Statues and (c)

Claim Preclusion

Valid Final Judgment On the Merits

Actually Litigated and determined,
essential to the judgment, valid final
judgment

RJ
IP
Complaint
Pre-answer Motion
Answer
Amendments
26-37
Relevant and Not Privileged

Pleading

Multiplicity

Joinder

Statutes, Rules
Required Joinder of Parties
Permissive Joinder of Parties
Joinder of Claims

Discovery
Class actions

Rule 56 Summary Judgment

Pre-trial adjudication
JMOL
RJMOL
New trial
clearly erroneous

findings of fact

De novo

findings of law

Lifecycle of a
lawsuit
Trial

Civil
Procedure

Standards of review

Exercise of Discretion

PJ

Power

Consent, notice, presence, Long Arm

Contacts

Venue
Transfer

Removal

0.0Civil Procedure.mmap - 12/3/2010 - Mindjet

Prerequisites
Types
(c)ality
Jurisdiction

Choice of Law Problems

Federal courts apply state substantive law
Erie
and use federal procedure
Constitutional Grounding
Original Jurisdiction
Supplemental Jurisdiction
SMJ
Removal

Post Trial/Appeal
Abuse of discretion

Same Claim & Same Parties

1391
1404
FNC
1441
1446
1447

POWER

Art. III, Section 1 creates the

USSC & Empowers the Congress
to create inferior Courts
Art III, Sec. 2 creates outer
limit of the power of the courts
to two sets of nine cases and
controversies.

02 SMJ.mmap - 12/3/2010 - Mindjet

"Citizen" means "state of domicile."

Newman-Green Inc. v.
Alfonzo-Larrain . Domicile means
residence and intent to remain
indefinitely. Choktaw Indians
(1)Citizens of different states
Complete Diversity - Strawbridge v. Curtis
(2)Citizens of a state and citizens or subjects of a foreign state
(3)Citizens of different states and in which citizens or
subjects of a foreign state are add'l parties
Amount in Controversy
Must exceed $75,000
Courts defer to pleading except when it "appear[s] to a legal
certainty that the claim is really for less than the jurisdictional
amount..." St. Paul Mercury Indemnity Co. v. Red Cab Co.
multiple Ps +1D; if one plaintiff reaches the statutory
threshold, then additional plaintiffs may join in that
action under 1367 see Exxon Mobil Corp. v. Allapattah
Servs. Inc.
1P+1D => it's ok to aggregate all
Aggregation:
P's claims to reach the threshold
LPR count as aliens when they are suing other aliens and
as "deemed citizens" of their state of residence when
they are suing citizens of their state.
Citizen of state of incorporation
PPoB may be
(1) Corporations
Citizen of state of
have Dual
Nerve center (corp. HQ)
principle place of
Citizenship
Muscle (state where largest
business
number of employees is
located)
State of greatest income
(2) Legal representatives
are deemed citizen of state
of decedent, infant, or
incompetent
all citizenships of each partner
Partnerships

02.1 SMJ - Original Jurisdiction.mmap - 12/3/2010 - Mindjet

1332(a)

28 U.S.C. 1332 Diversity of

citizenship

Original Jurisdiction

28 U.S.C. 1331 Federal Question "all civil actions

arising under the
Constitution, laws,
or treaties of the
United States."
Complaint must make the
claim under federal law,
See, Louisville & Nashville
Railway v. Mottley
Unless "fed warp" where strong federal interest exists

1332(c)

1367(d) "The period of limitations for any

claim asserted under subsection (a), and
for any other claim in the same action that
is voluntarily dismissed at the same time
as or after the dismissal of the claim
under subsection (a), shall be tolled while
the claim is pending and for a period of 30
days after it is dismissed unless State law
provides for a longer tolling period."

i. Claim raises
novel or complex
state law issue;
ii. Supp.j. claim
substantially
predominates over claim
over which fed. Dist.
Courts have orig. smj;
iii. Fed.dist. court has
dismissed all claims over
which it has orig.smj; or
iv. other compelling
reasons for declining
jurisdiction

1367(a): "The district

courts shall have
supplemental jurisdiction
over all other claims that
are so related to claims in
the action within such
original jurisdiction that
they form part of the same
case or controversy under
Art. III.

2. USSC in Gibbs
Common Nucleus of
Operative Fact--CNOF
same "case or controversy"

ordinarily be
expected to try
them in one
proceeding

Supplemental Jurisdiction
1367

See, Szendry-Ramos

R 14 Kroger
1367(c) - "Courts may
decline to exercise
supplemental jurisdiction
over a claim if:

02.2 SMJ - Supplemental Jurisdiction.mmap - 12/3/2010 - Mindjet

1367(b):original jurisdiction founded

solely on section 1332 the district
courts shall NOT have supplemental
jurisdiction:
::when exercising
supplemental jurisdiction over such
claims would be inconsistent with the
jurisdictional requirements of 1332

P cannot use Supp.Jur. to

sue TPD; if not Orig.Jur.,
then it cannot be brought
in Fed.Ct., See, Owen
Equipment & Erection Co.
v. Kroger.

over claims by
Ps against
persons made
parties under R.
14, 19, 20, or 24
proposed to be joined as
Ps under R. 19
seeking to intervene as Ps
Over claims
under R. 24.
by persons:

14th Amendment
5th Amendment
Explicit
Appearing in a court and
making any motion or
arguing on the merits
without first filing a 12b2
motion is implied as a
waiver of objections to PJ.
See FRCP 12h2
Forum selection clauses
operate as consent; are
implied since the party
against whom they are
enforced may not have
read them. See, .
Carnival Cruise Lines v.
Shute

Voluntary

Statutory Basis

4(k)(1)Serving a summons
or filing a waiver of service
establishes personal
jurisdiction over a
defendant:

Consent

Implied

If one is physically present

in a State, that State's
courts can exercise power
over you, see Scalia's
opinion in Barnham; also
Pennoyer.
Domicile in the state
is...sufficient to bring
[a]...defendant within the
People
reach of the state's
jurisdiction. Miliken v.
Meyer
Proceed to contacts analysis
Corporations

01 PJ.mmap - 12/3/2010 - Mindjet

(C)

Federal Claim Outside State-Court

Jurisdiction. For a claim that arises under
federal law, serving a summons or filing a
waiver of service establishes personal
jurisdiction over a defendant if:

Personal
Jurisdiction

Rule 4(k)(2)

Notice
Presence

(A) who is subject to the [Personal] jurisdiction of a

court of general [Subject Matter] jurisdiction in the
state where the district court is located;
(B) who is a party joined under Rule 14 or 19 and is
served within a judicial district of the United States
and not more than 100 miles from where the
summons was issued; or
See Dee-K Enterprises,
(C) when authorized by a
Inc. v. Heveafil Sdn. Bhd.
federal statute.
(A) the defendant is not
subject to jurisdiction in
any state's courts of
general jurisdiction; and
(B) exercising jurisdiction is
consistent with the United
States Constitution and
laws.

To Known Persons with known addresses:

personal service of process or regular mail
To persons unknown; if their interests are
substantially the same as those of known
persons, then they aren't deprived of Due
Process if the known persons represent
them. It's ok to use publication notice
(constructive notice) because even a
probably futile means of notification is all
that the situation permits.

Notice that satisfies the

Due Process Clauses
must be such as one
desirous of actually
informing the absentee
might reasonably adopt to
accomplish it. Mullane v.
Central Hanover Bank &
Trust Co.
23(c)(2) mandatory for (b)(3)
23(d)(2)
Notice

23(e)(1)(B)

discretionary notice
notice at time of settlement

The Defendants burden

The plaintiffs interest

Contacts

What is
the
plaintiff's
claim?

Quantify
defendant's
contacts
with the
forum
State.

Does the claim

"arise out of or
relate to" the
contacts?
International Shoe

Yes,
specific
PJ

State whether the P's

claim arose from the
D's purposefully availed
contacts. Mcgee , Intl
Shoe, Burger King

We consider only
purposefully availed
contacts, so all
"unilateral contacts"
are ignored.
Hanson v. Denkla .

Determine whether
there are enough
contacts for the forum
state to assert general
personal jurisdiction.
Perkins , Helicopteros
Nacionales de
Colombia

The interest of the

forum State in
adjudicating the dispute
The goal of efficiency in the
interstate justice system
The shared interest of the
several States in
furthering fundamental
substantive social policies
Asahi Metal Industry Co.
v. Superior Court , where
USSC held that when D's
burden was high, State's
interest was slight, and
contacts were scarce, it
was inappropriate to
assert PJ over the D.

No, Shafer v. Heitner

No,
General
PJ

01 PJ - Contacts.mmap - 12/3/2010 - Mindjet

We consider only
purposefully availed
contacts, so all
"unilateral contacts"
are ignored.
Hanson v. Denkla .

If the court exercises

personal jurisdiction, will it
offend "traditional notions
of fair play and substantial
justice?" World-Wide
Volkswagen Corp. v.
Woodson

'Founded Solely
on Diversity of
Citizenship'
See Dee-K
Enterprises Inc. v.
Heveafil Sdn. Bhd.

May be sued in any district

includes individuals
and corporations

28 U.S.C. 1391(d)

Aliens

1391(a)

(3) if there is no district in which the action may

otherwise be brought, then it may be in a district in
which any of the defendants is subject to personal
jurisdiction at the time the action is commenced.

Venue

Corporations
a defendant that is a
corporation shall be
deemed to reside in
any judicial district in
which it is subject to
personal jurisdiction at
the time the action is
commenced.

03 Venue.mmap - 12/3/2010 - Mindjet

Federal
Question

States with one

judicial district

In a State which has more than one judicial district and in which a
defendant that is a corporation is subject to personal jurisdiction at the
time an action is commenced , such corporation shall be deemed to reside
in any district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate State, and, IF
there is no such district , the corporation shall be deemed to reside in the
district within which it has the most significant contacts.

"Residence"

1391(c)

(1) if all the defendants reside in the same state,

the case may be brought in a judicial district in
which any defendant resides
(2) the case may be brought in a judicial district where
a substantial part of the events or omissions giving rise
to the claim occurred or where a substantial part of
property that is the subject of the action is situated
IF and ONLY IF not
(1) and not (2), THEN

1391(b)

(1) if all the defendants reside in the same state, the case
may be brought in a judicial district in which any
defendant resides
(2) the case may be brought in a judicial district where a
substantial part of the events or omissions giving rise to the
claim occurred or where a substantial part of property that is
the subject of the action is situated
IF and ONLY IF not
(1) and not (2), THEN
(3) A judicial district in which any defendant may be
found, if there is no district in which the action may
otherwise be brought.

(a) Any civil action brought in a State court of which the

district courts of the United States have original [SMJ]
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the
district. . . embracing the place where such action is pending.

1446(d) copy of notice of removal filed w/

clerk of state court; clerk effects the removal
motion to remand for lack
of SMJ - 30 day clock
fed.dist.ct must remand if it
ever realizes it lacks SMJ

1447(c)

1447(e) Court may deny or allow joinder of

additional s; if allowed joinder will "destroy
SMJ" court must remand to state court.

06 Removal.mmap - 12/3/2010 - Mindjet

Requirements
Removal
Procedure

venue is made
good by this statute

Any civil action of which the district courts have original

jurisdiction founded on [ 1331] shall be removable without
regard to the citizenship or residence of the parties.

1446(a) short and plain statement of the

grounds for removal
1446(b) 30 day shot clock after notice is
received or case becomes removable
BUT never more than one year after the
complaint is filed.

PJ; SMJ

1441
Actions
removable
generally

(b)

Any other such action [1332] shall be removable only if

none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.

No local defendant Rule

(c) Whenever a separate and independent claim or cause of action within

the jurisdiction conferred by section 1331 of this title is joined with one or
more otherwise non-removable claims or causes of action, the entire case
may be removed and the district court may determine all issues therein, or,
in its discretion, may remand all matters in which State law predominates.

's choice should rarely be disturbed

Applies with less force when
the plaintiff or real parties in
interest are foreign
Congestion
Local interest in having localized
controversies decided at home
Diversity case in a forum at home with the
law that must govern the action
The avoidance of unnecessary problems
in conflict of laws or in the application of
foreign law

Public
factors

Forum Non
Conveniens Gilbert
Analysis

And the unfairness of burdening citizens

in an unrelated forum with jury duty;
Relative ease of access to sources of proof
Availability of compulsory process for
attending unwilling, and the cost of
obtaining attendance of willing, witnesses;
Possibility of view of premises, if view
would be appropriate to the action

for the convenience of

parties and witnesses, in
the interest of justice, a
district court may transfer
any civil action to any
other district or division
where it might have been
brought

Transfer
Private
factors

SMJ
a. District

Piper Aircraft v. Reyno

07.0Transfer.mmap - 12/3/2010 - Mindjet

PJ
Venue

28 U.S.C. 1404

All other practical problems

If the remedy provided by the alternative

forum is so clearly inadequate or
unsatisfactory that it is no reason at all,
the unfavorable change in law may be
given substantial weight

D cannot just consent

to change PJ

Change in
Substantive
law

Division
b. w/in district

Upon motion, consent or

stipulation of all parties, any
action, suit or proceeding of a
civil nature or any motion or
hearing thereof, may be
transferred, in the discretion of
the court, from the division in
which pending to any other
division in the same district .

LIFECYCLE

(1) a short and plain statement of the grounds for the court's jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;
Bell Atlantic v. Twombly, --Plausibility standard
7(a) Only these pleadings are allowed:
8(a) A
[complaint]
must contain:

complaint;
answer;
an answer to a counterclaim designated as a counterclaim;
an answer to a crossclaim;
a third-party complaint;

Pleading 1

an answer to a third-party complaint; and

if the court orders one, a reply to an answer.
11: Signing Pleadings
11(a) provides that all pleadings must be signed.
11(b) provides that the signer certifies that all
facts are true and that legal theories are as
sound as reasonable efforts can make them.
11(c) provides that opposing party can point out a
defective pleading and, after a time, move for
sanctions against the filer of the defective pleading.
11(d) this doesn't apply to
discovery (Rules 26-37)

04.1 Pleading.mmap - 12/3/2010 - Mindjet

Basics

(2) a short and plain

statement of the
claim showing that
the pleader is
entitled to relief;
and

Ashcroft v. Iqbal, the complaint must allege

specific facts that allow a court to infer the
conclusion alleged. The court should rule on
12(b)(6) motions by striking all legal conclusions
from the complaint and seeing if the alleged
facts allow an inference that the plaintiff is
entitled to relief. Judges should use their
experience and common sense to make this
determination.

(3) a demand for the relief sought, which may include

relief in the alternative or different types of relief.

(1) SMJ
(2) PJ
12(b)...[A] party may assert the following
defenses by motion: ::A motion asserting any of
these defenses must be made before pleading if
a responsive pleading is allowed. If a pleading
sets out a claim for relief that does not require a
responsive pleading, an opposing party may
assert at trial any defense to that claim. No
defense or objection is waived by joining it with
one or more other defenses or objections in a
responsive pleading or in a motion.

(A) omitting it from a motion

in the circumstances
described in Rule 12(g)(2); or
(B) failing to
either:
(i) make it by motion
under [rule 12]; or
(ii) include it in a
responsive pleading or in
an amendment allowed
by Rule 15(a)(1) as a
matter of course.

(1) A party waives any

defense listed in Rule
12(b)(2)-(5) by:

(B) by a motion under

Rule 12(c); or
(C) at trial.

Pre-answer motion

12(g) Joining Motions.

(2) 12(b)(6) and (7), or
to state a legal defense
to a claim may be
raised:

(3) If the court determines at any time that

it lacks subject-matter jurisdiction, it must
dismiss the action. (12(b)(1) cannot ever
be waived.)

04.2 Pleading.mmap - 12/3/2010 - Mindjet

(4) insufficient
process;
(5) insufficient
service of process;
(6) failure to state a
claim upon which
relief can be
granted; and
(7) failure to join a
party under Rule 19.

12(h) Waiving and

Preserving Certain
Defenses.

(A) in any pleading

allowed or ordered
under Rule 7(a);

(3) venue;

(1) A motion under this rule may be joined with any

other motion allowed by this rule.
(2) Except as provided in Rule 12(h)(2) or (3), a party
that makes a motion under this rule must not make
another motion under this rule raising a defense or
objection that was available to the party but omitted
from its earlier motion.

Rule 26 provides
the groundwork
for discovery:

Rule 37 provides courts

the sanctions to
penalize misbehavior
during discovery.

26(a)(1)(A) - Parties must make spontaneous disclosures of

their own evidence including names and contact information
of witnesses, the subjects regarding which they are
knowledgeable; a description by category and location of
documents, information, and things; copies of insurance
agreements; computations of damages

Rule 36
governs
requests for
admission.

Rule 35
governs
physical and
mental
examinations.

Rule 34 governs requests

to produce materials for
inspection, copying,
testing, and sampling.

Rule 33 governs interrogatories.

Rule 30 governs Depositions.

08 Discovery.mmap - 12/3/2010 - Mindjet

26(a)(2)(A) - parties must disclose information about

expert witnesses and provide a written report of the
witnesses information if the witness was retained or
specially employed to provide her expert testimony.
Discovery
26-37

26(b)(1) - Parties may obtain discovery regarding any non-privileged

matter that is relevant to any party's claim or defense.
26(b)(2)(C) - Discovery may be limited if it is unreasonably cumulative
or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive; the party seeking
discovery has had ample opportunity to obtain the information by
discovery in the action; or the burden or expense of the proposed
discovery outweighs its likely benefit;
26(b)(3)(A)-(B) - Ordinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for trial by or for another
party or its representative. but those materials may be discovered they are
otherwise discoverable under Rule 26(b)(1); and the party shows that it has
substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means. --- If the
court orders discovery of those materials, it must protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of a party's
attorney or other representative concerning the litigation.

(1) In responding to a pleading, a party must:

(A) state in short and plain terms its defenses
to each claim asserted against it; &&
(B) admit or deny the allegations asserted
Beeck v. Aquaslide 'N' Dive Corp.
against it by an opposing party.

8(b) Admissions
and Denials.

R.13(a) provides that "a pleading must

state as a counterclaim any claim that the
pleader has against an opposing party if
the claim:

(2) Responding to the

Substance. A denial must
fairly respond to the
substance of the allegation.

SMJ will be guaranteed under

1367 Supp.Jur

Zielinski v. Philadelphia Piers, Inc.

A party that intends in good faith to deny
ALL the allegations of a pleading...may do
so by a general denial.
A party that does not intend to deny all
the allegations must either specifically
(3)
deny designated allegations || generally
deny all except those specifically
admitted.
A party that intends in good faith to deny
only part of an allegation must admit the
(4) part that is true and deny the rest.

Answer
(5)
(A) arises out of the transaction or
occurrence that is the subject matter of
the opposing party's claim
AND
(B) does not require adding another party
over whom the court cannot acquire
jurisdiction
R. 13(b) provides that "a pleading may
state as a counterclaim against an
opposing party any claim that is not
compulsory.

13 Counterclaims

(6)

04.3 Pleading.mmap - 12/3/2010 - Mindjet

An allegation...is admitted if a responsive

pleading is required and the allegation is
not denied.
If a responsive pleading is not required,
an allegation is considered denied or
avoided.

(1) In General. In responding to a pleading, a party must affirmatively

state any avoidance or affirmative defense, including: [specific examples]
8(c) Affirmative Defenses.

That claim must have its own

jurisdictional basis (PJ and
SMJ).

A party that lacks knowledge...sufficient to

form a belief about the truth of an
allegation must so state, and the
statement has the effect of a denial.

(2) Mistaken Designation. If a party mistakenly designates a defense

as a counterclaim, or a counterclaim as a defense, the court must, if
justice requires, treat the pleading as though it were correctly
designated, and may impose terms for doing so.

(A) the law that provides the

applicable statute of
limitations allows relation
back;||
(B) the amendment asserts
a claim or defense that
arose out of the conduct,
transaction, or occurrence
set out--or attempted to be
set out--in the original
pleading; ||
(C) the amendment changes the party or the
naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if,
within the period provided by Rule 4(m) for
serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of
the action that it will not be
prejudiced in defending on
the merits; and
(ii) knew or should have
known that the action
would have been
brought against it, but for
a mistake concerning
the proper party's
identity.

(1) When an
Amendment
Relates Back.
An amendment
to a pleading
relates back to
the date of the
original
pleading when:

15(c) Relation
Back of
Amendments.

Amendments

15(a)
Amendments
Before
Trial.
(A) 21 days after serving it, or
(1) Amending as a
Matter of Course. A party
may amend its pleading
once as a matter of
course within:

(B) if the pleading is one to which a

responsive pleading is required, 21 days
after service of a responsive pleading or
21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a

party may amend its pleading only with the
opposing partys written consent or the courts
leave. The court should freely give leave when
justice so requires.
(3) Time to Respond. Unless the court orders otherwise,
any required response to an amended pleading must be
made within the time remaining to respond to the original
pleading or within 14 days after service of the amended
pleading, whichever is later.

04.4 Pleading.mmap - 12/3/2010 - Mindjet

before the answer

in the answer

12(b)(6)

Failure to state a claim

upon which relief can be
granted

After verdict
all evidence from trial
Requires a 50(a) motion to have been
filed before issue submitted to the jury

based only on the complaint

50(b)

After the answer

Requires clear breach of procedure or

clear weight of evidence goes against the
side that won

12(c)

Pleadings only
Dispositive defense such
as statute of limitations

Kill Points
After close of discovery and before the start of trial
After a side has been fully heard

pleadings, discovery materials, affidavits, and evidence

all evidence introduced during the trial

Same standard as 56; Anderson v. Liberty Lobby
No legally sufficient evidentiary
basis for the jury to find in favor of
the party with the burden of proof.

- - Mindjet

No genuine issue as to material fact

50(a)

Adickes - material viewed in light

favorable tot he nonmoving party

56

Celotex, Bias - party who has the burden

of proof at trial has the burden in a
summary judgment motion; Burden on
the moving party may be discharged by
showing there is an absence of evidence
to support the nonmoving party's case;
burden is then shifted to the nonmoving
party to produce the evidence.

MULTIPLICITY

1367(a): the district courts shall have

supplemental jurisdiction over all other
claims that are so related to claims in the
action within such original jurisdiction that
they form part of the same case or
controversy under Art. III. Supp. Jur. shall
include claims that involve the joinder or
intervention of additional parties
When the original claim has jurisdiction under 1331
1367(b): the district courts shall NOT
have supplemental jurisdiction over
claims by Ps against: ::when exercising
supplemental jurisdiction over such
claims would [violate complete diversity or
AIC].

28 U.S.C. 1367
In an civil action of which the district
courts have original jurisdiction founded
solely on section 1332

Joinder

persons made parties

under R. 14, 19, 20, or 24

P cannot use Supp.Jur. to sue TPD; if not

Orig.Jur., then it cannot be brought in
Fed.Ct., See, Owen Equipment & Erection
Co. v. Kroger .

Over claims by persons:

proposed to be joined as Ps under R. 19
seeking to intervene as Ps under R. 24.

R. 14
claim raises a novel or complex issue of State law
R. 18
R. 19

Rules

R. 20

District court may

decline to exercise
Supp.Jur if:

claim substantially predominates over the

claim or claims over which the district
court has Orig.Jur.
Court has dismissed all claims over which it has Orig.Jur.
In exceptional circumstances, there are
other compelling reasons for declining
jurisdiction.

05.0Joinder.mmap - 12/3/2010 - Mindjet

See, Szendry-Ramos

Required
Indispensable
R. 19(a) provides that:
R. 19(b)
provides
that:

A party
Subject to the court's PJ
and whose joinder would not disrupt SMJ

if a party required to be joined under R.

19(a) who cannot be joined, the party
must determine whether in equity and
good conscience the action should
proceed among the existing parties or be
dismissed.

must be joined if:

19(a)(1)(A) in that person's absence, the
court cannot accord complete relief

Factors for
consideration
are:
19(b)(1) the extent to which a judgment
rendered in that person's absence might
prejudice that person or the existing
parties
Potentially inconsistent obligations of an
existing party do not make the TP
indispensable. See, Helzberg's Diamond
Shops v. Valley West Des Moines
Shopping Center .
19(b)(2) the extent to which any prejudice
could be lessened or avoided by:
A. protective provisions in the judgment
B. shaping the relief
C. other measures
19(b)(3) whether a judgment rendered in
the person's absence would be adequate
19(b)(4) whether the plaintiff would have
an adequate remedy if the action were
dismissed for nonjoinder

05.1 Joinder Of Parties - Required.mmap - 12/3/2010 - Mindjet

Joint Tortfeasors are not such parties, see

Temple v. Synthes Corp.

Required Joinder of Parties

19(a)(1)(B) that
person claims an
interest relating to
the subject of the
action and is so
situated that
disposing of the
action in the
person's absence
may:
19(a)(1)(B)(i) as a practical matter impair
or impede the persons's ability to protect
the interest
An injunction preventing a party from
leasing to TP makes the TP required.
See, Helzberg's Diamond Shops v. Valley
West Des Moines Shopping Center .
19(a)(1)(B)(ii) leave an existing party
subject to a substantial risk of
incurring...inconsistent obligations
because of the interest.

Joinder Of
Parties

Impleader: R. 14
14(a)(1) A D may as TPP, serve
a summons and complaint on a
nonparty who is or may be liable
to it for all or part of the claim
against the D. Must obtain
court's leave if TPD is impled
more than 14 days after service
of answer.
When such derivative liability
exists will be a matter of
substantive law. See, Price v.
CTB, Inc.
14(a)(2): The TPD
must assert its defenses under R. 12
against the TPP
must assert its counterclaims against the
TPP under R. 13(a)
may assert against the P any defense that
the TPP has to the P's claims
may also assert against the P any claim
arising out of the transaction or
occurrence that is the subject matter of
the P's claim against the TPP
R. 14(b) When a claim
is asserted against a P,
the P may bring in a TP
if this rule would allow
a D to do so
But 1367 will not provide Supp.Jur. here;
there must be Orig. Jur.

05.2 Joinder Of Parties.mmap - 12/3/2010 - Mindjet

R 20 permissive joinder of parties

20(a)(1)Persons
may join as plaintiffs
in one action if
They assert a right jointly severally or in
the alternative with respect to or arising
out of the same TorO or series of
transactions or occurrences
AND any question of law or fact common
to all plaintiffs will arise in the action.
20(2)(2) Persons may be joined
in one action as defendants if:
Any right is asserted against them
jointly severally or in the alternative with
respect to or arising out of the same
TorO or series of transactions or
occurrences
AND any question of
law or fact common to
all defendants will
arise in the action

Compulsory

R.13(a) provides that "a

pleading must state as a
counterclaim any claim that
the pleader has against an
opposing party if the claim:

Counterclaims
In general. A party asserting a claim
counterclaim, crossclaim, or TPclaim may
join [to the original claim] as independent
or alternative claims, as many claims as it
has against an opposing party.

Joinder of Claims

Then add'l claims may be joined to it

Then see if there is Orig.Jur. for the claim.
If not, see if there is Supp.Jur. for the claim

05.3 Joinder of Claims.mmap - 12/3/2010 - Mindjet

Rule 18
Permissive

Jurisdiction will be guaranteed

under 1367 Supp.Jur
See, Plant v. Blazer
Financial Services

AND
B: does not require adding
another party over whom the
court cannot acquire jurisdiction

R. 13(b) provides that "a

pleading may state as a
counterclaim against an
opposing party any claim
that is not compulsory.

Rule 18(a)
One claim must have original jurisdiction
or supplemental jurisdiction.

A: arises out of the

transaction or
occurrence that is the
subject matter of the
opposing party's claim

That claim must have

its own jurisdictional
basis (PJ and SMJ).

Art IV sec. 1 provides that "Full Faith and

Credit shall be given in each State to the
... judicial Proceedings of every other
State."

Basis

Res Judicata

10.0 Res Judicata.mmap - 12/3/2010 - Mindjet

States and the federal courts must

respect other state judgments

Respect means apply res judicata law of

court that entered judgment #1
Semtek

28 U.S.C. sec. 1738 provides, in part, that

"...judicial proceedings ...shall have the
same full faith and credit in every court
within the United States ...as they have by
law or usage in the courts of such
State...from which they are taken."

Marrese v. American Academy of

Orthopaedic Surgeons , USSC held that
sec. 1738 requires district courts to apply
res judicata law of the state that issued
the judgment in the first case.

Same common core of

operative facts required to
prove the c/a

1. The same claim

'Claim:' Two main definitions:

Claim Preclusion:The
Plaintiff is barred from
relitigating

between the
2. same parties

Same parties or
their privies,
including

10.1 Claim Preclusion - same claim same parties.mmap - 12/3/2010 - Mindjet

See Restatement,
Second, of judgments

agreement by the parties to be

1. bound by a prior action
preexisting "substantive legal
relationships" such as preceding and
2. succeeding owners of property
adequate representation by someone with
3. the same interests who was a party
4. A party assuming control over prior litigation
5. A party relitigating through a proxy
Special statutory schemes such as
bankruptcy and probate proceedings,
provided those proceedings comport with
6. due process

Partners in interest not

privies because they are
not successors in interest
Separate people each
have their own c/a.

All c/a arising from the same

Transaction or occurrence or
series of transactions or
occurrences

See Restatement,
First, of Judgments

see, e.g., Searle Bros. v. Searle

Followed by the
federal courts
see, e.g., Rush v. City
of Maple Heights,

Taylor v. Sturgell

Rule 41(b) on the merits means

w/prejudice which means on the
merits.

RJMOL 50(b)
Jury verdict
JMOL 50(a)
Summ. judgment (56)
Dismissal for misbehavior during
discovery/other misbehavior (i.e. under R.
11 or R. 37)
12c

after a valid

the second court

should give a
judgment of a first
court only the validity
that courts in the
jurisdiction of the
first court would give
it; if they would
ignore it because of
a lack of SMJ, then
so should the
second court

Claim Preclusion:The
Plaintiff is barred from
relitigating

"on the merits":

Semtek says this is only

preclusive in the same District

12(b)(6), when it's with prejudice

Default judgment

on the merits
Not "on the merits

12b1-5, and 7
12b6 when it's with leave to amend
When federal district court is sitting in
diversity, its dismissal has only the same
preclusive effect that it would have if a
state trial court would have, no more.
See, e.g., Semtek Intl Inc. v. Lockheed
Martin Corp. , dismissal w/prejudice of
state law claim by C.D. of CA b/c of
running of statute of limitations did not
preclude the from re-filing in MD.

10.2 Valid Final Judgment on the Merits.mmap - 12/3/2010 - Mindjet

final judgment
The finality of state court judgments, and
hence their utility in precluding claims is
determined by the state's practice. Some
are valid upon entry by the trial court,
some after review by the first appellate
court, and some after review by the State
Supreme Court, or the expiration of time
for review by the same.
The judgments of the federal district
courts are final upon entry and have
preclusive effect in all other federal courts.

See, e.g., Gargallo v. Marrill Lynch,

Pierce, Fennery, Smith , state court lacked
subject matter and its sister courts
wouldn't have followed it, so district court
did not have to give it preclusive effect.

1. actually litigated
2. and determined,

may be available in some cases where

the plaintiff can litigate separate issues
from the same TorO or to prevent
relitigation of jurisdiction or venue...

Look at briefs, trial transcript

Look at judge's finding of fact
Jury found for
party -> all
elements
precluded

mutual issue
preclusion
non-mutual
issue
preclusion

In State Farm Fire & Casualty Co. v.

Century Home Components , the court
held that when two judgments in prior
cases had favored the plaintiffs but one
judgement had favored the defendant, the
inconsistency prevented allowing
offensive non-mutual issue preclusion as
to the issue of the defendant's
negligence.
In Parklane Hosiery Co. v. Shore , the
defendant was precluded from relitigating
the issue of their fraudulent statements.
Mutuality
They had a full and fair opportunity to
abandoned?
litigate the facts in the first suit with the
SEC. They were fully aware of the
significance of a loss and it is very
common for private causes of action to
arise after an SEC enforcement action.
the victim of preclusion must have had its day in court

Essential to
3. the judgment

Requirements
Offensive

Issue
Preclusion

Jury found
against party ->
no elements
precluded

See, e.g., Illinois Central Gulf R.R. v.

Parks, unable to preclude from suing
on their negligence because 's loss in
prior litigation did not necessarily show
that the issue sought to be precluded was
actually determined.

When the issue is

logically necessary
for the jury's
decision, then it is
essential to the
judgments

Multiple
sufficient
grounds
1st
restatement
2nd
restatement

4. Valid

5. Final

By

10.3 Issue Preclusion.mmap - 12/3/2010 - Mindjet

Jury =
Black
Box

See, e.g., Illinois Central Gulf R.R. v.

Parks, successfully precluded from
relitigating issue of 's negligence

Just as in CP, the 2nd court need give

preclusive effect only to issues that the
jurisdiction of the 1st court would follow;
may ignore those judgments that would
be ignored due to lack of jurisdiction.
Just as in CP, the 2nd court need give
preclusive effect only to those issues
settled in matters final by the standards of
the 1st court's jurisdiction.

A defendant may not utilize issue

preclusion against a party that has not
had it's day in court (with the usual
exception for privies).

See, e.g., USSC's holding in

Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation .

all are
precluded
None are
precluded
unless affirmed on appeal

Ds are burdened

Court holds
there is a
difference
between Ds
and Ps

Ps in a class action are protected by judge

Must receive notice,
opportunity to respond
and/or opt out

Power over
plaintiffs

attorneys fees
Ps suffer nothing

won't be deposed
little to no discovery burden

B: mandatory notice + opt out for 23(b)(3)

23(c)(2)

Statutory

Constitutional

Phillips
Petroleum v.
Shutts

Requires individual notice

For b1 & b2

PJ
23d1b
23e1

a civil rights class action; no notice

because if an individual sues and
consequences are the same

appropriate notice to some or all class

member as the court deems
Notice before settlement

Notice

Notice and opt out is sufficient

Is it necessary?

Shutts
Those who could not be reached

Those who could not be reached included

in class because their interests were
represented

Constitutional
Mullane

Standard: notice reasonably calculated to

apprise interested parties of the pendency
of the action

Remember: laws come from a bunch of places

12.4 Class Actions - Constitutionality- Jurisdiction.mmap - 12/3/2010 - Mindjet

Excluded from class

make sure you satisfy them all

federal questions are federal questions,

no SMJ problem

Supreme Tribe of Ben-Hur v. Cauble

1331

Complete diversity
Required only for the
named class
representatives.

If the court has original jurisdiction over a

single claim in the complaint, it has
original jurisdiction over a civil action
within the meaning of 1367(a)
Incomplete diversity destroys original
jurisdiction with respect to all claims
A failure of complete diversity, unlike the
failure of some claims to meet the
requisite amount in controversy,
contaminates every claim in the action

SMJ
Unit of analysis
is the claim

AIC is not
important
Held, that 1367 overruled
Zahn and Clark

12.4 Class Actions - Constitutionality- Jurisdiction.mmap - 12/3/2010 - Mindjet

2005 Exxon Mobil Corp. v.

Allapattah Services, Inc.

Only
representative(s)
need to
satisfy AIC,

1332
AIC

Statutory

23(b)(1)(A): Inconsistent injunctions

"inconsistent or varying adjudications" that
would "establish incompatible standards
of conduct for the party opposing the
class"

When individual prosecutions

will create a risk of:

23(b) Types of Class Actions

23(b)(1)(B): Adjudications with respect to

individual class members that, as a
practical matter, would be dispositive of
the interests of other members not parties
to the individual adjudications or would
substantially impair or impede their ability
to protect their interests

23(b)(2): the party opposing the class has

acted or refused to act on grounds that
apply generally to the class, so that final
injunctive relief or corresponding
declaratory relief is appropriate respecting
the class as a whole

Think civil rights class actions for primarily

injunctive relief; see, Communities for
Equity v. Michigan High School Athletic
Assn.

the class members' interests in

individually controlling the prosecution or
defense of separate actions
23(b)(3): Court finds that the questions of
law or fact common to class members
predominate over any questions affecting
only individual members and that a class
action is superior to other available
methods for fairly and efficiently
adjudicating the controversy.

the extent and nature of any litigation

concerning the controversy already begun
by or against class members
The matters
pertinent to the
finding include:

the desirability or undesirability of

concentrating the litigation of the claims in
a particular forum
the likely difficulties in managing a class action
Too many individual findings of fact would
make this a no-go, see Heaven v. Trust
Company Bank .

12.2 Class Actions - Types.mmap - 12/3/2010 - Mindjet

Numerous

Thousands is OK

Common questions of law or fact

Typical Representatives

23(a) Prerequisites

Adequacy

The similarities between the class reps

and the class members must outweigh
the differences; the representatives must
all possess the characteristic that makes
the class common. See, Communities for
Equity v. Michigan High School Athletic
Assn.

Will be likely to vigorously prosecute on

their own behalf and on behalf of the
unnamed Ps. See, Communities for
Equity v. Michigan High School Athletic
Assn.
Representatives
Are competent to represent the named
and unnamed Ps.
Attorneys

12.1 Class Actions - Prerequisites.mmap - 12/3/2010 - Mindjet

It violates the 14th Amendment to be

represented inadequately by a class.
Hansberry v. Lee

P in suit 2 is trying to apply IP against Ds

Hansberrys never had day in court
IL supreme court held that this was so
Plaintiff contends that Suit 1 was a class action
No, didn't own property;
couldn't be members of class

Were Hansberrys &

sellers members of that
supposed class

Even if it were a class,

who represented
Hansberrys' interests?

no one

No, D's in first suit were

individuals, not
structured as a class
action

IL Supreme Court
Was suit 1 a class action?

Hansberry v. Lee

Created individual
obligations, not joint
obligations

No class; no preclusion
Why doesn't it
simply reverse
and say it
wasn't a class

Adequacy of
representation in a prior
suit

Can USSC Reverse?

Yes, because it can

get down to basics
and say the class
formation violated
due process (14th
Amendment)

It violates the 14th Amendment to be

represented inadequately by a class.
Hansberry v. Lee

12.3 Class Actions - Constitutionality- Adequacy.mmap - 12/3/2010 - Mindjet

State law means

what state courts
say it means

What about seller?

Constitution
means what
USSC says it
means.

taking away
"right to sue"
w/o due
process

previous parties in "class action" didn't

share interests with Hansberrys

in diversity
or supplemental

state substantive claim

AND federal court practice differs

from state court practice

Federal court

Apparently anti-SLAP is ok in fed. dist. ct.

State substantive law and federal procedure

Hanna

apply both

No

Avoid forum shopping and

inequitable administration of the
laws
outcome determinative

Internal surrender provision

Federal Interests

Look to Guaranty Trust; Byrd; and Hanna

Forum shopping

Choice of Law
Federal Judge made law

Synthesis

Uniform application of the laws

Collision in State & federal law

Federal interest

yes, classify law

US Const.
Federal Statute
if (c)al

Apply Federal Law

Federal Law

FRCP
if (c)al and w/in limits
of 28 USC 2072
Burlington North R. v. Woods
Stewart Org. v. Ricoh

11.1 Choice of Law.mmap - 12/3/2010 - Mindjet

murky
What are collisions