Professor Binder

Fall 2007
Civil Procedure
Outline Contents
I.
Miscellaneous (inferential reasoning, rule creation v. rule application, procedural v. substantive law)
II.
Filing the Complaint Pleadings
a. Jurisdiction
i. Personal
ii. Subject Matter
iii. Diversity
b. Proper Statement of the Claim
i. Comply with Rule 11(b)(2)
ii. Avoid Rule 12(b)(6)
c. Adequate Factual Basis for the Claim Comply with Rule 11(b)(3)
III.
Defendants Response
a. Preanswer Motion (12(b): 7 defenses asserting the invalidity of Ps claim or pleading
b. Answer To be used if 12(b)(6) cant be used, to respond to factual allegations
i. Rule 8(b): Defenses and denials
c. Affirmative Defenses: Rule 8(c) 19 defenses which must be explicitly pleaded in the answer it they are
to be raised at trial
d. Counterclaim, Cross-claim, 3rd Party Claim
Defenses
- 8(c): Affirmative defenses Estoppel (issue preclusion), res judicata (claim preclusion), fraud, illegality, statute
of limitations, statute of frauds (see Reader p. 88 for elements of statute of frauds, when it applies, and when it
must be raised)
o Others that we did not cover: accord and satisfaction, arbitration and award, assumption of risk,
contributory negligence, discharge in bankruptcy, duress, failure of consideration, illegality, injury by
fellow servant, laches, license, payment, release, waiver, and any other matter constituting an avoidance
or affirmative defense
- 12(b): Pre-answer motions (lack of subject matter/personal jurisdiction, improper venue, failure to state claim
under which relief can be granted)
Making an Argument
- Argument by analogy
o Feature matching (i.e. individual vs. an institution be explicit)
o Explain why the similarity matters
- Distinguishing: show that cases are not analogous
- Make a policy argument (i.e. about the consequences)
Inferential Reasoning
Y: The fact that you want to infer
X: The allegation from which you make your inference
X Y: The generalization on which you rely to go from X to Y.
First articulate the relevant facts, then develop a premise that ties to those facts, from which you can draw a conclusion.
Argument counterargument (premise of your adversary) rebuttal
Inference on inference is permissible, but it makes the whole chain weaker
If there are a lot of except whens, then the premise is weaker. If a lot of especially whens, then premise is stronger.
Purpose of the Rules: to insure that D gets adequate notice of what P is complaining about
Rule creation vs. rule application cases

1. Rule creation: a choice between changing the rule and leaving it alone (if one exists)
a. Arguments to justify the adoption or modification of a rule often are grounded on one particular type of
policy argument about the consequences (which are often inferred)
b. Arguments all ride on premises, the nature of which has to be some generalization
c. There are always negative consequences that will result from the decision, whatever it is
i. I.e. Hickman: the negative consequences of not allowing an adversary to get at lawyers mental
impressions if a client is very poor and you cant afford to depose the other side for him
d. Court opinions typically do not articulate these negative conseq. you have to see the dissenting opinion
e. Court is engaging in a value judgment: which consequences do we want to avoid the least? Often justices
use their pet theories, which results in value judgment.
f. Rush v. City of Maple Heights: Formerly you could get several cases out of one event; now you can only
get one case out of one event - Consequentialist argument
g. Hickman v. Taylor: court created a work product rule
h. Gideon v. Wainwright: Supreme Court held that henceforth, all state courts must provide lawyers to
persons who are accused of committing a felony (not misdemeanors). No such constitutionally mandated
rule prior to Gideon a change in the law
i. Why should courts not be creating rules:
2. Rule application
Procedural vs. substantive law: Erie v. Tompkins
Rule: When federal courts are handling diversity matters, federal courts apply their own rules of procedure but apply
state substantive law rules (state judge-made/commonlaw) on any substantive issue where no federal statute on point
- Substantive law: court gives you elements of a claim for breach of contract. No federal statute on breach of
contract so there cannot be any substantive federal law to apply
- Procedural: in order to plead performance in the contract you just need to allege that P has performed each and
every condition that P is required to perform
o Pleading is procedure and therefore does not apply in federal court
o Reader p. 19: This federal court is not bound by the procedural requirements of CA law. We are only
bound by the Federal Rules.
To get a case before federal court, D must pass through the following three hoops:
1. Subject Matter Jurisdiction
a. 1331: Federal Claim
b. 1332: Diversity
i. Over $75,000
ii. Citizens of different states
2. Personal Jurisdiction
3. Venue imposes separate constraints on the place of trial to protect parties from inconvenient litigation
a. Geographic location within the state
b. You must be in the correct judicial district of a state i.e. someone in Sacramento cant file suit in L.A.
c. Outline: refers to the place within a sovereign jurisdiction in which a given action is to br rbought
d. Venue determines in which county or district of the state the case shall be tried
e. Federal cases: Venue controlled by 28 U.S.C> 1391: Provides for venue based on Ds residents, the place
where a substantial part of the relevant events occurred, or the place where D can be made subject to
personal jurisdiction
Which of these can be waived?
1. Personal jurisdiction can always be wavied because it does not always go to the merits of the case
2. Venue, if not raised in the initial response, is not an issue
3. SMJ can be raised at any time during the lawsuit
PERSONAL JURISDICTION
I.
Jurisdiction in general: the power of a court to render a judgment that other courts and govt agencies will
recognize and enforce
II.
Definition: the authority of a court to hear and determine a matter in a forum that will be binding on a
particular party

III.

IV.

a. Arises from Due Process limitations, limiting the power of states to require out-of-state Ds to defend suits
in their courts With all factors taken together, is it fair to the forum state to take personal jurisdiction
over an out-of-state D?
b. As opposed to diversity jurisdiction, which focuses on comparison of the citizenship of the parties,
personal jurisdiction focuses on the relationship between the parties or the claim and forum state
Long-arm statutes: States have these to set how far they are willing to go to reach into other states
a. Some states like CA have a long-arm statute that says they will reach as far as Constitution allows it
b. Other states limit their reaching to certain kinds of actions (i.e. contracts, actions that are partially or
substantially negotiated in our state)
i. These short-arm statutes preserve judicial resources for those cases that most directly affect the
state or its citizens
Two forms
a. In personam: jurisdiction over the defendants person, which gives the court power to issue a judgment
against him personally. You get jurisdiction over the individual by serving that individual with a summons
and a complaint. Complete liability over the person
b. In rem: jurisdiction over a thing, which gives the court power to adjudicate a claim made about a piece of
property or a status (i.e. title to real estate, divorce) no longer around?
i. Procedurally, you get jurisdiction by attaching Ds property within the physical bounds of the
state commence the action against a person by attaching that persons property
ii. Shaffer: P tried to get in rem jurisidiction by sequestering the shares of the directors
c. Difference: With in personam jurisdiction, if it is valid and judgment is entered against a person, that
person is liable for the full amt of the judgment and you can use it to execute on Ds property wherever
it is. With in rem, if you commence an action in rem against someone in Nevada for $100k (you attach
their property in Nevada), but her property is only worth $75,000, then that person is liable in the
judgment only up to the amount of her property. She is not liable for the other $25,000.
i. Thus, jurisdiction in rem: Ds liability is limited by value of the property
d. Originally, presence within the state was the chief, if not sole, basis for personal jurisdiction
i. Pennoyer v. Neff: the great granddaddy of personal jurisdiction no longer used!!!
ii. When Mitchell served Neff, Neff was not a citizen of OR. No personal jurisdiction because a
state has it only over citizens or residents in that state or property. Each state is an equal entity
and does not have the right to grab citizens of another state under the Constitution
iii. The Pennoyer idea that every state possessed jurisdiction over all persons and property within its
borders, and mere property can be used as sole criteria for in rem jurisdiction, is no longer used.
e. International Shoe: beginning to change the standard of personal jurisdiction
i. Two separate but related conceptual ideas:
1. Minimum contacts: for a state to subject a nonresident D to personal jurisdiction, due
process requires adequate minimum contacts an adequate relationship between D,
forum, and litigation state
a. Is D gaining some benefit from forum state?
2. Fair play and substantial justice
a. Does the state have an interest in the litigation?
b. Did D get fair notice? Could he expect to be litigated against?
f. McGee: Deceased in CA bought an insurance policy from a TX corporation. TX cos actions established a
contact with CA: they send a certificate to him in CA, and he paid premiums from CA
i. Minimum contacts: The contract, however, constituted substantial connection with a state,
because it was an offer and acceptance. Court upheld personal jurisdiction even though the TX
business was clearly a nonresident of CA: no property, salespeople, offices in CA. They only sent
an offer to him in CA and accepted $$ from CA.
ii. Fair play: CA has an interest in protecting its citizens in the litigation. Also, it is unfair to the
individual in CA to have to chase the D in TX. Corp. has more resources than an individual; it is
expensive to go to TX to file a lawsuit
g. Shaffer v. Heitner: Heitner, a nonresident of DE, sues directors of Greyhound Corp., based in OR. Ds
had never been to DE or individually engaged in any economic activity in DE. Heitner sequesters their
shares, which are incorporated in DE. He took jurisdiction over DE property DE has a statute saying
that the situs of the stocks is in DE.

V.

i. The court held that the DE statute violated Ds due process rights; and that although property
could be important in establishing in rem jurisdiction, seizure of property no longer establishes
in rem jurisdiction. The suit was not even about the in-state property, and was just a way of
giving the court jurisdiction so the suit is clearly more against the owner
ii. A new test
1. Minimum contacts: the relationship between D, the forum state, and the litigation
a. Purposeful availment: Ds in this case, unlike in McGee, did not avail themselves
of benefits in the other state. They just bought shares on the market.
b. Purposeful availment in McGee: the TX corp was trying to get $$ from people in
CA
c. Factors in addition to purposeful availment that the court will consider in
determining whether a court, in exercising personal jurisdiction, has deprived D
of due process
i. Burden on D
ii. Interest of P in finding/obtaining convenient AND effective relief
iii. Interests of the forum state
iv. Interstate judicial system in obtaining the most efficient resolution of
controversies
v. Shared interests of several states in furthering fundamental substantive
policies
2. Fair play and substantial justice: Ds had no reason to expect being taken to court in DE
no notice no way to plan for either avoiding being taken to court, or minimizing the
costs of being taken to court
iii. However, in rem jurisdiction is not dead: there are cases where property alone will be sufficient
to give the court jurisdiction over non-residents
1. Hypo: Paul of Kansas dies. He has a will that gives half his real property to Ned of NY
and half to Claudia of CA.
a. Dispute about Pauls will: is it valid? Even though both Ned and Claudia have
not been to Kansas, the state has to have a jurisdiction where it can clear up
disputes. Thus, in this case, the KN court can have jurisdiction over them.
b. Could argue that this is not an in rem case, because Ned and Claudia both want
the property in KN, so they are purposefully availing themselves.
General personal jurisdiction used over CORPORATIONS
a. General jurisdiction: does not arise out of some specific activity that happened in the forum state no
requirement that the litigation be connected to the forum state. Rather, it focuses on non-forum related
activity and whether nonresident Ds contacts with the forum are qualitatively and quantitatively greater
than when the cause of action is forum related
i. As opposed to specific jurisdiction: the claim being litigated must have arisen from the forum
state. However, in general jurisdiction, the transaction on which they are being sued need not
have any connection to the forum state D corporation just needs to engaged in systematic and
continuous business there.
b. Usually used over a national corporation, which does so much business in so many states that it can be
sued in any state on any claim. It is appropriate where Ds activities are so substantial and continuous that
D can expect to be subject to suit there on any claim, and would suffer no inconvenience from defending
there
i. Hypo: a major U.S. oil company would be subject to general personal jurisdiction in most but not
all states, b/c it has such extensive activities, personnel, and facilities in the state that it may be
considered to be at home there
ii. Hypo: A NY corporation owns apt complexes in various states, incl. 3 throughout CA, which they
have had for 5 years. A suit is filed against them in CA. Is it fair to them to be sued in CA?
1. Yes: They have reached out to CA to do business and arent strangers to the forum, so
they have had notice they could have been sued here.
2. No: Too much of a burden to litigate in CA.
c. Individuals:
i. The state in which you reside always has general jurisdiction over you

VI.

ii. Burnham: Was there systematic and continuous contact with the forum state? If so, then D can be
sued in the forum state on ANY claim
1. This was a general jurisdiction case because it did not arise out of some specific activity
in CA.
2. Scalia: presence in the state alone is sufficient to exercise PJ The Gotcha principle
a. Limits to this argument: what if D is just making a stopover in CA on his way to
HI? What is the extent to which Scalias decision an absolute rule?
3. However, Forum nonconveniens limits Scalias argument: If D is legitimately captured in
a foreign forum, he can make a motion to transfer the case to a federal court where it is
more convenient to have the litigation determined
4. Or if action is initially brought in state court, you move to dismiss it on the grounds of
forum non conveniens b/c forum is not a convenient place
d. Corporations: A corporation can be sued under personal jurisdiction in states where it conducts
substantial and continuous business activities
i. I.e. General Motors, with its principal place of business in MI, can be sued in MI on breaches of
contract that occurred in any other state in the country
ii. Versus DIVERSITY JURISDICTION: D corporations can only be sued in the states where they
are incorporated or where they have their principal place of business
iii. For a forum state court to have general personal jurisdiction over a foreign corporation, D would
have to have continuous and systematic business contacts with that state
iv. Hypo: Apartment complex corporation owns one apt. complex in CA and it is based in AZ.
Though that counts as continuous contact, it might be too localized and not statewide so as to be
systematic.
v. Hypo: AZ corporation is based in Phoenix, has no CA offices or employees based in CA. Can be
inferred that they do no substantial, systematic, and continuous business in CA, thus no general
jurisidiction (however could also argue the other way
Specific personal jurisdiction
a. There has to be a relationship among D, the forum state, and the litigation minimum contacts
b. Jurisdiction with respect to conduct occurring specifically within the state P can only sue D for activity
that took place within the state the activity must be connected to the state in which the action is
commenced
c. Versus general jurisdiction: over foreign corporations (incorporated somewhere other than in the state
where the action is brought), which do business in many states usually and have systematic and
continuous business contacts with the forum state
d. Two factors: MINIMUM CONTACTS and SUBSTANTIAL JUSTICE & FAIR PLAY
i. The courts will not weigh each side equally it depends on each judges values, logic &
reasoning. There is no common metric for deciding whether to put more weight on Ds burden or
Ps burden.
e. Minimum contacts (Intl Shoe test: notice to D that he could potentially be sued in the forum state D
can then choose where they are going to be sued, and what burdens they are willing to assume in terms of
where they will be sued)
i. Purposeful availment (PA) three views in three cases MUST HAVE THIS, OTHERWISE
THERE IS NO PERSONAL JURISDICTION
1. Purposefully directed at forum state OConnor, Worldwide VW v. Woodson: Ps
bought a car in NY and got in a car accident in OK. Ct held no purposeful availment
directed towards the forum state no purposeful direction of activity towards the forum
state. Foreseeability of future use in another state not enough. Otherwise, there is not
enough notice to D, and D has no opp to limit its potential liability (i.e. via insurance),
choose where they are going to be sued, and choose what burdens they are willing to
assume
a. Brennans dissent: there was purposeful availment as a reasonable seller of
cars, you can foresee that your product would end up in other states, even if you
dont specifically foresee OK. Injection into commerce alone is sufficient for
minimum contacts focus on foreseeability

b. Stevens: Foreseeabiity determine whether it is there by considering the value,

volume and hazardous (litigious) nature of the products. I.E. Asahi: They cant
put out hundreds of thousands of valves all over the world and then say they
didnt know some of them would end up in CA.
c. (White: - same as OConner: Purposeful availment = purposely directing your
activity toward the forum state. Foreseeability that your product might end up
there is not sufficient
i. Why is this standard fair: D would have notice that he could be sued in
the state he directs his activity to. Getting notice is important so that D
can choose where they are going to be sued and choose what burdens
they are willing to assume.)
2. Directed & continuous contact between franchisee and franchiser sufficient Asahi
Metal Industry v. Superior Court: Motorcycle accident due to defective valve in a tube.
Cheng-Shin, TW tube maker, sued Asahi, JP valve assembly maker. To satisfy PA, D
must purposely avail himself of privilege of conducting activities within the forum state,
such as invoking benefits and protections of forum states laws.Ct held that Asahi did not
purposefully or voluntarily avail itself of benefits in CA. they claimed they never
contemplated their valves would end up there. Dissent: Stevens (112): Asahi cant put out
hundreds of thousands of valves all over the world and then say they didnt know some of
them would end up in CA
a. Awareness that product may be sold in forum state insufficient
b. Examples of PA under this test: advertising in forum state, establishing channels
to provide product to customers in forum state
c. However, Stream of commerce: Brennan: at some point the volume is so great
that there is substantial certainty the product will end up in the forums state
i. Courts can usually assert jurisdiction where D injected its product into s
of C which eventually flowed into forum state
ii. S of C= regular and anticipated flow of products from manufacture
distribution retail sale
iii. As long as D is aware product is being marketed in forum state, requisite
minimum contacts exist
3. Voluntarily availed himself of benefits from the forum state Burger King v.
Rudziwicz: contracted for Ps franchise in MI; D was FL corp. Majority says PA b/c
purposeful contact with forum state
a. Contract allowed franchiser to be sued in home state; D attended courses in FL;
they bought equipment from FL corp; contract was signed in FL
b. Minimum contacts fulfilled: There was personal availment. Those factors
should have given D notice that they would be subject to suit in FL if ever a
contract dispute arose. Also they got the benefit of BK name recognition.
Furthermore, Ds got benefits from dealing with BK.
i. Ds also reached into FL voluntarily to do business with BK.
c. Fair play & substantial justice: notice (its fair to subject them to jurisdiction in
FL if you get notice that you will get sued there, and if you get benefits from
reaching into FL to do business.
d. Arguments by dissent: all business conducted in MI; unequal bargaining power;
unfair burden on D
4. D intended to cause harm to the forum state (Ds state of mind matters) Pavlovich
v. Superior Court (120): D created a website allowing people to dld programs to steal
files. He knew that an organization existed to which you had to apply for a license, and
he knew that reverse engineering was probably illegal. Also, anyone could have had
access to his website; and he knew that posting the file could harm the computer and
entertainment industries.
a. However, D did NOT know that P was the licensor, nor did he know they were a
CA corporation but he could have guessed since the entertainment industries
are based in L.A.

VII.

b. Majority: What D did know is sufficient to establish personal jurisdiction.

Minoirty: he did not actually intend to harm being aware of the possibility of
harm is insufficient.
c. An intentional act, as opposed to negligence, provides notice, which is when it
is fair to D to subject him to personal jurisdiction
f. Substantial justice and fair play reasons why actions should be purposefully directed@ forum state
i. Purposeful availment: give D notice so that he can plan where to be sued
ii. Factors other than PA considered in determining whether PA has deprived D of due process
These factors can strengthen or weaken, but not replace, PA
1. Burden on D
a. Asahi: burden on D with respect to litigating under U.S. law on foreign soil
2. Interest of P in finding and obtaining convenient AND effective relief/Burden on P
a. WW: all witnesses involved were OK citizens dont want to drag them all the
way to NY. NY would be too inconvenient a forum for Ps
i. Need to take account of how easy it will be to get witnesses from another
forum state
b. Asahi: Cheng Shin wants to make Asahi pay for supposedly faulty valves. The
witnesses to whether the valves were badly made or designed will likely be in
Japan.
i. Asahi has no interest in having the suit in CA b/c witnesses are all in
Japan
c. BK: Burden on D to get witnesses in MI to FL
i. Why is it inconvenient for P to have to litigate in FL? They have
franchises throughout the country, so they would have to litigate in
different states every single time. Thus, it is in the interest of BK to
litigate in FL, esp where the negotiations are in part conducted in FL.
Where this has happened, this means that they would have to drag senior
BK officials to MI.
3. Interests of the forum state WW: State traffic laws, reimbursing hospital costs,
protecting citizens from defective automobiles made in other states
a. Evaluate which state has a greater interest in the litigation that is the state
where the litigation should be
b. I.e. 2003 exam: NV and CA both have an interest in the litigation. Since the
plaintiff is a CA citzen, however, CA has a greater interest in protecting her.
Furthermore, the defendant corp does not involve itself in the foreign state much.
On the other hand, the corps activities in NV might affect NV citizens in the
future.
4. Interstate judicial system in obtaining the most efficient resolution of controversies
where can the case be tried the most quickly, w/o need for multiple actions in order to
resolve the entire dispute? shared interests between parties and legal system to get as
many of the parties responsible together at one time, in order to attain greatest efficiency
a. Look at in which state the witnesses are easiest to get; under which court the
issues in controversy would be most efficiently and effectively resolved
5. Shared interests of several states in furthering fundamental substantive policies
which jurisdiction most likely to follow choice-of-law principles that are most consistent
with the general thrust in WW of products liability law?
a. Choice of law principles: States have a series of rules about how to resolve
conflicts involving another states law, in all different areas of the law
Defenses to personal jurisdiction
a. Rule 12(b): lack of SMJ, personal jurisdiction, and improper venue are all defenses to a claim for relief
i. The objection to personal jurisdiction must raised immediately, or else D has waived the
objection by failing to raise it at the outset
ii. SMJ can be raised at any time during the lawsuit
iii. If venue is not raised in the initial response, then D has waived its right to raise it as an issue

b. Special appearance: D appears in court simply to protest the courts jurisdiction. If they lose, then D then
can defend on the merits without losing his right to appeal the jurisdictional issue
i. However, the federal courts have abolished special appearance instead, a motion to dismiss for
lack of jurisdiction over the parties may be made under 12(b)(2)
SUBJECT MATTER JURISDICTION OF FEDERAL COURTS
I.
General Jurisdiction provided by 28 USC 1331
a. 1331: Arising Under Federal Law Arising under = fuzzy (can make arguments either way)
i. Well-pleaded complaint: there must be a federal issue on the face of the complaint, within the
allegations.
1. Federal issue = Cause of action arises out of federal law
2. It does not suffice that P anticipates a defense based on a federal statute (ie. Mottley) or
that Ds answer does in fact raise a federal question.
ii. You can base a federal suit on an alleged violated by someone who is part of a federal agency.
iii. Louisvillle & Nashville RR v. Mottley: breach of contract case: federal law prohibited the free
passes RR had given Mottleys. Ps anticipated that RR would raise the federal statute as a defense,
so they pleaded in their complaint that it would not apply. Ct held that no federal question
jurisdiction existed, because the federal statute was not essential to Ps cause of action. However,
the federal statute was a major issue in the case
iv. W&M: test for arising under is expanding: courts now seem to say that if Ps claim involves a
substantial federal question, then the claim arises under the laws of the U.S.
1. Substantial: to satisfy the well-pleaded rule, you have to frame the allegations of the
complaint in a way that appear on the face to raise a federal question.
2. 11(b)(4): Also need evidentiary support or likelihood of evidentiary support.
3. 11(b)(2): the allegations must be warranted under existing law.
4. Hypo: A client, Ace Finance, tells you that Ace purchased a series of automobiles sales
contracts from Fred Ford, an auto retail dealer. In assigning these contracts, Ace
warranted that the contract had been completed in accordance with Federal Truth and
Lending Act (TLA) you have to go through certain procedures to give buyer notice of
financial terms, and have to have buyer initial that he has been told of the terms.
However, purchasers start defaulting on their loans. Ace sues a couple of buyers, and
each of these retail purchasers asserts the defense of fraud, that they were fraudently
induced into the purchases.
a. To make the case arise under, need to have evidentiary support that there was a
failure to comply with the federal statute TLA.
i. Contract: was to agree to transfer sales contracts executed in compliance
with TILA
ii. Performance: Ace paid X $$ to Fred
iii. Breach: failure to comply with TILA: did not inform the buyers, in
conformance with TILA
OR
b. 1332: Diversity of Citizenship (for both P and D): All Ps have to be citizens of different states than D.
Offers a federal forum for an out of state litigant who would be exposed to local prejudice if the suit was
held in state court
i. There must be greater than $75k in controversy, based solely on the amount in pleading
1. Do not need to prove at the outset that there are actually more than $75k, for the sake of
efficiency. However, Rule 11: need to be able to explain why you have evidence or
likelihood of evidentiary support for all your claims
2. If it is clear from the face of the complaint that P would not be able to recover $75k, then
no subject matter jurisdiction (i.e. if injuries are minor, airline loses baggage,
3. Aggregate claims: a single P with 2 or more unrelated claims against a single D may be
aggregate claims to satisfy the statutory amount
ii. All Ps must be citizens of Different states
1. Hypo: P1 and P2 are brothers. P1 citizen of CA, P2 citizen of OR. 3 yrs ago, they loaned
$350k to Donald, a citizen of OR. Given that P1 is a CA citizen, can P1 and P2 sue

Donald in a diversity action in federal court no. P2 is from OR as is Donald, and all Ps
have to be citizens of different states than D.
iii. Corporations: Deemed citizens of any state where it is incorporated, and where it has its principal
place of business (28 U.S.C. 1332). No adversary of the corporation may be a citizen of the state
in which the corporation is incorporated, or of the state in which it has its principal place of
business
1. Test for principal place of business: varies, but for some it is corporate HQ
2. A corporation can only be sued in those two states for the purpose of establishing
SMJ on the basis of diversity
iv. Diversity cases filed in state court
1. Concurrent jurisdiction: The jurisdiction of federal courts is concurrent with state courts
- a particular controversy that is litigable in federal court may also, in most situations,
be brought in state court
2. When jurisdiction of a particular claim is concurrent, P makes the initial decision whether
to file in state or federal court. If he chooses state court, D may sometimes remove action
to federal court if it is more favorable to his case, and if there would have been full
original SMJ in federal court.
3. I.e. if P is from CA, D from AZ, P files in CA CA has SMJ over D in AZ because of
concurrent jurisdiction)
4. Exception: in a diversity mater, D sued in his or her own state cannot remove already
too many cases in federal courts
a. You can sue in both federal and state court, except when exclusive jurisdiction: a
statute says a particular claim must be filed in fed court
c. 42 U.S.C. 1983: Pendent jurisdiction: You can sometimes attach a state claim to a federal claim if they
arise out of the same transaction, if there is doubt that one cause of action can be admitted into federal
court
i. This can also establish subject matter jurisdiction
d. Rule 42: Judge has discretion to try a particular issue on its own, independent of other federal or state
issues
e. DEFENSES to SMJ
i. Rule 12(b)(1) absence of SMJ (either no diversity jurisdiction exists, or there is no federal issue
on the face of the complaint)
ii. OR, Rule 12(b)(6) there is no federal question in the claim, thus no federal jurisdiction
PLEADINGS both the complaint and exchange of initial papers in a lawsuit
The Complaint: 8(a)(1), 8(a)(2), 8(b), 12(b)(6) most important
** The complaint must meet both 8(a)(2) AND 11(b)(3) (legal sufficiency and reasonability inquiry into likelihood of
evidentiary support) in order to fly. If not then no go.
I.
Common law pleading writ system
II.
Code Pleading (In CA and NY) replaced common law pleading. Requires statements of all elements and
corresponding facts, so as to put D on notice of the legal theory behind the argument Due Process
a. If there is no factual claim for an element, D may demur to the complaint (demur = elements missing and
thus the complaint should be dismissed 12(b)(6) motion).
b. Sins of common law pleading:
i. Missing element
ii. Cannot plead evidence or conclusions. It must plead facts
iii. Cannot plead mere facts they are insufficient to state a cognizable legal claim. You must know
the substantive law. (I.e. a hitchhiker sues you because you didnt stop and he was hit by a truck
there is no basis for a legal claim because no legal duty under the common law for you to stop.)
III.
Notice Pleading
a. Not concerned with the burden of proof at the pleading stage, because P does not know everything yet. As
long as there is a reasonable inference that can be drawn, even if there are multiple exceptions, it works.
b. Difference from code pleading: Can have omitted elements (as long as you can make inferences). In CP,
you had to have facts for each element. Also, can plead evidence or conclusions.

IV.
Rule 8(a): Claims for Relief What must be on the face of the complaint.
TO KNOW WHETHER IT IS PROPER TO FILE A CLAIM, NEED TO SEE IF ALLEGATIONS FIT BOTH
8(a) AND 11(b)(3) see if you can make inferences from the facts that will allow you to show evidentiary
support or likelihood of it after reasonable discovery
a. 8(a)(1): Jurisdictional Statement: a short and plain statement of the grounds upon which the courts
jurisdiction depends
i. Gloss: need to prove subject matter jurisdiction. This is required for every complaint.
ii. For federal courts, there are TWO DIFFERENT KINDS of controversies over which the federal
court has SMJ:
1. Arises under federal law: USC 1331: There needs to be a substantial federal issue on
the face of the complaint (i.e. the cause of action arises under federal law) OR
2. Diversity jurisdiction: USC 1332: Must be (1) >$75k; and either (2) Citizens (NOT
RESIDENTS) of different states OR constitutional matter
a. Main problems on issues of different citizenship i.e. Gordon v. Steele (court
uses 2-prong test: (1) residency (physical test) and (2) intent to remain
indefinitely (mental test) murkier, requires evaluating all the evidence
b. Looking at RESIDENCY in general is important because (1) limits access to
federal courts; (2) allows only citizens of states to vote, receive benefits, etc.; (3)
people who live somewhere & establish residency are more knowledgeable about
the area and are more aware voters
3. Corporations: The complaint, in its statement of jurisdiction, must assert the state where
it is incorporated AND where it has its principal place of business there is no diversity
if both of those elements are not present
a. Four different tests for principal place of business, one of which is where the (1)
Corporate HQ location
b. 8(a)(2): a short and plain statement showing the pleader is entitled to relief
i. Unlike in code pleading, you dont have to have every single element of a claim in a pleading,
Gloss: Wright and Miller: a complaint can have a missing allegation, as long as an inference can
be drawn from the allegations in the complaint.
1. Complaint must either contain direct allegations on every element of the claim; OR
2. Must contain allegations from which an inference may be drawn that evidence on these
material points will be produced at trial. Reader of factual allegations must infer legal
theory from alleged facts
a. At the pleading stage, the inferences do not have to be strong, but the narrower
the better to avoid except whens
3. Better to have each element stated to avoid inferences that will not be allowed in court
(i.e.: B/c median not there, it caused accident specific statement, no need for inf.)
4. If missing element, D can file a demurrer: motion to dismiss challenges sufficiency of
the claim. If complaint sufficient, court denies motion. If insufficient, court sustains
demurrer & allows P to amend (Rule 15)
5. Inconsistency on the face of the complaint is ok. Discovery has not yet been done, or you
might not yet know what legal theories may apply.
6. WATCH FOR PLEADING SPEECIAL MATTERS, i.e. Fraud see below for special
ii. Hernandez v. DOT: (P on accident on 101 w/missing center divider sued DOT for negligent. D
filed 12(b)(6) demurrer b/c complaint didnt set forth adequate facts & reasons for negligence.)
Inference: lack of barrier creates foreseeable risk DOT had constructive notice DOT knew
of risk & had time to fix it (but no causal connection shown between absence of median & car
coming across & crashing). B/c inference was only 1 of many that could be drawn, court granted
demurrer w/leave to amend.
iii. Bell Atlantic v. Twombly: Rule change conclusions in the complaint used to be OK all the
time, now only some of the time
1. A consequences argument: court is drawing an inference that if they dont stop this case
now, D will have to settle a potentially unmeritorious case (except when)
2. discovery stage.
3. What is the line between beyond possible and short of plausible?

10

a. Bell Atlantic: A higher threshold of evidence (plausible case) is required in the

complaint to go to trial when the parties are numerous and complex corporations.
Adopting this higher threshold will likely reduce the court and parties time and
money costs, which is quite extensive when the parties are complex and large.
However, in Erickson, there was one individual suing a party. During the
complaint stage, if there is only one individual suing one company, fewer costs
are entailed to proceed to the
iv. When constructing allegations, need to make sure there is evidentiary support or likelihood of it
after under 11(b)(3)
c. 8(a)(3): Need to state damages
V.

Rule 9(b) Pleading Special Matters Fraud, Mistake, Condition of the Mind Fraud or Mistake shall be
stated with particularity a heightened pleading standard
a. Courts criteria for what constitutes particularity: the time, place, and nature of the alleged representation
i. Who (the person who made the representation, and the person who heard/saw it), what, where,
when (NOT WHY goes to the mental state)
1. When D is a corporation, must aver WHERE to allege with particularity (i.e. that their
principal place of business is in Santa Monica)
b. Why are fraud pleadings singled out for particularity:
i. Can get punitive damages beyond the actual harm that P suffers
ii. However, you can get punitive damages for any kind of intentional act that have nothing to do
with fraud
1. Hypos: A contract case: the defendant has agreed to deliver homogenized milk to children
to eat at school under a federal lunch program. Contractor breaches and kids get sick,
even though he did not intend to breach. However, no punitive damages.
c. State of mind: Malice, intent, knowledge, and other condition of mind may be averred generally
i. Elements of actual misrepresentation that fall within state of mind:
1. D knows when making the statement that it is false when made
2. D made the statement to induce action by P
3. P justifiably relied on the statement
ii. First, ID which elements are state of mind elements. Everything else must be alleged with
particularity.
1. Why dont require particularity for state of mind elements? Only D knows his state of
mind. You cant plead Ds state of mind with particularity, only infer it from his actions.
d. 3 different legal theories of fraud: (1) Actual misrepresentation; (2) Intentional failure to disclose; (3)
Making a promise without the intent to keep it Reader p. 33
e. When you get a legal problem involving fraud:
i. First, figure out the legal theory
ii. Second, look at the elements of the theory involved, and figure out which elements need to be
pleaded with particularity
1. Look at each element, see which require a state of mind. Those that do, do not need to be
pleaded with particularity
2. However, do need to spell out some facts, to make an inference about state of mind
f. Note when evaluating fraud claims, have to look at it in terms of Rule 8(a)(2) AND (9)(b)
g. Example elements of fraud (bolded elements can be just generally stated all others do not relate to state
of mind & as such, require specificity)
i. Making a statement
ii. Statement is false
iii. D knows statement is false
iv. Intent to induce
v. Justifiable reliance
vi. Everything in bold is a state of mind allegation, which may be averred generally.
h. Defenses to 9(b): What if the elements are all there, but they are not averred with particularity? The
other side can made a motion under 12(e): Motion for a More Definite Statement, in lieu of 12(b)(6)
i. Note prognostications (incorrect forecasts) are allowed, but fraudulent representations are not.

11

VI.

Rule 11 Restricts attorneys ability to file pleading when he has no more than a hope that favorable
facts/law will emerge as the case progresses. Probably most important constraint on attys behavior during
litigation basically, atty must not file a frivolous pleading
a. MOST IMPORTANT: understand that likelihood of evidentiary support adds addtl
requirements to 8(a) and (b) need to make inferences from the allegations present in the
complaint to ascertain whether there is at least this likelihood
b. 11(a): attorney signs all docs presented to the court
c. 11(b) signing done to best of knowledge, information & belief formed after reasonable inquiry under
circumstances
i. Reasonable inquiry: Atty must at least question client about his story.
1. Look at whether atty has time constraint; if there are alternative ways of getting
information; if getting more info is too costly; if people are available to talk to now
2. Is the inquiry you make reasonable under the circumstances is this a reasonable
amount of evidence produced by a reasonable inquiry? This depends on what info the
lawyer has or should have at the time he filed the complaint.
a. If the statute of limitations runs in i.e. a day, then the reasonableness of the
inquiry is dependent on a) time; b) effort; c) cost.
3. If atty after filing complaint later learns that it is not meritorious, he must withdraw the
pleading or face sanctions
ii. 11(b)(1) No improper purpose (harass, cause unnec cost, etc.)
iii. 11(b)(2) Warranted by existing law or by non-frivolous argument for
extension/modification/reversal of existing law has atty made a reas inquiry to determine that.
1. Walker v. Norwest Corp. (356): Attorney failed to allege on the face of the complaint that
there was complete diversity. He did not do adequate research into where all Ds lived, b/c
too much trouble. This was not a reasonable inquiry under the circumstances.
iv. 11(b)(3) Factual contentions have evidentiary support or likelihood of evidentiary support (also
applies to affirmative defenses b/c new contentions)
1. Fuzzy: likelihood of evidentiary support adds additional requirement to 8(a) and (b)
a. Likely to have evidentiary support you must plead on information and belief,
i.e. plaintiff is informed and believes this is the meaning of specifically so
identified (11(b)(3))
b. Why look at this category first: if you know how much evidence you have, or
how much you are likely to have, only then you can say what would be a
reasonable inquiry under the circumstances
1. Hearsay is not ok an out-of-court statement. However, oral
contract is admissible.
ii. Need to make inferences as to whether it is likely to have evidentiary
support if you can make two competing inferences, your case might be
too weak (
1. First, convert the legal requirement into a factual proposition.
2. Second, look at whether there is any evidence to support it.
iii. Under 11(b)(3), you must have at least likelihood of evidentiary support
to bring a claim against someone.
iv. Hypo: in a suit for fraud, need to establish that when D sold the property,
he knew about, but failed to disclose, a defective condition
1. First, convert the legal requirement into a factual proposition
a. Must prove that D knew of cracks in the foundation
2. Second, is there any evidence to support the proposition?
a. Infer that D knew of the cracks make generalizations
and connect them go to the except whens.
i. If there are a lot of except whens, choose
likely to have evidentiary support
ii. Also, argue against yourself: why is there/is
there not evidence here?

12

2. Relation to 8(a)(2): has only to do with whether you have given D adequate notice in the
complaint focus on the face of the complaint, whether elements are est.
a. 11(b)(3): has nothing to do w/face of complaint, but only to do w/what the lawyer
for P must have in his or her possession or head is there enough evidence?
b. Hypo: Your cousin emails saying he was in a car accident and the car that hit him
caused his ribs to be broken. You file a complaint for negligence w/o talking to
him first compliance w/8(a)(2) b/c have stated a claim, but not 11(b)(3): not yet
a reas inquiry under the circumstances Legal sufficiency/adequate notice to
the other side, vs. reasonable factual investigation You must have both.
c. ** See Lake Mead hypo in notes for more detailed hypo
3. As it applies to filing requirements under 8(a)(2) and 12(b)(6) If the complaint omits an
allegation that covers an element of the claim, the pleader has presumptively violated 8(a)
(2). If this is the case, 12(b)(6) motion can be made. At the same time, you have not
violated 11(b)(3) but 11(b)(2) your claim is not warranted by existing law.
a. However: it is not always a violation to leave out an element, if you can make an
inference from an allegation in the complaint
4. Violation of 11(b)(3): Christian v. Mattell P filed a copyright complaint w/o previous
copyright. Court of appears reversed district courts granting of Rule 11 orders found a
violation of 11(b)(3): there was no reasonable factual investigation as to whether P had a
copyright (there was abuse during discovery).
v. 11(c)(1): The Safe Harbor Provision
1. Once atty has decided there is some violation of Rule 8, and are satisfied an element is
missing, must first send the other party the motion you are going to file, to give them a
chance to withdraw their complaint. Only after waiting 21 days after sending this motion
can you file a motion under Rule 11.
a. You do not have to do this if you are not going for sanctions
b. 11(c)(1)(B): The court can impose sanctions on its own initiative
PRE-ANSWER MOTIONS - Responding to the Complaint
I.
Rule 12(b): 7 grounds under which you can file a pre-answer motion raising certain defenses asserting the
invalidity of Ps claim or pleading. Must be made before the responsive pleading (answer) is filed.
a. None of these grounds go to the merits of Ps claim (i.e. whether allegations are true or false) They are
directed solely at the pleadings.
b. The first 5 are not a final judgment on the merits procedural issues, not substantive (getting to the merits
of the case)
c. If either party raises contentions or introduces evidence not contained in the pleadings, the motion is
treated as a motion for SJ under Rule 56, and not as a Rule 12 motion
d. If D does not initially raise these in a pre-answer motion or answer motion, no later shot at them
(Exception: problem with SMJ can be raised at any time)
i. 12(b)(1) lack of SMJ
ii. 12(b)(2) lack of personal jurisdiction
iii. 12(b)(3) improper venue
iv. 12(b)(4) insufficient process
v. 12(b)(5) insufficient service of process
vi. 12(b)(6) failure of state a claim upon which relief can be granted
vii. 12(b)(7) failure to join a party under Rule 19
II.
When defenses have to be brought
a. 12(h)(1) defenses listed in (b) through (e) must be made before trial generally
i. 12(h)(1)(B) refers to amendments (15(a)) the defenses must either be raised by motion under
Rule 12, or by amendment. HOWEVER, CAN ALSO BE MADE IN A RESPONSIVE
PLEADING.
b. 12(h)(2) Defenses (f) and (g) may be made at any time before trial
c. 12(h)(3) Defense of lack of SMJ may be made even after trial, and may be raised by the trial or appeals
court if neither party raises it

13

III.

IV.
V.

Rule 12(b)(6) motion for failure to state a claim D makes this motion when he believes that Ps complaint
does not state a legally sufficient claim
a. Should assert that on the facts as indicated in Ps complaint, no recovery possible under any legal theory
b. Generally proper to file when:
i. No claim can be stated; and
ii. There is a missing element and no inference can be drawn from the claim stated.
c. Can be overruled if an inference of the existence of the missing allegation can be made
d. Can sometimes be a violation of 11(b)(2) to file 12(b)(6) i.e. when you can draw inference from other
allegations within complaint. You cant file a suit unless its supported by existing law, but if inferences
can be drawn, there is no legal basis for filing a suit.
i. Hypo: you rep D and complaint doesnt include all elements, & inference doesnt appear possible
to create missing element. But you know P has evidence to support missing allegations can you
file 12(b)(6)? Yes, but its arguably frivolous, b/c court will grant leave to amend anyway.
e. How to avoid a 12(b)(6) motion:
i. Are there defects on the face that give rise to an 8(a)(2) problem (missing element of the claim)?
1. If missing elements, can it be solved by the inference test?
ii. Is there a 9(b) problem (failure to state elements with particularity)? If so, what are they and how
significant are they?
1. 11(b)(3); Is there evidentiary support or the likelihood of it?
a. What further inquiry, if any, is necessary in order for you to comply with the
reasonable inquiry requirement in 11(b)?
All of these defenses are allowed in pre-answer motion, b/c you generally dont need to waste the time &
effort of the parties by involving a jury more efficient to resolve it ahead of time
If the motion is denied, D has 10 days to file an answer

ANSWER Subject to Rules 8, 9(b), 11(b)(2) and (b)(3)

I.
If D cant demur by filing 12(b)(6) or other grounds under 12(b), must respond to factual allegations
II.
Generally prefer to use this rather than pre-answer motion b/c you would be in court too quickly to find
sufficient evidence for pre-answer motion. (D has 20 days to respond to Ps claim).
III.
Denials Rule 8(b): Defenses, forms of Denials
a. D is allowed to make various kinds of denials, depending on how much of Ps claim he wishes to deny,
and on the state of his knowledge regarding the truth of Ps claims
b. Under 8(b), D denies only what he disputes and states the rest is true. If D is without sufficient knowledge
or information to form a belief, he should say so.
c. A party shall state in short and plain terms the partys defenses to each claim asserted and shall admit or
deny the averments upon which the adverse party relies
i. D shall admit which allegations D, in essence, knows to be true. This is for the sake of efficiency.
1. D has to do work for P for the sake of efficiency. If you are forced to prove every single
thing alleged in the complaint, it would take a long time and cost a lot of money to both
parties and everyone who is waiting. This requirement sort of relieves P of its burden of
proof, b/c D is required to admit things that would normally be under the burden of proof
d. Fuzzy: A lack of knowledge of information sufficient to form a belief as to the truth of an averment &
Later advocating
i. Problem: Denying portions of the allegations, versus not having enough knowledge to deny other
parts of the allegations
1. Objective standard: What a reasonable person would think
2. Subjective standard: What does the lawyer personally think
3. Can argue both ways
ii. D can only deny if he lacks information sufficient to form a belief; when does this happen? And
when under 8(b) must Ds answer admit allegations in Ps complaint?
e. Rule 11(b)(4) Factual denials have evidentiary support or likely to have evidentiary support. This rule is
linked to Rule 8(b), but adds a reasonable inquiry requirement. When D files an answer, he has
brought himself within the bounds of Rule 11(b)(3), and thus needs to make a reasonable inquiry into the
truth or likely truth of Ps allegations

14

IV.

i. Denials are warranted on the evidence or are reasonably based on a lack of information
or belief
ii. Hypo: P asserts in the complaint that D arrested him unlawfully, but D refused to drop the
charges. If the only evidence as to the truth of the allegation is a statement from Ps lawyer that it
happened, need to investigate the truth of the statement by asking the people most directly
involved Need to satisfy 11(b)(4) reasonable inquiry. If it is satisfied, then D can likely assert a
lack of information on which to form a belief as to a factual allegation even if D turns up nothing.
However, if anyone D talks to recalls any relevant facts as to the truth of the allegation, then D
cant in good faith deny the allegation.
iii. Hypo: D denies each and every allegation in Paragraph 2 of the complaint. However, only if D
has made a reasonable inquiry can we assume that the denial is improper. However, if there is
reason to assume that the only available evidence thus far comes from an unreliable source (i.e. a
drunk ex-VP), then it can be inferred that the evidence is inaccurate and that its ok to have a
general denial. Lack of information is sufficient to form a denial.
iv. Hypo: Secretary says D probably made offer before call was made, she received written notice
from D bearing Ds signature, saying to prepare specific office for Parr by this date. Can we deny
yes, its only circumstantial hearsay evidence
v. Hypo: D says secretary told him that D did hire Parr. Can D deny?
1. Yes, because direct double hearsay
2. No, because no reason to assume anyone has motivation to lie.
vi. Zielinksi v. Philadelphia Piers, Inc. P sued for injuries, D offered general denial to a particular
part of the complaint. P was actually suing the wrong manufacturer, but b/c D just generally
denied, P couldnt have discovered this. When P discovered it was suing wrong company, statute
of limitations had run, and he couldnt proceed against the wrong party. Court forced D to defend
case assuming that it actually did own the bad forklift.
vii. Criteria for determining sufficiency of evidence (whether or not can deny):
1. Is it circumstantial or direct?
2. Is it some form of hearsay?
3. Is there a reason to suspect integrity/honesty of the individual supplying the
evidence?
4. Generally, find out generalization underlying premise & find out if there are a lot of
plausible exceptions if so, evidence is likely not too strong.
viii. D can make a general denial of each allegation in Ps complaint (including jxdl grounds)
1. Federal practice discourages: it fails to allow resolution in case & may obscure basis of
liability, would cause backlog of cases
2. General denial can be made of an allegation of malice by P; P has burden to prove malice
ix. Or, D can make a specific denial: he denies all the allegations of a specific paragraph or averment
of the complaint
f. Rule 8(d) All allegations not denied are admitted Effect of Failure to Deny
g. Rule 8(e)(2): inconsistency in pleading is OK. Court has made a consequences argument: an inference
that if they dont stop this case now, D will have to settle a potentially unmeritorious case. However,
many except whens.
i. Sometimes it is difficult to get all the facts from the client: he is gone, dead, unconscious; or
perhaps the client is a corporation and it is difficult to locate the exact people with the relevant
knowledge
ii. The total facts can never be truly known to P, because the facts go to Ds state of mind at the time
of commission of the alleged act, which P cant know at the time the complaint is filed.
Counterclaims, cross-claims, and third party claims: In addition to defenses, if D has a claim against P, he
may, in all cases, and must in some others, plead it as a counterclaim.
a. Counterclaims are subject to Rules 8, 9, 11 just as pleadings and answers are
i. 11(b)(2): You need to state a cognizable claim under the law with the counterclaim. So if there
are necessary elements omitted which cannot be inferred, your claim is not warranted in law.
ii. 11(b)(3): Need to have evidence or likelihood of evidentiary support to file the counterclaim
b. Cross-claim: D sues another D
c. Third party claim: D sues a third party not yet involved in the litigation

15

REPLIES to counterclaims
I.
In most cases, pleading stops with the answer. However:
II.
A reply (an answer to the answer) is allowable in two circumstances
a. When the answer contains a counterclaim which is IDd as such (in which case a reply is required)
i. Reply required if answer contains a counterclaim labeled as a counterclaim (i.e. and as a
counterclaim, D asserts that)
1. Counterclaim = a claim by a D against a P, or by any party against an opposing party
2. 13(b): Permissive: does not involve the same transaction or occurrence no claim is too
far removed from the subject of Ps claim to be allowed as a counterclaim
3. 13(a): Compulsory/mandatory: involves the same transaction or occurrence if it arises
out of the same transaction or occurrence, it must be pled at the time of serving the
pleading (i.e. the answer)
4. Stradford v. Zurich Insurance Co.: why does the type of counterclaim matter?
a. If compulsory and not asserted in the answer, it is dismissed unless motion to
amend is granted. A later suit on the claim by D will be claim precluded the
claim is forever barred from suing on it in another federal action.
i. Compulsory: the claim arises out of the same transaction or occurrence
that is the subject matter of the opposing partys claim
b. If permissive: not required to be asserted in the answer
c. Same transaction or occurrence look at time, place and nature of alleged act
i. Permissive = assertion of any claim not arising out of the transaction or
occurrence that is the subject matter of the opposing partys claim no
claim too far removed from subject of Ps claim to be allowed as a
counterclaim
ii. If instead, answer says as a further defense, D alleges thatand as a result of Ds negligence, P
suffered horribly. this does not ID it as a counterclaim but as a negligence claim. Do not have
to use exact words if you have exact elements of a claim as a defense.
iii. If counterclaim is labeled as an affirmative defense, no reply is needed.
AFFIRMATIVE DEFENSES Rule 8(c) see p. 1 for full list
I.
Rule 8(c) D must list all affirmative defenses (19) which must be explicitly pleaded in the answer (the
pleading to the preceding pleading 7(a)), if D is to raise them at trial. (The list in the rule is not all-inclusive)
a. Certain affirmative defenses sanctioned by substantive law, i..e failure to state a legal defense
i. Not an affirmative defense: saying you are ill and could not perform in agreement with a contract
this is not a cognizable legal claim.
II.
Raising a point by denial or by affirmative defense: how and when to raise each>?
a. If the issue/fact comes from an entirely separate transaction, then it is an affirmative defense.
b. If the law is not clear on whether to raise it by denial or by affirmative defense, the default decision is to
plead it.
c. If you dont plead it, and it turns out to be an affirmative defense, you will have to move to amend under
15(a) however, this can create problems of undue delay, bad faith, etc. Thus, should raise it as an
affirmative defense at the outside if the law is unclear. Under 15(a), you have 20 days from the service of
the original answer in which to amend.
d. If it turns out that you raised it as an affirmative defense wrongly, you have not violated Rule 11(b)(2),
because this allows for warranted by existing law if you have done good research, you havent
violated that provision.
III.
General rule: if P were to be surprised by D not pleading the affirmative defense & avoiding the allegation,
then it should have been plead as an affirmative defense (Surprise principle)
a. Any new matter or issue not embraced by the complaint should be pleaded as an aff defense (see Layman)
b. Often involve facts that are peculiarly within Ds knowledge thus put burden on D to allege them
c. Layman v. Southwestern Bell: SW Bell had an easement as an affirmative defense, but did not plead it.
The easement only came out during trial
i. Courts test: whether D intends to rest his defense upon some fact not included in the allegations
necessary to support Ps case. You can deny that what you want to present contests the accuracy

16

of what P has said, but if you are putting in evidence that is new (that was not part of the
contesting allegations, then it is an affirmative defense that must be pled
d. Parr example: BLS could claim failure to mitigate damages as a defense that Parr did not go out to get
another similar job after the BLS deal fell through
e. Potential problem if D state sth as an affirmative defense: he has have the burden of proof. However, you
should take this chance that it IS an affirmative defense. If its not, you can amend later to correct this,
under 15(a) or 15(c) Rule 8(e)(2): DO NOT HAVE TO PLEAD CONSISTENTLY.
f. Rule 12(h) allows P to make a motion to strike affirmative defense if it is phony
g. Rule 11(b)(2) applies to defense of failure to state a claim, because allegations arent warranted.
AMENDMENTS (Rule 15)
I.
Amendments allowed for each party allows pleadings to reflect parties changed view as case develops, v.
notion of prejudice against the other party
II.
Rule 16(e): Pretrial orders CANNOT be amended. Only Pleadings.
III.
Rule 15(a): A pleading may be amended once as a matter of course when justice so requires
a. If the pleading is one to which the adversary must make a response, then the pleading may be amended
AT ANY TIME before the responsive pleading is served
i. D raising a 12(b)(6) motion doesnt preclude amendment as matter of course
b. If a response is NOT required to the pleading, it may be amended within 20 days after it is served
c. Fuzzy: When justice so requires
i. Gloss: prejudice to the moving party (the party that moves to amend)
ii. Two different standards of review
1. Legal error: if it affects the outcome of the case, the court will reverse
2. Factual error: the standard on review is clearly erroneous
iii. Unless there is clearly an error, the judgment of the trial court will state that there is no numerical
scale on which to weight prejudice to either party
1. Beeck v. Aquaslide N Dive Corp. (394): Ds wanted to amend their initial answer (a
pleading) after the statute of limitations on Ps claim had run. They contend they did not
manufacture the slide, after first admitting that they had SJ in favor of Aquaslide.
a. This is a case about amending an answer in such a way that as a matter of both
law and logic, D cannot be held liable since it did not manufacture the slide
involved in the accident.
b. Ps argued undue prejudice because:
i. S of L ran out, so P couldnt sue the proper party
ii. Elapsed time means trail is colder
iii. Less time to conduct investigations
iv. As such, P is subject to addtl financial & time burdens
c. Court: even though S of L did run out for P against maker, it would be unfair to
continue if D didnt make the slide, b/c Ds acts werent done in bad faith or to
delay however, this is questionable, since
iv. Leave to amend should be given when there is undue delay; bad faith; or dilatory motive on part
of movant, in order to avoid manifest injustice (a party is substantially prejudiced by failure to
allow an amendment)
1. How to argue undue prejudice to a moving party (sometimes both parties will be
prejudiced and you can argue either way notes p. 35)
2. Bad faith intentionality with respect to the outcome of trial (i.e. if just done for
personal reasons without actually intending to influence case, then probably not bad faith.
However, if D wants to keep P in the dark about something, intentionally preventing them
from finding out the truth, or waits until the statute of limitations runs out before
admitting they did not make the waterslide)
3. Dilatory motive: delaying to harm the other side
a. Suppose D delays moving to amend to have more time to investigate. Not
Dilatory motive b/c it is not designed to harm the other side: you just have pure
motives to help yourself
4. Repeated failure to cure deficiencies by amendments previously allowed

17

5.
6.
7.
8.

IV.

Undue prejudice to the opposing party

Futility of amendment the evidence is such that it would be pointless to amend
Prejudice to moving party (defendant in Beeck) the case turns on this category
There can be prejudice without bad faith or undue delay: Hypo: P in severe care accident
w/friend. Ds car goes over cliff and friend is killed. D is unconscious in the hospital until
after S of L runs. Police report indicates D was driving & Ds atty admits D was driving
(based on police report). D regains consciousness & said friend was driving.
a. Bad faith or undue delay in admission? No
b. Is there prejudice to P if motion to amend if granted? Yes b/c now he cant sue
friend (S of L has passed)
c. Is there prejudice to D if not allowed? Yes, b/c hed have to be responsible for
driving that he didnt do. But he was in the car so he at least knows what
happened.
15(c): Statutes of Limitation and Relation Back
a. 15(a) and 15(c): separate requirements. Just because you satisfy 15(c) by relation back does not mean
satisfying 15(a). You must also comply with 15(a) to ensure that there is no substantial prejudice (i.e. bad
faith, dilatory motive, etc.)
b. 15(c): Relation Back of Amendments three ways to relate back
i. (c)(1): permitted by the law providing the statute of limitations required by the action
1. Why statute of limitations: no evidence or witnesses if you bring a claim too long
afterwards. Also, at some point, D should not have to worry that he will be sued.
ii. (c)(2): the claim or defense asserted in the original pleading arose out of the same conduct,
transaction, or occurrence set forth or attempted to be set forth in the original pleading
1. FUZZY: same conduct, transaction, or occurrence
2. Claims vs. causes of action: Cause of action = legal theory. There can be two causes of
action (i.e. one for breach of informed consent and one for surgery), but if they all arise
out of the same transaction then there is one claim.
3. GLOSS: W&M: when the suit is filed, D knows that the whole transaction described in it
will be fully sifted Ds lawyer must go through the entire chronology: BEFORE,
DURING, AND AFTER. Needs to conduct an inquiry into the facts before filing an
answer, and needs to continue to gather information about the whole transactions
chronology cannot later claim, if P wants to amend, that you have not gone through
the whole transaction and therefore you are not aware
a. D has a continuing obligation to gather information about the whole
transaction; he cannot claim unawareness of the new cause of action added in the
amendment
b. General rule: if a normal competent lawyer would look into the facts, that is
where notice is derived from.
i. Hypo: supposed original cause of action was breach of contract by D
suing MD who promised to perform hysterectomy. Statute runs, but now
P wants to amend to allege negligence (med malpractice) Does it relate
back?
ii. Yes, because MD had notice that issue could come up (via atty
questioning, viewing patient charts, discussion with nurses, etc.)
iii. Look at:
1. Who would the witnesses be? (i.e. overlapping witnesses)
2. What would they have to say? i.e. overlapping testimony)
4. Moore v. Baker (400): original pleading claimed negligence before the surgery; amended
pleading claimed negligence during and after. Court held that this is not the same
transaction. HOWEVER, could argue that it IS all the same transaction before surgery,
was asking for her informed consent to the entire procedure. Even if the complaint was
just failure to obtain consent before surgery, need to figure out what happened during
surgery so that you know whether the doctor did what he said he was going to do. You
ought to be put on notice by going through the whole transaction that there might be new
legal theories P can raise.

18

a. Being able to amend if there is the same transaction allows for greater efficiency
b. Claims vs. cause of action: There is only one claim if two causes of action arise
out of the same transaction, even if there are separate legal theories (i.e.
negligence, breach of informed consent)
c. Once the statute has run, it runs on the entire claim, not just a specific cause of
action efficiency (dont want to hear the same set of facts several times over
for each cause of action)
d. If you misplead one cause of action, but properly plead the other, no 12(b)(6)
motion because you have all the elements of the other cause of action.
5. Bonerb v. Richard J. Caron Foundation (402): D first sued on grounds of negligence, then
wanted to amend to add a new cause of action for counseling malpractice
a. Court said that as operational facts were the same in both cases, then it related
back to the original pleading. Rationale: once D has been given initial notice of
facts from which all suits could arise, then D has all protection that S of L was
designed to afford & amendment is allowed even if S of L has expired.
b. By sifting (not just focusing on the elements of the cause of action), you may end
up with witnesses that are likely to be the same for each cause of action alleged.
c. Just focusing on the elements is not enough. You need the whole story.
d. An amendment which changes the legal theory of the case is appropriate if the
factual situation upon which the action depends remains the same and has been
brought to Ds attention by the original pleading.
6. Analogical reasoning in Moore and Bonerb:
a. Start out with similarities and differences between the cases, and explain why the
features you picked out matter (will typically be b/c they point to some policy
argument, or some principle D is entitled to notice). Otherwise, your argument is
too implicit.
i. Mechanical test re: Moore and Bonerb: what is the transaction
complained about; and what are the before and after?
7. See hypos Reader p. 58 for when relation back is allowed and when its not
iii. Rule 15(c)(3): Change of party ok if:
1. D received notice of the action so that he wont be prejudiced in having to defend the
action AND
2. Knew or should have known that but for a mistake concerning the ID of the proper party,
he would have been sued
a. You can amend a pleading even if the statute has run if it relates back (but also
has to meet 15(a)
b. Concerned with the similarity of evidence and facts, NOT the legal theory. You
can always raise a new legal theory with the same transaction.
c. However, if the underlying facts needed to sustain the new pleading after
materially different from those needed to sustain the original complaint then the
court may find that the same conduct standard is not met
DISCOVERY: Depositions, Interrogatories, etc. See Attachment in OpenOffice
Pre-Trial Conference Rule 16
I. Each district court has its own set of local rules, which can govern various kinds of motions
II. Two purposes:
a. Judge wants to encourage settlement
b. Resolve as many issues as possible before trial for efficiency during trial
i. I.e. if there is only one element in issue, state that the other elements are resolved
ii. Need to provide other side with a list of docs to be used, to ensure no surprises
III. Rule 16(d): Final Pretrial conference, formulates plan for trial. Issues set in final conference are the only issues in
dispute to go to trial last chance to change contentions.
a. If a pretrial conference is held, the judge must then enter a pretrial order reciting the actions taken in the
conference. This pretrial order is binding during the rest of the litigation unless the court modifies it. But

19

if the order is issued after the final pretrial conference, it shall be modified only to prevent manifest
injustice. Rule 16(e)
i. Fuzzy: Manifest injustice(i.e. prejudice) when does it occur?
1. McKey v. Fairbaim: P claims negligence by landlord. Moves to add a new legal theory of
breach of muni code; however, this is not allowed because in the final pretrial conference,
both sides stipulated negligence but not breach of mini code not allowing this new
legal theory is not manifest injustice
2. To make a strong argument for manifest injustice, you have to show that you are
substantially prejudiced by the failure to allow the amendment
b. Compared to Rule 15, which encouarges leave to amend pleadings freely when justice so requires
bad faith, dilator motive, etc.
i. Dont allow amendments at this point (even though amendments are liberal under 15(a)) because
the final pretrial conference order means finality.
ii. You can amend pleadings but not pretrial orders. The rule 16 standard is more stringent; thus,
parties must take more care in pre-trial conferences b/c order will be a lot more difficult to change
than had the pleadings alone governed action.
TRIAL
Steps to trial:
1. Jury has been sworn in swear to follow the law, etc. voir dire
a. Challenges to juries: peremptory and challenges in cause. A limit on # of peremptory challenges
2. Plaintiffs opening statement. D may also make an opening statement, or wait until later. Most Ds dont wait.
3. Ps case-in-chief
a. Calls witnesses, one at a time.
b. D cross-examines each witness.
c. P calls rebuttal witnesses (if P has something to say after crossexamination of ALL witnesses)
d. Ds rebuttal of witnesses
4. Ds case-in-chief
a. D calls each witness one at a time
b. D cross-examines
c. Rebuttals etc.
5. Settle the jury instructions at some point: each side argues about what kind of instructions on the law should be
given to the jury.
6. Judge instructs the jury on the settled instructions. Lawyers need to know the instructions before they make their
closing arguments; otherwise, it is reversible error.
7. Closing argument: P then D then P again.
Anytime up to this point, motion can be made for a directed verdict
8. Case in jury
Verdict
a. Directed verdict/judgment as a matter of law Rule 50
i. Either party may move for this, which takes the case away from the jury and determines the
outcome as a matter of law. The idea is that no reasonable jury, based on the evidence produced,
finds that the issue existed reasonable persons could not differ as to the result.
ii. 50(a)(1): a party may move for JML after the other party has been fully heard on an issue. If
there is legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue,
the court may grant a JML
1. 50(a)(1): Absent a problem of equal inferences, in which case the case goes to jury (the
judge is not supposed to be weighing evidence; issues of credibility are for the jury to
decide), the court may determine the issue against the party and may grant a motion for
judgment as a matter of law against that party with respect to any claim or defense that
cannot under the controlling law be maintained or defeated w/o a favorable finding on
that issue. The judge determines that no reasonable jury could, based on the evidence
produced by a party, find that their asserted element existed
2. JNOV: judges make a directed verdict after jury has reached a verdict
3. D may move for DV at the close of Ps case in chief

20

4. Either party may move for DV after both sides have rested
5. P can also make a motion for DV at the following times:
a. When D claims an affirmative defense but has no evidence of it to carry its
burden on the affirmative defense
b. If D has a counterclaim but not enough evidence for it
b. Directed verdict steps:
i. ID elements in dispute
ii. ID factual propositions in dispute w/respect to element
iii. ID the evidence from that evidence, can you draw an inference?
1. IF no, DV proper
2. If yes, DV proper if only a scintilla (see iv-v)
iv. If evidence is more than a scintilla but it is so incredible that no rational party would believe it,
then DV is proper.
v. If evidence is more than a scintilla & is plausible, but subject to equal inference problem, DV still
proper
vi.
vii. Rule 50(a)(1) Directed Verdict and Rule 56(c) SJ: Both are on the same principle, so why
have both?
1. There is no difference in the standards between the two motions, but not all DV situations
are covered by SJ
2. DV comes later at trial than SJ. So judge may grant DV on the same evidence it denied SJ
on, just b/c its later in trial so they have more time to get evidence
3. Sometimes as defense counsel, you think P will call a crucial witness (who does not show
up) or that P will introduce a crucial document. You have to wait until their failure to
produce that witness or document occurs; then, P cannot carry its burden of proof without
that witness or document. At that point, you move for directed verdict.
4. Sometimes, you think you might be able to win on SJ, but you also think you might lose.
Thus you make a strategic decision to wait until moving for directed verdict b/c if you
move for SJ before trial, you will tip them off: if you dont get SJ, they will be more
prepared than if you had not moved at all.
viii. Rule 50(a)(2): the party seeking judgment as a matter of law must move for that judgment before
the case is submitted to the jury. The moving party must specify the judgment sought and the
law and the facts on which the moving party is entitled to the judgment
ix. Rule 50(b): Two situations where court will grant a new trial: (SEE BELOW for new trial)
1. Due to procedural mistakes
2. Insufficiency of the evidence against the great weight of the evidence
c. PA RR v. Chamberlain brakeman employed by RR killed when he fell or was thrown from car while
riding on a string of cars. Testimony for C said he saw from acute angle decedent on car, looked away &
heard loud crash which was common and then did not see him on car vs. testimony of 3 employees
that said no collision occurred. However, court concluded that this witness was not credible.
i. Issue at hand: whether the 9-car string struck the 2-car string. There was plenty of evidence based
on witness testimony that it did, based on an inference
1. X (evidence) = Ps string at 8-10 mph; 9-car moving faster than 8-10 mph; Ps string then
slows down to 3 mph, while 9-car speeds up; Loud crash; 2-car string and 9-car string
together; Witness found body 900 feet away from him
2. Premise: When a 9-car string is going downhill behind a 2-car string, it is likely that the
9-car will catch up with the 2-car
3. Y = 9-car hit 2-car
ii. Court granted directed verdict against decedent b/c it waived credibility of witnesses (claimed
because there were equal inferences: said he might not have been paying attn or the crash could
have come from somewhere else)
iii. Problem of court judging credibility of witnesses: determination that it should be made by jury
allows for legitimacy b/c decided by a cross-section of the community (jury). Should allow the
jury to determine credibility by way of rational inference on testimony.

21

Special verdict: A specific fiding of fact as opposed to a general verdict, which just grants victory to one side. Rule
49(a): allows a court at its discretion to order a special verdict in the form of a special written finding on each issue of
fact.
- Interrogatories: Instead of special verdict, may require general verdict supported by interrogatories with specific finding
of fact
REMEDIES IN THE FORM OF INJUNCTIONS RULE 65
Rule 65 Injunctions
I.
Remedies = the types of relief that the court awards to successful litigants
II.
65(a): Preliminary injunctions
a. Specific relief given to P: a form of injunction/court order telling D to stop doing something
i. Mandatory injunction: you must do something
1. Specific performance in a contracts case: D must perform the contract that he agreed to
ii. Prohibitory injunction: you cannot do something
b. Courts prefer prohibitory injunctions: it is easy for the court to figure out if it is obeyed (because someone
cannot do something), as opposed to ordering someone to actually do sth (making sure they have carried
it out)
III.
65(b): Permits temporary restraining orders on a verified complaint showing that the petitioner will suffer
immediate and irreparable injury, loss or damage if the restraining order is not granted.

NEW TRIAL
I. Two avenues for getting a new trial:
a. Judicial error of law (i.e. lawyer made improper closing argument; jurors did not decide verdict based on
evidence/jury misconduct; judge improperly instructed the jury)
b. If jurys determination is against the great (not greater) weight of the evidence the judge must order a
new trial if he is of the opinion that the verdict is against the clear weight of the evidence, or is based on
evidence which is false, or will result in a miscarriage of justice, even though there may be substantial
evidence which would prevent the direction of a verdict
i. Lind v. Schenley Industries (604): jury decided in favor of P (thought P carried the burden), but
judge thought great weight of evidence was for D
ii. Great weight: what is the standard?
1. Presumably means judge can make a judgment based on close evidence, where he
becomes like a 13th juror. However, the decision is for the jury so if the jury strongly
disagrees with the weight of the evidence, then new trial
iii. The judge must NOT substitute his own judgment for that of the jury on matters of credibility of
testimony and weight of evidence, unless the verdict is so obviously against the general trend of
the evidence that the court can clearly see the jury mis-acted. It is NOT enough that the judge
merely disagrees with the verdict.
iv. Versus DV/JNOV: both result from verdicts lacking evidentiary support, but JNOV results not in
a new trial but in immediate judgment for the loser of the verdict. A new trial just starts the
process over again
1. JNOV: P does not have enough evidence as a matter of law the judgment of the judge
2.

Resolution Without Trial Involuntary Dismissals, Voluntary Dismissals, & Summary Judgment
I.

Rule 55: Default and Default Judgments designed to make D take action usually occurs when D does
not respond to litigative cues
I. Distinction between default and default judgment
i. Default (55(a)) Rule: A default can be brought against someone who is required to answer, but
who has failed to plead or otherwise defend (and that fact is made to appear by affidavit or
otherwise), from whom affirmative relief is sought. The failure to do something required by law,
or to appear at a required time in legal proceedings.

22

a. Hypo: D is served and files answer that contains counterclaim. P does nothing
P has defaulted in regard to the counterclaim because an answer is required to a
counterclaim. P files answer and counterclaim; D answers but does not respond
to counterclaim. This goes against 55(a), since the counterclaim seeks affirmative
relief.
b. Hypo: D is served and responds with a preanswer motion. D loses and thereafter
does nothing. He has 10 days to answer. Thus, D has defaulted b/c he is required
to file an answer within 10 days of the pre-answer motion and the complaint is
still there seeking affirmative relief from him. D can file an answer afterwards,
but it will have no effect.
c. Hypo: D files answer and P does nothing. P has NOT defaulted because no
affirmative relief sought against P
d. Hypo: D personally served but does not answer within 30 days. Default
judgment? YES b/c affirm that relief was sought from him
2. Default is entered by the clerk after P has sent a request to the court for it to be entered,
along with an affidavit showing that D has been served.
II. 55(b): Default judgment: two ways of getting it
i. 55(b)(1): If P is seeking a sum certain (an exact amt of $$) then clerk will enter default judgment
ii. 55(b)(2): If you dont have sum certain (i.e. in a personal injury case) default still gets entered,
but only the court can give judgment now. For this need to file an affidavit explaining i.e. what
your expenses were and why they were reasonable. Clerk determines what a reasonable amount
would be, and sends a notary to D that soon there will be a hearing on what the judgment amount
should be. D can show up to contest the amount, but if he does not then default judgment is
entered.
III. 55(c): What is the distinction between setting aside a default as opposed to a default judgment?
i. Court may set aside entry of default for good cause (you have to make this motion within a
reasonable time i.e. one year). Once the judgment is entered, it can only be set aside under the
stringent standard of 60(b)
1. A time gap between entry of default and default judgment: a party needs time to gather
the evidence (affidavits, etc.) that establishes that i.e. there was negligence based on
speed in an auto accident. Or, you need time to ascertain the amount of damages in a
personal injury case.
ii. 60(b): setting aside entry of default judgment Mistakes Inadvertence, Excusable Neglect,
Newly Discovered Evidence; Fraud etc. the reasons why the court may relieve a party of final
judgment
iii. Someone can start an entirely new lawsuit just to set aside the default judgment
iv. Peralta v. Heights Medical Center (467): chronology of the default, entry of the judgment, and
action to set aside the default
1. After default judgment entered against D Peralta, P sold Peraltas property to someone
unrelated to the lawsuit
2. Procedure: Once the judgment is entered, the plaintiff can get an abstract of judgment
(a piece of paper provided by court clerk, stating you have a judgment against D and the
amount); a writ of execution/attachment (a command to the sherriff of the county that
you are authorized to seize any property of D that P IDs); can have the sheriff execute
the writ (i.e. sell the property).
3. After the property was sold, Peralta filed a bill of review, but the court refused to set
aside the judgment b/c Peralta did not have a defense on the merits
4. Supreme Court reversed: Peraltas due process rights were violated because he had not
gotten sufficient notice (cant take sth from someone by judicial means w/o giving them
notice)
a. Courts prefer to see parties resolve cases on the merits so they will set aside
defaults when given a plausible reason for failing to respond to summons.
b. Thus, even if Peralta was served but with an invalid summons, he should still win
because that still does not count as sufficient notice. Notice fundamental to the
right to defend yourself properly.

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II.

III.

Rule 41(b): Failure to Prosecute: Involuntary Dismissal

I. Invol dismissal can be ordered by the court, on motion for:
i. Ps failure to prosecute
ii. Disobedience (failure to obey court orders i.e. failure to) serve complaint; show up at
deposition; attend pre-trial conference.
iii. Any of the reasons listed as defenses in Rule 12(b) (the pre-answer motions)
II. Normally an involuntary dismissal is with prejudice, and has the effect of adjudication on the merits,
unless dismissing court specifies otherwise 41(b). Exceptions:
i. Lack of jurisdiction (of both parties and subject matter)
ii. Improper venue
iii. Failure to join an indispensable party under Rule 19
III. Courts are thus reluctant to dismiss cases when the lawyer has erred because of the large burden it
presents to a party
i. P in this case can sue for malpractice, but has to prove:
1. that P would have won
2. That it was dismissed b/c of attys negligence
3. P could have collected the judgment
IV. Generally speaking, dismissals are adjudications on the merits, except for jurisdiction & subject matter
(dont reach the merits of the case, so its not conclusionary, & can be refilled later)
V. What constitutes enough foot dragging before the court will dismiss?
Rule 41(a)(1): Voluntary Dismissal adjudication on the merits (there is no claim)
I. P in federal court may voluntarily dismiss his complaint without prejudice anytime before D serves an
answer or moves for SJ. P may do this w/o leave of court.
i. Without prejudice P can bring the suit again. However, if P has already once before
dismissed a claim, his second dismissal operates as an adjudication on the merits P is barred
from bringing the dismissal a 3rd time by claim preclusion, just as if the claim had been fully
litigated and decided
II. Once an answer or summary judgment is filed and served, VD cant be granted w/o permission of both
parties (generally)

SUMMARY JUDGMENT Rule 56 (esp. c).

Summary judgment means the end of a case. The idea is to get rid of cases without merit, where there is no point of taking
them to trial.
I. Difference between SJ and 12(b)(6) motion for failure to state a claim
a. A 12(b)(6) motion is used when all the elements of a claim are not there or cannot be inferred goes to
the face of the claim, the actual merits of the case and likelihood of the evidence. If evidence is not on the
face of the complaint, then must go through discovery to Summary Judgment (this is b/c of generous
evidentiary standards during the pleading stage).
i. 12(b)(6), unlike the other 12(b) methods which just challenge procedural defects (i.e. lack of
jurisdiction), challenges the merits of Ps case before trial.
ii. The only question posed by the motion is whether the complaint itself states a legally sufficient
claim. It does not consider any evidence or other pleadings. Rather, it assumes the facts alleged
are true, and asks only if P has established a cause of action entitling him to some form of relief
from the court
iii. In considering the motion, the pleadings must be liberally construed in favor of the complaint
(however, Bell Atlantic challenges this)
iv. Thus, as long as the court can infer that P is alleging the elements of a proper claim, P need not
allege or prove any facts
b. SJ is used when, in a case where the face of a claim is totally proper, there is still plenty of evidence at the
outset that does not support the face of the claim
i. When P has met the minimal burden to plead the elements of a compensable claim, but cannot
prove one or more of those elements, then SJ applies

24

ii. 56(c): SJ is appropriate only if the evidence before the court demonstrates that there are no
disputed issues of material fact to be tried and that the moving party is entitled to judgment on the
undisputed facts
iii. Summary judgment is not meant to try the facts, but only to determine whether there are
genuinely contested issues of material fact
iv. If the non-moving party does not produce countervailing evidence, he has not demonstrated that
there is a factual issue for the jury to try
II. SJ vs. trial: SJ decision made by judge w/o witnesses, done completely on paper, whereas trial has live witness
testimony and jury decision. Also, judge can decide SJ b/c they are not material facts that have to be decided by a
jury only matters of law that require judicial interpretation
III. Rule 56(c): The key provision. Allows motions to be granted when record shows no genuine issue (something
in controversy) regarding a material fact (element of claim/factual proposition), and that party is entitled to
judgment as a matter of law. (Means judgment reaches both legal & factual merits of the case).
a. Gloss: Celotex Party moving for SF has an initial burden, which if they cannot carry then they will
lose. A party seeking SJ always bears the initial responsibility of informing the court of the basis for its
motion. This is for purposes of efficiency, so that a case does not proceed to trial if there is no evidence
that it should.
b. No genuine issue: No disagreement between the parties about any
c. Material fact: Any fact that really mattered typically refers to an element of a claim or defense, but
must mean the factual proposition what the party is seeking to prove in order to establish a claim
d. In SJ cases: need to figure out 1) the factual proposition; 2) Which route of initial burden is moving party
trying to use (affirmative evidence/insufficiency of evidence)
e. 56(e): Affidavits Can be substituted with depositions, answers to interrogatories, or further affidavits
i. Genuine issue
1. Distinction between moving and non-moving party: typically D moves for SJ. This
means motion for SJ against the party with the burden of proof at trial (P), and then D has
initial burden of proof as to why the motion is made
a. Celotex gloss: a party seeking SJ always bears the initial responsibility of
informing the court of its basis for its motion -> efficiency so that a case does
not proceed to trial if there is no evidence that it should
2. Just ONE element has to be knocked out to move for SJ.
3. Moving party has two options: (more Gloss)
a. Present affirmative evidence to negate the non-moving partys material factual
proposition of the claim, OR
b. Demonstrate that the non-moving party has no evidence (or has insufficient
evidence) on a material factual proposition of the nonmoving partys claim
i. Celotex: D used #2: P had no witnesses or evidence that the deceased
was exposed to Celotex. Thus, they had no evidence on the factual
proposition that in 1980, Ps exposure to Celotex caused his death
ii. Generalization: You can move for SJ if you can show, in responses to
discovery, that P admits he has no evidence to one or more factual
propositions in the case.
ii. Material fact
1. Typically refers to an element of a claim or defense. But primarily means the factual
proposition what the party is seeking to prove in order to establish a claim. An element
of the claim converted into a factual proposition applicable to the specific facts of the
case
a. Ins. Co carried its initial burden by producing affidavits from two eyewitnesses
that Bias did use cocaine. Court assumed their credibility despite that they might
have been biased.
2. Court engaged in rule creation through judicial gloss: they created a test about the
sufficiency of evidence where there is specific testimony and inference from
iii. Moving party vs. non-moving party: when attempts to satisfy their respective burdens to show
a GENUINE ISSUE may fail

25

1. Burden of moving party when non-moving party has burden of proof at trial The
moving partys attempt to satisfy the initial burden may be insufficient (and the burden
never shifts to the party with the burden of proof at trial) because:
a. The credibility of the moving partys affiants is weak
i. Credibility: can be affected if: the witness is not in a position to know
something; is biased(however, bias can often not be sufficient; does not
have the capacity to recollect; or it is improbable that he has knowledge
of the issue; bases their statement on hearsay
ii. Hypo where the affiant does not have knowledge of the issue: Ds lawyer
says in an affidavit that P answered an interrogatory saying he had no
knowledge of a material fact though they are trying to negate Ps
factual proposition, there are many except whens. Trying to make an
inference that since P did not know about this, then he must not of known
about any related circumstances see pg. 13 of test answer from 2002.
iii. If the non-moving party presents an affidavit challenging the moving
partys affidavit, challenging the first affidavits witnesss credibility: this
is a jury issue and thus there will be no SJ.
iv. Credibility is a JURY isuse
v. If D files an affidavit seeking to negate the non-moving partys factual
proposition, using hearsay, that is not admissible
b. The state of mind of a central player on a central issue
i. This is not sufficient because it is a jury issue; it cannot be decided on an
SJ motion
ii. This frequently arises in cases alleging discrimination or fraud
iii. I.e. if P sues D on a fraud claim, and D introduces an affidavit saying he
did not know something that ended up constituting the fraud, it will not
carry the initial burden because Ds state of mind is precisely the issue in
question
c. Credibility of a central player on a non-state of mind issue
i. If the affidavit provides direct evidence (i.e. D files an affidavit saying he
did not run the light in an auto accident case), it might still be insufficient
because it is a major issue in the case that needs to be decided by a jury
ii. Hypo 2: if D presents an affidavit by a major player negating evidence
by the nonmoving party, even if there is no state of mind being addressed
and there is no significant issue of credibility it may still be insufficient
because if it is a central issue it may be for the jury
d. The moving party is relying on weak circumstantial evidence
i. To figure out if circumstantial evidence is weak, figure out the
generalization that led to Y, and determine if there are a lot of except
whens (make an inference chain).
ii. Pay attention to whether the factual proposition has a temporal
dimension
1. Hypo: Generlization: People tell others to buy after they have
decided to buy, esp when it is published in a respectable
publication by the WSJ esp when they like their secretary.
a. Temporal problem: He told his secretary two months
before buyng A lapse in time increases the likelihood
of except whens, b/c he might have changed his mind in
those two months.
iii. Rules 11 (evidentiary support), 8(a)(2) (omitted allegation), 26(b)(1)
(relevance to the claim) ALL raise issues as to the adequacy of the claim
e. The moving partys affidavits violate Rule 56(e) form of affidavits
i. Categories
1. Supporting and opposing affidavits shall be made on personal
knowledge

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2. Shall set forth facts that are admissible in evidence

a. Hearsay is not admissible (i.e. out-of-court statements)
3. Shall show affirmatively (i.e.: I am in a position to know that of
which I speak) that the affiant is competent to testify
a. If the affidavit reveals that there are credibility problems
in the witness, then it will be insufficient to carry the
moving partys burden
2. Where non-moving party can fail to raise a genuine issue as to material fact
a. Bias v. Advantage International Inc. (521) an issue as to material fact:
Once the moving party satisfies its initial burden, the burden shifts to the
nonmoving party to show that there is in fact a genuine issue for the jury to
decide.
i. The nonmoving party needs to respond to attacks on the element that the
moving party brought into question (i.e. in a breach of contract case, if D
moves for SJ saying there was no contract then P has to show that there
was a contract)
ii. The response to Ds motion does NOT have to show that P can carry the
burden of proof. It is just one element. Policy argument
b. Responding party presents an affidavit(s) that fails to comply with 56(e)
i. See above for 56(e) categories
ii. Hearsay is inadmissible
iii. Potential bias
iv. No personal knowledge: if the affidavit does not present enough details
to show that the affiant was in a position to see/hear/smell/touch what he
says he knows
v. Competence to testify: are they in a position to see what they say they
saw?
vi. The more details, the more credible
c. The evidence presented by the responding partys affidavit is only a
SCINTILLA of evidence and hence is too weak to create a genuine issue
i. There is more than a scintilla if no reasonable person could disagree that
it shows what it purports to show
ii. If you can create an inference chain with a lot of except whens, then
there is probably a scintilla
iii. Hypo: in a fraud case, P introduces an affidavit saying that D was
strongly considering selling the stock that was bad. Can infer that he is
selling it because he knows it is bad; but there are many exceptions, i.e.
that he doesnt like the company anymore, etc.
d. The credibility of the responding partys affiants is too weak to create a
genuine issue
i. Hypo A: if X says I saw the car going 65 mph it is hard for someone to
be in a position to know this, especially when inferences
ii. Hypo B: if an affiant was paid to produce the affidavit, she is biased and
thus is not credible
e. The evidence presented by the responding party is subject to equal
inferences
i. Ex: Houchens: you could just as easily infer that her husband had died in
TH as you could that he had not
ii. If the party with burden of proof has provided all evidence and there are
equal inferences to be drawn from that evidence, with one not more than
50% likely than the other, then that party loses
f. Revocation of an admission: The responding party relies on an affidavit(s) of
an individual who is attempted to retract that individuals prior contrary
admission
i. I.e.: an affiant says he misheard the question the first time

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IV.

V.

VI.

VII.
VIII.

ii. In this situation, courts usually say that the evidence initially presented is
insufficient. But some courts say it is sufficient, in light of ordinary
experience there is a policy argument either way.
Summary judgment and the normative standard
I. Normative elements include both a history aspect (i.e. did D drive 35 mph) and a behavioral/should have
aspect (i.e. was it reasonable for D to drive 35 mph?) second is the normative element
II. The question is not what did D do? but ought D have done it?
III. With these cases there should not be SJ there is a different normative standard of how reasonable
people behave under stressful or difficult circumstances
IV. Allowing SJ in these cases allows judges to cast their personal value judgments on Ds behavior, where
the question should be decided by a jury, a cross-section of the community who can more broadly
represent than just 1 judge
When the party with the burden of trial (i.e. P) moves for SJ
I. P has to put forth evidence to satisfy all elements of the claim
i. I.e. a bank approves a loan then says there was no contract, putting up an affirmative defense that
they are not obligated to meet the contract because the loan officer committed fraud in making the
loan. P ignores their defense and move for SJ, using their answers to interrogatories as evidence.
If Ds do not then respond court grants SJ
II. D moves for SJ when they have the burden of proof at trial
Whole vs. Partial SJ
I. If P has two causes of action (i.e. breach of contract and fraud), and SJ is granted against P then P did not
have enough evidence on both the breach of contract and the fraud causes of action Whole SJ
II. However, if moving party wants to knock out one cause of action, they can make an SJ motion on just
that one cause of action. Case would still be alive on the other cause of action if SJ granted. Can be no
immediate appeal though because there has not yet been a final judgment.
Rule 56(e) Individuals can only provide personal knowledge when they are competent to testify. Adverse
party may not rely on mere allegations or denials but set forth specific facts showing a genuine issue at trial.
I. See pg 23 for categories.
Rule 56(f) When affidavits are unavailable to the non-moving party, the court may refuse the motion for SJ
or order a continuance to permit affidavits to be obtained, depositions to be taken, or discovery to be had

Respect for Judgments: The Effect of the Judgment

Claim Preclusion Use it or lose it (res judicata)
I. A valid, final judgment rendered on the merits that constitutes an absolute bar to a subsequent action between the
same parties (and those in privity) upon the same claim or demand. Once a party has had a full and fair
opportunity to litigate a claim, there is no justification for further costs and delay in the legal system.
a. Claim: encompasses all legal theories arising out of the transaction on which the lawsuit is bottomed
i. This test is used in both state AND federal courts
b. Standard preclusion law: you cannot sue once for injury to property and once for injury to yourself when
they arise out of the same transaction
i. Frier v. City of Vandalia: Ds trucks were towed. He sued first against the city for replevin
(unlawful taking of Ps property) and then sued again for violation of 42 U.S.C. 1983, a
constitutional claim. Majority: The claims arose out of the same transaction (seizure of the car)
and thus there was preclusion. He also had no valid constitutional claim anyways, since he had
notice that the cars would be taken.
ii. Martino v. McDs: In first case, judge decided that Martino breached the contract with McDs. In
the second suit by Martinos, P said that the contract violated a statute so it did not exist. Holding:
claim preclusion applied because the first judgment rested on the fact that there was a contract,
and P cannot come back with a second suit saying the contract did not exist Would result in
inconsistent judgments, when D had relied on the judgment the first time
II. Standards for evaluating whether there is claim preclusion:
a. Were the parties in privity? If yes, then claim precluded
b. Did the claims arise out of the same trasaction? (restatement gloss)
c. Was the first claim decided on the merits?
III. Can be raised as an affirmative defense in Rule 8(c)

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IV. Goals: efficiency (so that others can have their day in court, and there is no need to incur further costs), finality
(so that Ds dont have to worry about getting sued again), avoiding inconsistent judgments (so parties can rely
on court decisions in planning their future conduct the principle of res judicata)
a. Negative consequences on P
i. P may not be ready to bring all claims at the time of the first suit; may need more time to get
more evidence
ii. Rule 11: if you have no evidentiary support, you cant file a claim under 11(b)(3) sometimes
that rule prevents you from pleading another legal theory that is attached to the legal theory you
already have
iii. 26(b)(1): Want to be able to do some discovery first I.e. if you want to prove a contract was
made, you need to ask questions during discovery that were relevant to that
V. 28 U.S.C. 1738: Full Faith and Credit Clause State and federal courts have to respect each others
judgments. Thus claim preclusion applies even when it is a state vs. federal case. ALSO APPLIES TO ISSUE
PRECLUSION.
a. I.e. Gargallo (684): Can a prior state court judgment have preclusive effect in a federal court?
VI. Once you have already litigated a claim (all legal theories arising out of the transaction on which the lawsuit is
bottomed), then you are precluded from bringing another suit on the same transaction
a. 18(a): you can join two unrelated claims in a single action i.e. P can sue D both for alleged battery and
alleged breach of contract
b. If several claims arise out of the same transaction, you must bring them all at once. If the claim was
available to you in the first suit, but you did not use it, then you are precluded
VII. A suit can be claim precluded when:
a. Both suits are between the same parties
b. The prior suit was adjudicated on the merits
i. If a suit was involuntarily dismissed under Rule 41(b) for failure to prosecute, the dismissal is
with prejudice and therefore on the merits of the case.
ii. HOWEVER, if the first suit was involuntarily dismissed and P can get that judgment set aside
under Rule 60(b), then the second claim might not be claim precluded.
c. The prior suit arose out of the same transaction or series of transactions as the current suit
VIII. What does it mean to be the same transaction?
a. Restatement Section 24 gloss: related in:
i. Time P could argue the causes of action arose from events on the same day; D could argue
ii. Space this means physical space, i.e. both occurred in the same office or parking lot
1. Frier: the cars were in the same place at the same time
iii. Origin From what origin did both suits arise?
1. I.e. Exam: did a personal injury suit and racial discrimination suit both arise from Ds
failure to employ P on the basis of race? Or are they different origins: the personal injury
suit arose from Ps negligent driving, and the other arose out of corporate decision not to
hire P?
iv. Whether they form a convenient trial unit: to what extent are the witnesses and evidence the
same to both suits? Will it be efficient?
v. Partys expectations (does each party think the suit is over after verdict, or not?)
1. In Frier, did P think in the 1st lawsuit that he would have to raise a constitutional claim
about due process to get his car back?
vi. Motivation (is it the same for P for each suit?)
1. Frier: First claim he wanted his car back; the second time he wanted money. Are these the
same motivations?
IX. Claim preclusion and compulsory counterclaims
a. Rule 13(a): Ds must bring certain counterclaims at the time of pleading, or lose them
i. Bars a party from asserting a later claim that they should have brought in a counterclaim during
the pleading stage, if it arises out of the same transaction
ii. Under Rule 7, where an answer is required, filing an answer triggers an obligation to file
counterclaims under 13(a)
b. Hypo: Martino: cannot bring an action through a compulsory counterclaim on a contract you say was
obtained by fraud, w hen the first court said the contract was valid.

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i. If there was no fraud, depends on the extent to which you had no reason to know of the fraud
ii. Exceptions:
1. Hypo where there might be no claim preclusion: P sues for breach of contract on
remodeling a hosue. D contractor did not properly install the heating ducts during the
remodel. However, P does not know that contractor defrauded him that the heater was the
wrong kind. If it is only later that he discovers what happens, he can sue even though it
arises out of the same transaction, because D prevented you from realizing the fraud
2. D is sued and is ignorant of defense and counterclaim Hypo: P doctor sues for services
unpaid for. Patient does not realize there was medical malpractice. Even though it was the
same transaction, claim is not precluded b/c D had no way to know as a layperson there
was malpractice
c. Would it result in inconsistent judgment?
i. If yes, then precluded (i.e. Martino second lawsuit)
ii. If no, not precluded
1. Fairness issue: if the action ends in the very first stage, no great burden on the courts to
permit the compulsory counterclaim to be raised at a more convenient time D has his
day in court when and where he sees fit
2. Hypo: if you sue for breach of contract on a different provision than in the first claim,
then it is not precluded
X. Privity
a. Each party has his or her on claim. Claim preclusion exists only against the same parties to the first and
second suit. However, if your relationship is so close as to represent the same interest, you will be
found in privity and will be precluded. However spouses can sue separately.
i. Husband and wife can sue separately not in privity
ii. If you have never had your day in court with respect to a claim, you cant be claim precluded (but
can be issue precluded)
b. Searle Bros. v. Searle: wife sued husband for property; wins the house. Sons then brought a second
lawsuit against their mother, claiming that the partnership of husband and sons was not a party
i. Court says not precluded bc of privity: the sons did not litigate in the first suite UT law wont
allow partnerships to appear in divorce court, where the first suit was brought
c. Where privity does apply: when someone is sued, or appears as a representative of, other people/entities
i. Executor of an estate
ii. Trustee who acts on behalf of a beneficiary
iii. You are sued for something you did on behalf of another party agent no privity
1. Distinction between agent of a party (no privity) and representative of a party (privity)
iv. A judgment against an agent is not binding on an employer (i.e. you hit a pedestsrian while
driving during course of employement for employer) you are an agent. If they dont sue the
other party and the agent loses the lawsuit, you are not bound.
v. A representative of a company is not in privity with the company - you must sue both the rep and
the company
XI. The claim must have been subject to a final judgment and JUDGMENT ON THE MERITS
a. Rule 12(b)(6): A procedural motion, where a claim can be dismissed based on failure to state an element
in the complaint. However, depending on what happened in trial court, there can be a final judgment, i.e.
hitchhiker hypo (there was no claim because there was no legal duty to pick him up) Look at why a
12(b)(6) motion was sustained: was leave to amend given (which might say that there was a claim), or
was the judgment final?
b. Rule 41(a): Voluntary dismissals by P are not considered to be on the merits, or with prejudice, unless the
court specifies
c. Rule 41(b): ALL involuntary dismissals are considered judgments on the merits, because P has had a
chance to participate but have apparently waived it by failure to prosecute, etc, so it is treated as though
there was a judgment against P. However, exceptions:
i. Lack of jurisdiction
ii. Improper venue

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iii. Failure to join party under Rule 19 (this rule provides for compulsory joinder: 19(a): situations in
which additional parties must be joined; 19(b): situations in which, if joinder is not possible for
jurisdictional reasons, the entire action must be dropped
iv. Policy: to bar subsequent actions only in situations in which D must incur the inconvenience of
preparing to meet the merits, because no initial bar to courts reaching them
v. When an involuntary dismissal bars future action on the claim
1. Dismissal for failure to state a claim (12(b)(6)
a. This is a procedural motion that does not get to the merits of the case.
b. However, these dismissals are considered on the merits because no matter how
true the facts are, still no legal claim (except when leave to amend)
c. 12(b)(6) motion can go either way until you figure out what happens in trial court
why did they sustain 12(b)(6): to give leave to amend, or is it a final
judgment? Federal courts: P has the right to amend under Rule 15. If her
amendment is not satisfactory then she has no right to relief and her dismissal
precludes another lawsuit
2. Dismissal for failure to prosecute, failure to comply with discovery, etc. when it is
treated as a judgment on the merits
a. If P files suit but does not pursue the case, and her suit is dismissed, she cannot
bring it again because she already had a full opportunity to litigate the merits
the first time. By failing to prosecute, or refusing to participate in discovery,
they have waived their chance treat this as a judgment against P.
b. Gargallo v. Merrill Lynch: counterclaim dismissed b/c G refused to comply with
discovery. Court said failure to prosecute is considered a judgment on the merits
under 41(b).
i. However, he got to file again because the first court had no SMJ over the
securities fraud
ii. Conccurrent SMJ: federal and state courts both have jurisdiction when a
federal statute is passed, except when Congress gives the courts
exclusive jurisdiction
d. Rule 60(b): A prior judgment which is on appeal is considered a final judgment
ISSUE PRECLUSION (Collateral estoppel)
I.
The judgment in the first case is conclusive as to the issues actually litigated in the action. A party who seeks
to relitigate one of the issues disposed of in the first trial cannot.
II.
Comes into issue when a claim is not barred, but some issue involved in that claim has been previously
litigated
a. I.e. auto accident case: it is claim preclusion if P sues D for injuries arising form accident, then sues for
damage to her car the second suit is precluded. However, it is issue preclusion if P sues D once and in
that suit it is determined by law that she was not wearing her seatbelt; but if she sues him for a second
accident, she cannot relitigate the issue that she was not wearing her seatbelt illegally.
b. If conditions for claim preclusion are met, P will find all her contentions barred from relitigation EVEN
THOUGH WHICH SHE DID NOT RAISE THE FIRST TIME. By contrast, issue preclusion bars from
relitigation ONLY THOSE ISSUES ACTUALLY LITIGATED AND DETERMINED.
c. Who can relitigate: anyone who was not a party to the first action, or was not in privity with someone
who was a party to the first action. Everyone else is estopped.
III.
Four aspects to black letter law:
e. The same issue
i. Careful: i.e. the issue of citizenship can come up three different ways: instate tuition, diversity
jurisdiction; voting
ii. If the issue is manufacture of an item, manufacture of a chair does not = same issue as
manufacture of a table even if they were made by the ssame person, transported together, etc.
iii. Breach of contract issues: failure to provide contracted bonus; failure to provide insurance
iv. Negligence cannot be litigated twice: Ex: if the first action involves As negligence to Bs car, B
is estopped in the second action from relitigating As negligence to Bs person for injuries arising
from the same car accident the two kinds of negligence are a single issue

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v. Suit on fraudulence of loan documents: if court finds that they are fraudulent, then P is barred
from relitigating the fraudulence of the statements in question
f. Actually litigated and determined
i. Why this requirement: Burden of proof in these casues is only by a preponderance of the
evidence dont want to preclude someone if its not clear that the jury actually determined
whether there was a preponderance of the evidence. Otherwise, it is unfair to preclude someone if
the jury has not at least reached that burden of proof threshold
ii. IL Central Gulf RR v. Parks: P injured when car collided with D. First claim wife gets $30k for
personal injuries. Second claim husband sues for personal injuries.
1. Issue precluded: Jessie (H) wants to preclude the RR on the issue of whether the RR was
negligent. However, in the first judgment, the court already decided that RR was
negligence and that that negligence caused Berthas injuries. Since the court found for
Bertha and the only way they could have done that was if they had determined negligence
and that it had caused the accident.
2. Common problem with issue preclusion with jury trials with general verdict only is no
reasoning made known
a. How to avoid this problem: Rule 52( findings of fact/conclusions of law) or
Special verdict (rule 49)a)(whereas Judges (or special verdict) enunciate reasons
for verdict
b. Dont want to preclude someone if its not clear that the jury actually determined
whether there was a preponderance of the evidence
iii. When default judgment (60(b))has actually been litigated and determined
1. Majority of cases: courts say that default judgments have not been litigated, because there
was many reasons D would have defaulted (i.e. sued in an inconvenient forum; the first
suit is not for much damages; he had an affirmative defense to one of two possible
claims, but both were so small he did not want to bother with them; or there were limited
procedural opportunities)
a. Exception: p. 691: Ordinarily a default judgment could not serve as a basis for
issue preclusion, except that in this case the judgment decided in this case was
not an ordinary default judgment D actually did participate in the litigation
g. Essential to the judgment
i. Hypo: A sues B and loses. Jury finds that both parties were negligent, and recovery is denied to A
on grounds that A was contributorily negligent. B then sues A, who claims that Bs contributory
negligence was decided in the first action. Held: that no issue preclusion, b./c the court in the first
action based its verdict on the fact that A was contributorily negligent, its finding that Bs
contributory negligent has no effect in the second action because it was not necessary to the
verdict in the first action.
ii. Parks: Alternative independent grounds: the case was decided on two grounds, each of which
on its own would have resulted in a judgment in this case, NO ISSUE PRECLUSION unless
they appeal and its affirmed on only one ground, in which case only that ground is precluded
1. Hypo: a court of appeal affirms on both grounds of negligence and acting on bad fait, but
Supreme Court affirms only on ground of negligence. Suing D again on grounds of
negligence will be precluded.
2. Hypo: you represent D in a car accident. He loses on grounds of negligence on two
counts: negligence that he was speeding, and negligence of drunk driving. Jury found
both those in a special verdict. Client wants to appeal, but you know another party is
about to file suit against your client advise your client not to appeal, because if he
does and if the case is affirmed on one of those two grounds of negligence, there will be
preclusion in the second lawsuit arising from the same accident.
a. If you rep D, you dont want the special verdict
b. If you rep P, want the special verdict
iii. Once a matter goes up on appeal where there are alternative independent grounds, the only
ground that is essential to the judgment is that that is affirmed by the court. If the court of
appeal were to have affirmed both grounds, then both could be deemed essential to the
judgment

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1. If P loses the first time on alternative independent grounds and appeals and loses, the
judgment could be affirmed and then there would be issue preclusion
iv. Special verdict:
v. See hypos in 11/14/07 notes
vi. Issue preclusion and jurisdiction
1. Dismissed solely on basis of SMJ: no preclusive effect on issue of personal jurisdiction
because the court never reaches that issue
2. Dismissed solely on grounds of no personal jurisdiction: the prior decision will have a
preclusive effect federal court has no greater reach on personal jurisdiction than a state
court
a. if CA fed court wants to reach out of state D in NY: if state court cant reach the
NY defendant, neither can the fed court
3. If Fed court has dismissed on both personal and SMJ: any preclusive effect? Neither of
these two issues have been affirmed on appeal, so no preclusive effect. No appeal, so no
preclusiveness.
4. Dismissed on both grounds, and court of appeals affirms on subject matter jurisdiction:
any preclusive effect in CA? No. SMJ in CA, when CA courts are authoritzed to hear
that kind of matter, does not depend on SMJ criteria for the federal court. CA courts have
concurrent jurisdiction over federal and state claims.
a. Whether a court has SMJ has smj is a federal matter. Nothing to do with state
rules of what courts have SMJ. For SMJ, state courts generally have unlimited
jurisdiction of federal and state claims. Nothing is precluded.
b. 4b. If appellate court affirms both grounds for dismissal: what is the preclusive
effect? Personal jurisdiction
h. Issue was litigated between the same parties or privity
i. Claim preclusion does not apply when not a party to the prior suit
ii. Defensive collateral estoppel: D2 takes advantage of a judgment in favor of D1
1. DCe to be applied against P
XII. Defensive collateral estoppel: D2 takes advantage of a judgment in favor of D1
a. This preclusion is raised following a motion for summary judgment
b. D.C.E. to be applied against P
c. P had its day in court against D1, and P lost. When P goes to sue D2, P is going to be issue precluded
provided that the issue is the same in both lawsuits; it was actually litigated in the prior case; and it was
essential to the judgment
i. Ex: P sues D1 for trespass. P says that he owns the land and D1 was trespassing. D1 wins because
the court finds that P does not own the land. Now, D2 trespasses on the land, and P sues D2. D2
says that it was already determined that P did not own the land, so D2 wants to take advantage of
D1s victory.
ii. Ex2: P sues D1 for patent infringement. D1 wins on the ground that P does not have a patent.
Now the owner of the patent sues D2 for patent infringement who claims defensive preclusion
since it was already determined that P did not own the patent.
iii. P has had its day in court, and therefore cant complain that it has not had a full and fair
opportunity to put forth its claim. Therefore, it will be precluded.
iv. Auto accident case: P sues D1, the driver of the car that collides with P. D1 is an employee of X
corporation. P loses; the court finds that D1 was not negligent. Now P sues X corporation but
bases its suit against X corporation on the ground that its employee, D1, was negligent. It has
already been decided that the employee was not negligent, defensive preclusion applies
d. The theory is P is precluded because he already had his day in court
e. Based on efficiency: dont want to litigate the same thing twice when it has already been fully heard.
Furthermore, it gives P an incentive to join all possible defendants, because if P wins the first lawsuit
against D1, that lawsuit will not be binding on D2 because D2 was not a party to the first lawsuit, and
every individual or entity is entitled to his own day in court.
f. Also, P chose the place and time within which to bring the lawsuit, so he cannot complain that the forum
was wrong. He had the opportunity to use available choices, and now that he has chosen he is stuck.
XIII. Offensive collateral estoppel (Parklane): P2 takes advantage of a judgment against D obtained by P1.

33

a. Raised following a motion for PARTIAL summary judgment

b. Parklane: 2 lawuits: one SEC against Parklane, and one with shareholders against Parklane. SEC won;
then shareholders wanted to take advantage of the judgement against Parkland in the SEC action.
i. Court lays out criteria under which O.C.E. will be applied (gloss), which it will consider in its
discretion. Not all the criteria have to be met; court decides whether it is fair to enforce preclusion
or not (i.e. in Fohman v. Davis: whether it is fair or not to allow an amendment)
1. Full incentive to litigate
a. Serious dollar consequences
i. Dollar incentive: a company with a $27 million dollar income is sued for
$20 million in the first suit. They dont have a huge incentive to
vigorously fight the lawsuit; but an individual with only $25,000/yr
income has a greater incentive
b. Foreseeability of future litigation if D doesnt defend in this case
i. Sometimes court says that D could not have foreseen that there would
have been another lawsuit, and therefore did not have full incentive to
defend
ii. Hypo: Parklane: the company had full incentive to litigate because it
knew that if it lost before the SEC, there were going to be actions against
it by shareholders
2. Not inconsistent with prior decision
a. If D wins the 1-3rd cases, 5th P may wait until D loses 4th suit, then claim bc 4th
suit would preclude in 5th suit. (Where prior judgments are inconsistent, doctrine
of collateral estoppel wont bar relitigation of matter)
3. Full procedural opportunities in the first suit
a. Was D sued in a venue where he was at a disadvantage?
b. Hypo: Company in NY, but lawsuit in ID Could NY D have been deprived of
opportunity of adequate defense because the forum was too inconvenient?
4. Judicial economy: P could not have joined in suit #1
a. Could the first and second cases have been joined?
b. Hypo: Parkland: class action Ps could not have joined the SEC action
c. Hypo: In a small city, a driver sues for damages for personal injuries. The
accident is really played up in the local media. Driver wins, then passenger wants
to sue. Has the media playup put the passenger sufficiently on notice that he
should have perhaps joined the first suit?
ii. How did the criteria apply in Parklane?
1. Court says Parklane had full incentive in SEC action to litigate this second action: they
dont want to pay the fine (serious consequence), and there was foreseeability of other
lawsuits
a. What made it foreseeable?
2. Not inconsistent with prior suit
3. Full procedural opportunity in first suit? No no jury trial. But Supreme Court says that
new procedural devices will not change the result.
4. Why could first P not have joined SEC P in first suit: a non-governmental entity cannot join a
governmental entity in a lawsuit.
iii. FN 14: 50 RR passengers injured. Ps 1-25 have lost to D, but P wins in suit 26. now another P
wants to sue RR to take advantage of suit 26. No preclusion in those kinds of cases? (see outline)
iv. Parks v. RR assumed that in the first action, the RR did not call a conductor who was an
eyewitness to an accident. Conductor had gone on vacation for 2 months and could not be
reached, but knew a lot about how the accident occurred. Was there a procedural opportunity in
the sense of calling the witness in the first action?
v. Procedural opportunity not limited to things like discovery, depositions, or availability of
witnesses.

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