Introduction to Civil Procedure

What is Civil Procedure?

The RULES by which courts conduct the PROCESS of litigating a civil case
Why do you have it?
1. FRCP 1: Scope and Purpose
a. “These rules … should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding
What is the basic process for a law suit:

 Dispute -> get lawyer -> lawyer accept -> research of facts -> where to file?-> file -> serve
defendant -> defendant get lawyer-> get lawyer -> lawyer accept -> research of facts -> answer -
> variable outcome
Difference between State and Federal Courts:

State Courts Federal Courts

Court of General jurisdiction (JX) Court of Limited Jurisdiction(JX)
Judges are elected Judges are for life
Relatively small Big
Jury from State Jury from different States
State Law Federal Law
 Issues
of
LAW

Issues
of
LAW

Issues
of
FACT

What is the basic process for a law suit:

 Dispute -> get lawyer -> lawyer accept -> research of facts -> where to file?-> file -> serve
defendant -> defendant get lawyer-> get lawyer -> lawyer accept -> research of facts -> answer -
> variable outcome
Personal vs Subject Matter Jurisdiction:

 Personal jurisdiction ( Per Jx):

o Basically, the defendant has to be sued under a court that has authority on him.
o Example: you can’t sue a defendant from NYC in California for a dispute that happened
in Penn State
o Some options:
 State where defendant lives
 State where dispute happened
 State where Defendant has connections in it
 Subject-Matter Jurisdiction( Sm JX):
o This is usually for the federal court to decide if you can file there which include these
options:
 Federal Question: is it federal law issue like statue or constitutional issue
 Patents (only Federal)
 Complete Diversity of Citizenship:
 dispute is over $75,000 and all Plaintiffs are from different state than all
defendants
 Citizenship is established when:
o Physical Presence
o Intent to remain
 Notes:
o Preclusion is the limitation to sue again
 o Pleading is the starting
o Interrogatory is set of questions to ask the witness
o Disposition is a recorded interview with witness by the court approved by witness
o Subpoena is request for files/evidence
o “Citizenship” is defined as where the party is domiciled which is determined by place of
physical presence and where the party intends to remain.
o In Analysis always use …. Here, [Element is established] because [ Case facts supporting
Element]
So where does the FRCP/Rules come from?

 Congress (1935 Rules Enabling Act)

o to Supreme Ct
o to Committee
o back to Supreme Ct for approval
o back to Congress for approval
 35 states have adopted the FRCP (not CA or NY, but similar rules/codes)
How about statutes like 28 USC § 1332 (diversity)?

 Constitution (due process)

 to  Congress
How does Case Law (Hawkins, Bell, Houchens) fit in?

 Court interprets Constitution, FRCP, Statutes via case law

 Pleading

I) Ethical Duties
a) Rule 11 Sanctions ( add rule statement for grounds,process 21days and type of
Sanctions
i) Who is subject to R11? R11(a)
(1) those who sign papers and submit to court– lawyer/firm, pro se party
ii) On what grounds is a R11 motion made? R11(b)
(1) Any Improper purpose such as harass, cause delay (Harassment)
(2) Claims are not warranted by existing law or call for new law (wrong law)
(3) Facts don’t support with reasonable time for discovery (wrong facts)
(4) The denial of facts is not supported (wrong denials)
iii) What standards does the ct apply in determining if there has been a R11 violation?
(1) Reasonable = Stop, think, investigate before filing any papers with the court or making
oral statements later relied on
iv) Does R11 apply to answers? R11(a)
(1) Yes – signed paper submitted to court
v) Does R11 apply to oral communications? To letters between attorneys? R11(a)
(1) No – not a signed a paper submitted to ct
vi) Does R11 apply to discovery responses? R11(d)
(1) No – responses not signed papers filed in ct (but motions are)
vii) What procedure does a lawyer have to follow when making a R11 motion? R11(c)(2)
(1) serve motion
(2) wait 21 days, Advisory Notes calls it a “safe harbor” period
(3) if not corrected then file motion for sanctions with ct
viii) Can a judge initiate R11 sanctions on its own? What is an OSC? R11(c)(3)
(1) Yes – sua sponte Order to Show Cause (OSC) why sanction shouldn’t be imposed
ix) What type of sanctions may a court impose? R11(c)(4)
(1) Advisory Notes - “variety” - $, striking paper, req’d education
x) Why have R11?
(1) Advisory Note - “to deter”
xi) Rule 11 applies to all signed documents and motions filed in court – all stages except
discovery.
b) Inherent Authority Sanctions:
i) The judge authority in the case to impose sanctions for any bad behavior or bad faith
ii) Can double with Rule 11

II) Complaint
a) Rule 8 (a):
i) 3 parts for federal complaint:
(1) R8(a)(1) – “jurisdictional statement”
(a) Fed Ct Subject Matter Jx (either Fed Q or Diversity)
(b) Venue – specific location (city/district) within state
(2) R8(a)(2) – “short and plain statement of the claim”
 (a) factual allegations to establish a legal claim (“causes of actions” or “counts”)
(3) R8(a)(3) – “demand for relief”
(a) prayer for relief
b) R8(a)(2) – “short and plain statement of the claim” Elements:
i) Short and plain statement:
(1) Principle (i): no conclusions (so ignore them)
(2) Principle (ii): plausible (more than mere possibility) ( must be supported by facts)
ii) Claim:
(1) Plaintiff must establish a “prima facie” case meaing At first impression, all elements are
met.
iii) NOTE: challenge by bringing a R12(b)(6) Motion if any is not met

c) Special Cases R9:

i) If fraud claim: ( No rule 8)
(1) Particularity must be met: meaning the claim must has specific facts of the fraud like
date, time, place, manner
III) Burdens of Proof
a) Plaintiff If Prima Facie element proof then
b) Defendant if it is an affirmative defense
c) If it is not clear then the court does the interpretation:
i) statutory interpretation look to
(1) plain language of Statue
(2) legislative history; why it was enacted
(3) “usual practice”; what the courts usually do
d) RULE IN ESSAY:
i) There is a three step process to statutory interpretation as laid out in Bock. First, the court
should look at the plain language of the statute, and if the language is not clear then, second,
the court should consider legislative history, and third the court should examine the usual and
common practices in bringing the claim in other cases
IV) Response to Complaint

 Grounds for R12 motions? 4 types

o 12(b)(1-7) Motions to Dismiss on - 7 different grounds
o 12(c) – Judgment on the Pleadings
o 12(e) Motion for More Definitive Statement
o 12(f) Motion to Strike
 R12(c) motion – why different from R12(b)(6) motion & MSJ (see R12(d))?
o R12(c) Judgment on the Pleadings – looking only at complaint & answer (e.g., SOL)
 R12(b)(6) & R12(c) limited to “four corners of pleadings” – meaning?
o Court can only look at pleadings no more evidence from discovery, otherwise turns into
MSJ, R12(d)
  Must be filed along with or after Answer is filed
o 12(c)
 Must be Filed in D’s first response (R12 Motion or Answer)
o 12(b)(2)-(5), (e), (f)
 Timing of hearing? R12(i)
o 12(b) motions must have hearing (be decided) before trial
 Timing of 12(b) Motions:

I) ANSWER:
a) What are the differences between admitting, denying, and raising an affirmative defense and what
happens if D fails to raise an affirmative defense? R8(b)(1)-(2), R8(c)
i) Admit meaning these facts are true
ii) Deny means these facts are not true based on facts
iii) affirmative defenses are waived if not raised in the Answer
b) Can D deny part of an allegation? What does it look like? R8(b)(4)
i) Yes – see example Fed Answer
c) What if D doesn’t know the answer? R8(b)(5)
i) See example Fed Answer, “lacks knowledge or info to form belief”

d) What happens if D fails to deny any or all allegations? R8(b)(6)

i) Deemed admitted, except for damage amounts
e) What is the difference between a general and specific denial? R8(b)(3)
i) General denials mean D denies everything in the complaint (very rare in fed ct)
ii) General denials are allowed in Cal state ct, unless Cal complaint is “verified” (see example
on TWEN)
f) R8(b) - SPECIFIC vs GENERAL Denials – see example Answers on TWEN
i) “Admit.”
ii) “Deny.”
(1) R8(b)(3) “good faith” requirement
(2) possibly add phrase “upon information and belief”
 iii) What if I don’t know? R8(b)(6)
(1) “Defendant lacks knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph ___ of the Complaint and on that basis
denies all such allegations.”
II) Amendments
a) Why?
i) Efficiency and fairness

b)
c) RULE 15 BIG PICTURE:
i) R15(a-c) Amendments –claim occurred before date of original pleading
(1) R15(a) Pretrial Amendments
(a) (a)(1) complaint can be amended “once” freely as a matter of course (no permission)
within 21 days of service or of Answer/R12 Motion
(b) (a)(2) if once is done another can be with consent or leave of ct, “freely as justice so
requires”
(2) R12(b) Trial
(3) R15(c) – Relation Back Doctrine – to get around SOL
(a) (1)(B) - add a claim
(b) (1)(C) – name correcting when wrong D sued
(i) Joining new party, R19, different than amending complaint to change name of D,
R15(c)(1)(C)
ii) R15(d) Supplement –claim after date of original pleading
d) R15(c) Relation Back Doctrine ONLY When SOL has run
i) to RELATE the new claim BACK to the date the complaint was originally filed (go back in
time!)
ii) away to go around the SOL clock and bring related claims, even if the SOL has run
 PERSONAL JX
1. Overview
a) Personal Jx V. Subject Matter Jx
i) Personal Jx addresses a due process issue which asks what state P can reasonably sue
D in.
ii) Subject Matter Jx address an Article III issue (power of federal courts) and asks what
court, federal or state, D can be sued in.
b) Constitution:
i) (1) Full Faith & Credit (Article IV) p73
(1) Where states exercise proper Personal Jx over D and give proper notice, other
states must fully respect that state’s judgments
(2) Application here: If OR state ct had PJx over Neff in Case 1 & gave proper
notice, then the fed ct in Case 2 would have to respect that judgment

ii) (2) 14th Amend Due Process p74 - Parties to lawsuits are “due” fair
“process”/procedure
(1) If the original ct didn’t have Personal Jx over D or failed to give proper notice,
then the new ct won’t enforce the judgment bc it is unfair/unconstitutional
2. Pennoyer Rules (Old Rule)
a) In Personam Jx (in person) - states have in persona jx of anyone physically present in
the state
i) Requires actual notice by personal service
b) In Rem jx ( Over a thing) – states have in rem jx over property when it is the subject of
the lawsuit
i) To be subject of the suit, property has to be attached before judgment
ii) Constructive notice (via newspaper) ok
c) Exceptions:
i) “civil status” – state can enter divorce orders if the marriage took place in state (no in
personam or in rem req’d); protects abandoned spouse
ii) “appoint agent” - if doing business in the state
3. Modern Rules(Shoe)
a) In Personam JX
i) To establish in personam PJx, 2 Prongs:
(1) Prong # 1. D must have “MINIMUM CONTACTS” with forum state
(2) Prong #2. PJx must not offend “traditional notice of FAIR play and substantial
justice” to make PJx “reasonable”
(a) Policy reasons for “fairness”
 (i) D’s “relation” to the forum state who “enjoys the benefits and protections
of the laws of that state” … and “this privilege may give rise to
obligations” (p84)
ii) Minimum Contacts:

How to Use this Chart:

ONLY FOR THE MIN CONTACTS, PRONG #1
1. Ask: “what type of contacts does D have with the forum state, continuous or
casual (isolated)?
2. Ask: “Is the claim related or unrelated to D’s contacts?
3. Ask, once you have determined what quadrant you are in: “Are there any sub-
issues to analyze?”
• i.e., for single/related quadrant, you have analyze the sub-issue:
“Did D purposefully avail himself to the forum state?” (compare
Hanson, McGee)
(1) Sub Issue: Purposeful Availment
(a) “Foreseeability alone has never been sufficient to” establish “purposeful
availment” (p106) – why not?
(b) there is “purposeful availment” only where corp “delivers its products
into the stream of commerce with the expectation that they will be
purchased by consumers in the forum state” p107
(c) D “should reasonably anticipate being held into ct there” p107
(d) So “foreseeability” ALONE that a product could be in the forum state is NOT
purposeful availment,
(i) Neither is “mere ‘unilateral activity’” p107
(ii) Nor is “marginal revenue” that is “too attenuated” fn 12 & p108
(2) Stream-of-commerce, NON-internet cases
(a) O’Connor Test “stream of commerce + more”
(b) 2 principles to help explain “more” p117-18
(i) “course of conduct directed” at forum state
 (ii) Foreign Co may not be subject to jx in “any particular State”
(3) Internet Min Contacts Rule: Zippo Sliding Scale p128
(a) Active Site = PJ
(i) “clearly does business" over the Internet, "enters into contracts … that
involve the knowing & repeated transmission”
(b) Interactive Site = ?
(i) Examine “level of interactivity and commercial nature of exchange of
info”
(c) Passive Site = NO PJ
(i) "simply posted info"
(4) Calder Effects Test- Intentional Tort claims
(a) purposeful availment where D engages in
(i) (1) intentional wrongful conduct,
(ii) (2) expressly aimed at forum state, and
(iii) (3) he knew it would harm

iii) Fair (Reasonableness)

(1) Balancing Test:

1. Burden on D to litigate in 1. Forum state’s interest (see

inconvenient forum dissent p108)
(heavily weighted) 2. P’s interest for “convenient”
& effective relief
3. Judicial interest: efficiency
4. Several states’ interest:
“fundamental substantive
social policies”

b) In Rem JX
i) In Rem (latin = “with respect to the thing”)
(a) pure in rem jx, in which the property attached is also the subject of litigation
(usually an issue about ownership/boundries of property)
ii) Quasi in Rem (latin = “as if against a thing”)
(a) jx in which the property attached for has no connection to the subject of the
dispute (usually used to satisfy a judgment)
 c) TEST AND OR OR?

4. General Jurisdiction
a) Overview
i) There will be states where D is subject to PJ for ALL claims, even claims unrelated
to activities in that state
b) EASY CASES “Traditional Basis” p132
i) Individuals – Place of Domicile
ii) Corps
(1) Place of Incorporation
(2) Principal Place of Business (PPB)
c) PJx over CORPS & FOREIGN SUBSIDIARY
i) Gen Jx
(1) for a state to have PJx over corp D for “all claims” (including unrelated), D’s
contacts have to be “so ‘continous & systematic’ to render them essentially at
home in the forum state”
d) PHYSICAL PRESENCE
 i) TAG RULE:
(1) “Phyiscal Presence Alone” = PJ because we’ve always done it that way
(“tradition”)
ii) TRANSIENT RULE (Apply 2-prong Shoe):
(1) Min Contacts
(a) If D physically present then he has “significant” contacts (i.e., sufficiently
substantial)
(2) it’s fair (p148-49)
5. Wavier R12(h)
a) D waived right to bring motion bc didn’t raise argu in a Rule 12(b)(2) Motion in first
appearance
6. Consent
a) Types of Consents
i) Choice of Law Clause
(1) The parties agree that any litigation arising out of this agreement shall be
governed by the law of FL.”
ii) Consent-to-Jurisdiction Clause (waives challenges to PJ in forum, but does not
decisively require PJ in that forum)
(1) John Rudzewicz appoints X, residing in Miami, FL, as his agent for service of
process.”
iii) FORUM Selection Clause
(1) The parties agree that any litigation arising out of this agreement shall be brought
in Miami, FL.”
b) Forum Selection Clause
i) decisively determines PJx
ii) if “reasonable” &”fundamental fairness”
iii) “bad faith motive” would make it unreasonable
iv) Which cases are most impacted by forum selection clauses?
(1) Contract cases
(2) Malpractice not to consider a forum selection clause in contracts
7. RULE 4 Summons (Service of Process)
a) “Service of Process”
i) procedure by which D is notified of lawsuit (how D gets a copy of the summons and
complaint)
(1) R4(c) requires Personal Service of complaint
(2) unless, under R4(d), D agrees to Waiver of Service of Process by accepting
summons/complaint by mail - see p171-72 “stick” and “carrot”
(a) Stick: R4(d)(2) – failure to waive, ct “must impose cost” of service on D
(b) Carrot: R4(d)(3) – D waives = D gets more time (60 days) to respond to
complaint
b) R4(k)(1)(A)
i) fed cts have PJx over D where the D would’ve been subjected to PJx of state ct
c) Questions:
i) How does the process start? R4(a-c)
(1) Start process with summons and complaint
ii) Mullane holds notice by mail may be “reasonable,” but is that ok under R4? see,
e.g., R4(c), (e) and (f)
 (1) No - R4(e)(2)(A) & (h)(1) requires personal service on individuals & corps
unless waived
(a) so R4 has a higher and clearer requirement than Mullane
(2) What about “substitute service” on individuals? R4(e)(2)(B)-(C) – see p174 N4
(issues)
iii) What’s the cheapest way to serve U.S. Defendant? R4(d)(1)
(1) Requesting a waiver by mail
(a) Only Individuals & Corps can waive, R4(e, f, h)
(b) Certain D’s cannot waive – Govt & minors/incompetents, R4(g, i, j)
(2) D’s do crazy things to avoid service – what remedy? R4(m), video
(a) If P fails to serve D 90 days after filing complaint with ct, case dismissed; but
Ct may extend time if D evades
iv) What happens if D ignores request for a waiver of service of process? R4(d)(2)
(1) D may have to pay $$$ for personal service
v) What advantage (besides cost savings) does D get by waiving service of process?
R4(d)(3)
(1) More time to respond (answer or R12 motion) – from 21 to 60 days
vi) How does P serve D, if D fails to waive service? R4(d)(2),(e)-(j)
(1) Personal service
(2) but certain D’s can’t waive personal service – Gov & minors/incompetents ,
R4(g, i, j)
vii) Suppose D believes forum lacks PJx; does D waive this objection by waiving service
of process? R4(d)(5)
(1) No – D can still challenge PJ
viii) What about service on foreign D? R4(f) (see also box p175)
(1) By International Agreement (Hague Convention)
ix) Bonus Q #1: Cal law allows service of summons of complaint by fax. P’s process
server faxes notice to individual D citing to R4(e)(1) – is service ok under R4? Is
service ok under Mullane?
(1) Yes - ok under R4(e)(1) – same rule for corps, R4(h)(1)(A)
(2) ok under Mullane only if “reasonably calculated under totality” to reach D
 x) Bonus Q #2: difference between motions under R12(b)(4) & R12(b)(5)?
(1) 12(b)(4) bad documents (ex: complaint or summons not signed)
(2) 12(b)(5) bad service (ex: served by the party himself, not allowed)
xi) Review Notes 1 – 4 (p172-75) – Answers on TWEN (perfect mc exam Qs)
8. NOTICE
a) Mullane
i) Rule - Due Process Requires Notice p164
(1) Personal service
(a) “always adequate”, but not required if “impractical”
(2) If Personal Service “impractical” then, Notice must be …
(a) “reasonably calculated notice” totality of the circumstances
ii) notice that is reasonable under all the circumstances
b) Note:
i) in Fed Ct Both R4 and Mullane must be met
9. Two (2) Notice Rules
a) Constitutional Due Process
i) Mullane requires that, at a minimum, notice must be “reasonably calculated” under
the totality of circumstances
b) Fed Rule 4 heightens the constitutional requirement – in Fed Ct
i) personal service required, unless D “waives service of summons”
ii) BUT under R4(e)(1) & R4(h)(1)(A) – Fed cts can also serve as allowed by state
law so long as constitutional under Mullane
10. Self-Imposed Constraints
a) Long Arm Statutes – Gibbons
i) Definition:
(1) states get to decide what Ds to exercise PJx over,
so long as constitutional
ii) Types of Long Arm Statute:
(1) FULL REACH – state wants PJx over D to the full reach the Constitution allows
(apply Shoe)
 (2) SPECIFIC ACT - state wants PJx only over specific Ds (less than what the
Constitution would allow)
b) Venue – Thompson, § 1391
i) Definition:
(1) Venue – ct house within a state where case is brought
(2) County or Federal District of the specific court house
ii) Types of Venue: (OR TEST)
(1) where any D “resides” (see 1391(c)), if all Ds in same state
(2) District where “substantial part” of claim occurred
(3) If not 1 or 2, then District (narrower than state) where D is subject to “personal
jx”
iii) § 1391(c) – meaning of “residency” (see 1391(b))
(1) Individual – place of domicile
(2) Company – where D/Co is subject to PJx; see also 1391(d)
(3) Aliens – anywhere
iv) Questions:
(1) Assume P v. D in Cal state ct in Los Angeles County; D wants to challenge venue.
Does D cite this fed statute?
(a) No – Fed statute only applies to Fed Ct, can only tell us what fed district ct
house (not state county ct house)
(b) See p186 box – key ( State Courts have many patterns for venue)
(2) Do you have to check number 3 type all the time?
(a) No , once 1 or 2 is satisfied you can ignore 3
c) Declining Jx
i) there are 2 times where a court has PJ & venue, but for reasons of justice or efficiency
can decline to exercise it
ii) Forum Non Conveniens – Piper
(1) It is part of Common Law
(2) Favorability of law to P should not be given “substantial weight” – why not?
(a) Precedent
 (b) “Flexibility,” otherwise P would always win bc P would pick forum with most
favorable law
(c) Practical Problems - “crowding of US courts”
(d) Exception: “no remedy at all” in alt forum
(3) RULE:
(a) P’s choice is “strong presumption”
(i) “less force” if P is foreign (not at home in US) thus “less reasonable”
(b) Only outweighed if Gilbert factors - (1) private interests; (2) public
factors - p188 + fn 6 – point to alternative forum
(i) Balancing Test:
1. We have to balance between the private interest factors affecting the
convenience of the litigants and public interest factors affecting the
convenience of the forum
2. Private factors points both way to plaintiff and defendant because the
evidence is split in England and in US, however, few in the US
3. Public Factors points to dismiss because two sets of laws will confuse
the jury, it lacks familiarity with Scottish law
iii) Transfer/Change of Venue - § 1404 & Atlantic
(1) It is part of Statutory and only works Fed Ct to Fed CT
(2) Motion to Transfer from Fed Ct to another Fed Ct, 28 U.S.C.
(3) § 1406 “[f]or the convenience of the parties and witnesses, in the interest of
justice … [can transfer to] any other district where it might have been brought”
(4) § 1404 “all parties have consented”
iv) What motion should D bring to enforce the forum-selection clause?
(1) R12(b)(3) Motion to Dismiss or
(2) § 1404/1406 Motion to Transfer or
(3) Forum non conveniens Motion to Dismiss
v) COMPARING MOTIONS:
(1) Motion 12(b)(3) to Dismiss for Improper Venue
(a) When: Only use if venue is “wrong” p196
(b) If granted: case dismissed (over)
 (c) Analysis: not relevant here bc WD TX was a proper venue
(2) 28 U.S.C. § 1404/1406 Motion to Transfer
(a) When: “provides the mechanism for enforcement of forum-selection clause”
from Fed Ct to Fed Ct, p197
(b) If granted: case continues in Fed Ct of forum selection clause
(c) Analysis: here D could get case transferred from fed ct (a proper venue, WD
TX) to fed ct (another proper venue as identified by the forum selection
clause, ED VA)
(d) ... But what if forum-selection clause is for STATE Ct only – can the fed
Transfer Statute apply?
(i) NO – so D can only file Forum non Conveniens Motion (see #3)
(3) Motion to Dismiss for forum non conveniens
(a) When: “appropriate way to enforce a forum-selection clause pointing to a
state or foreign forum”
(b) If granted: case dismissed
(c) Analysis: fed ct can’t transfer from fed ct to state ct (or fed ct to foreign ct)
(i) so when venue is proper, but violates a forum selection clause in a state or
foreign forum, D’s only choice is to file a forum non conveniens
 Subject-Matter JX

1. Overview:
a. Types of Jx
i. Exclusive Jx: Only Fed ct or State ct can hear it.
1. Like Copyright and Patents for Fed
2. Like Divorce and family law for State
ii. Concurrent Jx: Can be heard by either State or Fed Court
1. Any claim that can be heard by either fed or state
iii. Courts of Limited Jx: Fed Courts
iv. Courts of General Jx: State Courts
v. Personal Jx v. Subject matter Jx
1. State ct: slower, 12 jurors/majority vote, elected judges, local jury
pool (might favor home-town litigants)
2. Fed ct: faster, 6 jurors/unanimous vote in civil, appointed judges,
district-wide broader jury pool
vi. Original Fed Jx: allows for the case to originate (start) in Fed ct
1. Fed Q
2. Diversity
3. “Supreme Ct Original Jx” § 1251 – e.g., controversies btwn 2
states
vii. Appellate Jx: US Supreme Ct has discretion
1. lower Fed Cts decisions § 1254
2. State Supreme Ct decisions with constitutional issues § 1257
b. All SMJx cases have to do with Statutory Interpretation of 28 U.S.C. §
2. Fed Q 28 U.S.C. § 1331
a. Definition:
i. The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.”
ii. "arising under” interpreted =
 1. “P’s statement of his own cause of action” (e.g., the complaint)
based on Federal claim
2. It cannot be “some anticipated defense”
3. Diversity 28 U.S.C. § 1332
a. Requirement:
i. Compete Diversity between Ps and Ds
1. Citizenship:
a. domicile (physical presence)
b. intent to remain
2. “citizenship is determined at date complaint filed in fed ct”
ii. Over $ 75K – to prevent flooding
b. Examples of Complete Diversity:
i. P (Mexico) v. D (Japan) NO
ii. P (CA) v. D1 (Mexico), D2 (Japan) YES
iii. P1 (CA), P2 (Mexico) v. D1(NY), D2(Japan) YES
c. Corporations:
i. shall be deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principal place of
business [PPB]
ii. PPB means:
1. PPB = “nerve center,” high level officers direct, control and
coordinate
2. usually headquarters, “actual center of control”
d. Calculations of the over “$75K”
i. Overview:
1. Generally we trust what is given in the complaint
2. Punitive damages allowed but not alone
ii. Aggregation of Claims allowed?
1. 1 P v. 1 D
a. P’s unrelated claims can be aggregated (added together)
2. Multiple Ps v. Single or Multiple Ds
 a. Multiple Ps can NOT aggregate multiple claims bc they are
“separate & distinct”
b. unless there’s a “common and undivided interest,” then
usually Ps sue Ds “jointly”
4. Supplemental Jx 28 U.S.C. § 1367
a. Definition:
i. Supplemental Jx – claims that lack original SMJx “hitch-a-ride” with
related claims possessing original SMJx
b. Sub under:
i. Fed Q:
1. All other so related claims (common nucleus of operative facts)
and tell one story
ii. Diversity:
1. P’s action
a. In diversity cases, generally when P brings a claim against
a joined Party that destroys diversity, then no supp jx over
such claims…
2. D’s claims against joined parties?
a. Supp jx ok
c. EXCEPTION:
i. Discretionary:
1. 1367(c) – “district ct may decline to exercise supplemental jx” if
…
a. claim raises “novel or complex issues” OR
b. claim “substantially predominates” OR
c. ct has “dismissed all claims with original jx” OR
d. there are “exceptional circumstances”
5. D’s Removal 28 U.S.C. §§ 1441 - 1446
a. D’s Move: Removal from State Ct to Fed Ct
b. Who & where? § 1441(a)
i. D can remove fr State Ct to Fed Ct when …
1. There is Original SMJx (Fed Q or Diversity) and
2. Fed District Ct “embraces” State Ct (same location/county/district)
c. Does it matter if fed original jx is based on Fed Q or Diversity? § 1441(b)(2)
i. Yes – in Diversity cases,
1. D cannot remove to any fed ct located in D’s home-state bc if the
case is in D’s home-state D already has a hometown advantage
d. Assume P (CA) v. D (CA) for copyright and breach of K under CA state law.
Can D remove only the copyright claim? § 1441(c)
i. D can remove “entire case”, but go through Supp Jx analysis for state
claims
e. Assume P (CA) v. D (AZ) for car accident that occurred in AZ. P
improperly files in CA state ct which does not have proper PJx over D. Can
D still remove? Would D want to? § 1441(f)
i. D can remove, it doesn’t matter if State Ct didn’t have proper PJx
ii. D can still challenge PJx in Fed Ct
f. 5. When & How does D remove? § 1446 – Procedure
i. § 1446(a) – “Notice of Removal” – example on TWEN
1. “short plain statement of the grounds”
ii. § 1446(b) – timing issues
1. D has 30 days to remove when it “may first be ascertained”
that the case is removable based on either Div or Fed Q
2. if diversity, an additional timing rule: D has 1 yr from date of
complaint to remove
a. Caterpillar Exception: if improper removed but when
trial is correct diverse then no propblem
 i. “if, at the end of the day and case, a
jurisdictional defect remains uncured, the
judgment must be vacated”
ii. “however, no jurisdictional defect lingered” here
6. P’s Remand 28 U.S.C. § 1447
a. P can file a Motion for Remand § 1447(c) within 30 days from removal
b. back to State Ct arguing either
i. lack of SMJx, or
ii. procedural defects in Removal (§§ 1441, 1446 not met)
c. P can file a 12(b)(1) Motion to Dismiss arguing lack of SMJx
i. 12(b)(1) motion can be brought anytime
 ERIE

1. Overview:
a. AKA :
i. Choice of Law
ii. Conflicts of Law
b. Erie only apply to fed cts sitting in diversity or supp jx claims because there is no
federal common law
c. twin aims of Erie
i. (1) “discouragement forum shopping” &
ii. (2) “avoidance of inequitable administration of laws”
2. Substantive law: ( you can sue under it ) ( Always State)
a. Erie (Fed or State): Always State Laws
b. Klaxon Rule (which State): the State law where Fed ct Sits
i. P CA D TX FedCt CA -> CA State Law
ii. Unless the State require different rules like Contract
3. Procedure law: ( you can’t sue under it) manner and means ( Always Fed)
a. Practice
i. Outcome Determinative Test: (York)
1. outcome in fed ct (sitting in diversity) should “be substantially the
same” as the outcome in state
ii. Balancing Test: ( Byrd)
1. Fed consideration: 7th Amend right to a jury in civil cases &
preserving the “strong fed policy … of the judge-jury relationship”
2. State consideration: outcome might be different if a judge decides
b. Rule/Statute
i. Rule
1. Step #1: Is Fed Rule covered by “Rules Enabling Act,” 28 USC §
2072 (p277)?
a. “The Sup Ct shall have the power to prescribe general rules
…”
 b. “Such rules shall not abridge, enlarge, or modify any
substantive right.”
c. So far all FRCPs are ok under the REA– N2.b, p280
2. Step #2: Is Fed Rule Constitutional?
a. What might be a non-Erie Constitutional challenge to R4?
b. Mullane - but N2.b so far all FRCPs are constitutional
ii. Statue
1. Is Statute Constitutional?
 Joinder

1. Overview:
a. Purpose of Joinder:
i. Fairness, Efficiency, Finality
b. Joinder Categories:
i. Joinder of Claims: R18,R13
ii. Joinder of Parties: R20,R14,R19
iii. Intervention: R24 – elbowing your way into a lawsuit
iv. Interpleader: R22& Statute – Pleading to stay out of a lawsuit
c. How to approach joinder
i. Joinder Test:
1. Can x be joined?
ii. SMJx
1. If so, does the fed ct have power ( SMJx) over X? orig/sup
2. Joinder of Claims:
a. Rule 18(a) – Permissive Joinder of Claims
i. Joinder Test
 1. “A party asserting a claim, counterclaim, crossclaim, or third party
claim may join … as many claims as it has against an opposing
party.”
ii. Is P compelled to bring claims?
1. No - it is “permissive” for P to join claims
iii. But should P join claims?
1. Yes – esp related claims with same CNOF, to avoid Claim & Issue
Preclusion (P is precluded from relitigating same claim - stay
tuned)
iv. R18a - suing on any claims throws the gates of litigation wide open. What
controls the flood gates?
1. Pleading - a plausible claim
2. Preclusion (can’t relitigate same claim - stay tuned)
3. Subject Matter Jx (next slide)
v. SMJX?
1. Original Jx - Diversity or Fed Q
2. (maybe Supp Jx if claim related/same CNOF as claim with original
jx)
b. R13(a) – COMPULSORY COUNTER CLAIM
i. D required to bring counterclaim if same TO
ii. Joinder Test:
1. Arises out of the transaction or occurrence” (same T.O.)
iii. SMJx Test:
1. Bc same TO, usually in via Supp Jx (1367) bc same “case or
controversy”
2. -could also get via original jx
c. R13(b) – PERMISSIVE COUNTERCLAIM
i. D may bring any counterclaim
ii. Joinder Test:
1. Any counterclaim
iii. SMJX Test:
 1. Needs independent, Original basis for SMJ (Diversity or Fed Q)
2. -Usually no supp jx issue bc if so, then would likely be a
compulsory counterclaim
d. Affirmative Defense R8, Counterclaim R13, CrossClaim R13(g)
i. Affirmative Defense: fraud
1. Outcome: D not liable for breach of K
ii. Compulsory Counterclaim: fraud
1. Outcome: D wins $$$$ from P
iii. Crossclaim: fraud against 3rd party
1. Outcome: D wins $$$$ from 3rd party
e. R13(g) – CROSS-CLAIMS
i. D brings a claims against 3rd party
ii. Joinder Test:
1. D may bring any cross-claim if same TO
iii. SMJx
1. Original Jx, OR
2. Bc same TO, usually in via Supp Jx (1367) too bc same “case or
controversy”
3. Joinder of Parties
a. R20 – PERMISSIVE JOINDER
i. Joinder Test:
1. Same/Series of T.O (“logically related” “absolute identity of all
events unnecessary” +
2. same C.Q. (Common Question of law or fact)- not different facts
ii. SMJX Test:
1. Under R20 there must be Original Jx over each P v. D case , bc
Supp Jx does not apply to such claims
2. In Div case, can’t aggregate claims of all Ds (each P v. D must
>$75k)
b. R14– IMPLEADER
i. D brings a 3rd party to the lawsuit
ii. Joinder Test:
 1. 14(a)(1) Original-D may implead 3-Party-D who “may be liable”
to Original-D
2. Must be derivative of the original claim; 3-party-D may be
impleaded only when the original D is trying to pass all or part of
the liability onto the 3-party-D
3. NOT DERIVATIVE: “I’m not liable. It was all him, not me.”
(cannot implead)
4. DERIVATIVE: “If I am liable, he is (fully or partly) responsible”
(may implead)
5. Classic derivative liability = joint tortfeasors, indemnity,
contribution - “D’s ability to defend itself by passing on liability”
iii. R14(a) + R18
1. Joinder Test:
a. under R18, once ITW is a “third-party” Latco can bring
“any” claim against it
2. SMJX Test:
a. Supp Jx here bc Breach of Warranty related to impleaded
claim
iv. What can the 3rd Party do once joined?
1. File Claim against Original D - R14(a)(2)(B)
2. Raise a defense against P/Orig D - R14(a)(2)(C)
3. File a cross claim against P - R14(a)(2)(D)
v. What can P do when 3rd party file claim against him First? ( IN THE
EXAM)
1. R14(a)(3)– P may bring claim against 3-Party if same T.O but no
Supp JX
2. R13(a) – COMPULSORY COUNTER CLAIM ( with Supp Jx bc
of T.O)
vi. SMJX TEST:
1. D’s impleaded 3-Party usually in via Supp Jx (1367) bc derivative
liability means claims is likely from same “case or controversy”
 2. could be Original too (always start with Fed Q, Div, then if
necessary to supplemental
vii. P v. 3-Party-D when Orginal Claim against D is on Diversity
1. R14(a)(3) - Joinder ok if same TO
2. SMJx?
a. Must be Original SMJx (Fed Q or Div)
b. § 1367 doesn’t allow P to exercise Supp Jx over persons
made parties under R14
i. otherwise P could circumvent SMJx rules (so no
SMJx here) – p811-12, 6.c – key language
viii. P v. 3-Party-D when Orginal Claim against D is on Fed Q
1. R14(a)(3) - Joinder ok if same TO
2. SMJx?
a. Can be Original SMJx (Fed Q or Div)
b. Or P to exercise Supp Jx with original Fed Q
c. R19, Compulsory Joinder
i. Example:
1. A, B, & C jointly own property
a. A v. B for full ownership
i. Can B file a 12(b)(7) motion to dismiss the case for
failure to include C?
ii. Yes – arguing “If A doesn’t join C to the party, A
can’t litigate the case bc they all have an interest in
the property, thus, the case must be dismissed”
ii. Joinder Test for R19 (so far):
1. R19(a)(1): Is Nonparty necessary?
a. (A) “ct can’t accord complete relief among existing
parties”
b. (B) Without joinder, parties’ interests are not “protected”
or creates “inconsistent obligations”
c. “Necessary”= “some connection of property ownership,
contract rights, or obligations” with those not joined
 2. R19(a): If necessary, can Nonparty indeed be joined?
a. PJx & SMJx ok?
3. 3. R19(b): If necessary but “not feasible” - impossible to join
(bc of lack of PJx or SMx) ….
a. R19(1)-(4): in “equity and good conscience” should the
case proceed anyway without the necessary party?.... Is the
party “indispensable” to the case
b. 4 factor test:
i. No prejudice to 3rd party or D if 3rd party absent
ii. prejudice lessened if 3rd party had intervened
iii. 3rd party absence doesn’t make judgment inadequate
iv. 3rd party absence doesn’t make P’s relief inadequate
4. Intervention (R24)
a. Definition:
i. Nonparty may elbow his way into the lawsuit as either P or D
b. R24(a)(2) -BY RIGHT
i. Joinder Test:
1. Nonparty has interest in transaction/property
2. Nonparty is impaired, “as a practical matter,” if not allowed to
intervene
3. Whether nonparty’s interest adequately represented by parties
ii. SMJX TEST:
1. Only Original SMJx (Diversity or Fed Q)
c. R24(b) - PERMISSIVE
i. Joinder Test
1. Ct has discretion to allow intervention where:
a. CQ, and
b. won’t “unduly delay or prejudice” case
ii. SMJX TEST:
1. Only Original SMJx (Diversity or Fed Q)
5. Interpleader
a. Definition:
i. Interpleader - allows “stakeholder” (e.g, insurance co, escrow holder) to
initiate lawsuit to compel “claimants” (other parties) to litigate a dispute
over the “stake” (property)
b. Rule Interpleader – R22
c. Statutory Interpleader – 28 USC § 1335
d. Check TABLE for Requirements!
 DISOCERY
1. Overview
2. There are 3 STAGES of Discovery
a. Stage 1. Conferences & Initial Disclosures
b. Stage 2. Parties Use Discovery Tools
i. Scope of discovery R26(b)(1)
1. Relevant
2. Proportional
3. Not otherwise Limited (privacy, priv, WP, Experts)
ii. Tools of discovery (RFP, RFA, Rogs, Depos, Exams)
c. Stage 3. Pretrial Disclosures
3. Stage 1:
a. STAGE 1.A: ~60 days after pleadings done: R26(f) Conference of the Parties &
Discovery Plan
i. Lawyers meet – R26(f)(1)
ii. All agree on Discovery Plan – R26(f)(3)(A-F)
b. STAGE 1.B: 14 days later: Initial Disclosures due, R26(a)(1)
i. Parties automatically have to exchange 4 categories of info – “basic
evidentiary cards” p474
ii. 4 initial disclosures:
1. individuals with discoverable info;
2. relv docs;
3. calculation of damages;
4. insurance
iii. What if B doesn’t disclose ws, later decides to call him? R37(c)(1)
iv. Can/must B supplement? R26(e)(1)
c. STAGE 1.C: 7 days later: R16(b) Conference with Court
i. Parties meet with Court to discuss Discovery Plan
ii. Court approves plan
iii. This ends Stage 1
4. Stage 2 ( Main Event)
a. Scope R26(b)(1)
i. Relevant
1. a hook pertinent to claim or defense, consider limits on time/place,
Favale
ii. Proportional
1. weigh proportional factors, p488 & R26(b)(1)
a. 1. Needs of the case
b. 2. Importance of Issue
c. 3. Amount in controversy
d. 4. Parties’ access to info
e. 5. Parties’ resources
f. 6. Importance of discovery
g. 7. Burden v. Benefit
iii. Not Otherwise Limited (Privacy, Priv, WP)
1. Privacy – R26(c), Rengifo, -488
a. The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, undue burden or expense”
2. Privilege
a. What are some example “privileges”? p493
i. 5th Amend Privilege against Self-Incrimination
ii. Attorney/Client
iii. Doctor/Patient
iv. Husband/Wife
b. How can privileges be “waived”? p493
i. If claim stems from it
ii. If not raised
c. N1 p494– answers on TWEN
3. Work Product – Hickman
 a. Work-Product = atty’s “mental impressions” or “written
material [the attorney] prepares with an eye toward
litigation,” is not discoverable unless a showing of
“necessity”
b. Exception = “substantial need”
c. Work-product is not a “privilege” so not waivable
(statements have to be turned back over under claw-back
provision,
4. Expert Rules
a. (1) Who is an expert? R26(a)(2)
i. hired/retained “in anticipation of litigation” to
bring “technical background” and to “offer opinion”
b. (2) If an expert, is the expert testifying OR non-testifying?
i. Non-testifying expert and his findings/report are
WP
c. Testifying v. Non-Testifying Expert rules –
d. Expert Testifying at Trial
i. Initial Disclosure R26(a)(2)(A)
1. name of potentially testifying expert so
parties can prepare ($$$$)
ii. Discovery of Expert Report R26(a)(2)(B)
1. 90 Days before Trial must submit bio &
report
iii. Depo of Expert R26(b)(4)(A)
1. after report provided
e. Expert non-Testifying
i. No Initial Disclosure R26(a)(2)(A)
ii. Discovery of Expert Report R26(a)(2)(B)
1. only if “exceptional circumstances” Means
it turns on whether a party possess factual
 info opposing party can’t obtain through
ordinary diligence
iii. Depo of Expert R26(b)(4)(A)
1. only if “exceptional circumstances”
b. Discovery Tools ( FIND TABLE)
i. Rogs R33
ii. RFPs R34
iii. RFAs R36
iv. Depos R30
v. Phy/Mental Exams R35
5. Stage 3
a. What ends stage 2 and starts Stage 3?
i. as agreed upon by parties during Stage 1 “conference of the parties”:
1. Discovery cut-off
2. Motions to Compel Discovery Response cut-off
3. Motion for Summary Judgment (“MSJ”) cut-off
b. What final discovery do you have to give?
i. R26(a)(2) - Testifying Expert Reports (due 90 days before trial)
ii. R26(a)(3) - Pretrial Disclosures (due 30 days before trial)
c.
6. Subpoena Power – force witnesses and parties to depo or get docs
7. R34(a)(1)(A) - Electronically Stored Information (“ESI”)
a. R34(b)(2)(E) -- can produce e-documents in “reasonably useable forms”
b. Some cost-shifting, if party can prove “undue burden or cost” R26(b)(2)(B)
8. Spoliation Rule (Duty to Preserve evidence)
a. If party breaches duty, then possible sanction = Adverse Inference, jury must
presume missing info was unfavorable, codified 37(e)(2)(B)
i. Duty to preserve
ii. Breached Duty with Culpable State of Mind (e.g, neg)
iii. Missing evidence is Relevant & would have been Favorable to moving
party
 b. Atty’s Duty Breached
i. “Counsel must take affirmative steps to monitor compliance so that all
sources of discoverable info are identified”
1. Litigation Hold
a. Understand retention policy
b. Codified at R37(f) (see Note3)
2. Interview key players – “interview each employee”!
3. Info is safely stored
c. Party’s Duty Breached
i. Sanctions – p518-19
1. Adverse Inference
2. D pays for all depos
3. D pays for motion
9. Ensuring Compliance, R37
a. 3-Step Process to resolve Discovery Dispute:
i. Parties “Meet & Confer” – try to resolve dispute without judge
ii. Party makes Motion
1. Motion to Compel – party wants to force another to respond to
discovery request (offensive)
2. Motion for Protective Order – party wants protection from having
to respond (defensive) – p488, Rengifo
iii. Ct considers Sanctioning losing party
 Pre-Trial
1. Resolution without Trial
a. Litigate … or else!
i. D Inaction: Default Judgments R55 - Peralta
ii. P Inaction: Dismissals R41
b. Avoiding Adjudication
i. Settlement
ii. Mediation
iii. Arbitration
c. Summary Judgment
i. R56 – Celotex, Houchens & Bias
2. Default Judgment: R55
a. Against whom? R55(a)
i. Judgment against D who fails to respond to complaint, meaning P wins!
b. How? R55(b)
i. Automatic - if damages easy to calculate
ii. By P’s motion - if damages have to be established
c. Can D set aside default? R55(c)
i. By D’s motion, for “good cause” under R60(b)
1. bad service usually = good cause to set aside default judgment
3. Dismissals bc of P inaction
a. Voluntary Dismissal
i. Who: P volunteers
ii. When:
1. Without ct order before answer/MSJ; or by stipulation
a. Careful to agree if you are D (see Note 2, p535)
2. With ct order “on terms the ct considers proper”
a. D should always ask for attorney’s fees!
iii. What can P do?
1. P can refile bc dismissed w/o prejudice (R41(a)(1)(B), R41(a)(2))
 b. Involuntary Dismissal
i. Who: D Motions Ct
ii. When:
1. P “fails to prosecute”
a. e.g., fails to serve complaint
2. P “fails to comply with Rules or ct order”
iii. What can P do?
1. P can’t refile bc involuntary dismissal is deemed adjudication on
merits
2. P can move to set aside dismissal (R60.b)
4. Settlement Agreement
a. K to end case; parties negotiate K terms
b. usually no Ct involvement, unless…
i. Settlement Agreements can become “Consent Decrees” which are...
1. = judge-approved settlement contract that becomes a “final
judgment”
5. Mediation
a. casual meeting ran by neutral party (mediator) to broker a settlement
b. parties usually split costs
6. Arbitration
a. Formal proceeding ran by arbitrators (judges); akin to court proceeding with
opening/closing remarks, witnesses …
b. Arbitration K sets forth civ pro rules & who pays for arbitration (parties contract
around Civ Pro Rules!!!)
7. Summary Judgment
a. What is a Motion for Summary Judgment (MSJ)?
i. “trial on the papers” when there are no factual disputes
ii. Because facts undisputed, judge (not jury) decides who, as a matter of
law, wins
b. Who can bring a motion, when? R56(a)-(c)(1)(A)
 i. P OR D can bring motion “any time until 30 days after the close of
discovery” (stage 3 of discovery)
c. Grounds under R56(a) - Celotex
i. “No genuine issue of material fact”
1. Celotex Moving Party’s Burden - the party bringing the MSJ
(either P or D) has burden to show no genuine issues of material
fact (or absence of evid)
2. Bias (evid has to be specific, not general)
3. Houchens (can’t “pile inferences on inferences”)
ii. “Entitled to Judgment as a matter of law”
1. Trial Burden - Party who has burden of proof at trial has to show
undisputed facts establish claim as a matter of law (proves every
element of claim with facts)
a. Facts are established by affidavits, depositions,
authenticated docs
b. Facts are NOT unauthenticated docs or allegations in the
complaint
d. Nuts & Bolts – Notes 4-6, p580-81
i. Comparison to other motions
ii. Docs that make up MSJ
1. (1) Moving Party files R56 MSJ,(see ex on TWEN), R56(c) :
a. Notice of Motion
b. Separate Statement of Undisputed Facts with supporting
Evidence
c. Memo of P’s & As (legal argu)
2. (2) Opposing Party files “Opposition to MSJ”
3. (3) Moving Party files “Reply in support of MSJ”
e. Notes:
i. When determining if there are disputed facts, “reasonable inferences
should be drawn in favor of nonmoving party”
 Former Adjudication
1. Overview
a. CLAIM PRECLUSION
i. If P loses, P is BARRED from bringing same CLAIM AGAIN (or a claim
that should’ve been brought)
b. ISSUE PRECLUSION

i. CUTS-OUT and prohibits re-litigation of ISSUES that have already been

actually litigated

2. Claim Preclusion:

a. Same Claim – Frier

i. “Same Claim” Preclusion Tests (common law): p720

1. Narrow Test: “identical” causes of actions = “common core of

operative facts” sustained by “same evidence”

2. Broad Transactional Test (Restatement/fed): “out of same

transaction” which includes … Note 2.c, p723

a. “pragmatically,” “matters related in time, space, origin, and

motivation,” “convenient trial unit”

b. P must have a fair opportunity to litigate its case

ii. Important Notes

1. Always look at where is the first case decided to determine the rule
of the second case

2. “fed ct must apply the State’s law of res judicata”

3. In diversity cases, bc claim preclusion is ~substantive issue,

under Erie, apply state law (Note 8)
 a. Here, Fed ct in Case 1 should mirror CA state ct, and
thus apply the CA Narrow Test

4. Even if Broad Transaction Test (Fed)is met, there is a limit – P

must have had a “fair opportunity to litigate” in Case 1

b. Same Parties – Taylor

i. meaning same persons are acting as Plaintiff and Def

1. Compare to R13 - compulsory counterclaims applies to D ( See

Chart)

ii. Taylor: Must be same P in both cases unless “adequate representation”

1. Like express agreement or successive owners of property (legal

relationships), or Class actions (procedural representation)

iii. Claim Preclusion = incentive for P to bring all related claims

iv. R13(a) Compulsory Counterclaim = incentive for D to bring all related

claims

c. Final Judgment– Gargallo

i. requires that Case #1 be adjudicated (Notes, p738)

ii. Merrill Lynch: Ct in Case #1 must have proper SMJx (otherwise no final
judgment)

d. On the “merits”

i. requires the claim in Case #1 be adjudicated on the merits (Notes, pp739-

40)

1. Ex: trial, MSJ, Involuntary Dismissal R41(b), consent decree …

2. 12(b)(6)? depends if Case #1 in fed or state ct

ii. What about R12(b)(6) –is failure to state a claim “on the merits”?

1. If case #1 in Fed Ct on Fed Q? Note 4.a

 a. Yes, on the merits

2. If case #1 in CA state ct and D brings Demurrer? Note 4.b

a. No, not on the merits

3. If case #1 was in Fed Ct in CA on diversity?

a. (Erie issue) in diversity cases, fed cts apply the preclusion

law of the state that would, but for the existence of diversity
jx, have rendered the judgment

b. In Case #1, Fed Cts sitting in diversity must mirror a State

Ct

c. so pretend Case #1 brought in state ct and apply state law

d. Thus, when a Fed Ct is sitting in diversity in CA, a

12(b)(6) is treated like a CA demurrer, and answer is
No!

3. Issue Preclusion

a. Elements:

i. Same Issue

1. Same legal or factual issue

2. In Same Procedural setting/context

3. Same Issue = (1) Same issue (legal or factual) + (2) Same

procedural setting (i.e., burdens of proof; discovery; other
procedure)

4. a wise civil litigator waits to sue for wrongful death action until
after the verdict comes down in corresponding criminal case.

ii. 2. Actually Litigated and Determined by Final Judgment (Parks)

1. Definitions:
 a. “actually litigated” = issue actually presented to
judge/jury

i. E.g., not actually litigated -> Settlement Agreement,

Default Judgment, Dismissal based on Discovery
Abuses

b. “determined” = issue specifically considered by

judge/jury in its final decision

i. issue in Parks – Not actually determined where

judgment fails to specify determination of issue

ii. Specific verdict means it is determined

iii. But general verdict it is hard to say

2. Burden:

a. Party evoking preclusion has to prove issue was litigated

and decided, “or else the question will be open to new
contention”

iii. 3. Essential to Judgment

1. Restatement (2nd)- where there are alternative grounds (AND), no

preclusion bc we don’t know if it is essential

2. No two issues are allowed to be decided together

iv. 4. Party cutoff had “adequate opportunity & incentive” to litigate

(Parklane)

1. (a) Mutual = same parties in Case 1 (P v. D) as Case 2 (P v. D)

a. If the parties are the same, then there was likely a fair
chance to litigate the issue (meets element #4)

2. (b) Non-mutual = different parties in Case 1 (P v. D) Case 2 (X v.

D or P v. Y)
a. party against whom issue preclusion is sought must be:

i. (1) a party, or in privity, in Case 1, and

ii. (2) It must be fair to that party

b. Non-Mutual Offensive Issue Preclusion “occurs when P

seeks to foreclose the D from litigating an issue D has
previously litigated unsuccessfully in an action with
another party”

i. P uses as a SWORD to cut-off D from using an argu

he already lost in a prior case

c. Non-Mutual Defensive Issue Preclusion “occurs when D

seeks to prevent P from asserting a claim the P has
previously litigated and lost against another D”

i. D uses a SHIELD to protect itself from a P who

keeps trying to use an argu he lost on in a prior case

d. It must be fair to that party - factors:

i. Party asserting preclusion could’ve easily

joined/intervened in Case 1

ii. Fairness factors

1. Party cut-off had little incentive to litigate in

Case 1

2. Possible inconsistent judgments

3. procedural opportunities unavailable in Case

 Trial
1. I. Basics

a. Courtroom & Trial Basics - 7th Amend, R48, R38,R 39

b. Notes:

i. Plaintiff table is next to the jury box

ii. “Suits at common law”? is seeking money not justice

iii. Bench trials (“equity”) vs. Jury Trials ($$$)

c. Assuming I have a 7th Amend right to a JURY TRIAL, is it automatic?

i. Rule 38(b) - Must demand jury trial in 14 days of last pleading, or it is

waived!!

ii. Rule 39(b) – court “may” order a jury trial

d. Trial burden?

i. “proving by a preponderance of the evid” - more probable than not

(>50%)

ii. Compare to crim trial’s “proving beyond a reasonable doubt” (>99%)

2. II. Judge’s control over Juries

a. R50 Motion for Judgment as a Matter of Law – Chamberlin

i. Definition:

1. reasonable jury would not have a legally sufficient evidentiary

basis to find for the party” R50

2. Ct can’t make (1) “credibility finding” or (2) “weigh” the

evidence

ii. To deny the motion, there must be direct evidence in contradiction

 iii. Timing:

1. Motion must be made BEFORE case is submitted to the jury

R50(a)(2), and then after the verdict, can RENEW

2. If not brought before case is submitted then WAVIED

b. R59 Motion for New Trial

i. Grounds:

1. “for any reason for which a new trial has hereto been granted”
(see p652)

a. Flawed Procedures -bad jury instructions, improper evid;

Google Mistrial

b. Flawed Verdicts – “verdict against great weight of evid”

(always weighing of evid and credibility)

ii. Timing:

1. 28 days after entry of judgment

3. III. Choosing & Challenging Jurors & Judges

a. Jurors

i. 1. Peremptory Challenge, R47(b)

1. Type of right? Statutory Right, 28 USC § 1870

2. How many? Limit 3 (race/gender pattern subject to Batson challenge)

3. Procedure? No stated reason necessary

ii. 2. For Cause Challenge, R47(c)

1. Type of right? Constitutional Right to impartial jury

2. How many? Unlimited

3. Procedure? Establish prospective juror is biased

 b. Judges

i. Challenging in Fed Ct, p606:

ii. 28 U.S.C. § 455 - self-disqualification, 2 grounds

1. 455(a): “impartiality might reasonably be questioned”

a. real case: 2008 Judge Kozinski & the “Trial of the fetish
film maker”

2. 455(b): specific circumstances

a. Bias, previous employment, financial interest

iii. 28 U.S.C. § 144 - procedure

1. < 10 days of judge assignment - Party files Recusal Motion with

Affidavit giving reasons for disqualification - who decides the
motion?

2. the Judge who is the subject of the motion!

Appeal

1. Appellate Court
a. 13 Federal US Courts of Appeal (1st-11th, DC & Fed Circuit)
b. Limited jx -28 USC § 1291
i. “jx over appeals from all final decisions of the district courts”
2. 2 Exceptions to Final Judgment Rule
a. 1. Permissible Interlocutory Appeals – before final judgment
i. i. By FRCP
1. Multiple Claims or Parties, R54(b) - at Dist Ct discretion
2. Class Certification Motion, R23(f)
a. proceeding stayed at App Ct or Dist Ct discretion
ii. ii. By Statute: 28 USC § 1292
1. § 1292(a)(1) Injunctions
2. § 1292(b) Certified “Controlling Qs of Law”
 a. “Certified” = Dist Ct request + App Ct discretion
b. 2. Writ of Mandamus - extraordinary writ
i. Latin for “we command” --App Ct orders Dist Ct to do something
1. Examples: SMJx 12(b)(1), PJx 12(b)(2) (McIntyre) . . . denial of
jury trial, judge recusal
3. Class Actions:
a. Class Actions R23 – belongs in two boxes
i. (1) Motion to Certify Class brought during Pleading Stage (see
example on TWEN)
1. If granted, case goes forward as class action
2. If denied, can appeal or case dismissed & individual Ps file
separately
ii. (2) “HUGE” Joinder
1. Relaxed PJx & SMJx – see Class Action Fairness Act, CAFA §
1332
2. Only 1 class member has to be diverse from D
3. aggregate >$5 million in damages
b. Class Action Complaint & Class Certification Motion
i. R23(a) - 4 Prerequisites (all must be met)
1. Numerosity
a. usually thousands (can be satisfied with as little as 20
2. Commonality
a. Common Q of law + fact (all “in the same boat”)
b. See Wal-Mart p882
c. See also, e.g., Mosley v. GM, p806
3. Typicality
a. Class Rep is in the “same shoes” (is like all other ) Class
Members
4. Adequate Representation – 2 part test
a. (i) Class Rep has stake in litigation
 i. Differences re relief resolved by “subclasses”
represented by different Class Reps
b. (ii) “qualified counsel” R23(g)
i. Diligence & Initiative
ii. Competence & Finance
ii. R23(b) - 3 Types of Classes (only need one)
1. (b)(1) Class
a. Where “individual class members would create risk of” no
relief for others
b. e.g., one pie (insurance fund) with a bunch of parties
entitled to a piece (like R19)
2. (b)(2) Class
a. injunctive or declaratory relief (usually for civil rights
claims)
b. Might have “incidental” monetary damages (see Wal-Mart)
3. (b)(3) Class
a. $$$$$$ money damages – aggregated small claims or mass
tort
b. common Qs “predominate” + class action “superior”