CIVIL PROCEDURE II OUTLINE

Joinder
Joinder is liberally allowed to resolve as many claims as possible at the same time. This saves time and money for the parties, judges, etc. POLICY REASONS!! In looking at joinder, ask: 1) Is a claim or party being joined? 2) Does a FRCP permit the joinder and, if so, which rule? 3) Is there SMJ over the new claim or party? Look for supplemental also. NOTE: In the Owen Equipment & Erection Co v. Kroger case (1978) the court dismissed because there was no diversity and this was before 28 U.S.C. 1367 was enacted. Rules 13, 14, 18, 20 Rule 13: Counter-Claims (Two Types) can be made by ANY party even 3rd parties Compulsory - Arises from the same T or O - Must be asserted in the answer or it is waived (13(a)) - Always under supplemental as it arises out of the same claim - The counter claim can exceed the original in amount Permissive - Does not arise from the same claim (T or O) - Must have diversity or federal question jurisdiction - NO supplemental jurisdiction for Permissive CC - May bring. You dont lose right to bring up later (bring later in state court)

Test for Compulsory (When a claim and counterclaim arise from the same transaction) Same T or O Tests 1. Same evidence - Will substantially the same evidence support or refute Ps claim and Ds Counter-Claim? 2. Common Qs of law/fact Are the issues of fact and law raised by the claim and counter claim largely the same? 3. Logical Relationship - Same Aggregate of Operative Facts as the main claim (Plant v. Blazer). Is there any logical relationship between the claim and counter-claim? (Most Fed Courts use) a very broad test! 4. Would res judicata bar a subsequent suit on the Defendants claim absent the compulsory claim issue? **YES to ANY of these means the counterclaim is compulsory!** Note: Most courts like the logical relation test

Cross-Claims Rule 13(g) EX Plaintiff is suing two or three Defendants (D-1, D-2, and D-3) - D-1 brings suit against D-2 TEST: see if it arises out of the same transaction Whether there is a logical relationship between the main claim and cross claim. Note: Remember, we want to save time by tying in all related claims. Unrelated claims will not save us time. Supplemental jurisdiction applies to cross claims because they arise out of the same transaction or occurrence as the main claim. - There is supplemental jurisdiction because it arises out of the same transaction - These are never compulsory, meaning you are free to bring them up later Rule 14: 3rd party practice (Impleader) FOR ALL OR PART! Ex) If I (D) am liable to P, then 3pD is liable to me (indemnity/contribution) Discretionary: Unless the third-party claim is filed within 10 days after the answer is filed, leave of the court is required. Whether a court will allow an impleader depends on: 1) inconvenience, delay or prejudice to the original plaintiff 2) economies of a single trial SUP. JUR. exists over the third party claim. This takes care of VEN and SMJ, but the court still needs PJ.

Once a party is joined as a third party defendant under 14, ancillary jurisdiction also applies to claims asserted by the third party defendant and against the third party by other parties if they are transactionally related to the main claim. Can NOT use, It is his fault, not mine. You must be suing for derivative liability (if I am liable, this person should be liable to me). That is the rule from the Watergate case. This is the Defendant bringing a Third Party Defendant into the Suit It can not be an It was him, not me scenario, meaning the Defendant must acknowledge some fault. An appropriate application of Impleader would be for contribution, indemnity, or warranty Once a third party Defendant is brought in, he can bring a counter-claim against the Plaintiff, thus becoming a third party Plaintiff

28 USC 1367 Supplemental Jurisdiction -common nucleus of operative facts1367 (B) (Only in Diversity Claims) Basically, if a Defendant impleads another Defendant who is from the same state as the Plaintiff, the Plaintiff can not file suit against the impleaded party because they could not have done so before the impleading occurred. (This would result in an unfair advantage for the Plaintiff

DUE PROCESS: Stare Decsis: RULE 12(b) 7: NOTE:

Can never be bound by a judgment to which you are not a party. The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation. Absence of necessary part (motion to dismiss) Can be raised anytime.

PERMISSIVE JOINDER OF CLAIMS: (RULE 18) RULE 18 is permissive joinder of claims (can join any claims) One party can bring as many claims as he has, even if unrelated, as along as they are all against the same defendant (or defendants if it is for joint and several liability). Once a party has made a claim angst some other party, he may then make any other claim he wishes angst that party. Need independent SMJ DiversityAmt in controversySupplemental JurisdNOTE: not affected here b/c no new parties can aggregate all claims by a P against a D if only supp j., then no indep SMJ & NO

Always mention 42(b) which says that the judge can sever the claims if it gets too confusing, time consuming, etc.

Rule 20: PERMISSIVE PARTY JOINDER Under FRCP, joinder rules are very liberal. The basic objective is to prevent multiple actions, saving time and money. All persons may join as plaintiffs or be joined as defendants if: 1) they have rights or liabilities arising out of the same transaction or occurrence AND 2) if any question of fact or law common to all of them will arise in the action EXAMPLE: A may join B AND C claiming that his injuries are the result of either or both

Mosely v. General Motors Corp. (1974) P and 9 others sued for racial and gender discrimination and wanted to join together in one suit under Rule 20. The court held that each P to bring a separate suit. The higher court reversed, saying Rule 20 should be broadly granted and that Rule 42, severing a claim, can be used if it gets too crazy.

Rule 19: COMPULSORY JOINDER:

If a person not being there will prejudice one of the parties, they are NECESSARY. If they are necessary and can NOT be joined, they are indispensable and the action SHOULD be dismissed. Rule19 occurs in pre-discovery phase What it does: recognizes situations where P has not brought to the table all persons who need to be there in order to fully address the issue of the suit either for those already in the suit or not in the suit. Due Process requires you can never be bound by a judgment to which you are not a party. But we recognize times when the practical consequences when youre not a party do affect you. Reasons to get in suit now (Precendent & Stare Decisis) 3 Step analysis under Rule 19: 1) Is the person necessary? absentee needed for a just adjudication? 2) If so, they should be joined if it is feasible: Is joinder feasible? 3) Is the person indispensable? If not feasible, court must decide if suit can be heard without that party (if not they are indispensable and the suit is dismissed) 12(B)7: mechanism by which absentee is raised. D files it & asks ct. to dismiss suit b/c of absence of a party. Then court looks at (R.19) to see if hes a necessary party. a. When you file a 12(B)(7) you must tell ct analysis: b. With 12(B)7: If party is necessary & feasible, you get order to join party but party does not have to. c. 12(B)7: Not lost if not brought in answer d. * see Rule (12L) and 12(h)(2): to see when can raise defenses 1) Necessary: Determine prejudice to missing party and present parties. (a) (b) (c) Can you grant complete relief to all without the party there? Will missing persons interest, as a practical matter, be impaired or impeded? Will the absence expose any existing party of multiple or inconsistent obligations? jewelry selling case (all you need is one of these factors for the person to be found necessary) If necessary, he must be joined unless no PJ, SMJ, Venue or if it would destroy diversity.

EXCEPTION: 2) If feasible:

If he can be joined, he will be joined. If he can not be joined, then the court must, in equity and good conscience, determine whether the action should proceed among the parties before it, or should it be dismissed, the absent party thus indispensable. 3) Indispensable: Court in deciding if it should dismiss the case looks at: a) Prejudice to all b) Ability to shape relief to lessen prejudice (may give different remedy than one asked for if it would hurt missing part) c) Adequate remedy for plaintiff if case is dismissed? (alternative forum) d) Ability to render an adequate judgment in the persons absence (Court uses TOC here and makes a judgment call whether to proceed without that party or dismiss the case) Procedure for compulsory joinder: (Ds burden to show party is necessary)

1) The complaint must state the names of all parties who were not joined and the reasons they were not joined.
2) The court then labels them as necessary or indispensable. 3) If plaintiff does not join an indispensable party, D will file a 12 (b) (7) motion to dismiss. NOTE: If you see 12 (b) (7) on examThink ofRULE 19. Helzbergs Diamond Shops v. Valley Wes Des Moines Shopping Center P had a lease agreement whereby he was leasing space in the Ds shopping center. The lease provided that D could only lease to ONE other jewelry store. After D leased to a third jewelry store, P sued D. D made a 12(b) (7 motion to dismiss since the jewelry store was not made a party to the suit. The court denied the motion, holding: a party does not become indispensable to an action to determine rights under a contract simply because that persons rights or obligations under an

entirely separate contract will be affected by the result of the action. Here, the court gave the third jewelry store a chance to intervene, but they declined, so the court thought they did enough to protect the third partys interests. Step 1 : Is absentee necessary? needed for a just adjudication & one who shall be joined with: 19(a)(1) or 19(a)(2 3 ways absentee can be necessary only need one of 3 1. Incomplete Relief 19(a)(1) - In the persons absence complete relief cant be accorded among those already parties. (This deals with efficiency we want to minimize number of proceedings & conserve judicial resources) OR 2. Absentee claims an Interest relating to subj. of action & is so situated that the disposition of action w/out absentee may: i. As a practical matter impede or impair the absentees ability to protect that interest (this furthers goal of avoiding harm or prejudice to absentee) OR 3. ii. Leave any of persons already parties subject to a substantial. risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the absentees claimed interest. (This serves goal of avoiding imposition of multiple or inconsistent liability on Ds)

If no to all 3, stop, absentee is not a nec.pty, but if yes to any of 3, go to step 2 Step 2 : Is joinder of the absentee Feasible (SMJ, PJ, Venue) If so, then no problem & suit goes. If not go to step 3 (then court must balance 4 factors to see if suit is so important it cant go on w/out them, to see if theyre indispensable).

A) Does ct. have SMJ to hear action if absentee becomes pty? (will joinder destroy diversity or will the claim
involving absentee fail to satisfy amt. in controversy) B) Will ct. be able to exercise P.J. over absentee & will the person be subj. to serv. of proc. C) Will Venue be proper for absentee? If yes to all 3, then its feasible & ct. will order joinder of absentee. If no to any, then not feasible & go to step 3. Step 3 : Since joinder isnt feasible, ct, decides if it should inequity and good conscience continue the suit w/out absentee or dismiss the entire case. ct. weights these factors:

1) Prejudice to what extent will absence of the absentee prejudice the absentee or those already ptys 2) Framing of Judgment to what extent can ct. lessen the possible prejudice By some protective provision in the 3) 4)
judgment; by shopping the relief; or by some other measure Adequacy of Remedy whether a judgment given w/out the absentee be adequate Result of Dismissal whether the P have an adequate remedy if court dismisses action for non-joinder of the indispensable absentee.

? D cant bring in other parties (ex: permissive CC) Situations where these are necessary ptys

1) If the law in a suit involves Rights And obligations of parties 2) 3) 4)

-Never with joint tortfeasors ( still can arg. For them), ex. Temple case -Rule 19a is never to apply when may have a K party. When person has an interest Situations that would affect rts. to a pty who is not now a pty. Ex:Each on 50% of prop, cotenant is necessary pty. Always H&W (ten by entirety), where neither can convey w/out other, so no judgment angst one of them, need both b/c they are necessary parties.

(Temple v. Synthesis) : 2 suits 1.( P D fed.ct. diversity) 2(P other D/st. ct.)

D wants to get absentees here & he args well be prej if not there. (19a1) or (19a2) inconsistent judg. Rule : Joint tortfeasors: its not necessary for all joint tortfeasors to be named as Ds in a single suit, @ one place @ one time. (notes to 19a) : Tortfeasor w/ usual joint & several liability is a permissive pty Balance of 2 things why: 1. Pty autonomy: we let P choose issues & people; 2. Fairness & efficiency - Ct.s bal. these and a joint tortfeasor can be permissive & not nec. Ptys. (Helzberg v. ValleyWest Shop. Center) H&V.W. get in lease where VW will not rent space to 2 other full line stores, then VW leases to another (Lords (L)). H sues VW to stop them from breaching K. VW moves to dismiss on (19) for fail of # to join L as a pty ^ & ct. 1) denies motion and found L not indispensable pty; & 2) enjoined L from opening a store. - (L not a pty to suit, but they have an injunction angst them (&if not a pty, then judgment not binding. L will want to sue VW & in that suit, there will be an inconsist. Judgment) - VW args : well face 2 inconsist. Judgments 1) to keep L out; & 2) when L sues, well have to let them in. - Ct. says: VW too bad, you brought it on yourself & L cant come in b/c no P.J. - So pty is nec, but not indispensable How Rule 19 worked: Is L nec? Yes b/c of compromise. 1st step- they pass. 2nd, is joinder feasible? No, b/c no P.J. so so, nec. And not feasible, apply 4 part test: *L not indispensable b/c the obligs are conflict b/c of 2 sep Ks entered into prior to suit. Key to see if indisp. is if judgment itself will create conflicting obligs (rule 19b) ** None of Ls rts. & obligs. Will have been adjudicated as a result of present proceedings (to which its not a pty) so there not prejudiced & Ls absence wont prej. VW. * Court can determine all rts. & obligs. of both ptys (H & VW) w/ just them in ct by look at lease w/out L as a pty here (19b ct. considers ways prej. To absentee can be lessened/avoided). Here the dist. Ct. gave L considers to intervene to protect any interest, so they had notice & decided not to come in; L could have waived P.J. by vol. coming into suit. Sum: gen. a person doesnt become indisp. to an action to determine rts. Under a K b/c that persons rts. Or obligs. Under a sep K will be affected by result, (lessor, lessee).

INTERPLEADER:
Technique whereby a pty who owes something to 1 of 2 or more others but isnt sure which, may force them to arg out their claims among themselves rt now in this suit before coming to sue him. Its designed to prevent the pty from being made to pay the same claim twice. (prevents double liability) in Fed cts & most St. cts. What it fixes: helps the difficulties for a stakeholder when multiple people have claimed an interest in (claimants) w/ mult suits. It allows a person who claims an interest in prop or subj-matter to be brought (interpleaded) in to the existing case. Hypo: Insur co is obligated to pay the beneficiary of dead man 1 mil. He married 3 diff women and now they all claim to be the beneficiary and have all brought separate suits in diff places against the same D. If they all win then Insur co will have to pay out 3 mil, whereas it only really owes 1mil to 1 sole beneficiary Case1.) P(wife1 in CA)D(insur)(stakeholder) = ruled for wife and its final j on merits 2.) P(wife2 in OK)D(same) = same 3.) P(wife3 in NY)D(same) = same Here wife 2 or 3 cant be bound by wife1s case bc due process, not the same party. Due process: not bound by judgment unless youre a party to the litigation. So, insur. co could lose all 3 cases in separate actions and sep jurisdictions. Interpleader allows the stakeholder (here, insurance holder) to become the P and sue all the claimants at the same time and same place, ( bring in all claimants of stake) Advantage is when ct reaches decision, res judicata and only 1 D will win and later other Ds (D1,2,or3) cant sue on the same interest. (Claimants) (w1) (w2) (w3)

D D P(Insur Co.) (Stakeholder)

Federal Practice: 2 sorts allowed: 1.) Statutory (1335) you usually want to use this one. Biggest diff. are w/ PJ & SMJ 2.) (Rule 22) interpleader main diff from statutory- R22 no effect on ordinary jurisd & venue rqs Issue 1. Diversity SMJ: a. Citizenship Statutory (1335) a. Min divers. Required need only divers bt/w any 2 claimants (if that exists, the citizenship of stakeholder and other claimants is immaterial. -Note: since tashire, lower fed cts have found diversity where all claimants are citizens of the same st but theyre all diverse from the stakeholder.) b. value of the fund or the stake must be at least $500.00 2. Nationwide sop available Rule 22 a. Complete divers required the stakeholder on one side must be diverse from all the claimants on the other. Note: Decision to use stat vs. rule interpl gen is based on the jurisd std you satisfy both allow same type of suit.

b. Amt in controversy 2. PJ and Service of Process

b. value of the fund or stake must be greater than $75,000 2. ct must have PJ over all claimants and service must

meet rule 4 reqs

3. Venue 3. proper in judicial dist in which one or more claimants resides 3. Governed by 1391 residence of any claimants (if all from 1 st, dist where dispute arose; dist where prop is; dist where any claimant may be found if no other basis for venue

4. Injunctions against instituting competing proceedings 5. Deposit

4. stat authority cts may 4. only possibility is sec 2283 enjoin other actions over (ct may do so where necessary the stake under sec 2361 in aid of its jurisdiction.) 5. required; 1335 5. not required; permitted R.67

Federal Statutory Interpleader

Person holding prop which is claimed or may be claimed by 2 or more adverse claimants can interplead those claimants. Jurisdiction problems: if not for pj & smj, a stakeholder could most of the time avoid double liability w/out interpleader by joining (rule20) all potential claimants as Ds to a declaratory judgment suit concerning title to prop. 3 jurisd probs prevent this: pj, diversity, and amt in controversy How commenced: to begin suit, stakeholder, P must deposit into ct the amt of prop in quest, or post a bond for that amt. Rt to deny debt: although stakeholder must deposit prop in ct, he may claim at trial he doesnt owe $ to claimant at all. Other suits restrained: (to protect from double liability) a ct hearing this action can enjoin (prohibit) all claimants from starting or continuing any other action, in any st or fed ct which would affect the prop

Diff in them: not what it does, its the way that Fed ct has smj to hear the interpleader action. Stat- changes diversity reqs, only need min diversity bt/w any 2 claimants Stat broad power for ct to enjoin pursuing actions

Federal Rule 22 Interpleader

Whenever a person is or may be exposed to double or multiple liability, he may demand interpleader. They can come into ct on there own initiative as P, or by counter-claiming, or cross-claiming as D in an action already against him Rule 22 less preferable, usually tougher to get into, but good when stakeholder wants in Fed ct and he (P) is diverse from all claimants, but claimants not diverse from each-other. For smj, must satisfy traditional complete diversity Amt in controversy 75k+ Service of proc meets rule 4 Venue satisfy 1391 Injunctive power less broad PJ usually no tap rob where suit is brought in state of stakeholder Min Contacts 1.) establish purposefully contacts in that state, 2.) cause or action must arise out of or relate to those contacts RULE 22 Interpleader (Where you have competing claims to ONE item) EX: Guy has a life insurance policy and has two wives; he doesnt specify between ex-wife and present wife. Allowed because it may open person up to multiple and inconsistent judgments (liability). If interpleader is proper and the stakeholder has no further interest in the suit, they can give the item to the court and wash their hands of the suit. How do you assert the interpleader? (Counter-claim, cross-claim, third-party-claim) NOTE: Claim preclusion parties to suit can not file again in a diff. jurisdiction. INTERPLEADER IS RULE 22 (STATUTORY) or 28 USC 1335 (FEDERAL) Want to use statutory when possible. RULE 22: a) must independently get into federal court b) P (stakeholder) must be different than all Ds c) Must exceed $75,000 d) Must get PJ over all 28 USC 1335: a) 1 claimant must be from a different state than any other claimantcitizenship of stakeholder is irrelevant!! b) $500 or more c) It is a federal statute, so you have diversity over all UNLESS they cant be found or are out of the country. NOTE: Interpleader courts have priority. They can enjoin a lawsuit that is already under way. The stakeholder may or may not assert a claim. For example, if they dispute owing money or liability, they will place their own claim.

Cohen v Republic of Philipines C received paintings on consignment from B, Marcos agent. B then demanded the return of the paintings, but the Philippines claimed the paintings were theirs. Not knowing who to give the paintings to, P filed an interpleader action. Marcos then motioned to intervene and the court allowed her to. D(Bremer- former agent of Imelda) (NY) D(Rep of Philipines) (foreign govt) P (Cohen) (stakeholder paintings) D(Imelda) intervenes under( Rt 24 a2)

(NY) -painting is valuable, min diversity, so can take advantage of venue, pj and nationwide sop Behind the scenes Cohens attys see all possible people w/interest in paintings and see that Imelda cant be reached, so they let her know the paintings might disappear and that they have no authority to bring her into ct, but you may want to come in. Practical lawyering: let everyone in the case, or invite enemies in, bring in people w/ an interest that could hurt your client. Ex) invite them to fly to NY and then personally serve them. ??? hypo if claimants all diverse from ____, ______, ______ note- If stat interpleader authority, broad author for ct to enjoin other proceedings and stop the other cases. If rule interpleader, cts wont enjoin other cases. Advantages /Important diff b/tw them is in SMJ, PJ, NOTICE, ???Need for jurisd over both claimants: Interpleader only works well if the ct. has jurisd over both (or all) claimants. If 1 or more claimants are absent, then whole purpose of interpleader to relieve stakeholder of paying claim 2 times is thwarted, Since the absentee will not be bound & can bring her own suit later.

Rule 24: Intervention :

Intervention raised by the absentee. Nobody invited me in suit, but I need to be here. - Allows certain persons not initially part of suit to enter/intervene on their own initiative - To permit an unwanted party to elbow her way into suit where no one wants her INTERVENTION (RULE 24): As OF RIGHT and PERMISSIVE On exam discuss permissive as well Rule 24 (a) As of Right Upon timely application, when either: (timely motion, memorandum & pleading) 1) 2) A U.S. Statute confers an unconditional right to intervene; or When the applicant: (a) (b) (c) --3 part test--

Claims an interest relating to the property or transaction which is the subject of the action; and The applicant is so situated that the disposition of the action as a practical matter may impede or impair the applicants ability to protect the interest; and The existing parties will not adequately represent the applicants interest

Rule 24 (b) Permissive Upon timely application, anyone may permissively intervene in an action when either:

1)
2)

A U.S. statute confers a conditional right to intervene ; or An applicants claim or defense and the main action have a question of law or fact in common

Note: This type of intervention is discretionary with the court, which shall consider whether the intervention will unduly delay or prejudice the adjudication of rights of the original parties. NOTE: 1) No set time but court will look at diligence in acting to protect his interests and prejudice.

2) 3)

Intervener is bound by judgment BUT can not raise any new issues or broaden the scope of the action Supplemental jurisdiction for (as of right) but not permissive. BUT, personal jurisdiction is WAIVED by voluntarily seeking to participate.

2 types: (24a) Intervention as of Rt. , and (24b) Permissive Intervention Goal: 1.) Strike bal. b/t party autonomy, and 2.) suit not compromise rights of absentee or others Focus: only on rights of absentee Argue Both (24a&b) b/c if only argue one, then on appeal, cant argue other if didnt bring it up at t.c. (24a) Intervention as of Right if meet criteria MUST be allowed in. Procedure: Can enter as a P or D 1.) Upon timely application, File a timely motion to intervene a.) include a memo and reasons supporting why you should be there b.) give a copy of the pleading you wish to follow if you get in and serve it to all ptys in suit (and the other ptys are allowed to raise objections to the ct, to you coming in) Upon timely application, when either: 1.) a U.S. statute confers an unconditional rt. to intervene, OR IF NO STATUTE, you must satisfy 3 part test: 1.) interest in subj. matter you must claim a significant, protectable interest relating to the property or transaction which is the subj-mater of the action; and 2.) impaired interest you must show that resolution of the action w/o you might harm (impair or impede) your ability to protect the interest; (You will suffer) and 3.) inadequate representation the existing ptys will not adequately represent the applicants interest,(Nobody in the case can adequately protect your interest) -- If you can show an indirect interest that will be affected w/ precedent from this case, you will probably get in, bc precedent could affect you in the future. (24b) Permissive Intervention: if dont meet 24a, but meet 24b, MAY be allowed in, always go w/ as of rt 1st bc its stronger and 2nd use permissive as a fall back motion. - You will be bound by the judgment once you intervene. Upon timely application a person MAY intervene when either: 1.) U.S. statute confers a conditional right to intervene; or 2.) an applicants claim or defense and the main action have a Common quest of law or fact Discretion of Ct. this type of intervention is discretionary w/ the ct, which shall consider whether the intervention will unduly delay or prejudice the adjudication of rts of the orig ptys -Discretion: since granting it is up to T.Cs discretion, T.Cs decision is unlikely to be reversed on appeal, so most appeals deal w/ (24a). Stare Decisis affect: (24a) in 1 case stretched to require intervention of rt of pty who is interested in litig only b/c it may set an adverse precedent whose stare decisis effect may later hamper him. 24a compared to Necessary Joinder criteria of intervention of rt are same as those require to be feasible under (19a) (24c) Procedure to intervene: pty trying to intervene must serve a motion that memo of law & serve it to all other ptys, stating grds, and w/ copy of pleading of claim or defense for which you plan to file of intervention sought. -The same goes for when a US statute gives rt to intervene and draft it if you are a P or D. ?? Jurisdiction: outsider w/ permission to intervene must meet indep. SMJ requirements ( as in interv. Of rt.Situation) ?? Jurisdiction: Indep. SMJ grds needed for interv of rt in a Diversity case. It does not fall in cts supplemental jursisd ?? Diff for intervention of rt. no leave of ct needed for only permissive its up to cts discretion most common statute (Intervention by U.S. (2403): allows fed interv of rt in actions involving the constitutionality of an act of congress. (Natural Resources v. U.S. Nuclear):

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Natural Resources co (NRC) has been delegating when shouldnt Kerr McGee & (United Nuclear) (UN) are potential recipients of licenses, both have an interest & both want in the case, U.N. gets in, after Ker McGee & others want in also & devise b/c TC said there interest was adequately represented P(nrc) D1 (nuc. reg.) D2 (nmeia) UN UN allowed to intervene as a D under (24a) b/c current license holder Focus here : is there some protective interest that could be impaired or impeded & no one in suit is able to rep interest Steps: Ker McGee 1. protective interest license; 2. impairment could lose it 3. anyone in suit able to protect and rep interest diff here is (Ker McGee) can arg there liceses to do bus, so UNs cost of prod will be lower & thats why (Ker) & others want in now. Under Due Process: (Ker & others) not bound by judgements for other ptys or here (UN), but a ct in any substantive case will use Stare Decisis Held: Sup Ct. reverses & lets (Ken) & others intervene as of rt (24a) b/c interest not adeq repd. (Martin vs. Wilkes): Black public workers (firefighters sued the city for discrimination. The city entered in to a consent decree on an affirmative action program. After this, white firefighters tried to sue, saying this consent decree was reverse discrimination. The lower court dismissed their claim, saying they should have joined under intervention since they had notice of the proceedings, so now their lawsuit is barred. The higher court reversed, saying notice was not enough intervention is not compulsory, so these white firefighters did not HAVE to join the lawsuit. ** This case was overturned by legislature in 1991. The statute prohibits a collateral challenge to a consent decree in a civil rights case complaining of employment discrimination if the challenger is a person who, prior to the entry of [the consent decree] had: 1)

2)
3)

actual notice of the proposed judgment a reasonable opportunity to present objections to such a judgment order OR; a person whose interests were adequately represented in the first action.

White firefighters sue city for discrimination in favor of blacks Supreme Ct held: if not a party to an action, they cant be bound by judgment even if they knew& were invited & chose not to come. Mere notice & opportunity in a case not enough to bind you on the judgment of that case. cant force you into a suit where nobody tried to bring you in as a nec pty, so ct wont force them into a suit. (idea from Due Proc) Unless someone brings you in on (19), then ct cant force you in Rule: a party cant bind another pty or force that pty to intervene under Rule 24. The only way you can enforce a judgment against someone who does not seek to intervene on their own is to join that absentee as a pty under another joinder Rule(s). If choose to intervene then o.k., but not bound by judgment if dont come in Significant when a racial or other grp args an employer is discrim against it, employer and/or Ps should join all those not part of Ps racial & other grp as 19 nec ptys. If not then the 3rd pty workers may be able to undermine any ct ruling or settlement many yrs later by claiming the ruling unfairly impacts their own rts.

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CLASS ACTIONS (Rule 23)

Class action will bind everyone who was a member of rep class of named parties. How a class is initiated: 1.) They bring suit for themselves - File a complaint, Named reps get together and file a complaint 2.) Bring suit for all others to get certified - File a petition for class certification, where they define a proposed class and ask for certification of it One or more members of a class may sue or be sued as representative parties on behalf of all class members if: (meets all reqs): **MUST BE CERTIFIED BY THE COURT** 1. The proposed class action satisfies all four requirements of Rule 23 (a): a) Commonality : b) Adequacy: there are questions of law or fact common to the class; (Greatest degree of scrutiny) the representative parties will fairly and adequately protect the interests of the class;

c) Numerosity : d) Typicality: 2.

the class is so numerous that joinder of all is impracticable: (Usually 25 or less) the claims or defenses of the parties are typical of those ofthe class; AND

The class action must also meet two requirements that are not stated in this rule: a) The class may be capable of definition; and b) The class representative must be a member of the class AND

3.

The class action must fit into one of the three categories of class actions specified in Rule 23(b): Separate actions by or against individual members of the class would create a risk of:

(b)(1)

a) inconsistent or varying judgments for members of the proposed class which would establish incompatible
standards of conduct for the party opposing the class ( the possibility of inconsistent judgments leading to incompatible standards); or

b) adjudications for individual members would as a practical matter be dispositive of the interests of other
members not parties to the adjudications, or would substantially impair or impeded the nonparties ability to protect their interests. (Impair Non-Parties Interest) OR (b)(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making it appropriate for a court to grant final injunctive, or corresponding declaratory relief for the class as a whole. OR The court finds that questions of law or fact common to members of the class predominate over questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

(b)(3)

In making this determination, the court will consider:

a)

the interest of class members in individually controlling the prosecution or defense of separate actions (party autonomy concern); and

b) the extent and nature of any litigation over the controversy already pending; and 12

c) the desirability of concentrating litigation over the controversy on one forum; and d)
In addition, 4. Under Rule 23 (c): (1)(A) (B) (C) (2)(A) (B) The court must determine by order whether to certify the class at an early practicable time. An order certifying a class action must define the class and class claims, issues or defenses, and must appoint class counsel under Rule 23 (g). The court may alter or amend certification before a decision on the merits. For any class certified under Rule 23 (b)(1) or (2), the court may direct appropriate notice to the class. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members identifiable with reasonable effort. the difficulties a court is likely to encounter if the suit is permitted to proceed as a class action

This notice must concisely and clearly state in plain, easily understood language: The nature of the action, The definition of the class certified, The class claim, issues or defenses, That a class member may enter an appearance through counsel if the member so desires, That the court will exclude from the class any member who requests exclusion, stating how and when members may elect exclusion, and The binding effect of a class judgment on the class members under Rule 23(c)(3). (3) The judgment in a class action under (b)(2) or (3) shall include and describe those whom the court finds to be members of the class. The judgment in a (b)(3) class action shall include and specify or describe those to whom the notice provided in the section (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class. A class action may be brought as a class action with respect to particular issues, and the class may be divided into subclasses, with each subclass treated as a class and Rule 23 applied to the subclasses as to a class.

(4)

5.

Under 23(e): (1)(A) (B) (C) (2) (3) The court must approve any settlement, voluntary dismissal or compromise (a resolution) of the claims, issues, or defense of a certified class. The court must send notice to all class members who would be bound by a proposed resolution. The court may only approve a resolution that would bind class members after a hearing and on finding the resolution is fair, reasonable and adequate. The parties seeking approval of a resolution must file a statement identifying the proposed resolution. The court may refuse to approve the resolution unless the resolution would give individual class members who had a previous opportunity to request exclusion but had not done so a new opportunity to request exclusion. This would allow class members who stayed in to see what a resolution might look like, an opportunity to get out if they do not like the proposed resolution, avoiding res judicata on any judgment incorporating the resolution. Any class member may oppose a resolution which requires court approval under Rule 23(e)(1)(a).

NOTE:

(4)(A)

(B) Such objections can be withdrawn only with court approval Under Rule 23(g):

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(1)(A) (B) (C)

The court that certifies a class must appoint class counsel unless a statute provides otherwise. The appointed attorney must fairly and adequately represent the class. The court must consider the work done by counsel in identifying potential claims in the action, experience in class actions and complex litigation, knowledge of applicable law, resources, and any other matters pertinent to counsels ability to fairly and adequately represent the case. Specifies appointment procedure there may be interim counsel, the court must appoint the applicant best able to represent the interests of the class, and the order appointing counsel may include provisions about costs and fees.

(2)

Under Rule 23(h), the court may award reasonable attorney fees and costs: (1) A claim for fees and costs may be made by motion, and motions by class counsel must include notice to class members. (2) Class members and parties from whom costs and fees are sought may object to the motion. (3) The court may hold a hearing on the motion and state findings of fact and conclusions of law on the motion under Rule 52(a). (4) The court may refer issues on the amount of the award to a special master or magistrate under Rule 52(d) (2)(D). Jurisdictional Issues: a. Federal question jurisdiction is OK b. Diversity class action, the citizenship of named reps, parties that is pertinent. (All named reps on one side must be diverse by named parties on other side. -It doesnt matter if member of class is not diverse c. Amt in controversy (i) some courts amt only have to be satisfied by named reps individually (every named rep must show 75k+ (ii) other courts only named parties need to satisfy the amt Bottom Line at least named parties have to satisfy it Supplemental jurisdiction is OK to cover non party class members Major points: a. With any class action you get notice to opt out at settlement. b. If a member (not a named party) of class in 1, 2, or 3 and dont opt out, your bound by the judgment and its adjudicated. c. Courts problem w/ class-actions: attorneys who settle and keep quiet so the class loses and the attorney wins at the detriment of the class d. New req: ct may as a condition to judges entry of settlement, opt out once youve seen the settlement e. Also, can make objections to proposed settlements and cant w/draw objection unless have court approval f. Purpose of changes limit abuse and give class members option to be bound or not be bound in b3 case by any settlement or resolution that affects verdict of the class. g. h. i. j. k. l. Under 23(c) In a (b)(3) case, in the Notice: The court must tell you that you have right to retain your counsel to enter an appearance for them and, the Notice must tell you the court will exclude you from class if you request exclusion and tell you what to be excluded. (1st chance to opt out) Must id all who request exclusion in a b3 case 23(e) made to id when collusive; ct must send notice of a resolution to all class members who would be bound by proposed settlement. (2nd chance to opt out) and no res judicata on you. 23(g) counsel must be adequate no relationship w/ them 23(h) ct may award reas atty fees and costs 2 chances to opt out: 1.) when get notice, 2.) judge settlement

(Communities for equity) - Top players not want change. They were recruited better w/sports in diff seasons. Rigorous analysis: commonality issue of whether D acted individ of title 9 is good, typicality who could resolve issues, adeq of rep D will adeq. rep those who like status quo. Granting some relief may require less relief for others, so subclasses (Heaven) Standard of Review to overrule lower court on class certification is Abuse of Discretion only way a higher ct will overturn it (hard to get a reversal ) Bank made a good move to get cert denied, they counterclaimed showing

14

actions that arent common will mess up litigation and need to deal w/ these individually Held: class action not the superior method to deal w/ problem. Here would have been possible w/ subclasses (Hansburry) This was a put up job to make a decision binding.

15

DISCOVERY AND DISCLOSURE OVERVIEW

3 burdens for a case: 1.) pleading st a claim, minimal requirements 2.) production ( focus on this in discovery) 3.) persuasion decided by trier of fact, only after you carried it on #2 (burden of production) a. b. c. d. If you properly state a claim or defense you must provide some evidence of your every claim or defense. The way the burden of production is challenged by the other pty is w/ a motion for summary judgment. Ex. here, D has burden to show no evid. for P to have met his burden of prod. Hypo: P has one witness ( a drunk convicted of perjury 3x and overdue for eye check-up bc 2100 vision eyes are bad) saw green light for P. D has 4 witnesses (priests) all see light red for P. Ct will say P has some evid, it doesnt have to be good, trustful evid, bc trier of fact decides weight to be given to evid. Discovery- flesh out case here, not in pleading phase. Ptys get to know all the strengths and weaknesses here. If you use discovery process properly, youll have all info needed for all quests of both sides.

Discovery has impact on what you say in complaint bc scope is 26(a)(1), that relevant to the claims in the case. Where P has been specific in discovery, D gets to arg too broad of discovery The less specific the pleadings = broader discovery given The more specific the pleadings = then P has better arg to limit it to D bc of Relevance Discovery Plan (what your thinking) 1.) Who has info? 2.) Is it discoverable? 3.) If so, how do I get it? 4 Purposes of Discovery: 1.) Find and preserve evidence - Preserve (ex. get deposition of person right away if hell die in short time). 2.) To evaluate your case- For settlement purposes, strategies, and tactics. 3.) Avoiding Surprise (Of surprise witnesses or evidence). If used properly, you wont be surprised by any of the evidence. -If new witness and judge even allows it, you must let both sides ask quest and discover, so judge will stop the trial. -Only time surprise is allowed is because of your negligence (Ex not ask quest or didnt show up at deposition). 4.) Isolate issues for trial (Refine & Isolate) (what issues that this case presents; parties can stipulate such) A.) Issues, claims, defenses B.) Which of elements of claims can we deem the parties agree upon? Most neglig cases arg about duty, not breach.

TOOLS AND METHODS OF DISCOVERYHow does a party gather information? 1) Rule 26(a)(1)(2) and (3) mandatory disclosures: 2) Depositions (Rule 30): 3) Depositions Upon Written Confessions (Rule 31): 4) Interrogatories to parties (Rule 33): 5) Production of Documents/Entry Upon Land (Rule 34): 6) Physical and Mental Examinations of Persons (Rule 35): 7) Requests for Admissions (Rule 36): Enforcement and Sanctions (Rule 37 and others) What happens if a party refuses to comply?

16

I. DISCLOSURE OBLIGATIONS:
These must be given to the other party at the discovery conference or within 14 days thereafter, unless a different tie is agreed to by the parties. Any party first served or joined AFTER the discovery conference must make disclosures within 30 days of being served or joined. (If one party does not provide disclosures, the other party still has to!)

What must you disclose under Rule 26 without the other side asking?

INITIAL DISCLOSURES
A.) What must parties disclose under Rule 26 (a)(1)? 1.) Witnesses: Name and, if known the address and phone # of all witnesses likely to have discoverable info that the disclosing party may use to support its claims or defenses, UNLESS solely for impeachment, identifying the subjects of the info. Dont have to provide if party is just to break credibility.

2.) Documents and tangible things That a party plans to use: A copy of , or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment. Documents are everything from printed and written papers to photos, videos, sound records, email. 3.) Damages: A party who is seeking damages must disclose the basis for those damages Computation of any category of damages claimed by the disclosing party, making available for inspection/copying as under rule 34 the documents or other evidentiary material NOT privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered. A party (usually D) must disclose any insurance policies that would apply in the case of a judgment in the case. For inspection and copying as under rule 34, any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

4.) Insurance:

Only have to DESCRIBE documents: For documents D has choice bt/w furnishing copies or just a description by category and location of the docs EXCEPTIONS 8 Categories of proceedings exempt from initial disclosure: i. action for review on administrative record; ii. petition for habeas corpus or other proceeding to challenge a criminal conviction; iii. action brought w/out counsel by a person in custody of the U.S., a state, or a state subdivision; iv. action to enforce or quash an administrative summons or subpoena; v. action by US to enforce or recover benefit payments; vi. action by US to collect on a student loan guaranteed by the US vii. proceeding ancillary to proceedings in other cts; viii. action to enforce an arbitration award

B.) When must parties make these 26(a)(1) disclosures?

Timing for 26(a)(1) disclosures: + (rd 26(f) and 16(b) see p497 n.2 Timeline begins when D has been served or appeared Service: when D served or waived formal service w/ rule 4(d) Appearance: Ds filing a paper or motion that evinces its participation in lawsuit (it includes an answer or various 12(b) motions A. B. Rule16(b): Within 90 days after Ds appearance and 120 days after service, judge shall hold a scheduling conference to discuss the way discovery and other pretrial matters should proceed. 26(f): Parties have a discovery related meeting and other pre-trial matters without the judge as soon as practicable, and at least 14 days before a scheduling conference is held.

17

C.

26(a)(1): Parties at there meeting or w/in 10 days after, must exchange disclosure lists. NOTE: The parties exchange disclosures at least 4 days before the scheduling conference and at least 4 months after the complaint is served on the D. More Commonly, where D has appeared, disclosure will occur no later than 85 days after that appearance.

26(a)(1) disclosures occur unless the parties have otherwise agreed or the court has otherwise ordered. 26(a) permits parties by agreement or ct by local rule applying to categories of cases, or an order entered in the particular case, to dispense w/ required disclosure. Ex. cts may want to exempt social security claims cases where the amts at stake are small and the facts are well known to both ptys. 26(a)(1) A party 1st served or joined after the 26(f) conference must make these disclosures w/in 30 days after being served or joined unless a diff time is set by stipulation or ct order. A party must make its initial disclosures based on info reas available to it, and is not excused from making these disclosures bc it hasnt completed its investigation of the case, or bc it challenges the sufficiency of another ptys disclosures, or bc another pty has not made its disclosures. Rule 26(d) Parties may not use other forms of discovery depositions, interrogatories, etc. until after the 26(f) conference. In such districts the other forms of discovery usually come into play after the initial disclosures. In districts not using disclosure, the 26(f) meeting usually triggers the 1st round of discovery requests. C.) What must parties disclose under 26(a)(2)? Disclosure of expert testimony: Any expert who may be used at trial a.) Identity: a pty must give a list identifying each such expert who may be called at trial automatically, w/out a request from other side b.) Report: Pty who intends to call an expert witness must have the expert prepare and sign a report containing: i. A complete statement of all the experts opinions to be expressed and the basis for them; ii. The data/other info considered by the expert in forming the opinion; iii. Any exhibits to be used by her at trial to summarize her opinions; iv. Her qualifications (including a list of all publications authored by her w/in the preceding 10 yrs); v. The compensation she is receiving for her testimony; and vi. A listing of any other cases in which she has testified as an expert w/in the preceding 4 yrs. D.) When must these 26(a)(2) disclosures must be made? i. At the times AND in the sequence directed by the court; ii. In the absence of directions from ct OR stipulation by the ptys, theyll be made at least 90 days before trial date, OR the date the case is to be ready for trial; OR iii. If the evidence is intended solely to contradict or rebut evidence on the same subject identified by another expert, that report is due w/in 30 days of receiving the other partys expert report. iv. Partys shall supplement these disclosures when required under e(1) Duty to supplement: a party must supplement any disclosure made by that partys expert who will be called at trial. If expert changes his opinion or other aspect in the report, the party sponsoring that expert must disclose the change.

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PRE-TRIAL DISCLOSURES
E.) What must parties disclose under 26(a)(3)? A party must provide other party and properly file w/ct this info regarding evidence that it may present at trial other than solely for impeachment 1.) 2.) 3.) Witnesses expected to be used AND Witnesses that may be called if need arises: (name, and if not previously given, address, phone#) Witnesses whose testimony is expected to be presented w/ Deposition, And if not taken steno graphically, a transcript of the pertinent portions of deposition Identification of each document/exhibit w/ sums of other evid which the pty expects to use as a trial exhibit AND those which the pty may use if need arises

F.) When must they make these 26(a)(3) disclosures? 30 days before trial UNLESS otherwise directed by court. You must object within 14 days of receipt. W/in 14 days after Unless otherwise directed by ct, a pty may serve and promptly file a list disclosing: i. any objections to the use (under rule 32(a) of a deposition designated by another pty under 26a(3)(B), and ii. any objection , along w/ grds for, that may be made to admissibility of materials identified under 26(a)(3)(C). Objections not so disclosed, other than objections under rules 402 & 403 of fed rules of evidence, are waived UNLESS excused by the ct for GOOD CAUSE. G.) How do partys make these 26(a)(1),(2), & (3) disclosures? Form of Disclosures In writing, signed, and served; UNLESS the ct orders otherwise.

I. SCOPE OF POST-DISCLOSURE DISCOVERY (Rule 26(b)(1)

Can you discover the info or material you seek? RELEVANCE - 26(b)(1) 1) Gen Rule: Parties are entitled to take discovery on any matter, not privileged, that is relevant to the claim or defense of any party. 2) It expands the scope of what is subject to discovery subject to the courts discretion, as it permits discovery for GOOD CAUSE, the court may order discovery of any matter relevant to the subject matter. A. Who has the info? B. Is it discoverable? C. How do I get it? Relevance Test Rule 26 (b) (1): Is the matter sought to be discovered evidence? (at trial) OR Is it reasonably calculated to lead to discovery of admissible evidence? **this is a broad rule and will be upheld unless there is good cause to protect a party against 1) annoyance 2) embarrassment 3) oppression 4) undue burden or expense Discoverable vs. Admissible Scope of discovery is broader than the scope of admissibility Relevant information need not be admissible at trial, if the discovery appears reasonably calculated to lead to the discovery of admissible evidence

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Blank v Sullivan & Cromwell (1976): In an action for sex discrimination in hiring, advancement policies of the D are relevant. Steffan v Cheney (1990): The court did not allow evidence of whether the guy performed homosexual acts in the naval academy. This was not relevant to the wrongful discharge that was based on a superiors inquiry as o whether he was homosexual. This probably was not allowed because it ws very personal and private. Stalnaker v Kmart Corp. (1996): Sexual harassment case dealing with relevance of the accuseds voluntary sexual acts being relevant! (Up to the individual judge) Discoverable vs. Admissible Certain information may be inadmissible at trial, but highly relevant, and discoverable, as it may lead to the discovery of admissible information. This can include hearsay statements, the identity and whereabouts of witnesses, objective legal theories on which a party will rely (but not mental impressions, subjective thoughts, opinions or conclusions of attorneys) and other types of leads. **NOTE** Duty to Supplement: Once you make a disclosure or respond to a request for discovery, you have a duty to supplement your disclosure or discovery response under Rule 26 (e), if you learn the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. RELEVANCE: (Blank) & (Steffan) cases were decided before the recent amendments to rule26, so the courts there evaluated whether to permit discovery under the old relevant to the subj matter of the action std. Today, material that is relevant to the subj matter of the action is discoverable only upon a showing of good cause. Cases are still useful to show how cts apply the relevant std.

Exceptions to what is discoverable:

1.) Material that is Irrelevant to the claim, defense, or the subject matter 2.) Privileged material 3.) 26(b)(2) Limitations 4.) Trial Preparation material (Work Product) 5.) Non-testifying expert 6.) Material subject to a Protective Order 1.) Irrelevance Relevancy for discoverability is so broad, it is difficult to argue irrelevancy. Look at how you are defining the claim or defense (or upon good cause, the subject matter of the pending action.) 2.) Privileged This refers to formal, recognized evidentiary privileges as defined by substantive law. This exception gen bars the privileged source not necessarily the info; privilege does not protect confidential or private info. Where a privilege protecting disclosure of material exists, that material is not subject to discovery even though it may be very relevant. Here the parties are not entitled to discovery if a privilege would protect such material from disclosure at trial. Examples: attorney- client, physician patient, and psychiatrist patient 3.) 26(b)(2) Limitations: The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines: 26(b)(2)(i): Discovery sought is unreasonably cumulative or duplicative, is obtainable from some other more convenient, less burdensome, or less expensive source; 26(b)(2)(ii): The party seeking discovery has had ample opportunity through discovery in the case to obtain the info sought; (court may put time limits on discovery) 26(b)(2)(iii): Burden of discovery outweighs the likely benefit, considering the needs of and the amount in controversy in the case, the parties resources, the importance of the issues at stake in the case, and the importance of the proposed discovery in resolving the issues. (Court can limit unnecessarily expensive discovery). 4.) Trial Preparation Material (Work Product) Rule 26(b)(3): material prepared by counsel or counsels agents in preparation for trial, including expert opinions retained by counsel solely for trial preparation.

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This protects documents or tangible things prepared by a partys attorney, the party, or the partys representative, in preparation or anticipation of litigation but the protection is QUALIFIED; your opponent may get discovery of factual work product upon strong showing of: 1) substantial need to prepare their case --and that the-2) party is unable without undue hardship to obtain the info, or the substantial equivalent of the material by other means. ----- Compare this with OPINION work product (attorney work impressions and strategies) which can enjoy an absolute immunity from discovery. ----The immunity can be virtually ABSOLUTE for the mental impressions, subjective thoughts, opinions or conclusions of attorneys. See Hickman. A witness who gives a statement is entitled under Rule 26(b)(3) to a copy of the witness statement (but the witness may not get it until the witness gives a deposition.) 5.) Non testifying expert Rule 26(b)(4)(B) Generally, facts known to, or opinions held by, non-testifying experts (experts retained for consultation and case preparation purposes, who will not testify at trial). Protects consulting experts from discovery so long as the expert is not also a fact witness (who then would be subject to normal discovery and disclosure). Just like the work product exception, the non-testifying expert exception is not absolute and such experts may be discovered upon a showing of exceptional circumstances by your opponent whereby it would be impracticable for your opponent to get duplicative facts or opinions by other. --If you request a copy of an examiners report under Rule 35(b), this will act as a waiver for all of your non-testifying experts who examined you for the same condition. 6) Material subject to a Protective Order Rule 26(c): Limiting evidence discoverable (only 1 defense attorney can see it) To protect a party from annoyance, embarrassment, oppression, or undue burden or expense, the court may always issue a protective order to limit or prohibit discovery. Rocket Docket: 6 months from discoverywill deviate only for good-cause (Lets move this case)

**NOTE** Is the amount of Defendants money relevant? Usually irrelevant BUT can be discovered FOR: 1) Punitive Damages: Have to know what it takes to hurt him or teach him a lesson. 2) Insurance Policy Limits (26(b)(2)): Not really relevant but allowed because to may encourage settlement. II. METHODS: How can you get the information or material you seek? A. General Rules: 1. With the exception of depositions (both oral and written), you may only direct discovery tools against parties. 2. Unless authorized by local rule, court order, or agreement of the parties, the discovery tools may not used until the parties have their Rule 26(f) conference. 3. Every written discovery request, response, and objection must be signed by the lawyer preparing it Rule 26(g); and such signatures certify that to the best of the lawyers knowledge, information, and belief, formed after a reasonable inquiry that the request, response, or objection: a. is consistent with the rules and existing law; b. is not being done for any improper purpose; and c. is not unreasonable nor unduly burdensome, given the needs of the particular case Rule 26(g) (2)(A)(B)(C). (Compare this to the similar certifications required for every disclosure made pursuant to Rule 26(a)(1) and (a)(3) under 26(g)(1).) B. Specific Methods/Tools: 1. Depositions-- (Rule 30): (For Party or Non-Party) 1) You must give proper notice of deposition to the deponent and every party, including the method of recording testimony.

21

2) 3) 4)

5) 6) 7) 8) 9)

10)

You can depose a party or nonparty (you can direct Rule 45 subpoena for a nonparty). Each side is limited to: a) 10 depositions (Rule 30(a)(2)(A) b) 7 hours maximum each (Rule 30(d)(2) Rule 30(b)(6) notice when deposing a corporation: (You can serve notice (or a subpoena to a nonparty) simply to a corporation and describe with reasonable particularity in the notice or subpoena the subjects on which you wish to take testimony. The corporation then designates a representative or representatives to testify on the subjects described. Depositions must be taken before an officer authorized to administer oaths. You can require a party to bring documents to a deposition by directing a request for production. (Rule 30(b)(5) Rule 34 procedure applies) You can require a non-party to provide documents at deposition by using a subpoena duces tecum. Rule 45 Oral examination is conducted as if at trial. Other parties may state objections for the record, such as the qualifications of the officer taking the deposition, the manner taking it, the evidence presented, or to any other aspect of the proceeding. The deposition proceeds with testimony taken subject to the objections. An attorney may instruct the client not to answer a question during the deposition only when necessary: (1) To protect a privilege; (2) To enforce a limitation imposed by the court on the scope of the deposition; OR (3) In connection with a decision to seek a protective order because the deposition is being conducted in bad faith or to annoy, embarrass or oppress the deponent or part. Rule 30(d) Some objections are waived if not made at a deposition, others are not. (Rule 32(d)) (1) Objections to relevancy are not waived unless the problem could easily be removed if the objection is raised at the deposition. (2) Objections to the form of a question, to the oath, to party conduct and other errors are waived if not made at the deposition, but the parties may stipulate to preserve all objections for trial (where parties may raise for the first time objections arising out of the deposition) or to require all objections be made at the deposition (meaning any objection not made at the deposition is waived at trail.) Sanctions are available for misconduct in the deposition process. A. Depositions may be used at trial as follows: (1) (2) Any deposition may be used to impeach (a witness) the testimony of the deponent as a witness if he made any prior inconsistent statements. A partys deposition may be used for any purpose (including a swat upside the head)

11) 12)

B. Nonparty depositions may be used by a party for any purpose only if: (1) The witness is dead, OR (2) Unable to be subpoenaed, OR (3) Otherwise unavailable or in exceptional circumstances Without seeking permission, the total number of depositions taken by one side (plaintiff(s), defendant(s), third-party defendant(s)) may not exceed 10, and no person may be deposed a second time without the permission of the court or the other side. 2) Depositions Upon Written Questions -- (Rule 31): 3) Interrogatories to parties (Rule 33): (PARTIES ONLY) 25 per party 1) You can only direct them to a party; limited to 25 questions (unless the court orders, or the parties agree to, more), including subparts. 2) They are signed by the party/person answering them, but objections are made and signed by the attorney. 3) Answers to interrogatories are due within 30 days (you may opt to produce business records Rule 33(d).) 4) Failure to object within 30 days may waive the objection, absent written agreement of the opposing side or good cause shown to the court. 4) Requests to Produce/Inspect (Rule 34) (Entry Upon Land): a. Only available against parties (use a subpoena duces tecum to get records from a non-party.)

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b. You can produce documents and things as they are kept in the ordinary course of business or organize and label them to correspond with categories of the request. c. The attorney signs as to objections (overly broad, burdensome, etc.) 5) Physical and Mental Examinations of Persons (Rule 35): a.) You need a court orderYou must show good cause (party asking for exam) and that the condition to be examined is in controversy. b.) The person to be examined may be a defendant or a person in the partys custody or legal control, and they need not be the person who put the condition in controversy. See Schlagenhauf. c.) If an examined party requests a copy of the examiners report, that party waives objection to discovery regarding any person who has examined that party for the same condition, including, of course, nontestifying experts. Scalgenhauf v Holder (1964): They did not allow the exam of a bus driver because it was never fully alleged that his condition was in controversy. 6) Requests for Admissions (Rule 36): a.) Conclusively establishes the matter for this litigation only. b.) Matters are deemed waived if the party receiving the request to admit does not respond or object within 30 days after service, unless the court gives more time or the other agrees to it. c.) Failure to admit something later proven at trial may result in an order to pay the other parties reasonable costs of proving the matter. **NOTE** WATCH OUT FOR THIS GETTING TESTED WITH COLLATERAL ESTOPPEL III. ENFORCEMENT AND SANCTIONS (Rule 37 and others): What can you do to ensure you get what you seek? What happens if a party refuses to comply? Rule 26 (g) is discoverys version of Rule 11. Rule 26(g) says that every discovery request, response or objection must be:

1)
2) 1.

in good faith proper purpose

(usually called the certification statute)

Rule 37 a. Rule 37 (a) provides for motions to compel for failure to make disclosures or cooperate in discovery. i.) You must first show a good faith attempt to resolve the dispute (you must certify you have conferred or attempted to confer) if you are not successful, you may file a motion. ii.) The winning party gets expenses unless there has been no good faith effort to resolve the matter without the court, the non-disclosure, response or objection was substantially justified or other circumstances make such an award unjust. b. Rule 37 (b) - If the court grants a motion to compel and a person violates an order requiring disclosure or cooperation, then the court may impose sanctions, including exclusion of evidence or witnesses or even claims or defenses; dismissal of the claim or entire action; or contempt of court and jail. Rule 37 (c) provides that the failure of a party o disclose or to amend a prior response will, unless harmless, preclude the party from relying on the information at trail and subject the party to other Rule 37 sanctions, including instruction to the jury of he failure to disclose.

C.

2. Rule 26(g) Rule 26(g)(3) empowers the court to impose an appropriate sanction (including monetary awards) for certifications made in violation of the rule. Rule 26(g) sanctions may be sought in conjunction with Rule 37 sanctions. 3. 28 U.S.C. 1927 This empowers the court to fine any attorney who unreasonably and vexatiously multiplies the proceedings (requires bad faith showing)

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4. The Courts Inherent Power a. This is a common law doctrine empowering the court to manage its own affairs to achieve the orderly and expeditious disposition of its cases; but this, too, requires a showing of bad faith (wanton, willful) conduct before sanctions will be imposed. 5. Rule 30 Rule 30(d)(2) allows the court to sanction any party who impedes the fair examination of the deponent (but its NOT against the rules to be obnoxious.) 6. Rule 26(c) Protective Orders To protect a party from annoyance, embarrassment, oppression, or undue burden or expense, the court may always issue a protective order to limit or prohibit discovery. 7. Rule 26(b)(2)(i) (ii) and (iii) a. Rule 26(b)(2)(i) - requires the court to limit discovery which is unreasonably cumulative or duplicative or is obtainable from a less burdensome source; b. Rule 26(b)(2)(ii) - the court may put time limits on discovery; and c. Rule 26(b)(2)(iii) - the court can limit unnecessarily expensive discovery.

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ADJUDICATION WITHOUT TRIAL OR BY SPECIAL PROCEEDING

RESOULUTION WITHOUT TRIAL (There are a number of ways that a case may be concluded without reaching a final decision by a judge or jury. It may be voluntarily dismissed, involuntarily dismissed because lack of evidence, settled, arbitrated, etc.)

Motions for Summary Judgment

Timing: By a claimant - 56(a): Can move at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, with or without supporting affidavits. By a defending party 56(b): Can move at any time, with or without supporting affidavits. Process and Standard: 1) Parties may submit affidavits in support of, or opposition to, a motion for summary judgment. The court will consider such affidavits (which can include exhibits and supplemented by discovery responses), as well as the pleadings, depositions, answers to interrogatories and admissions on file. 2) The court will grant summary judgment for the moving party if all the material properly before the court establishes that there is no genuine issue as to any material fact and that the party thus is entitled to summary judgment as a matter of law. a. b. A genuine issue exists where the evidence presented could permit a reasonable jury to return a verdict for the non-moving party. A mere scintilla of evidence or evidence that is only colorable or not sufficiently probative will not prevent a summary judgment. The court will test whether a genuine issue exists by looking to the quantum of proof needed to support a finding of liability under the substantive claim. (For example, if the burden of proof requires plaintiff to prove the case by clear and convincing evidence, the court will assess whether the evidence in the record will allow a rational finder of fact to find that plaintiff has established the claim by clear and convincing evidence) The materiality of a fact depends on the substantive law governing the cause of action . A fact is material if it may have an outcome on the case. Courts should grant a summary judgment where the non-moving party has failed to show a genuine issue exists on any essential element of the case. The moving party has the burden of persuasion and must make a prima facie showing that summary judgment is appropriate. (This does not require disproving the opponents claims or defenses, but merely pointing out a lack of evidence to support the non-moving partys claims or defenses. The non-moving party then has the burden of going forward to show that there is a genuine issue of material fact. Where the moving party presents direct evidence on a point, the mere existence of a plausible scenario to support a contrary position on the point is insufficient) Courts never weigh the evidence or find facts in ruling on a motion for summary judgment. The court will only examine whether a genuine issue exists as to material facts. The court will treat as true for purposes of the motion all evidence of the non-moving party, will resolve all doubts against the moving party, will construe all evidence in the light most favorable to the non-moving party and will draw all reasonable inferences in favor of the non-moving party. The court will not weigh the credibility of witnesses or other evidence in ruling on a motion for summary judgment.

c. d. e.

f.

g.

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THE BURDENS AT TRAIL PRODUCTION AND PERSUASION The party asserting a claim must satisfy two burdens at trial: 1) PRODUCTION: to get the trier of fact to weigh evidence and creditability 2) PERSUASION: which depending on the applicable standard, is either preponderance of the evidence (more likely than not) or by clear and convincing evidence. The burden of production is the burden of coming forward with evidence from which a rational trier of fact could conclude some proposition of material fact. (Satisfying the burden of production means only that a trier of fact might rationally decide the case in ones favor not that it must.) Satisfying the burden of persuasion means you have persuaded that trier of fact that, weighing all the evidence including creditability, you should prevail on every element of your claim, to the applicable standard. INFERENCES: REID: Where there are two or more rational explanations for proximate cause and there is no evidence presented on either, the S/J or JML is appropriate because the non-moving party will have failed to meet its burden of production and it would be impermissible to allow an inference on just one of the potential causes when the other is just as likely. Chamberlain: If the court was weighing Bainbridges testimony against the other three railroad employees, when its decision was wrong; but if Bainbridges testimony was discounted altogether, as the Court suggests, then there was no weighing going on and S/J or JML would be appropriate because the P would not have produces an evidence to meet her burden of production. BURDENS Burden: Burden of Pleading 12(b)(6)(failure to stat a claim) 12(c)(judgment on pleadings) Burden of Production Motions for S.J., Pre-and postTrial JML and for New Trial -The court looks only at the pleadings it asks if everything asserted is true, has P stated a claim (question of law) -Can be raised at any time before final judgment How its enforced: What the court examines & when:

Evidence the court looks at whether the party with the Burden of production has put forth enough evidence to meet that burden-that is, could a reasonable jury find for that party? If the other side has also put forth enough evidence that a reasonable jury could find for it, then there is a genuine issue of material fact in that instance, the trier of fact has evidence to weigh, so granting any of those motions would be inappropriate. Whether the evidence is credible is not relevant to whether the moving party is entitled to a judgment as a matter of law. Summary judgment may be brought by a plaintiff any time after twenty days post service or after a motion for summary judgment by the D; D may bring a motion for S.J. at anytime. The court can grant S.J. before the case has reached final judgment, but typically these motions are brought after discovery and before trial. JML motions may be brought at any time during a trail before the case is submitted to the jury or after the verdict if within 10 days of entry of the final judgment. New trial motions must be brought no later than 10 days after the entry of final judgment.

Burden of production: coming forward with evidence from which a rational trier of fact could conclude some proposition of material fact (Satisfying a burden of production means only that a trier of fact might rationally decide the case in ones factornot that it must.)

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Burden of Persuasion Civil cases have two possible burdens: 1. By a Preponderance of the Evidence 2. By Clear and Convincing Evidence -Both present questions of fact, decided by trier of fact. -These involve questions of credibility and truthfulness of the evidence and witnesses and are not to be second-guessed or substituted.

Involuntary Dismissals (Rule 41 (b):

Unless the court specifies otherwise, a dismissal is with prejudice except when made pursuant to Rule 12(b)(1),(2), (3) or (7). Dismissals under Rule 12(b)(4),(5) and (6) thus are with prejudice unless the court specifies that they are not.

Voluntary Dismissal - (Rule 41 (a)(1) and (2):

A. By Plaintiff without order of court: 1. Under Rule 41(a)(1)(i), Plaintiff may simply file a notice of dismissal at any time before an adverse party files an answer or a motion for summary judgment whichever of the two occurs first (If either 1 or 2, need a leave of court). (Allows a plaintiff to dismiss any time before the defendant answers; after that point the courts permission or agreement of the other side is necessary) 2. Under Rule 41(a)(1)(ii), If an adverse party has filed an answer or motion for judgment, plaintiff may only dismiss voluntarily by filing a stipulation of dismissal signed by all parties who have appeared in the action. (Permits the plaintiff to dismiss a suit at any time if all parties agree) 3. NOTE: A dismissal under Rule 41(a)(1) is without prejudice, unless the court specifies otherwise, except a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same action. B. By order of court: 1. Under Rule 41(a)(2), An action can only be dismissed at plaintiffs insistence other than under Rule 41(a)(1) upon order of court and under such terms as the court deems proper. If a counterclaim is pending, no dismissal against the defendants objection unless the counterclaim can remain pending for independent adjudication by the court. (Authorizes a voluntary dismissal only by permission of the court; gives the judge broad discretion in deciding when to grant a voluntary dismissal after the defendant has answered) 2. NOTE: Unless otherwise specified, a Rule 41(a)(2) dismissal is without prejudice.

Default Judgments - (Rule 55):

The entry of a default judgment is a two step process: A.) Entry of Default - When a party against whom affirmative relief is sought has failed to plead or otherwise defend as required by the Rules, and affidavit or other information establishes such failure, the clerk shall enter that partys default. B.) Judgment by default(default judgment) can be entered in one of two ways: 1.) By the Clerk, if: (In rare circumstances) a. Defendant has been defaulted for failure to appear (and is not an infant or incompetent person); b. Plaintiffs claim is for a sum certain or for a sum which can by computation be made certain; and c. plaintiff has requested judgment and submitted an affidavit of the amount due. 2.) By the Court; in all other cases. (Will usually hold a hearing to determine damages/truth of the matters asserted)

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Setting aside an entry of default Rule 55(c) - Court may set aside default for good cause shown. Vacating a default judgment Rule 60(b) - If judgment by default has been entered, the court may set aside in accordance with the requirements of Rule 60(b). NOTE: Default judgments and involuntary dismissals may present both claim preclusion and issue preclusion issues if plaintiff starts over or if there is litigation on a closely related matter.

NEW TRIAL AND POST-TRIAL MOTIONS

50(a): Pre-verdict JML (motion for a directed verdict) Brought before the verdict, at the close of the plaintiffs case and/or at the close of the defendants case (but you must bring at the close of all the evidence if want to preserve the right to bring a later post-verdict JML. 50(b): Post-verdict JML (motion for judgment notwithstanding the verdict, or JNOV): Brought after the verdict, but only allowed if the party also made a pre-verdict JML at the close of all the evidence; may be combined with a Rule 59 Motion for a New Trial.

JURY INSTRUCTIONS AND VERDICTS

1) Jury instructions are usually drafted by parties and read to the jury by the judge. 2) May request they be given certain instructions AND MAY OBJECT to the jury instructions if judge doesnt tell them what you ant him to! OBJECT RIGHT AWAY or waived!! ERROR IN INSTRUCTIONS 1) Appellate court must first determine that there was an error AND 2) Then must decide if it was not a HARMLESS ERROR! JURY VERDICTS: Unanimous required in federal courts unless parties stipulate otherwise (48) DOES NOT HAVE TO BE: 12may be 6!!! GENERAL VERDICT: Unless specifically instructed otherwise, jury enters a general verdict for either P or D! This makes it harder for issue preclusion! SPECIAL VERDICT: Court can require this. (49a)more detailed- instead of P or D wins, answer questions. GENERAL VERDICT WITH SPEICAL INTERROGATORIES: The interrogatories are for the court to confirm that they are logically reaching their decision (not a mistake) (49b). If inconsistent, judge may: 1) Enter judgment in accordance with the answers 2) Ask the jury to consider its answers further 3) Order a new trial NOTE: If 1 is not consistent with 2, order a new trial. - Failed to engage in rationale deliberation about the case JURY MISCONDUCT Setting aside jury verdict: (by person not on the jury) 1) Facts concealed on voir dire regarding prejudice of juror 2) Jurors have received unauthorized evidence not based on actual evidence at trialjuror who does experiment and burns down house 3) Jury failed to discharge its obligation to engage in rational deliberation about the case

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Avoiding Adjudication:

(Alternative Dispute Resolution (ADR))

1. Negotiation and Settlement: a. Contracting to Dismiss The simplest form of settlement is a contract (sometimes called a release) in which the plaintiff (or prospective plaintiff) agrees not to bring a lawsuit or to drop one already filed. Most plaintiffs want something, typically money, in return for such agreements. Matsushita Elec. Industrial Co. v Epstein 28USC1738 b. Contracting for Confidentiality Kalinaskas v Wong Rule 59: Motion for a New Trial 1) You must bring it within 10 days of entry of the final judgment 2) You may combine it with a post-verdict JML, in which case the court may conditionally rule on the new trial motion if it grants the JML and is later reversed on appeal. 3) Grounds for a new trial: for any of the reasons for which new trials have heretofore been granted in actions at law in the United States. 4) The granting of a motion for a new trial is not a final judgment. 5) Even if no motion for a new trial, court may grant one on its own initiative. Court may order a PARTIAL trial (on certain issues) GROUNDS FOR A NEW TRIAL: 1) Errors of law at the trial 2) Verdict contrary to the great weight of the evidence (Judge can not substitute their judgment for the jurys) 3) Improper conduct by attorney, judge, jury member 4) Discovery of SIGNIFICANT new evidence 5) Verdict was clearly inadequate or excessive NOTE: Remittitur may be allowed...ADDITUR IS NOT!!!! Remittitur: If damages are excessive, court may ask plaintiff if he will agree to less money or else he will have to go through a new trial and get nothing. APPEALABILITY OF ORDER: Order denying a new trial is final. Order granting a new trial is interlocutory (trial continues), so it is NOT immediately appealable. HOW ABOUT MOTION FOR RELIEF FROM JUDGMENT? Usually youll see this in a default judgment case, but it is whenever a party tries to get out of the judgment rendered against it. (60) GROUNDS FOR THIS ARE: 1) Clerical mistakes in the judgment 2) Mistake, surprise or excusable neglect 3) Newly discovered evidence that would probably change the result and could not have been discovered before. 4) Fraud, misrepresentation, other party misconduct 5) Judgment is void 6) Judgment has been satisfied, released or vacated 7) Any other grounds justifying relief If for #1, motion may be made at any time If for #2-4, must be within a year of entry of judgment. Any other, within a reasonable time.

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TRAL: JURY: Juries are a constitutional right for LEGAL claims (money damages). BUT NOT FOR equitable claims (injunctions, specific performance, recission) How about if there are both equitable and legal claims involved? GET A JURY! Unfair for you to lose JUST BECAUSE you have both type of claims! See Beacon Theaters, Inc.. How about if it is a new type of action? -Congress decides if you get a jury or not. Chauffers local No 391 v. Terry Lawsuit against a union for breach of a collective bargaining settlement (contract: $ for back pay). T said that C breached its duty to fairly represent them, so they should get a jury trial. C said that this was comparable to a trust beneficiary, which was an action in equity, so no jury trial. THE COURT SAID that you must look at: 1) Nature of issue to be tried AND 2) The remedy sought This was both legal and equitable (trust, but seeking money). In case of a tie, you get a jury trial. If there is a dispute between state and federal law as to whether you get a jury or not, follow federal! NOTE: You get a jury for a legal claim, not for an equitable claim. If both jury goes first. THE RIGHT TO A JURY TRIAL IS PESERVED BY THE 7th Amendment!! JURY TRIAL is waived if no timely demand is made (PUT IN COMPLAINT!!!) ---Get up to 10 days after service of the last pleading directed to the issue on which a jury trial is demanded--Which remedies are legal and which are equitable? LEGAL: 1) 2) 3) 4) Replevin action to get personal property back Ejectment to get off of property Writ of Mandamus Habeas Corpus

EQUITABLE:

1) TRO temporary restraining order 2) Preliminary Injunction 3) Recission 4) Reformation 5) Action to Quiet Title 6) Declaratory Judgment **Specific performance is an Injunction** NOTE: If legal and equitable, jury usually goes first because judge is bared by the jurys findings. JURY SELECTION (47) Voir dire: Attorney check out potential jurors

CHALLENGES: 1) For Cause: No limit on how many you can have: Usually used if a bias or relation to one of parties 2) Peremptory: Certain number (usually 3): FOR NO REASON!!! Edmonson v Leesville Concrete (1991):

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Peremptory challenges can not be used for bass of race. If peremptory challenges show a pattern of race, the person using the peremptory challenge will have to show an independent basis for the challenges. J.E.B. v. Alabama: You can not us peremptory challenges for gender either. Although there are no particular cases, 28 USC 1862 says that no citizen should be excluded from service as a juror in federal court on account of: 1) 2) 3) 4) 5) 6) race color religion sex national origin economic status

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FORMER ADJUDICATION RES JUDICATA

PRIOR/FORMER ADJUDICATION
Full Faith and Credit Clause of the US Constitution says that one state will completely honor a judgment entered in some other state Res Judicata This describes the concept of Former Adjudication Two Varieties: Claim Preclusion and Issue Preclusion EFFECT OF JUDGMENTS I. Res Judicata: Claim Preclusion (Merger and Bar) II. Collaeral Estoppel: Issue Preclusion ** The reason for this is to prevent inconsistent judgments and to promote judicial economy. I. RES JUDICATA: (Res Judicata is an affirmative defense) Parties are precluded from relitigating the same cause of action (claim) or from splitting a cause of action. (Compulsory counter claims) Claim preclusion (Res Judicata): Once court judges case 1 then other courts looking at case 1 will say that other issues not raised in case 1 (others that no one should have known about) are not allowed to come back up b/c court chooses to say: Theyve been raised and cant do it again. Do we have the same claim? You only get one bite of the apple Issue Preclusion: (Collatteral Estoppel) - The claim goes forward, but elements of the claim can not be relitigated b/c already decided in case 1. Issue spot for issue preclusion: 1. Do you have 2 suits? The first one has to have been decided on the merits in final judgment. 2. What does 1st suit (if any impact) have on 2nd?) Ex.) 5 elem of neg d,b,c,I,dams-- case1- for prop dam in car crash, case2 for pers. inj in the crash Reasons for the rule: 1. Fairness: To the victor so he doesnt have to retry a claim or issue 2. Judicial economy: Requires that litigation from a particular controversy not be continued indefinitely 3. Respect for prior judicial determination: or Finality F,F,&C: Courts of each st must give to a judgment of a judgment of a sister st the same effect that the judgment would have had in the st which rendered it. Each st must apply same rules that gave the earlier judgment. (Keeps the system running smooth) Even If 2 separate suits from same issue, st2 still must apply whatever was used in st1 2 wings to claim preclusion If P wins suit # 1, then suit #2 is MERGED into the judgment in suit #1. If P loses suit # 1, then suit # 2 is BARED by the judgment in suit #1. 1. Merger- if P brings an action and wins case 1 , his claim is merged into the final judgment; so if P later sues in case2, the same D on the same cause of action the ct says it has part of same claim as 1st case so its precluded. Merger is when you won 1st case and these cases are so closely related to what you prevailed in the 1st case, so now you cant bring it again. Claim Preclusion: if won in case1 (Merger) and still have some untouched claims, may be merged and cant be brought back up if: SHOULD have been brought, the earlier claim merges into the claim that was brought. 2. Bar- If you (P) bring action in case1 and lose, then he is barred from suing again in case2 on the same action.

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In either merger or bar both say they are so closely related. 1st Look for claim preclusion- will have 2 suits, if attorney not see issue of preclusion, stakes are atty malpractice. A law suit will be barred by Res Judicata (Claim Preclusion) if ALL 3 requirements are met: 1) Same parties 2) Same cause of action 3) Final judgment on the merits 1) Do any of the causes of action in case two present the same claim as a cause of action in case one? -- Address both those claims brought in case 1, and claims not brought, either as claims or counterclaims (Rule 13(a) bars compulsory counterclaims not brought in response to a plaintiffs claim where the first case was in federal court, and many states have comparable provisions. In addition, the failure to raise a claim or defense in an action, even if the action is resolved before the duty to answer arises, may mean you forfeit the claim as a common law compulsory counterclaim.) Martino. How do you tell if it is the same claim? (4 tests) a) Modern Broad Transactional : Same transaction or occurrence? EX: In a car accident you must sue for all injuries and car damage together. b) (Primary) Same Rights : What is the right being asserted in each cause of action? c) (Primary) Same Wrong : What is the wrong being asserted in each cause of action? d) Same Evidence : If same evidence will support both actions, then the same cause of action is involved. a) Modern Broad Transactional - Federal test, Broadest. All claims arising out of a single (same) relatively broad transaction or occurrence -- matters related in time, space, origin, and motivation, must be litigated in same suit or barred Standard- Common aggregate of operative fact- (logical relation) between 2 causes of action, then they form 1 claim. (When they could use same evidence) b) Same Rights test - If right to relief come from 2 diff stems (origins) of law. 2 diff origins of right to relief. (Rush). (Narrowest test and broadest # of claims will be brought here, Minority rule followed). Look to legal origins of the claim -- ex property or personal injury c) Same wrong or wrongful conduct If same wrong or wrongful conduct then only 1 action arises b/c Ds wrongful act is single and so the diff injuries are damages from the same wrong. Broader than same evidence test. d) Same evidence if same evidence is used then it goes in 1 claim *Distinguish between same rightts test and modern transactional test. If the two cases do not present the same claim, STOP and proceed to the collateral estoppel analysis. If they do present the same claim, consider: 2) Do the two cases involve the same parties, or those in privity with them, such as successors in interest or persons specifically appointed to represent the rights of a party (for example, someone who holds a power of attorney)? Only is a problem if you give authority to a person If the two cases do not involve the same parties, or those in privity with them, STOP and proceed to collateral estoppel. If the two cases do involve the two parties, consider: 3) Was there a Final Judgment on the Merits in suit one? If so, claim preclusion applies. Judge entering judgment, or if a jury verdict and judge gives judgment. a. Rule 41(b)- certain dismissals are never final judgments on the merits (ex. PJ, SMJ, VENUE) b. Lack to join a claim is final unless judge says otherwise c. Consent judgments- ex) settlement and then judge says its a final judgment is final on merits d. Every involuntary dismissal except those under 12b1, 2, &3 (lack of smj, pj, improper venue, or failure to join a party) is final j on merits unless ct says otherwise in its order.

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e. 12(b)(6) dismissals are w/ prejudice f. If 1 voluntary dismissal it is w/out prejudice If P has 2 voluntary dismissals by backing out of court before D responds and then file in another, in Fed ct then _______? g. If fail to bring a compulsory cc, you lose it, but dont use preclusion tests, but w/ Rule 13(a). Rule 13(a) and other CC rules have essentially replaced the rules of preclusion.

(Rush) arm and a sleeve are separate claims. neg same occurrence, pot hole (breach of duty) prop injury from same occurrence, prop dam same now as yesterday, but not ex. closed head injury Exam quest - situation w/ 2 cases would be sep under same rts test but not clearly for other seats. How to tell when 1ct decided case1 and now a ct. in diff jurisd is deal w/ case2. In Rush, case 2 brought in Ind, not OH. 1.) P(wife)-owned motorcycleD(city) in st ct for prop damage, Judgment for P $1000 and city found neg for not repair rd. 2.) P(wife)D(city) in st ct for pers inj of same accident as in case1. 1) prop dam OH- same wrong 2) pers inj from crash IND same rts Ind must give F,F,C to case 1 but since case 2 filed in Ind, they must use test of _______ Use the Test whose law controlled in case1 (hypos) 1.) When case1 in st ct. in st. A and case2 in st. ct. in st. B, f,f,c must require st. B to apply test for same claim as st.A. 2.) When case1 st. ct. and case2 in U.S. dist ct, fed ct must apply the test for same claims that st used. 3.) (Syntec) - case1 US dist ct in diversity jurisd (law to decide is st law) case2 st ct, ct in case2 must apply (not fed test) but applies test for same claim of st whos substantive law governed case1. 4.) If case1 on fed quest and case2 in fed quest will use fed std. If Fed Quest or Diversity jurisd, then apply test that st uses. (Frier) 1.) P(frier)D(city) in IL st ct case dismissed, final on merits 2.) PD in Fed Ct for denial of due proc. On civ rts- when prop is seized by govt/city, you get a timely hearing. Case2 lost on merits, but gave a defense for appeal for claim precl. Fed ct applies same test that st used in case1. Here IL used same transaction, so P lost bc it was same transaction a. Replevin action- to win, show prop taken wrongfully b. Due proc action- to win show regardless of prop taken was he entitled to a hearing? c. Case1 about propriety of taking. Case2 about procedure of way it was taken: if it was taken wrong? In case2 you use all info of 1, but also w/evid of no hearing d. For Same evidence test, not same evid. e. Even if P won case1 and tries to bring case2, still no dif, bc its same claim, so his cause of action in case2 was precluded, bc it had been merged. f. If P brought replevin action in IL Dist ct, any (civ rt claim must be brought in supreme ct) he could have brought it in fed dist ct w/ supp j (replevin and due proc) If brought case1 and only they could have heard 1, and another ct could have heard both 1 & 2. If your forced into only having 1 claim heard and not your choice, and cant be heard by that ct or tribunal, then your not precluded. (Martino) what about claims you havent raised? 1) P(mcds) D(martino) for breach of K, case resolved by consent judgment of pty settlement = final j on merits bc it was order of ct dismissing case. 2) P(martino)D(mcds) for antitrust law. Yes its same transaction or occurrence.

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Held: case2 was claim precl on grds martino had cl duty to a cc in 1. In 1 mcd was allowed to assume, everything connected to dispute was done and that martino brought it all there and that judgement was final. Priciple - Cant keep in pocket a claim or defense you could have used in case1, even if you settle, you need to raise all motions, etc. and get them recognized or the ct will say you should have and now preclusion. (not only things you raised, but also if very similar. Rule: Res judicata bars a Ctr Claim when its prosecution would nullify rts established by a prior action.

(Searle Bros) Legal authority to act for you and authority to do so. Agent- someone you delegated a duty to, your saying you are me Executor and Beneficiary sometimes. But your not bound by a person helping you out; not you. Children cant be parties to assets proceedings in a divorce. Due Process: Searle Bros get there day in ct, they arent ptys, so theyre not bound. Ther interests were undivided and separate. There may be parties that can be deemed to have been involved (ct not agree w/ this arg) Searle bros had interest in prop before divorce Mom args the bros are in alliance w/ dad to keep her from getting prop she should get. Bros sue mom and mom args- claim precl, bros should be held to dads case bc they pulled strings behind scenes. Civil cases -Preponderance of evidence: what P has to show in civil case, 50% plus. Fraud- 68-80% is Clear & Convincing evidence Criminal - Beyond a Reasonable doubt: Std for a criminal case.Criminal- higher level of proof than civil Usually dont arg in Civil case to use Crim case of fraud Never use a Civil win for a higher std in Crim case. If the two cases dont have same claim, go to Collateral Estoppel (Issue Preclusion) analysis, does it preclude relitigation of same issue?

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ISSUE PRECLUSON COLLATERAL ESTOPPEL

Must meet all elements: 1.) Both suits involve same issue; 2.) The issue was actually litigated and NECESSARILY decided in suit 1 (can you tell from the type of judgement?) 3.) There was a final judgment on merits in suit1 (see rule 41b and semtek, or at least, had the litigation of an issue reached such a stage that the ct will not permit its relitig; 4.) The issue was essential to the judgment in suit 1 (if the judgement states mult grds, you must decide which Restatements analysis your ct will apply, unless an appellate ct has upheld mult grds on appeal) 5.) There is mutuality of estoppel (if required.) ? 6.) Will any other sections of the Rstmt 2nd of Judgments have an impact on the use of former adjudication? See section 26 for Res Judicata and sec 28 for Collateral Estoppel. 1.) Do both suits have the same issue? a. Applies to issues of fact and mixed issues of fact and law (Ex -breach of a duty of care) Usually pretty straightforward Ex - same ptys in ct on same car accident (1) P sues D for prop dam, P wins. (2) P sues D for personal injury B/c 2nd suit here -- Issue Preclusion. P will want to use Offensive CE, bc. already proved in case1( duty and breach) b. Different burdens of proof on an issue in the two cases precludes the use of CE if bop was lower in case1, (see notes 1, 2, 3 p.835-836) EX:OJ being sued in tort because the BOP changes from beyond a reasonable doubt to preponderance of the evidence. 2) Was the issue fully and fairly and actually litigated and determined in the first case? a. Can you tell (expressly or implicitly) from the verdict whether the jury actually decided the issue in question in reaching its verdict in case one? b. If holding is ambiguous as to decision on certain issues, you can relitigate them. EX: P sued D for negligence and D sued P for contributory negligence. If judge just says, judgment for D it can be either because 1) D was not negligent OR 2) P was ---If they find for P, both issues would be precluded because it means: a) D was negligent b) P was not Note: General Jury Verdictnot litigated and determined - (Cant from a general jury verdict where more than one basis exists to support a result.) c. Did parties use time and energy to presenting evidence on the issue? (see Il. Gulf Central rr p.836) The problem w/ gen verd and CE cant tell whether Jesse received zero damages bc. jury found he had suffered no damages or bc they found he was contributory neg.) -Special verdicts can get around the prob b/c they are exact quest. -Bench trial never have this prob. (ex fed judge at end of trial gives 1) findings of fact, & 2) conclusions of law. 3) Was there a final judgment on the merits in the first case? --Same analysis as claim preclusion-NOTE: Look at jury verdictNegligence; Duty, Breach, Causation, Injury, Damage. Every invol dismissal except those under (12b1, 2,3, & 7) which are lack of smj, pj, improper venue, or fail to join a pty) is a final j on merits unless judge says otherwise in its order.) Judge says otherwise often, ex. for lack to st a claim, judge lets other side amend a lot. 4) Was the issue essential to the judgment in the first case? The Finding on which you seek to use CE must provide the Sole Support for juries basis (in most jurisdictions) ( Must be able to say, only way jury got to this number 0 was from this reason) a. Did the decision DEPEND on the grds on which a pty seeks to use CE, OR

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were there multiple grounds SPECIFIED, any of which, independent of any other, would have supported the outcome? b. If Multiple grds specified for a decision it depends on which RSTMT view the ct which decided case1 applies. 1st RSTMT: Where there are alternative, independent grounds specified for a decision, CE on all. 2nd RSTMT: Where there are alternative, independent grounds specified for a decision, no CE except on those grds upheld on appeal, and then it depends on what ct of appeals reaches. ??Logic- if you know youll lose on 1 of those, then we dont want you to go through appeal only to _______. Where multiple, indep. grds, neither is essential to judgement. Logic: wont force you to appeal just to decide if she was wrong. No CE for suits that are exhausted, same for claim preclusion. 5) Will the court require mutuality of preclusion? (both the user and the victim on CE must be parties in both cases) If not, can you satisfy the requirements for nonmutual CE? Originally, courts only permitted the use of CE if both parties in the second suit were also parties in the first. Some states require this mutuality for the use of CE. --The modern rule is that a party may employ CE if the victim of CE (or someone in privity with them) was involved in both cases and had an opportunity to fully litigate the issue. Offensive: You try to use part of decision of 1st case to prove elements of your cause of action. Defensive: Use decision in 1st case as a defense to you in case2. DNCE- make since helps judicial economy, efficiency, ONMCE- goes angst those same policy considerations ( people can wait and see), and it encourages mult suits so it has greater limits. ?- As a matter of law you can take findings of a TC and use them at jury trial 4 types of CE: 1.) Defensive mutual (shield) 2.) Offensive mutual (sword) 3.) Defensive nonmutual (shield) 4.) Offensive nonmutual (sword) a. b. If the governing law permits use of Offensive nonmutual CE, you must ensure that the victim of CE ( or one in privity w/them) was a pty in both cases. If so, you may use ONME if you can satisfy the 4 Parklane factors: 4 Parklane factors: 1) Person seeking to use ONMCE in suit2 could not have easily joined in suit1 2) Victim had the incentive to litigate the issue fully and vigorously in suit1 and could foresee the possibility of subsequent suits (it must be fair) 3) Judgment on which the party who seeks to use CE will rely is not inconsistent w/ any previous judgment on the issue. 4) There are no procedural opportunities available in the 2nd action that were unavailable to the victim in 1st case. (ex call all wit here but couldnt in 1st case bc inconvenient.) *Courts also see whether the decision in 1st case was manifestly wrong or the result of a jury compromise. (see State farm case p855 and notes following it) *For Claim or Issue Preclusion, look to st law of case1. Summary: 5.) There is mutuality of estoppel (if required) 1st determine if it is required under governing law: If Yes then both suits must have same ptys/privies If No then determine if the target of CE was a pty to 1st suit: If Not then no CE bc use would violate Due Process

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If Yes then determine the type of CE Particularly if one party seeks to use Offensive NonMCE, then must apply 4 Parklane factors to see if its use is permissible. (Parks): 1.) Ps B(wife) (neg bc injuries) D (rr) Ind st ct. General Jury Verdict- B got $30,000, J got $0 J(husband) ( loss of consort) Jury could have gotten to 0 by either or both ways, a.) J contrib. neg, bar to recovery for J; or b.) J had no damages. 2.) J D for neg. and his own injuries. Claim Precl. Here not barred bc Js causes of action in 2 suits are not same claim under Same Rts Test. D args for defensive CE, P args for offensive CE so D cant redefend Problem is ( Was it actually litigated and determined?) 1st Rst- both would be essential to judgment 2nd Rst- neither could be until upheld on appeal If special jury verdict, Jesse could still arg that nothing justifies conclusion. A person not a party in suit1 can bind a common party that was in suit 1 and 2 1.) If could have easily joined and you sat on sidelines then No ONMCE Hypo- P (ms. Rush) sues D (city), if Mr. rush testifies and says he had no injuries, but unknown is a head injury not apparent yet, he could later make a suit and use same issue bc he had no idea he had a possible suit. But if he knew and chose not to bring suit, then he cant use CE later. Class Action: and you get notice of it and a choice to opt out, then you dont get CE if you opt out, bc you were invited in suit and didnt come. 2.) Party whom CE is to be used had incentive to fully and extensively litigate the issue in 1st suit (Parklane): ONMCE is permissible, a trial judge has broad discretion to permit it to establish an element of a Ps case where, it is not unfair to the D. Gen Rule: dont use it if P could have easily joined in the earlier suit or if unfair to D bc dont want to let Ps have a wait and see attitude. Ex) Unfair if the 1st suit was for such a small amt that D had no reason to contest it vigorously and now there stuck w/that. Hypo: a) Multiple Ps waiting, in the wings then ct less likely to permit it then where the 2nd suit will probably be the last. b) If D in 2nd suit was a D in 1st suit, court is against the use of estoppel b/c D had no choice of Forum, but this is not a bar bc this was allowed in Parklane. 3.) Where there are inconsistent judgments on the issue, then cant use CE Rule: where prior judicial determinations on a particular matter are inconsistent, CE will not bar relitig of that matter (bc D has shown on a diff day beyond a reas doubt, he prevailed. If new evidence or prior decision looks erroneous then unfair to deny relitig for D. (State Farm fire) fire hurts people in office park P1D (P wins on appeal) P2D (D wins) P3D ( P wins on jury verd) 4.) Party you seek to use CE against has no procedural opportunities available, that it didnt have in 1st case a. Must Meet ALL 4 for Offensive Nonmutual/Mutual CE b. For other types of CE, use a balancing testweigh them all. Many Considerations that will not allow offensive, also will not permit defensive or offensive mutual CE:

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Ex. P sues D in small claims ct for $100 vs. P sues D in state ct for $1 million. Much different proced opp although exact same claim Judge to avoid future probs w/ precedent of this case could leave open ended jury quest w/ gen jury verdicts, or say this case not to be used as precedent

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THE BOUNDARIES OF PRECLUSION:

Appeal advocates must raise issues, motions, etc. on record Sometimes nothing on record itself looks wrong, but big probs are there, ex fraud, or mistake. Focus of litigation - is to refine claims & issues being litigated is in Discovery. Fact plead system - will know in beginning the probs and defenses, legal theories, and legal std bc many more facts are plead (Federal) Notice Plead system- puts us on gen notice of defenses and claims, then in discovery well get all other stuff out and refine all of our theories. Claim Preclusion: Straightforward Reasons for declining to apply claim preclusion (sec. 26, p863) 1.) Where parties have expressly or implicitly agreed to allow claim splitting 2.) Where a ct in 1st action reserved Ps rt to bring the 2nd 3.) Where jurisd limitations prevented P from seeking certain forms of relief now sought I. Claim Preclusion Rstmt 2nd 26 - Exceptions to Gen Rule Concerning Splitting If any of these exist, then part or all of a claim still has possibility of a 2nd action by P agnst D. 1) Judgment in 1st action was inconsistent w/ fair and equitable implementation of a statutory or const scheme, or it is the sense of the scheme that P should be permitted to split his claim. (Usually a broadly applicable law as to which interpretation has changed. Ex. in yrs before Brown is decided, a child sues for racial integration and loses, next yr Brown is decided. P otherwise bound by now rejected interp is allowed to take advantage of changed law.) 2) B/c of substantive policy in a case w/ a continuing or recurrent wrong, the P is given an option to sue once for total harm (past and prospective), OR to sue from time to time for damages incurred to the date of the suit, and chooses the 2nd option. (Seeks the same result for situations involving repeated interactions b/tw same ptys.) 3.) Its clearly shown by some extraordinary reason, such as apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty or the failure of the prior litigation to yield a coherent disposition of the controversy. Sum: It would be unjust to permit preclusion of case1 b/c of some extraordinary reason. (ex farmland, K, wife not sign) (Designed to help cts out of messes that inconsistent prior decisions can lead to) II. Issue Preclusion: Rstmt 2nd 28 - Exceptions to Gen Rule of Issue Preclusion (sec 28, p865) If any of these exist, relitigation of an issue in a later action bt/w ptys is not precluded. 1.) No review in the 1st case Party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action. Sum: Only if didnt have at your disposal the possibility of appeal. Ex here D had acquittal, judgment entered, so no way he could get appeal to get issue to appellate review. 2.) The issue is one of law and (a) The two actions involve claims that are unrelated (b) A new determination is warranted in order to take account of an intervening change in the applicable legal context (law) or otherwise to avoid inequitable administration of the laws

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Ex?) whether issue is one of law or fact: if law, then flexible doctrine of stare decisis and redevelop of law should weigh in, but fact its less so transfer of income & interest yr to yr. 3) Different procedures A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the courts or by factors relating to the allocation of jurisdiction between them. Different procedures used in the 2 cts or by factors w/ allocating jurisdiction bt/w them Ex: if word disability is at issueif disabled in one statute not necessarily disabled in another, bc they may define it 2 diff ways Ex: If diff CL scheme or diff govt scheme, then dont apply both or however many decisions Ex: actions in small claims or traffic ct dont have issue precl effect, if Ds conviction in traffic ct for speeding then no issue precl in a later neg action. 4.) Different burden of persuasion, or another pty now has the burden The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action. Ex: In some places policy grds will not allow you to go down from high crim std to low civil std. 5) There is a clear and convincing need for a new determination of the issue because: a) Of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action; b) It was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, OR c) Because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to (fully and fairly litigate) obtain a full and fair adjudication in the initial action. (Catch all)- These are to give law some part of human std. of heart and logic. LAW OF THE CASE AND JUDICIAL ESTOPPEL (preclusion of inconsistent positions) Law of the case: Functions w/in a single case to prevent relitigation of decided points of law. It says the ptys get a single appellate shot at their legal contentions, and once theyve got an appellate ruling, it governs in later trial and appellate proceedings. -If the loser is unhappy w/ result, can petition writ of cert to Supreme Ct, but cant arg quest in lower cts. ?Ex: TC is stopped while issue goes to appeals ct and they decide. ex- injunction proceeding starts 1st w/ temp restrain order, then 2nd a hearing on prelim injunction. Bc its prelim we now have a whole trial on whether a permanent injunction shall issue. 2 things have to happen: 1.) you decide rt now, or 2.) appeals ct uses its discretion. Now the decision of appeals ct is law of the case on issue(s) decided and ptys cant ever challenge this point again bc. the quest is subj to final j on merits. Judicial estoppel: Prohibition on lying - precludes a party from adopting a position that is inconsistent w/ a stance taken in prior litigation. At least 3 elements must be satisfied: 1.) pty sought to be estopped must assert a position inconsistent w/ that taken in prior litig, and it must be one of fact, not law or legal theory 2.) prior inconsistent position must have been accepted by the ct 3.) pty sought to be estopped must intentionally have misled the ct to gain unfair advantage Note the pty burdened usually has prevailed in prior litigation Judicial estoppel applies not to pleadings( governed by 8(e) 2- pty can st as many claims regardless of inconsistency) but to sworn positions taken in actual proceedings.

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Exceptions: If you have disorder where you see color red, when green, and 1.) you testified in good faith in the 1st case, and 2.) intervening evid has shown it III. Repose: Full, Faith & Credit as a Bar to Collateral Attack 1) State courts are bound by Article IV, U.S. Const. (Full, Faith & Credit Clause.) This applies to state courts looking at the judgments of courts on other states. 2) Federal courts are bound by 28 U.S.C. 1738. This applies when federal courts look at the potentially preclusive effect of state court judgments. City of Vandalia: Durfee: The principles of res judicata and full faith and credit prelude relitigation of judgments of a foreign state when the parties have appeared and have fully and fairly litigated the issues. Collateral Attack: P args the ct lacked pwr to enter judgment agnst you; so if ct has no pwr then you can get out of it if ct in st is to give smj defense the silver bullet, but if you already appealed this issue and tried and lost, then Ct doesnt care about smj defense anymore. (Durfee v Duke) 3) When a second state court is deciding what preclusive effect to give a prior federal diversity judgment the second court gives it the same effect the state court for the state in which the federal court was sitting would give it. Semtek: Ex: A default judgment in Neb could be challenged later in MO if he never fully and fairly litig the issue when it was in (Neb in case1) (Durfee) he tried to challenge it horizontally, instead of vertically to the Supreme Ct; and the dist ct said repose and finality are more importantt, so too bad for D (Duke)

Analysis?: Lack of SMJ is never waived and a collateral attack can be made for 1st time when judgment is accorded res judicata effect in some other action. But, collat attack is only available to a person who didnt appear in the original action. So, you cant do it if you appear and dont raise it there, or if you appear and raise it and lose. Only time you will be protected for smj under f,f,&c is if you dont show up. IV. Repose: The Reopened Judgment as an Alternative to Collateral Attack (Rule 60(b)) Beggerly Independent actions pursuant to Rule 60(b) are reserved for cases of injustice sufficiently gross to demand departure from adherence to the doctrine of res judicata. Reopened Judgment: TC is final j on merits, unless we raise arg or object, we dont preserve for appeal rt to contest something we didnt bring up, and it must be proper and timely. Exception: if Clear Error bc its so bad and the only way justice will be served is to reopen and let it go. 60(b) when record doesnt show facts were wrong but extraneous facts do show it, then the rule gives relief under these circumstances: On Motion w/in a reasonable time and upon such terms as are just, ct may relieve a pty from judgment for: 1.) Mistake, inadvertence, surprise, or excusable neglect 2.) Newly discovered evidence which by due diligence couldnt have been discovered in time to move for a new trial. 3.) Fraud, misrep, or other misconduct of an adverse pty. (For 1,2,&3 not more than 1 yr after judgment entered) 4.) The judgment is void 5.) Judgment has been satisfied, released, or discharged, or a prior judgment upon which its based has been reversed or vacated or its not equitable to apply the judgment

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6.) Any other reason justifying relief from the judgment Independent Action: No limit of cts power (can be over a year) to entertain an indep action that grants relief to: 1.) a D not actually personally notified as provided, or 2.) to set aside a judgment for fraud upon the court. Independent actions pursuant to 60(b) are for cases of huge injustice, so big to demand departure from adherence to the doctrine of res judicata. (Beggerly) land purchase, Ps claim doesnt meet the std, bc P only args the govt failed to thoroughly search its record and furnish relevant info. Here, no grave injustice to allow the settlement to stand. To get something reopened after a yr, you must show a grave miscarriage of justice and a gross problem. Hypos W/in a yr P moves to set aside judgment: c.) if a witness lied to ct, and not a pty ct will not set aside d.) same thing e.) Fraud can come at anytime, doesnt have to be w/in 1 yr. _________________________________________________________________________________________________ ___________________________________________ Res Judicata v Collateral Estoppel cases: Frier v City if Vandalia (1985): Guy sued for replevin of his car in a stat lawsuit, which he lost. He then tried to sue under a federal claim (42 USC 1983) for damages. The court dismissed the second lawsuit, saying that it was too closely related to the first lawsuit, and should have been brought together. One judge used same transaction rule, which most courts follow under the 2nd Restatement. A different judge wanted to use the traditional core of operative facts test to reach the opposite result. Most courts use the same transaction rule, which is codified in the Second Restatement of judgments section 24 (1982). Martino v McDonalds System (1979): A counterclaim may be subject to res judicata also! He should have brought it earlier! Seale Bothers v Searle (1978): This case deals with privity. It defines privity as: a person so identified in interest with another that he represents the same legal right. In this case, privity includes a mutual right (joint ownership, for example) as well as successive rights in property. Gargallo v Merrill, Lynch, Pierce, Fenner & Smith (1990): State did not have SMJ over a counterclaim D wanted to bring, but dismissed their claim with prejudice for failure to cooperate. Is this case dismissed for good if the court had no SMJ? NO! Ilinois Central Gulf Railroad v Parks (1979): Shows an example of defensive collateral estoppel. P sued and did not win. Does this mean that D was not negligent? Not reallyP may have lost because of contributory negligence. Were not sure how each issue was decided therefore, CAN NOT use collateral estoppel here! Parklane Hoisery v Shore: Talks about non-mutual offensive collateral estoppel and why it may not be fair to allow it. State Farm Fire & Casualty v Century Home Compnents (1976): Dont use CE when ther are inconsistent judgments. Rush v City of Maple Heights (1958): P was involved in a motorcycle accident. P tried to split the cause of action into: 1) Suit for damages to motorcycle (won) 2) Personal injury from same accident The personal injury case returned a verdict of $12,000, BUT the higher court reversed this decision, saying that t was barred by RJ! (Not in book) Saylor v Lindsley: This case dealt with a shareholders derivative action. Subsequent shareholders will not be barred by bringing their own suit if the 3 requirements of RJ are not met. Here, the case got dismissed early on because P did NOT post a bond, as required by state law. Is this on the merits? NO! (Not in book)

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