. Later D realizes they didnt make it,
and want to amend answer. But, the stat of limits has run so P cant sue other guy.
Court allowed D to amend. Thought that D was not bad faith, and still possible that P can sue the
right guy. Would be more prejudicial to deny amendment that to allow it. D could not defend
themselves on the defect claim.
c) Issues
-two concerns: is there good reason that D made the mistake? Will it be prejudicial to other side
(maybe balancing the harms)?
3. Relation Back
-under Rule 15(c), party can amend the complaint and it will be dated back to the original date of
the pleading (so statute of limits not issue)
-BUT 15(c)(3) requires that if you want to change name of party, that party must know or should
have known that they actually should have been sued (had notice)
-15(c) requires that the new claim/defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading;
amendments do NOT turn on whether it is same/different legal theory
-these requirements allow relation back b/c the main concern of stat of limits, notice, is satisfied
-courts analysis of the same occurrence requirement may depend on when the amendment
occurs: if during discovery, the court will be more likely to grant relation back b/c the other side
has time to respond
III. Discovery
A. Rule 26: Stages of Discovery

-First stage: (a) Initial Disclosures of matters the disclosing party may use to support its claim or
defense, occurs after meeting of the parties; must occur before requests are made
-Second: (b) court compelled, relevant to a claim or defense of any party, not privileged,
reasonably calculated to lead to admissible evidence. Initiated by parties, judge intervenes if
necessary.
-Third: in some cases, for good cause court may grant discovery of any matter relevant to the
subject matter of case
-limitations: court can limit frequency or extent of discovery if unreasonably cumulative or
duplicative; party had ample opportunity to obtain info; burden or expense outweighs benefit
B. Relevance
1. Davis
a) Facts
Ps claim discrimination in employment. They want to see other discrimination complaints in
same plant w/in certain period. D says too broad, not relevant.
The info is relevant b/c it might help show real motives. Also not too broad b/c limited to that
plant, similar complaints.
c) Issues
-this case suggests broad scope of relevance for discovery purposes
-substantive law determines what is relevant to claim/defense; relevance means that the
information tends to prove or disprove something the law says matters
2. Steffan
a) Facts
P claims wrongly dismissed from military for saying he is gay. D wants to ask about homosexual
conduct. P says privileged, not relevant.
The question is not relevant. There is special rule governing review of govt administrative action:
can only consider evidence about why person was dismissed (not whether they could be
dismissed anyway). That is why relevance is so narrow here.
c) Issues
-privilege would also protect the info; it trumps relevance
C. Privilege
-privileges block info from a particular source; not related to the underlying facts (so party can
ask about the underlying facts, but cant ask what they told lawyer about those facts)
-privileges include attorney/client, doctor/patient, psychotherapist/patient, self-incrimination
-attorney/client privilege extended in Upjohn case to extend beyond top management in

corporations
-privilege can be waived if P brings a claim in which that info is at issue (such as medical records
in personal injury suit)
-some irrelevant info must be disclosed: insurance info, info that explains damage calculations
(26(a)(1))
-party can use rule 26(c) or 37(a) to raise a privilege; 26(c) is more detailed about the limits the
court can impose on discovery
-if party refuses to produce a document or thing b/c of privilege, he must provide a description of
it
D. Initial Disclosures
-disclosure of tangible things party may use to support claim or defense, except for impeachment
(undermining credibility of a testifying witness), plus damage calculation info and insurance
-must disclose identity and address of witnesses
-must disclose insurance info, and info used to make damage calculations
-for expert witnesses: bio and report (26(a)(3)?)
-dont have to disclose bad info
-usually, disclosure will occur no later than 85 days after D appears
-some types of cases are exempt (rule 26b1E)
-Must notify other party if something new comes up after disclosure; risk of not disclosing? Court
might not allow the evidence to be used unless it was discovered another way.
E. Compelled Discovery
-relevant to claim or defense of any party, or sometimes if relevant to subject matter
-objections-must answer unless privileged, or you stop to get a court protective order, or to
enforce the court order
1. Interrogatories (rule 33)
-sending party a list of questions to answer
-no more than 25 questions unless party gets courts permission
-cheaper than deposition, but cant do follow up questions
-non-parties dont have to answer; even if they answer, probably not admissible at trial
-gives evidence for use at trial; contrast admission below
2. Requests for Admission (rule 36)
-asks other party to admit a fact; takes that fact out of the dispute completely; same effect as
admitting in an answer
-party can say they dont have enough info to admit or deny; but cant just say thats an issue for
jury
-admissions are binding only in the pending action
3. Depositions (rule 30 etc)
-lawyer questions a party or witness under oath, reporter and adverse lawyer are present
-total number of depositions on one side may not exceed 10; each deposition cant exceed a day
of seven hours; no person may be deposed second time w/o permission of court or other side
-deposing party can ask for more time if other side delayed the depo
4. Document Production (rule 34)

-can be any medium for recording data or information
-the producing party generally bears the cost of production
5. Mental and Physical Exams (rule 35)

-requires special application to court and showing of good cause
-generally cant require exam of a non-party
F. Protective Orders
1. Rule 26(c)
-party can get a protective order so that info is not discoverable; balances need for info against
collateral harm
-judge given lots of discretion
-presumes info is discoverable, unless there is collateral harm
2. Stalnaker
a) Facts
P claims sexual harassment by D. Wants to depose third parties who worked at same store about
voluntary sexual activities. D wants a protective order b/c info is embarrassing.
Court decides to allow deposition about their sexual activities, but only to extent that it shows
similar conduct by D.
c) Issues
-requires lawyers to frame questions carefully to get w/in relevance; may end up in court again to
clarify
-usually discovery decisions not reviewable right away b/c of final judgment rule; but there is
limited review for magistrates decisions by district court judge
G. Trial Prep Materials
1. Hickman
a) Facts
Wrongful death action about tug accident. Tug cos lawyer did investigations, interviewed
witnesses who were crew members. Ps lawyer wants to know content of that. D says info is
privileged.
Info not privileged by attorney-client relation (employees of client not clients). Not discoverable
b/c it is lawyers work product. Might still be discoverable if P showed substantial need, but P
could take own interviews.
c) Issues
-opposite presumption from protective order: for work product, it is presumed to be nondiscoverable; can be overcome by showing of substantial need or undue hardship
-outcome could vary today: employees of company might be clients also, so interviews privileged
(Upjohn). So would need to depose the crew; might be able to argue undue hardship b/c these are
more expensive
-rule protects insurance adjustors and investigators too
-but witness can also get copies of their own interviews/depositions (26b3)
-to qualify the material must be prepared for litigation
-remember, not all hard work is non-discoverable; if lawyer works hard to find a witness, he
must disclose identity of witness to other side
H. Expert Testimony
1. Rule 26(b)(4)
-defines expert--hired or retained by lawyer for providing expert opinions in anticipation of
litigation
-must give bio and report in initial disclosures if testifying; non-testifying experts dont have to
-other party can depose testifying expert; but need special showing to depose non-testifying
expert
2. Thompson
a) Facts
P suing employer for sexual harassment, emotional distress. D wants psychological report of
expert who interviewed P. P says they cant have it b/c non-testifying.
D cant get this info from other means, so exceptional circumstances met. (privilege waived).
Could also say psychologist was a witness, not hired in anticipation of litigation.
c) Issues
-proving special circumstances-cant get info another way, no way to have gotten it earlier
3. Chiquita
a) Facts
P had expert examine dock; D wants experts report. P says expert wont testify, so dont have to
give report.
D could have sent their own expert to inspect the dock. Cant benefit from other partys work (to
such a degree).
c) Issues
-similar to work product here, other side should do it themselves
I.
Enforcement
1. Sanctions
-Rule 37-if party doesnt disclose the info, court may refuse to allow the evidence at trial or
impose other sanctions, unless it was harmless (ex: the evidence was uncovered in later
discovery). But wrong party may have to pay reasonable expenses of getting info later.
-BUT other party must have made a good faith effort to compel the info w/o court action
-if party continues to refuse to grant discovery, court may order reasonable expenses (including
attorneys fees), order that fact admitted or make a default judgment
-Rule 26(g)-fills in the discovery gap of Rule 11, court can impose appropriate sanction,
considering the whole pattern of behavior
2. Thompson
a) Facts
P class action about housing discrim. Ps want large amount of discovery, covering 75 years. D
says too burdensome.
Court says P and D must work together to resolve the problem. Must narrow the scope of
discovery, and work to solve probs.
3. Poole v. Textron
a) Facts
Product defect case. P wants sanctions against D for bad behavior.
Court can award sanctions under 37a4 (reasonable expenses for specific incident) and 26g
(appropriate sanctions for whole behavior). Court imposes expenses only b/c not bad faith.
c) Issues
-award of sanctions may depend on whether party is perceived as bad faith; but possible that bad
behavior was incompetence, fear of asking client for enough info
-might the stage of litigation explain the different approaches of these two judges? Thompson
happened at beginning of discovery; Poole very late into it
-how might such a ruling affect later motions like amending pleading (ex: in Beeck v. Aquaslide).
Might affect whether justice so requires the court to grant amendment
IV. Resolution w/o Trial
A. How Suits End w/o Adjudication
-abandonment by plaintiff (eventually ends in dismissal): may represent judgment of merits by P;
or inadequate financing of suit
-contractual resolution: in another forum (arbitration); settlement
-about 30% end in non-trial adjudication (some kind of judgment)
-over half end in settlement
B. Default
-Rule 55-suit may end in default judgment if D fails to appear or dismissal if P abandons
-but Rule 60(b)-might allow reopening of judgment after default
C. Settlement
1. Concerns
-good vs. bad version: not clear which is more accurate
-usually dont need a judge to approve a settlement, but exceptions are class actions, cases
involving minors, some multi-D cases.
-settlement helps control the risks of litigation for both parties
-cant appeal after settlement since there is no judgment
2. Strategy
-possible goals to settle: avoid bad publicity, prevent bad info for future employees/employers
-negative factors: wont feel vindicated if no judgment on merits, must enforce the settlement (so
oral agreement is NOT good idea)
-when to settle-before complaint if confidentiality is important, but easier to enforce if judgment
entered (such as involuntary dismissal or consent decree)
-if P files new lawsuit, D would plead affirmative defense of accord and satisfaction or res
judicata if there is a judgment on the merits (invol dis)
-parties can also settle part of the claim, and leave the rest to trial (such as settle on liability but
try damages)
3. Mediation
-a mediator assists in negotiation btw the parties to help them come to an agreement; but doesnt
decide the case or bind the parties
-sometimes mandatory mediation is required by court or statute (frequently in family law)
-judges can even act like mediators (by managing the litigation, offering alternate dispute
resolution, giving early evaluations of the merits)
4. Matsushita
a) Facts
Class action P settled w/ D in state court (approved by court), including federal securities claims
that state court did not have jurisd to hear. Now other members of class suing in federal court.
Claim barred by settlement?
Under full Faith and Credit Act the federal court must give judgment the same effect it would
have in the court where rendered; if the states laws allow the resolving of state and federal claims
in settlement, then there is preclusion.
c) Issues
-this requires a judgment of some kind! Otherwise contract would cover both state and federal
claims
5. Kalinauskas
a) Facts
P wants to depose coworker who settled case w/ D. But coworker signed confidentiality
agreement w/ D.
A confidentiality agreement cant violate public policy by trying to hide underlying facts of the
case. The public policy concern increases as more people are harmed. So P can depose coworker
about the facts, but not about the terms of the settlement.
c) Issues
-remember, P can only depose someone to extent it is relevant to Ps claim (or Ds defense)
-also possible for D to keep some secrecy after this; can seal the depositions
-confidentiality agreements are good for Ds, but good for Ps too b/c they can get a higher
settlement w/ one. The Ps lawyer may also benefit b/c he has a trade secret about that D.
-who doesnt like them? Public at large for certain claims (health/safety) and plaintiffs bar
(wants to use that info in future to reduce costs of discovery)
6. Filing w/ Court
-can P get the discovery from a past case to lower their costs of discovery? Yes, if these
documents are on file w/ the court (unless they were sealed)
-Rule 5d says discovery info is filed when it is used in the proceeding or court orders filing; so
the documents will only be filed if used in some kind of motion
-ex: motion for summary judgment will likely include discovery info, and that will be filed w/
court
D. Arbitration
1. Definition
-parties contractually agree to resolve future disputes outside of the courts. Mediation different:
doesnt decide who wins.
-in arbitration the parties can design their own procedure and control the applicable substantive
law
2. History
-long history, esp among guilds, religious communities
-early 20th C-courts skeptical
-late 20th-courts embraced contracts to arbitrate, even sometimes federal statutory claims (which
courts are generally suspect of, b/c fed statute claims involve public policy issues)
-most recently-some skepticism towards some kinds of agreements, courts not enforcing
fundamentally unfair ones
3. FAA
-Federal Arbitration Act: courts will uphold arbitration agreements involving commerce, except
upon grounds for revocation of any contract
-if one party files suit, and there is arbitration agreement, the other party can move to stay the
action and compel arbitration
4. Floss v. Ryans
a) Facts
P signed arbitration agreement in employment contract w/ D, P must bring dispute to EDSI. Their
procedures subject to change w/o notice. P must pay half fees.
No binding contract b/c no consideration. EDSI didnt promise any specific procedures to handle
the dispute.
c) Issues
-so this court used contract principles to strike down the clause
-remember, you could characterize this agreement differently: say it is geared towards customer
service and individualized attention so it is good
5. Lyster v. Ryans
-same arbitration agreement, this court finds that it wasnt unconscionable or unduly harsh
-this is a different circuit; maybe just a jurisdictional difference
-what should Ryans do? Keep the agreement, but ask EDSI to fix the rules, or notify everyone of
any changes so the procedures will be fair.
6. Ferguson v. Writers Guild
a) Facts
P disputes his credit for screenplay. Member of Guild, which has arbitration policy for credit
disputes. Picks three anonymous arbitrators who are writers, identities all unknown to parties and
vice versa, look at documents only (no testimony).
This system is fine; it handles claims more skillfully and economically than courts could.
Members of guild are better to decide, and they voted for this system themselves.
c) Issues
-procedure like this in a court would violate due process; but here, no state action
-the more we try to make arbitration like litigation, the more benefits we lose (becomes more
expensive, slower)
-the courts reviewing powers are limited to asking whether the parties actually agreed to
arbitrate, and whether it was fair
7. Framework for Enforcement
-Two doctrinal frameworks: 1) agreement as contract (subject to limits of contract law); 2) special
nature of the claims in question: should some claims not be arbitrable (ex: civil rights or
securities law, though courts now allow these)? Are the systems procedures fair, even-handed?
-what disputes are not arbitrable? Maybe if they are public (like Bush v. Gore), important, likely
to be unfair; some statutory claims
-Courts will strike the agreement if it is fundamentally unfair. Factors: Is there mutuality of
obligation? Does the agreement disproportionately disadvantage plaintiff financially
(inhospitable)? Is the agreement too limited on remedies (no punitive damages)?
-Review of arbitration: courts will generally not review the decision, unless there is gross
lawlessness by the arbitrator
E. Summary Judgment
1. Rule 56(c)
-party moving for summary judgment must show there is 1) no genuine issue as to any material
fact; 2) that they are entitled to judgment as a matter of law
-nonmoving party must produce evidence (can be affidavits or other documents) to show an issue
of fact (see Celotex for burden) and cant rest on pleadings alone
-no witnesses testify, and there is no jury to assess credibility of evidence
-nonmoving party can also ask for more time for discovery
-different from 12b6 motion-here we dont assume Ps facts are true; we ask, are there material
facts in dispute, testing whether facts are true (but not whether the evidence is credible or not)
2. Celotex v. Catrett
a) Facts
P claims Ds asbestos killed husband. D says it wasnt their asbestos; moves for summary
judgment on that. Says that P cant show it was their asbestos, based on Ps failure to identify
witnesses during discovery.
D can either: 1) present evidence to show Ps claims cant be true; or 2) say that P cant show
enough evidence to prove element on which they have burden. D just has to point out that P
doesnt have enough evidence for rational jury to find in their favor; no need for other evidence.
Burden of production for SJ is the SAME as for persuasion at trial (usually on P).
c) Issues
-implications for discovery? Puts more pressure on P to get/show evidence before trial; P cant
just say, I will have evidence by trial b/c court will look at state of evidence at time of SJ
-now the burden of production for SJ is same as burden of persuasion at trial
-does the evidence have to be admissible at court? See rule 56(e)
-P can ask for more time, if not enough time for discovery yet
-in response to motion for summary judgment, plaintiff can 1) attack the defendants factual
analysis, say its wrong and you could draw inferences that allow a reasonable jury to find for P;
or 2) there is additional evidence showing there is a factual dispute (and present evidence)
3. Bias
a) Facts
P suing for breach of contract, say D didnt get insurance policy for son. D says son would not
qualify for policy b/c drug user. D moves for SJ, presents testimony about specific incidents of
drug use. P gives affidavits saying generally son not user.
Even though evidence on both sides, court must ask could a rational trier of fact find for P? Ps
evidence too general, doesnt refute the specific evidence from D.
c) Issues
-in motion for SJ, the court must make all justifiable inferences in favor of the nonmovant; but
the nonmoving party must do more than create a metaphysical doubt about credibility
-remember, D has burden of production/persuasion for affirmative defenses like stat of limits
F. Judicial Management
1. Case Loads
-state-average 1500-2000 cases per year per judge
-federal-average 500 cases
-w/ so many cases and a large backlog, judges will want to speed things along, esp in state court.
Major implications for how long trial will take, scheduling, delays
2. Rule 16
-16d-a judge must set a time table (scheduling order) for the trial
-judge can also use discretion to have conferences, make sanctions (same as available for rule 37)
-usually parties cant appeal these orders, b/c of final judgment rule. But remember, injunctions
are appealable; could say the order is injunction
3. Events up to trial
-rule 26(f) conference, btw the lawyers (21 days b4 meeting judge)
-rule 26(a)(1)-initial disclosures
-rule 16(b) scheduling conference
-discovery
-settlement conference?
-rule 16(d) final pretrial conference- may schedule amended pleadings, explore settlement,
refine area of dispute, witness and exhibit lists. Judge has flexibility to extend deadlines, or to
decide not to.
4. Sanders
a) Facts
Judge issued deadlines at scheduling conference. Ps lawyer failed to meet deadlines. At final
pretrial conference, judge dismissed the case as sanction.
En banc appeals thought dismissal too harsh. Appropriate sanction? Maybe reasonable attorneys
fees, expenses.
c) Issues
-other sanctions might end up w/ same result: if P cant afford to pay them and continue litigation
he must drop case
-unfairness also an issue in this case; if P doesnt meet deadline but D does, that means P gets
more time to look at Ds papers
5. McKey
a) Facts
At final pretrial conference, judge issued order limiting Ps theory to negligence. Later P found a
new theory of liability.
Judge wouldnt allow P to bring up the new theory, b/c it violated the order.
c) Issues
-judge probably knew about the other theory; should he have told P about it? Prob not, that is not
point of adversarial system
V. The Trier of Fact
A. Judges: Bias and Recusal
1. 28 USC 455
-based on case-specific bias, not just bad judging in general (unlike CA, where you get one free
pre-emption). For bad judging you can file a complaint but that doesnt remove judge from the
case.
-party can file motion for recusal, or judge must recuse himself if a) impartiality could reasonably
be questioned; or b) one of following criteria apply (financial, personal interest)
-financial interest-doesnt matter how small, but interest in mutual fund ok; but judge can avoid
recusal by divesting self of the interest ONLY after substantial judicial time has been devoted to
the case (if at beginning, there are other judges available and judge must recuse)
-parties can waive ONLY if bias falls under section a
-judges can hear their own recusal motion, or can ask colleague to hear it
2. In re Boston Childrens First
a) Facts
Judge publicly commented on the case, saying it was more complex than a past case. P moved for
recusal, and judge denied the motion.
Actual bias doesnt matter; just the appearance of bias. Courts must seem to be free of bias.
Disqualification is appropriate when facts show what an objective member of public would find
to be a reasonable basis for doubting the judges impartiality.
c) Issues
-any out-of-court response to a reporter is probably not grounds for recusal; should be assessed on
case-by-case basis
-procedure here was a writ of mandamus for appellate court to consider the motion for recusal.
This is very rare; usually appeal happens after final judgment. Court will then need to ask, should
judge have recused self, and did that involve a serious enough likelihood of injustice to overturn
the case?
-usually there is assumption that another judge is available to replace recused judge. But Supreme
Court-if justice recuses self, no one will fill in; if tie, the lower court will be affirmed
-if party argues bias based on attitudes developed during trial, SC says that judicial remarks must
reveal such a high degree of bias as to make fair judgment impossible (high standard)
B. Right to Jury Trial
1. Seventh Amendment
-Right to Jury: in suits at common law, where the controversy exceeds twenty dollars, the right to
a jury shall be preserved
-preserved means wont be taken away; its not required, and the legislature can guarantee more
rights to jury; judge can choose to have a jury in equitable claim
-Reexamination Clause: no fact tried by jury shall be reexamined by any court than according to
the rules of the common law
-Seventh Amendment applies ONLY to federal govt, but states have similar laws preserving right
to jury trial
2. Common Law
-the right is preserved for suits that would be brought under common law courts in 1791 (when
7th A was passed)
-this means claims that seek a legal remedy (not equitable)
-must know what type of remedy is sought; if legal, there is a right to jury trial, if equitable no
right
-if you seek both types of remedy, the parties get a jury on any factual matters that overlap, and
the judge is bound by the jurys findings (only relevant after the Federal Rules, since before you
couldnt combine)
3. Rule 38
-demand and waiver of right to jury trial
-parties have 10 days after the service of the last pleading directed to such issue (that has a right
to jury)
-so if party amends pleading to include a legal remedy, its 10 days after the last pleading about
that
-if you dont demand a jury, you have waived the right!
C. Judge as Trier of Fact
-Rule 52 says that judge must make specific findings of fact stated separately from the findings of
law
-the reviewing court can consider these fact findings (unlike the findings of a jury) and can set the
findings aside if they are clearly erroneous
VI. Trial
A. Importance?
-why focus on trial, when only 2-3% of cases go to trial, and these motions are rarely granted?
-b/c trial has an impact on the rest of the litigation process; what might happen is being assessed
in settlement agreements, deciding to litigate
-after Celotex, the standard for directed verdict is the same as summary judgment, so trial is
important in SJ too; directs the discovery process
-tells us by reference about what happens to the litigation that doesnt make trial
B. Burdens
1. Pleading
-parties must fulfill their burden of pleading
-this is challenged in the 12b6 motion to dismiss (if D challenging P)
-P challenges Ds pleadings in a 12f motion to strike or 12c motion for judgment on the pleadings
2. Production
-important at two phases: summary judgment and judgment as matter of law during trial; this is
when the burden is challenged (standards are the same, remember Celotex)
-has party met their burden of producing evidence that would allow a rational trier to find in their
favor?
3. Persuasion
-important only when the trier is weighing the evidence
-in civil trials, party with burden must prove their side by a preponderance of the evidence
-ONLY important if the evidence is exactly equal; then the jury must find against the party w/ the
burden
-this burden is far more important in criminal cases, where it will almost always determine the
verdict
C. Judgment as a Matter of Law
-can move for directed verdict after P has presented evidence, or after D has presented evidence
-can move for judgment notwithstanding the verdict after the jury has made the verdict
-Rule 50-party can move for judgment as matter of law, granted if there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue
-often depends on inferences that can reasonably be drawn from evidence
1. Reid v. San Pedro RR
a) Facts
Ps cow killed by train. Could have gotten out by broken fence (RRs duty) or by open gate (Ps
duty). Cow found near gate. Jury finds for P.
There was not enough evidence to support the inference that the cow went through fence. P didnt
satisfy her burden of production by a preponderance of the evidence.
c) Issues
-most courts dont allow party to rely on statistics alone; but if they think party has exhausted
other possible evidence, they might allow it
-once a case reaches the jury, the jury should be able to rationally find for either party; this shows
that litigation is aimed at fairness and managing doubt as much as truth
2. Penn RR v. Chamberlain
a) Facts
Ps husband killed by train. Her witness says the trains collided, but he was far away, heard a
crash that could have happened elsewhere. Several other witnesses say no crash.

If there is a direct conflict of testimony upon a matter of fact, that is for jury to determine,
regardless of # of witnesses on either side. But no rational trier of fact could have found for P.
Impossible for witness to have seen the crash. Not enough that he concludes there was a crash.
Cant reasonably make the inference that there was a crash based on this testimony.
c) Issues
-if there is a direct conflict as to a matter of fact, jury decides
-directed verdict should be granted if no rational trier of fact could return a verdict in favor of the
party opposing the motion
-court is supposed to look at evidence P presented to determine if he met his burden of
production; but they will also look at all the evidence presented; should make all favorable,
reasonable inferences for P
-court NOT supposed to weigh the credibility or strength of the evidence; supposed to say
whether rational inferences can be drawn, not choosing btw equally valid inferences
-it is possible to draw rational inferences from these facts that there was a crash; court here is
pushing at the line btw judge and jury
-if witness said I was watching whole time and saw the crash and the others still said no crash,
that should go to jury, even if they are far more credible witnesses (ex: clergy or nuns). In this
case jury must decide who is telling the truth; they arent asked to make the inference from what
witness saw.
3. JNOV
-essentially a late ruling on an earlier motion for judgment as a matter of law; there MUST have
been a motion for directed verdict first
-granted when there is no evidence from which rational juror could find in that partys favor
-why would this happen? Judge may allow jury to decide in case his jml gets overturned on
appeal, saves expense of new trial
D. Granting New Trial
1. Rule 59
-a new trial may be grantedin an action in which there was trial by jury, for any of the reasons
for which new trials have heretofore been granted in actions at law
-why would the drafters not want to be too specific? b/c of seventh amendment re-examination
clause, which says no fact tried by a jury shall be otherwise reexamined except as allowed by
common law
2. Features
-can be granted on judges own initiative, or on motion
-grounds: evidentiary adequacy (not enough evidence to support jurys verdict, against the great
weight of the evidence) or process (error)
-NOT a final judgment, thus not appealable (unless made as part of conditional jnov); sends case
to a new jury
-contrast to judgment as a matter of law: made only on motion, before case submitted to jury;
results in final judgment
-new trial on damages? Can avoid using remittitur (new trial unless P takes less damages) or
additur (increase damages). But additur violates 7th A (not allowed in fed court, but in some
states)
3. Lind and Peterson

-Lind-jury believes incredible story, but court says trial judge should not grant new trial just b/c
judge disagrees w/ the outcome.
-Peterson-jury misunderstands charge, and judge finds out after verdict in jury interview. But
judge cant grant new trial b/c jurors cant testify about their thoughts or deliberations while
deciding verdict (rule of evidence 606).
-rationale? Cases that get to jury could reasonably come out either way.
4. Jury Issues
-cant grant a new trial b/c judge finds out jury misunderstood the charge
-But CAN grant new trial for outside influences on the jury. Juror can testify about that.
-juror who does own investigation and tells jury: clearly inappropriate outside influence
-juror who happens to know about the subject and tells jury: probably ok; lawyers should have
screened this person more carefully, and jurors are supposed to bring their knowledge and
experience to the decision
VII. Former Adjudication
A. Res Judicata: Issues
-a common law doctrine
-usually an affirmative defense; usually must be assessed on summary judgment (D must submit
evidence of previous suit)
-contrast precedent-precedent is rules of law applied across different cases; res judicata applies to
specific parties and facts: the same claim or issue
-rationale? Unfair to defendants to try case again; finality, efficiency and consistency
-the preclusive law of the court rendering the judgment applies; exception: federal diversity
actions, where scope of judgment is the same that a state court would have given it
-relation to joinder-broad joinder of claims means that preclusion is broad. In old days joinder
was limited, so preclusion was also narrow (also code pleading, focusing more on legal theory,
might suggest narrower preclusion)
B. Claim Preclusion
1. Frier v. Vandalia
a) Facts
P parked illegally, car towed. P filed suit for replevin and lost. Then sued city for denial of due
process. Second suit precluded?
Must apply preclusion law of court that rendered the judgment. P did not litigate the due process
claim in the first suit. But, P could have raised this in first suit, and this claim arises from the
same transaction or occurrence.
c) Issues
-P must have opportunity to bring the claim in first suit; otherwise no preclusion. For example, if
court allows only limited claims or remedies.
-but even if another person had opportunity to join the first suit, they do not have to, and arent
precluded from bringing own claim
-There must be some significant relation to the first suit. Possible approaches for same claim:
only claims which were actually litigated; any possible claim the two parties have against each
other; using same evidence/facts; arising out of same transaction or occurrence (federal courts use
transaction rule)
-remember, something that seems like a different transaction could actually be the same, if they
are recharacterized as related
-importance to preliminary investigation-make sure this isnt related to the same transaction as
previous claim; also must investigate all related facts to decide if there are other claims to make
in this case
-remember, only can preclude claims that were valid claims at the time of the first suit!
2. Relation to Rules
-Rule 8(e)-says party may state any separate claims or defenses the party has regardless of
consistency; doesnt require that party state any claims arising out of same occurrence. What if it
said party MUST state claims arising out of same transaction? Would this addition change the
law? No. Res judicata is common law, and supplements the Rules
-relation to Rules-if you change rules about amendments, you may need to lessen claim
preclusion to be fair. We put most focus on discovery, and that will likely reveal related claims.
BUT, if lawyer asked for amendment and was denied, that doesnt mean there was no opportunity
-Rule 42-judge can split parts of a complaint for trial; this rule could be response to the incentive
for plaintiff to put everything they can into the pleadings
-Rule 13-a pleading must state as a counterclaim any claim against the opposing party that is
related to same transaction that is subject matter of opposing partys claim; otherwise it will be
waived
3. Martino v. McDonald
a) Facts
P had franchise w/ D, D says P breached contract. They settled; consent decree entered. Later P
sued McD, saying contract clause violated antitrust law.
Rule 13a doesnt preclude claim, b/c there was no pleading. But common law compulsory
counterclaims rule does. New claim precluded when it had to have been brought as counterclaim
in past action, and would have been a defense (same transaction), and would undermine integrity
of the first decision.
c) Issues
-*so claim preclusion applies to counterclaims as well, if they are compulsory, or relitigation
would nullify rights established in the first action
-what if first suit settled w/o consent decree; there would be no claim preclusion, but there would
still be accord and satisfaction
-litigation system is very concerned about consistency btw two parties; less so about consistency
btw different suits involving different parties (precedent can be overturned)
-*Rest of Judgments-failing to state counterclaim doesnt waive bringing that claim later, except:
if required by compulsory claim statute or rule; or the relationship btw the counterclaim and
plaintiffs claim is such that successful prosecution of action would nullify the initial action or
impair rights established in the initial action
4. Searle v. Searle Brothers

a) Facts
In first suit mom sued dad for divorce. Sons testified that they shared property w/ dad in
partnership; court found it belonged to dad, and gave to mom. Now sons suing mom.
Usually no preclusion for persons not a party to first suit. Privity is exception. Sons didnt have
chance to join first suit; but they were closely involved w/ the suit and testified. But court says no
preclusion, b/c sons were not in privity w/ father.
c) Issues
-privity means one party is so identified in interest w/ another that he represents the same legal
right (may be ones insurance company, successive owners of property)
-problem is, if mom loses now she will be precluded from trying to get more property from
husband. What could lawyer have done if he foresaw this issue? Could ask for continuance, and
seek declaratory judgment (quiet title) where dad and sons can be parties
-but remember, just because a person can join a suit doesnt mean they have to; if not parties and
not in privity, no preclusion
5. Richards v. Jefferson County
a) Facts
In first case plaintiffs sued city based on legality of new tax. P loses. Then another citizen sues for
same reason.
No preclusion b/c P was not party to first suit, and not in privity. P had no notice that the prior suit
could conclusively resolve his rights, and due process requires that a person be informed that a
matter is pending so he can choose to join or not.
c) Issues
-class action is different-that would establish the rights for all people in plaintiff class, even if
they didnt know about trial. But could argue they werent adequately represented
-but P still must contend w/ precedent
-there may be an express agreement by a person that they be bound by the litigation, though not a
party
-virtual representation-sometimes when parties are very involved in the suit, maybe finance it and
testify, court may think their interests were already represented and they are precluded (class
action included in this category)
C. Which Judgments Preclude Claims?
1. Final Judgment
-usually there must be final judgment; in most states a judgment is final though an appeal is
pending, but some have different rules
-some kinds of administrative determinations are not final judgments for these purposes and have
no claim preclusive effect
2. Judgment on Merits
-full trial and verdict, directed verdict, summary judgment clearly have preclusive effect b/c these
are judgments on merits
-dismissal for no jurisdiction-not a judgment on the merits. Rule 41 says any involuntary
dismissal, except for jurisdiction, venue, or failure to join party, are judgments on merits.
-dismissal for failure to comply w/ discovery-not a judgment on substantive merits, but not giving
it preclusive effect would give party another chance. Would undermine effect of sanctions
-dismissal on 12b6 motion-preclusive effect in federal courts, but not all state courts have same
rule. It reflects merits of case, and almost always P has chance to amend; but it occurs at
beginning of trial when D has invested very little.
-remember Semtek rule-would a 12b6 dismissal by fed diversity court have preclusive effect if
state doesnt give preclusive effect to 12b6? Probably, not clear if it would be inconsistent w/
federal interests or not
3. Gargallo
a) Facts
First suit: broker sued G for unpaid debt. G counterclaimed for federal securities fraud. G lost for
failure to comply w/ discovery. But state court didnt have jurisdiction over securities law. G sues
again in federal court.
Federal court must give state court judgment the same preclusive effect that judgment would have
in a state court. State would preclude based on this judgment. But since this state wouldnt give
preclusive effect to judgment w/o jurisdiction, then no preclusion.
c) Issues
-but if the state DID give preclusive effect where the court lacked SMJ, that would have
preclusive effect, even thought state court had no jurisd!
-in CA, Keidatz case decided there is no preclusive effect to a 12b6 dismissal (except for same
claim based on same facts). But this is just precedent; it could change.
4. Semtek
-Erie RR decided that when federal courts sit in diversity cases, they must apply relevant state
laws
-Semtek says that scope of a federal court judgment in a diversity case should be the same as it
would have had the case been adjudicated in state court. So, if a CA court would have dismissed
the claim but would have left other states free to apply their own different rules, same result when
case brought in diversity.
-but, the federal reference to state law will not obtain when state law is incompatible w/ federal
interests. Ex: if state law did not give preclusive effect to dismissal for discovery abuse, federal
court may still preclude to preserve integrity of federal discovery sanctions
D. Issue Preclusion
1. Black Letter Law
a) Same Issue
-the same law must apply; if two cases use different standard to evaluate facts, not the same issue
-burden of proof is also important-criminal and civil trial could be over same issue, but
different burden may or may not allow issue preclusion. If D convicted criminally, that will
preclude civil issue (lower burden). If D acquitted, not precluded for civil
b) Adequate Incentive and Opportunity to Litigate
-if first suit was for small amount of damages, or not very severe loss, then D wont have same
incentive to litigate
-also must have same procedural opportunities, or no less
-usually must have opportunity for appeal or review of judgment
c) Actually Litigated and Determined
-if first suit was dismissed for discovery abuses, for example, issues about the substantive merits
are not precluded
-but, a party who deliberately prevents resolution of factual issues through normal adjudication
may be bound by the first judgment even if it was never fully decided (for example if person
knowingly defaults). Actual litigation is satisfied when party is given a reasonable opportunity
to defend self on the merits and chooses not to
d) Essential to Judgment
-if court rules on alternative grounds, Rest of Judgments says neither have preclusive effect. But
if appeal decides on either or both, that has preclusive effect.
-often not sure whether something was essential in a general jury verdict, so no preclusion (Parks)
e) What Parties
-common law and in some states-issues only precluded btw the same parties; today mutuality not
required. Only the victim of preclusion must have a full and fair opportunity to litigate
-when can non-party not assert preclusion? When party could have joined first suit, or otherwise
unfair to D (Parklane)
-may be unfair to preclude a party if there are prior inconsistent judgments on the same issue
(Century Home)
2. Illinois RR v. Parks
a) Facts
H and W sued RR in first action; W won, H lost. Then H sued RR from different damages. RR
thinks first trial precludes issue of Hs contributory negligence, since he lost.
Jury could have based verdict on contributory negligence OR no damages. No way to know, so
not precluded.
c) Issues
-how would we know how the jury decided? Special verdict
-alternative grounds-why treat these differently from regular preclusion? Cant be sure that each
was sufficiently decided. Not all courts follow this rule.
-dismissal on jurisdiction doesnt preclude claim. But it does preclude that issue of jurisdiction in
future case. For example, decision on personal jurisd in federal court is binding in state court of
same state.
3. Parklane
a) Facts
First suit: SEC v. Parklane for misleading proxy statement. SEC wins. Then Shareholder v.
Parklane, P wants to preclude issue of misleading proxy.
No more requirement of mutuality.
-defensive issue preclusion: when the plaintiff was a party to the first suit, where she lost, and
then is suing a different defendant on the same issue. D can use preclusion here, b/c it gives
plaintiff incentive to join all defendants to the first suit which is more efficient
-offensive-P using past suit to preclude D from litigating issue. not ok for P to wait and see
what happens in first case. So if P could have joined, may not allow preclusion. P here had no
chance to join first suit.
-Where P could have easily joined in the earlier action, or where application of issue preclusion
would be unfair to D, trial judge should not allow use of issue preclusion. Reasons why unfair to
defendant: D didnt have same incentive to litigate the first case; different procedural
opportunities
c) Issues
-some states still require mutuality (preclusion only for cases with same parties). Criticized b/c it
doesnt recognize the difference btw party who never litigated an issue and a party who had a
chance but lost
-cant burden a person w/ preclusion who wasnt a party to original suit; violates due process.
This case deals w/ when the burdened party was in first suit, but opposing party was not.
-B/c of offensive preclusion, Ds may have incentive to settle if there may be future suits instead
of allowing final judgment (partial summary judgment not final judgment)
-no issue preclusion if principal was acquitted for the accomplices trial
-nonmutual issue preclusion does not apply to federal government. Must be the same parties.
Why? Possible that a constitutional issue, decided in a suit against govt, would be then decided
forever. It would be super precedent that even supreme court couldnt overturn
-if procedure is different, be sure to ask whether that really makes a difference. If first admin
hearing didnt allow discovery, did we really need discovery, or did the precluded party have all
the info?
4. Century Home
a) Facts
Several Ps sued D for fire damage. Some verdicts for Ps, one for D. New P wants to use issue
preclusion for the cases where D lost.
-where there are inconsistent holdings on the issue sought to be precluded, then it would be unfair
to preclude defendants from re-litigating the issue of liability
-other times not to preclude: when the prior determination is manifestly erroneous, or there is
newly discovered or crucial evidence that wasnt available in the last case
c) Issues
-Rule 42 allows consolidation of actions, or joint hearing or trial of any or all matters in issue in
the actions. So if you see this coming, judge might be able to prevent inconsistent rulings.
-this also might resolve itself by forming a pattern, where D can settle based on the likely
outcome based on the past cases
-Rest of Judgments-party is precluded from re-litigating an issue w/ another party unless he
lacked full and fair opportunity in first action or other circumstances including: procedural
differences, new party could have joined first action, determination is inconsistent w/ another of
same issue, would foreclose opportunity to reconsider issue of law etc
E. Limits to Preclusion
1. Claim
-Rest of Judgments suggests reasons to not apply claim preclusion: parties have expressly or
implicitly agreed to allow claim splitting; court in first action reserved Ps right to bring second
action; jurisdictional limits prevented P from seeking certain forms of relief now sought
-other possible reasons: first judgment plainly inconsistent w/ statutory or constitutional scheme
(such as interpretation of statutory or constitutional law has changed); case involves recurrent
wrong and P given option to sue periodically; other extraordinary reason for overcoming policy
favoring preclusion
2. Issue Preclusion exceptions
-party could not, as matter of law, obtain review of initial action (thus judicial review must be
available for first to have preclusive effect);
-issue is one of law, and the two actions involve substantially unrelated claims or there was
intervening change in applicable legal context
-difference in procedures or factors relating to allocation of jurisdiction
-actions in small claims or traffic courts dont have preclusive effect
-burden of proof or incentive differences
3. Law of the Case
-functions w/in a single case to prevent relitigation of decided points of law. Parties get one
chance at appeal, and cant argue over that point of law again to the lower court on remand
4. Judicial Estoppel
-when party has taken a sworn position of fact in prior preceding, and benefited from that position
by receiving judgment or other award, now seeks to take a differing position to win a judgment
that would be inconsistent w/ the prior position--not allowed
-contrast issue preclusion-there, the burdened party lost previous suit. Here burdened party won
before
-some tensions w/ Rule 8(e)(2) which says party can state claims regardless of consistency, but
that rule reflects the importance of discovery to reveal the facts. Judicial estoppel applies to
sworn positions, not pleadings
F. Full Faith and Credit

1. Between States
-Article IV of Constitution says that states must give full faith and credit to judgments of other
states. So if one state makes a judgment, another state is precluded from re-litigating that. A
judgment in any state has nation-wide validity
2. Btw State and Federal
-Full Faith and Credit Act makes the same rule btw federal and state
-the second court must give same effect to the judgment that rendering court would attach to it;
correctness irrelevant, if the question had been fully and fairly litigated and decided in the first
action (so if question of jurisdiction had not been fully litigated, often not precluded)
3. Collateral Attack on Jurisdiction
-jurisdiction issue precluded if fully litigated, even if incorrect
-but what about waiver if party didnt raise jurisdictional defense?
-personal juris: unnotified party, over whom court lacks personal jurisdiction, may challenge
judgment. Party who appears and contests personal jurisdiction is bound by courts ruling. Party
who appears and fails to contest personal juris has waived their right to object.
-Party who appears and litigates challenges to subject matter jurisdiction is bound by ruling. Not
clear about other situations. But, cant collaterally attack subject matter jurisdiction for failure of
diversity.
-states can declare own judgments void for failure of subject matter j
-party can collaterally attack judgment in another state by showing fraud
-all other issues, besides jurisdiction, must be raised and appealed in first action. Cant raise any
other issue on collateral attack! (except in class actions over adequate representation)
-fair to allow D to default and raise issue, but waive it if he appears? Idea that D may not have
had notice if he didnt appear, also parties didnt invest much in suit yet
4. Durfee
-if D appears and the court fully litigates and decides jurisdiction, that precludes collateral attack
on jurisdiction. But if D has no notice and doesnt appear, he may challenge personal juris on
collateral attack.
G. Reopened Judgments
1. Rule 60(b)
-must move to reopen judgment in the same court that heard the first case, asserting that some
fundamental defect justifies setting judgment aside
-very limited circumstances for reopening judgments w/in reasonable amount of time such as:
new evidence that due diligence could not have revealed in time, mistake, fraud by opposing
party (some w/ one year stat of limits); also allows independent action to reopen judgment
(reserved for cases w/ injustice deemed gross enough to demand departure from rigid adherence
to res judicata). This is NOT a substitute for appeal
-easier to get court to reopen a default judgment, since party never had a fair shot. Some advise
lawyers not to take default judgment unless no other choice.
VIII.
Personal Jurisdiction
A. Foundations
1. Pennoyer v. Neff
a) Facts
Mitchell sued Neff, Neff didnt appear. M won, and court sold Ns property to P. Now N is
challenging the jurisdiction of the first court to enter judgment against him. (this claim would
have been precluded if N appeared and litigated the issue).
Each state is sovereign, but there must be limits to FFC. One state cant bind another w/o limit on
their power. Two ways states can get personal juris under DPC: in personam-personally serve the
D in the state; or in rem- seize/attach Ds property w/in the state before the suit (and substitute
service ok then). Didnt do that here, so no juris.
c) Issues
-hole in Full Faith and Credit-under some circumstances it doesnt apply to judgments when court
had no jurisdiction, but only if D didnt appear and litigate the issue. If D appeared and didnt
raise juris, D waived right to object.
-personal jurisd is a limit on full faith and credit
-notice-in some way about notice and fairness to D; assumption that D will know if his property
is seized. But also has to do w/ individual state sovereignty; cant serve D out of state. The D
must have sufficient contacts w/ the state to warrant jurisd
-in dicta the court says that jurisdiction can be challenged under DPC in the first lawsuit (so
supreme court can hear these cases!); but D can also default and challenge later in collateral
action (if D appears, must raise juris issue or waives the right to challenge it)
-subs vs. procedural DPC? Scholars have made both interpretations of this case
-Under Pennoyer, there is either jurisdiction for any claim, or none at all. Claim doesnt have to
be related to the state contacts
2. Waiver
-if D appears and fails to raise jurisdictional challenge, he waives that
-but D also waives right if he doesnt raise jurisdiction at the right time
-you MUST raise a 12b2 challenge in your first pleading or motion.
-Rule 12g-says that party can consolidate defenses with any other motions, but if you fail to raise
a defense in a motion when you could have, that is waived. Rule 12h says that defense of lack of
personal juris is waived if omitted from a motion as described by g
-so, D has a chance to raise 12b2 with any rule 12 motion; if he fails, that defense is waived
3. Raising the Defense
-If no preanswer motion, D must raise defense in the answer
-so options are: raise defense in rule 12 motion; raise it in answer; or fail to appear and default.
Factors to decide which is best? How strong are merits of case (cant litigate them if you default);
how much investigation needed b4 you can answer (and you get more time for answer if you
make preanswer motion); do you want to make other rule 12 motions; willing to take risk of
default
4. Millikin
-held that domicile in the state is alone sufficient to bring absent defendant w/in states
jurisdiction by means of appropriate substituted service. Due process depends on whether or not
the service is reasonably calculated to give defendant actual notice. Authority of a state over one
of its citizens is not terminated by the mere fact of his absence from the state.
5. International Shoe
a) Facts
P is challenging employment tax. State applied tax to their commissioned salesmen; P says no
jurisdiction.
Due process requires that D, if not present w/in territory, have certain minimum contacts w/ the
state such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice. D can be sued for claims relating to that contact; if subs enough, can be sued
for anything.
c) Issues
-General-defendant has such substantial contacts w/ forum state to make it fair to assert
jurisdiction there over claims unrelated to those contacts.
-Specific-defendants activities are less than for general, but there are minimum contacts as
described by Intl shoe. Defendant can be sued for claims relating to those contacts (such as
driving in the state and causing accident). Jurisdiction exists for the specific claim, but not
necessarily for others
-corporations can ALWAYS be sued in their state of incorporation or their primary state of
business
6. McGee
Court: we think it apparent that the DPC did not preclude the CA court from entering a judgment
binding on respondent. D delivered contract in CA, premiums mailed from there, insured resident
of CA. CA has a manifest interest in protecting insured residents. So there are minimum contacts
and its fair.
7. Hanson
D must have minimum contacts w/ state; here there was no office in state, no actions. Unilateral
activity of those who claim some relationship w/ nonresident D cannot satisfy requirement of
contactit is essential that there be some act by which the defendant purposefully avails itself of
the privileges of the forum state, thus invoking the benefits and protections of its laws
8. Harris v. Balk
-extended in rem jurisdiction so court could attach a debt owed to D, as long as the debtor was
served in the forum state. Attachment of intangible property was basis for in rem jurisdiction.
9. Shaffer
a) Facts
Shareholders suing the members of a board of directors of company. Court in DE attached shares
that the directors own in that state.

Court applies the Shoe standard to persons and corporations both, D must still meet the minimum
contacts req. Property still relevant to extent that it is a contact w/ the forum state. Court decides
no jurisd here b/c not enough contacts to DE.
c) Dissent
-argues there are enough contacts b/c the directors purposefully availed themselves of the benefits
of DE law
d) Issues
-due process issues for seizure-Fuentes said seizure of property to establish jurisdiction did not
require notice and chance for hearing
-hypos-if you own a property in a state (and you have never been there) you can be sued there for
claims relating to that property; but that property cant be used to establish jurisd for unrelated
claims. Maybe if you owned most of the land in the state, they could argue there is general jurisd.
-BUT b/c of FFC a state must enforce the judgment of another. So a P can win judgment in one
state, and then attach the property in another state to enforce the judgment.
-contacts that can establish jurisd: business and activities (in the state or purposefully directed at
the state), property, but NOT presence of non-custodial children
B. Specific Jurisdiction-Variations and Development
1. Worldwide
a) Facts
P bought car in NY, got into accident in OK. Sued manufacturer, natl distributor, regional
distributor (worldwide) and local dealer in NY. Last 2 Ds are disputing jurisd.
Foreseeability that car would be driven to different state is not enough. No jurisd; they must have
served or sought to serve the OK market. Could be shown through ads, regular OK buyers. Cant
be a single isolated occurrence.
c) Issues
-strategy-Ps want to sue in this county in OK (sympathetic juries); they want to avoid D getting
federal diversity jurisd, and they want these parties in b/c they are NY residents like P
2. Asahi
a) Facts
P sued Taiwanese tire maker; D sued Japanese valve maker for indemnification. P settled, now T
and J are fighting.
Part of court thinks there are no minimum contacts w/ CA. They say putting product into stream
of commerce not enough; must be purposeful targeting of state. But majority agrees that it would
be unfair b/c of heavy burden to D of litigating in foreign system; no state or P interest b/c main
claim was settled.
c) Issues
-fairness factors: burden on D, interests of forum state, Ps interest in obtaining relief.
-Court seems to assume that manufacturers are liable wherever their products are sold
-facts-maybe different if P still suing? Changes the interests
-P has burden of proving jurisdiction; but D must comply w/ discovery to determine jurisd, b/c D
implicitly agreed by making a rule 12b motion
3. Burger King
a) Facts
BK made franchise agreement w/ D. Ds franchise is in Michigan; BK headquarters in Florida.
Contract had choice of law clause, and D knew Michigan office had no real authority. He would
have a long, continuous relationship w/ BK in Florida.
Court first asks whether there are minimum contacts; and whether it is fair. P purposefully entered
into the contract w/ substantial contacts to Florida. P voluntarily entered into continuing
agreement, knowing that Mich office didnt have authority. Fair to D b/c he is sophisticated.
c) Issues
-what could D have done? Sued in Mich court first if he anticipated the litigation
-minimum contacts is not totally required, it is a sliding scale relative to fairness
4. Pavlovich
a) Facts
Companies in CA suing Pav for putting up DVD code on website. Pav says he didnt know the
companies were in CA until he was sued.
D must know they were causing harm in the state (Calder case-D knew he was harming P in CA).
Not enough that they should have known. More likely to have jurisd for website if it is
interactive; this was passive.
c) Issues
-factual changes? Maybe if D making money from the site, transacts with people from CA. Or if
P could have brought evidence that Pav did know he was causing harm in CA, probably different
result.
-maybe bad lawyering? Should P have done more discovery work to find evidence that D knew
the harmed companies were in CA?
C. General Jurisdiction
1. Jurisdiction for Claims Unrelated to Contacts?
-for people: can always sue in state of domicile; maybe if you personally serve the person w/in
the forum state (Burnham)
-for corporations: in state of incorporation and primary place of business
-what else would establish heavy enough contacts for general jurisd under the Shoe sliding scale
approach?
2. Coastal Video
a) Facts
P wants declaratory judgment that they are not infringing on Ds copyright. D says no jurisdiction
in VA. D did both internet and traditional business in VA.
For general jurisd, the contacts must be extensive, so substantial and of such a nature as to justify
suit on claims unrelated to contacts. For internet based contacts, the most reliable indicator of the
nature and extent of contact is amount of sales generated in the state, how many people in the
state access the website. Probably must have a virtual storefront (interactive).
c) Issues
-Mieczkowski-found state did have jurisd over company that got 3.2% of its gross sales from the
state, but there were also traditional business contacts. Had interactive website w/ customer
service.
-LL Bean-found jurisd where company got 6% of total sales from forum state, there was
interactive website. Said that even if you meet contacts, there is still reasonableness test.
-should sales be viewed in dollars or percent? P may prefer dollars for a big company, D might
want percent.
3. Burnham v. Superior Court
a) Facts
Couple lived in NJ, then separated. Wife and kids moved to CA, H filed for divorce in NJ. Then
H came to visit kids in CA, was served w/ process in CA. Does personal service in forum state
still give personal jurisdiction?
-Scalia-yes, b/c it has always been that way, and Shaffer didnt change that
-Brennan-Shaffer changed the way we think about this, but here the contacts are sufficient and its
fair (so Brennan might find no jurisd under different facts)
c) Issues
-no majority opinion here, so its not clear what the law actually should be
-what is this case holding? Is it saying personal service always enough (thus a new form of
general jurisd), or just when its fair, or just for divorce claims?
D. Consent
1. Carnival Cruise Lines
a) Facts
P injured on cruise, tickets had a forum selection clause in small print. Enforceable?
Forum selection clauses are generally enforceable, as long as they are reasonable (there are valid
business reasons for it) and its not done to discourage valid claims.
c) Issues
-role of consent-in many settings, a preceding agreement can manipulate jurisdiction through use
of contract. Limited by contract principles, and other ideas of fairness and public policy.
-the different types of clauses will appear in different types of situations; most will not be
enforceable for a personal injury suit
-court will consider the circumstances when deciding to enforce
2. National Equipment Rental
-Supreme Court upheld a consent to jurisdiction clause
-these clauses permit one party to sue the consenting party in a forum, and that party has waived
their right to challenge jurisd
-BUT it doesnt require that suit be brought in that forum
3. Types of Consent Agreements
a) Consent to Jurisdiction
-party waives their right to challenge jurisd if they are sued in particular forum; still allows suits
in other forums
b) Choice of Law
-a particular jurisdictions laws will apply, but doesnt set where the suit will be brought
c) Forum Selection
-the suit MUST be brought in a particular jurisdiction
d) Arbitration
-parties agree to arbitrate usually in a particular forum, according to particular rules
-basically a special kind of forum selection and choice of law clause
e) Cognovit
-a confession of judgment, where party signing it agrees that other party may enter judgment
against them w/o further notice or process, not appealable (would have to reopen judgment)
-SC upheld this, but in limited circumstances involving sophisticated parties, clause was
negotiated for, lawyers present
4. Malpractice Issues?
-a lawyer must consider whether a client would benefit from some kind of forum selection clause;
must consider whether you really need it, and whether it would be valid under the circumstances
-but lawyer doesnt have to include one in every agreement; that might be harmful since it could
discredit the client to the court if there are many unenforceable provisions in the contract
E. Notice
1. Notice after Pennoyer
-in Pennoyer, it seemed that notice by publication would be ok for in rem jurisd. So the NY law in
Mullane assumed this was still valid.
-Wuchter--SC considered a NJ law that gave personal jurisd over nonresident motorists, but
didnt require notice to be given to the defendant. Even though D had actual notice, Court struck
down the law. So actual notice may not be important.
2. Mullane v. Central Hanover Bank

a) Facts
NY law set up pooled trusts; periodically the trustees get declaration that they are doing good job.
Put notice in newspaper. Is this enough notice to beneficiaries?
-Due process requires that notice must be reasonably calculated, under the circumstances, to give
the parties notice of the action and give them a reasonable opportunity to be heard.
-notice by publication may not be sufficient if the parties are known, and their addresses are
known, and they have substantial interests in the proceeding (but mail is enough here)
-trustees dont have to track down every beneficiary; if the notice is reasonably certain to notify
most, that will be enough
-but in a different situation, it might be so costly to mail everyone that notice by publication
would be ok
c) Issues
-Mullane and Intl Shoe both move away from bright line rules and ask instead if something is
reasonable
-Pennoyer today: state probably had power over D, but probably not sufficient notice!
3. Rule 4
-allows P to send letter to D asking him to waive personal service
-P must notify D w/in 120 days of filing suit; court can give more time
-Rule 3 says that in federal courts, the stat of limits stops when a complaint is filed (in some
states, stat of limits stops when D served)
-encourages D to waive: gives D more time to answer, and if D doesnt waive he must pay the
costs of further service
-if D fails to waive, P must serve process by means that state allows, or personally by any person
not a party who is at least 18; can leave process at Ds home
-the type of formal service necessary also depends on the type of D (corporation, individual etc)
-waiver of service does NOT waive jurisdictional challenges
-some parties can NOT waive service: US govt, infants, incompetents
-rule 4(k)- the district court has jursid over anyone who could be subject to jurisd of a court of
general jurisd in the state in which the district court is located (personal jurisd still required!
Federal court follows state rules for personal jurisd)
-but rule 4 also allows personal jurisd in federal courts over any D w/o sufficient ties for jurisd in
any state (such as foreign D)
IX. Subject Matter Jurisdiction
A. Federal Question
1. Statutory vs. Constitutional Limits
-Art III-creates the Supreme Court; gives Congress power to create lower courts; federal courts
have jurisd over all cases arising under the Constitution, laws, treaties of the US (interpreted
broadly to allow SC appellate jurisd over all federal law issues)
-28 USC 1331-district court has original jurisd over all civil actions arising under the
Constitution, laws, treaties of the US (interpreted narrowly by Mottley)
2. RR v. Mottley
a) Facts
Mottleys settled a claim in exchange for free RR passes. Then Congress passes law banning free
passes; RR refuses to honor passes. Mottleys sue for breach of contract in federal court, and plan
to argue the law is unconstitutional.
District court did not have jurisd to hear this case. The plaintiffs statement of his claim does not
arise under the Constitution or federal law. Doesnt matter if the P has a federal law anticipated
response to a defense. This is the well-pleaded complaint rule.
c) Issues
-SC raised the issue of jurisdiction here though no one in lower courts did; anyone can raise
FSMJ challenge at any time (courts very concerned about having FSMJ, federalism issues)
-if the parties were switched, there might be no FSMJ. NOT the case that any important federal
issue will be heard by federal court
-SC did hear an appeal of this case after it was remanded; shows how Art III SMJ is broader than
original jursid under 1331
-Congress could change the result in Mottley by amending 1331, since the statute is narrower
than what is allowed under Art III (should they? This would greatly expand FSMJ)
-problems w/ well-pleaded complaint rule? Good b/c it makes court decide jurisd at beginning of
case; but now most federal claims will be decided in state court (few will be appealed to SC)
-common federal claims: infringing copyright, civil rights/14th A violation
3. Other areas of FSMJ
-importance of the federal interest-should not be enough under Mottley, but some courts have
found jurisd when federal govt or law is closely related to claim
-declaratory judgments- potential defendant seeks declaratory judgment under the federal
Declaratory Judgment Act; court asks whether a federal court would have had jurisdiction if the
potential plaintiff had brought a coercive suit in the declaratory action. Supreme Court seems to
take narrow view that a party cannot seek declaratory relief on a federal issue, if the opposing
party would have a nonfederal claim (b/c the party would not be able to sue coercively in federal
court) (law here is NOT clear!)
-enforcement of federal judgments-federal courts have power to enforce their own judgments (so
good idea to enter judgment when settling); but claim preclusion based on federal judgment is a
defense, so it doesnt arise under (same for accord and satisfaction!)
4. Challenging FSMJ
-D can move to dismiss under 12b1 (subject matter jurisd) or 12b6 (failure to state a claim)
-if D wins 12b1, the P can refile in state court. But cant refile after a 12b6 dismissal b/c of claim
preclusion. Good idea to file both motions
-could appeal the 12b6, though, claiming lack of FSMJ
-can raise 12b1 issue at any time, even after making other rule 12 motions (see rule 12h3)
5. Collateral Attack
1-D appears, challenges FSM, and loses. No collateral attack available
2-D appears, does not challenge FSMJ; generally cant attack collaterally. Possible exception: if
Congress intends that a particular proceeding may be attacked collaterally.
3-D defaults; not clear. Court hasnt resolved the question.

B. Diversity
1. Statutory vs. Constitutional Limits
-Art III-federal courts can hear cases and controversies btw citizens of different states; requires
only minimum diversity
-28 USC 1332-district court has original jurisd over civil actions where amount in controversy
exceeds 75K and is btw: citizens of different states, citizen of state/citizen of foreign state;
foreign state as P and citizen(s) of state(s). A permanent resident alien is deemed a citizen in state
of domicile, but requires at least one real citizen. Requires COMPLETE diversity (as interp by
SC).
-citizen generally means domicile for individual (residence, intent to stay) and for corporationsstate of incorp and primary place of business
-Court interpretation-no diversity jurisd over family law claims
-rationale? Possibly outdated fear that states would be biased against out-of-staters
2. Redner v. Sanders
a) Facts
P is US citizen living in France. Ds are NY citizens. P sues in federal court, claiming diversity.
Diversity is about citizenship, not residence. Ps complaint doesnt give enough info to show he is
citizen of any particular state.
c) Issues
-Court/Congress generally wants to decrease scope of diversity
3. Saddeh v. Farouki
a) Facts
P is citizen of Greece, D citizen of Jordan (perm resident alien).
If both parties were aliens, there would be no diversity. But under 1988 amendment to 1332, D is
considered a citizen of a state. That doesnt make sense b/c it expands diversity, and congress
wouldnt have intended that (and might be unconst). There must be at least one actual US citizen
to the case.
c) Issues
-time for assessing citizenship is as of the date on which the complaint was filed. P could move to
a new state, then file complaint and have diversity
-if there is dual citizenship, one court said only the US citizenship is important
4. Amount in Controversy
-over 75K (not equal to)
-courts generally view the pleadings as controlling; there must be a legal certainty that the claim
is for less to justify dismissal
-a mere hope for an extreme punitive damages award cannot be the sole basis for jurisdiction
Aggregation of claims
-single P w/ unrelated claims against one D may aggregate
-two Ps with separate and distinct claims against same D may NOT aggregate
-but two Ps w/ related claims may aggregate (but might require at least one have a claim over the
limit)
-multiple parties-value of the total interest is used if the interest is common and undivided
-class actions-supreme court said all class members must meet the limit (but some lower courts
think 1367 overrules this, not clear)
-counterclaims-if compulsory, and first claim satisfies amount, the CC is ok. If permissive, the
amount must meet the limit independently.
C. Supplemental Jurisdiction
1. 28 USC 1367
-grants original jurisd over claims that the district court could NOT hear independently. OK b/c
the claims must be so related to be considered the same constitutional case
-(a)- except as provided in (b) and (c), when there is a case where district court has original
jurisd, court has suppl jurisd over all other claims that are so related to claims in the action that
they form part of the same case (think about characterizing facts to show the claims are more/less
related). Applies to 1331, arising under jurisd. Includes claims that involve joinder or
intervention of addl parties
-(b)-applies to 1332 diversity jurisd; no suppl jurisd over claims by Ps against persons made
parties under [several joinder rules] or over persons joined as plaintiffs when exercising suppl
jurisd would be inconsistent w/ 1332 (so, when joining parties means there is no longer complete
diversity there is no suppl jurisd). BUT OK if parties joined by D!!!
-(c)-district court MAY decline suppl jurisd over a claim that raises a novel or complex issue of
state law; court has dismissed all claims over which it had original jurisd; other compelling
reasons etc.
2. Jin v. Ministry of State Security
a) Facts
Ps suing Chinese group under RICO act and for state law defamation. D says no suppl jurisd over
state claim.
For suppl jurisd, the claim must share a common nucleus of operative facts. That is met here.
Also, the state law issue is not too complex just b/c it involves several states libel laws.
c) Issues
-1367(c) involves judicial discretion; court may decide to remand the suppl claim to state court.
Very fact based inquiry
D. Removal
1. 28 USC 1441
-(a)- civil action brought in state court of which district court has original jurisdiction may be
removed by D to district court
-(b)- when district court has original jurisdiction b/c claim arises from Constitution or fed law, the
case is removable w/o regard to citizenship. Any other action is removable only if NONE of the
defendants is a citizen of the State in which such action is brought. Why? Point of diversity is
avoiding bias, so the defendant shouldnt be unhappy if he is in his home state.
-(c)-if a separate and independent claim w/in 1331 jurisd is joined w/ otherwise non-removable
claims, the entire case can be removed and heard, or district court may decide to remand state law
issues (some constitutional issues here?)
2. Procedure for Removal
28 USC 1446-D must file notice of removal, a short and plain statement signed pursuant to Rule
11
-D must file notice w/in 30 days of receipt of initial pleading by D; D also has 30 days after any
amendment/motion/paper that would make the case removable, but NOT after 1 year after
commencement of suit
3. Caterpillar
a) Facts
Worker suing manufacturer and service co for personal injury, no diversity. His insurance co
intervenes as P. Then worker settles w/ service co and manufacturer moves for removal. Granted
wrongly. Later insurance settles w/ service co.
SC says the district court should not have allowed removal. There was not complete diversity.
But, since when the case was decided there was complete diversity, Court lets verdict stand.
c) Issues
-compare this to Farouki, where D was actually a citizen by the time court was considering
diversity but they only looked to diversity at the time complaint was filed
X. Joinder
A. Background
1. Broad Joinder
-a distinguishing feature of modern US process, along w/ broad discovery
-joinder allows court to hear all the claims and join all the parties connected to a particular event
or claim
2. Questions to Ask
-which joinder rule applies?
-does that rule allow joinder of a claim or party?
-if so, is there personal jurisdiction over joined party? (special rules for impleader and
interpleader)
-if so, is there federal subject matter jurisdiction over joined party or added claim? Or
supplemental jurisdiction?
B. Joinder of Claims
1. Rule 13
-compulsory counterclaims-in pleading, party must state as a counterclaim any claim arising from
the same transaction/occurrence
-permissive counterclaims-party may state any claim against the opposing party (related or not)
-cross claims-13g says D may assert claim against co-defendant that is related to the same
trans/occurrence as the plaintiffs claim
2. Rule 18(a)
-permits joinder of all claims that P has against D, but doesnt compel it
-a party who already has a valid claim for relief against another party can assert as many
unrelated claims as he wants against that party
-the other Rules still apply to the first claim asserted
-once there is a crossclaim, the opposing party to that may assert a crossclaim as a counterclaim
(since this is a mini lawsuit, it avoid the prereq of rule 18a that it has a claim already against that
party)
-but remember, there may be jurisd issues w/ other claims
3. Plant v. Blazer
a) Facts
P sued D for federal claim, D counterclaimed for unpaid debt. D won, P says no jurisd over Ds
claim.
To have supplemental jurisd over a counterclaim w/o an independent basis of FSMJ, the
counterclaim must be compulsory. Then it would be part of same case/controversy under 1367a.
Court uses logical relation test-when counterclaim arises from the same aggregate of operative
facts.
c) Issues
-other tests for compulsory counterclaim-same transaction or occurrence (rule 13); largely the
same issues of law and fact are addressed
-if this was a diversity case, 1367b would apply, BUT 1367b only applies to claims by plaintiff,
NOT defendant
-federal courts have exclusive jurisd over some claims (securities, patent, copyright)
-this is related to preclusion too, since compulsory counterclaims cant be filed later
4. Pleading
-in pleading, D may plead denial (no liability, it was someone else); affirmative defense
(contributory negligence); any counterclaim against P, cross claim against co-D (same trans or
occ); implead third party D
-party can also amend to add a claim, or file a supplemental pleading
5. Great Lakes v. Cooper
-GL sued for state law claim, D counterclaimed for federal claim. State law claim dismissed,
since there was no arising under jurisd. Then GL refiles state claim as a counterclaim, and this is
compulsory since it arose from same transaction. Now GL has suppl federal jurisd!
C. Joinder of Parties
1. Rule 20
-may join in one action as Ps if they assert a right arising from the same transaction AND there is
a question of law or fact common to all Ps
-same for joining more than one defendant
2. Mosley v. General Motors
a) Facts
Ps are employees, former employees, and job applicants suing GM for racial or gender
discrimination in many forms.
Ps may join if they meet reqs of Rule 20. Same transaction if there is a logical relationship btw
the claims; common issue doesnt require that all are common. VERY broad test.
c) Issues
-why join suits? Good for Ps who want to show pattern of bad behavior; also helps w/ issue
preclusion to prevent inconsistent outcomes (remember Century Home)
-but, if these plaintiffs have a new discrimination claim it will probably be considered
compulsory (since the joinder was so broad) and it will be precluded. The scope of joinder relates
to preclusion.
-P not allowed to file lots of related claims hoping for a good judge; must say whether she has
similar claims filed
-also Rule 42b allows judge to separate claims for trial, this is meant to solve some of the broad
joinder problems
D. Impleader
1. Rule 14
-allows D to bring in a third party who is or may be liable to the third party plaintiff for all or
party of the plaintiffs claim against the third party plaintiff
-depends on the substantive law whether third party will be liable (contribution from joint
tortfeasors or indemnity)
-rule 14b-plaintiff can implead person who may be liable for counterclm
-must make the motion to implead w/in 10 days after serving original answer; if D joins later,
court must give leave and other parties must have notice. P can resist late impleading (motion to
strike)
2. Price v. CTB
a) Facts
P suing manuf and builder for defective chicken house (rule 20-same trans, common issue of
fact). Builder impleads nail maker.
Nail maker must be liable for indemnity if builder loses. State allows this, so joinder is proper.
c) Issues
-court may not allow late impleading if it was unreasonable to wait that long
-cant implead a party that you want to blame instead of yourself; cant say its him, not me.
The third party D must be liable only if the third party P is found liable to P.
3. Rule 4--100 Mile Bulge
-gives personal jurisd over a person joined under rule 14 who is served in a place (in the US) not
more than 100 miles from the place from which summons was issued
-constitutional? 100 miles not a big deal today
4. SMJ over Impleaded Party
-there must be either original jurisd over the impleaded claim, or supplemental jurisd
-1367a-allows suppl jurisd over the impleaded claim IF the original jurisd is based on federal
question (same case or controversy)
-1367b-if original jurisd is based on diversity, the D can implead any party for claim (who meets
rule 14) since 1367b only applies to claims by plaintiffs
-but if plaintiff files a claim against the third party D, that can NOT be inconsistent w/ diversity
(there must still be complete diversity)
5. Kroger
a) Facts
P (IA) sues Power co (NB). Power co impleads Equip co (IA/NB). Equips answer is not clear
about citizenship. Then P sues Equip co, thinking there is diversity. Claim against Power co
dropped. Left w/ P v. Equip co.
Lower courts said Equip co is estopped from bringing up lack of complete diversity b/c they
waited so long to bring this up. SC reverses: no jurisdiction. There must still be complete
diversity for claims by P.
c) Issues
-this is enacted in 28 USC 1367b
-what can P do now? Sue Equip co in state court. Many states have savings statutes that will
allow P to sue even though stat of limits has probably run for state claim.
E. Class Actions
1. Certification
-For all class actions, the class must be certified. Class certification has two stages of
qualifications that must be met
a) Rule 23(a)
(1) Numerosity
-there must be enough members to make it worth while
-from hundreds to thousands
(2) Commonality
-class members must have common interests and issues for litigation
-court may certify class for liability, and break it down for damages
-may need to narrow definition of the class
(3) Typicality
-person who is representing the class must be typical of the class in general so their interests are
aligned
(4) Representative Adequacy
-the class rep and the lawyer must be able to do a good job, have adequate resources, experience,
interests
b) Rule 23(b)
(1) Danger of Inconsistent Outcomes
-23b1-when litigating the issue in more than one case may result in inconsistent rights or
standards
(2) Injunctive/Declaratory Relief
-23b2-standard case is for civil rights claim
(3) Money Damages
-23b3-other claims seeking damages
-might be many small claims (each not enough for individual suit) or mass torts
c) Consequences
-certification greatly increases stakes for the defendant (even small claims could have major
impact in aggregate); likely to settle as a result
-powerful negotiating tool for plaintiffs, and easier to show pattern of discrimination
-which category of 23(b) affects notice requirements
-judgment in class action presumptively binds all members
-defining the class-important to make sure there are common rights, but also to prevent mootness
by broadening class
-if not certified, the claims may go away if they are too small to bring individually
d) Appeal
-would think no appeal since this isnt a final judgment
-but rule 23(f) says court of appeals MAY in its discretion permit an appeal if made w/in 10 days
after entry of certification order
-this is a unique appeals provision
e) Notice
-23c2A-court may direct appropriate notice to the class for 23b1 or 2 classes (amended, before no
need for notice here). This may affect certification, since members who disagree will find out and
challenge it. Could even be method to decide whether there is commonality, whether class should
be split/redefined.
-23c2B-for 23b3 classes, members must get individual notice by mail to all those reasonably
identifiable (paid for by P, may affect adequacy of rep if they cant pay). Rule 23b3 also requires
class members to have an option to opt-out.
f) Choosing Counsel
-rule 23(g) says the court must appoint counsel (unless statute provides otherwise), must be
adequate representation
-factors to consider? Experience, available resources, knowledge of applicable law, work already
done on the case, conflicts of interest (even if not professional ethical concerns)
-if counsel wants to do case on small budget, that may suggest inadequate representation
2. Heaven
a) Facts
P 23b3 class suing D under lending laws. D counterclaims against some members.
The counterclaims are compulsory. These would require multiple separate factual determinations,
would be too unwieldy. Rule 23b3 allows court to deny certification if difficulties are likely in the
management of the class action.
c) Issues
-Rule 23b3 category requires that class action be superior to other available methods (not
required under b1 or b2)
-but court could also have denied supplemental jurisd to the counterclaims under 1367c, which
gives court discretion to decline jurisd in exceptional circumstances
3. Hansberry
a) Facts
Ps are homeowners suing to enforce racially restrictive covenant. In first suit, they falsely stated
that covenant was signed. In this suit, D wants to say it wasnt signed, and P says they are
precluded b/c they are part of P class in first suit.
A stipulation is not an actual determination, so no issue preclusion. But SC can only hear federal
questions anyway. Denial of due process to bind class members here b/c they werent adequately
represented. Also, collateral attack based on inadequate rep in class action is allowed.
c) Issues
-similar to Richards v. Jefferson county-cant preclude a person who wasnt a party to first suit
and didnt have notice
-if Hansberry showed up to the first suit and argued there wasnt adequate rep, and lost, this suit
would be precluded b/c he litigated the issue before. But if Hansberry was NOT there when
certification was decided, no preclusion b/c not a party to that.
-implication-if party was adequately represented, he is bound
-does this mean that every class member can collaterally challenge if class loses? Not likely to
happen, they wont prevail if there is precedent already saying no (similar to Century Home)
-alternative strategy-Hansberry could have tried to reopen judgment b/c of collusion in the first
suit
4. Shutts
a) Facts
Ps claim that D Phillips owes them interest on royalties. Large class, few are residents of forum
state. P wins, and Phillips appeals to state court saying court didnt have personal jurisd over the
absent plaintiffs.
Supreme Court accepts that absent class members are like defendants, but it is a difference of
degree. Looks to circumstances of the case per Mullane to decide if due process requires more
notice. Notice here was fine (individual notice by mail to reasonably identifiable members)
c) Issues
-does this mean individual notice is required constitutionally? Not clear; makes Mullane-inquiry
important for class actions too
-if party did have adequate notice, it makes it harder to argue inadequate representation
5. Class Actions in Federal Courts
-for diversity jurisdiction, only the citizenship of the class representative is considered
-also, each member of the class must meet the amount in controversy
-congress passed laws requiring extra specificity in securities fraud class actions, and also law
preempting state securities fraud class actions. So a defendant can remove to federal court
(interesting exception to well-pleaded complaint rule) and then move to dismiss for lack of
specificity
6. Financing of Class Actions
1-paid for by an affinity group, on hourly rate
2-common fund-if there are damages, lawyer can get paid from the common damage fund. Either
paid using lodestar method (reasonable hours times reasonable fee) or percent of the award
(looks like contingency fee)
-problem w/ regular contingency fees, since lawyer cant get all the clients to agree on it
3-fee shifting statutes are common in a lot of class actions
-if more than one method of payment applies, court must pick one
7. Settlement
-most class actions settle
-but there are special conflicts btw lawyer and class for settling class actions b/c clients are not
there to hold lawyer accountable, so lawyer may not negotiate as hard for the clients since his fee
will decrease; another issue is it is hard to value injunctive relief to assess whether the lawyers
fee is fair or not
-also different Rules requirements for settling class action-Rule 23(e) says the court must approve
the settlement. Must give notice to class members of proposed settlement, and hearing on
fairness.
8. Amchem
a) Facts
Thousand of asbestos lawsuits. Plaintiffs have pending suits and want to settle w/ Ds. Ds want
global settlement of all future claims too, to preclude more suits. They ask for certification and
approval of settlement at the same time.
Lower court should not have certified this class. The class members have very different interests
(some are sick now, others just exposed), and inadequate representation since pending suits
lawyers are representing future claims too.
c) Issues
-How to fix? Might split the class and get new lawyers. But maybe the Rules cant handle
settlement classes procedurally.
-settlement class might be fundamentally unfair

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THIS OUTLINE IS THE INTELLECTUAL PROPERTY OF ANJULI MCREYNOLDS,

mcreynolds2006@lawnet.ucla.edu. PLEASE ASK ME BEFORE SHARING IT.

A. Demography and Economy

b) Rules and Reasoning

b) Rules and Reasoning

1. Other Styles of Pleading

B. Movement Through Courts

3. Walker & Christian

Responding to the Complaint

A. Rule 26: Stages of Discovery

-attorney/client privilege extended in Upjohn case to extend beyond top management in

4. Document Production (rule 34)

5. Mental and Physical Exams (rule 35)

b) Rules and Reasoning

3. Lind and Peterson

4. Searle v. Searle Brothers

F. Full Faith and Credit

b) Rules and Reasoning

2. Mullane v. Central Hanover Bank

3-D defaults; not clear. Court hasnt resolved the question.

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