CIVPRO OUTLINE

Things to know about Civil Procedure

Congress plays two roles in establishing the FRCP: it delegated the original power to the
courts in the Rules Enabling Act ,and it gets six months in which to disagree with any
Federal Rule before it becomes effective.

Incentives to Litigate - Remedies

Amend. XIV, US Const. State Due Process

o Amendment V, US Const. Federal Due Process
FR 64, 65(d) Injunctive Relief

CASES
State Farm Mutual Automobile Insurance Co. v. Campbell punitive damages no
more than 9x compensatory damages. Complaint against State Farm alleged bad faith,
fraud, and intentional infliction of emotional distress (jury awarded $1 million in
compensatory damages and $145 million in punitive damages, supreme court ruled
damages were to high)
o Punitive damages = constitutional issue under 14th amendment because of
possible due process violation (DE NOVO review)
o Changes after Campbell
has less incentive to settle now after Campbell b/c limit on punitive
damages (more calculable risk of damage, reduce risks)
under more pressure to prove high compensatory damages
Lawyers will invest more in cases with significant compensatory
damages over highly culpable
Less deterrent effect for intentional harm
Odd that equally culpable people may have different punitive
damages based on compensatory damages (odd b/c should have
equal punitive damages), but just general rule (1:9 ratio)
Reduces very rare but very high awards
Sigma Chemical v. Harris injunctive relief relies on balancing test: hardships to
parties if injunction is granted AND inadequacy of legal remedies. signed noncompetition agreement w/ . Then went to work w/ competitor, used company secrets.
wanted permanent injunction. Court granted (limited) injunction that he couldnt
work in specific department or use any of his past knowledge.

Litigation in America
o 98% of civil litigation takes place In STATE COURT
o Mostly traffic claims (3/5)
o Litigation growing faster than population but slower than economy

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Demographics
Ps win
Median Damages

Tort
44% of filings but 2/3 of all
trial cases
50% - mostly jury
$37K

Specific remedies: those that replace directly what the plaintiff lost
o Compensatory damages: Courts look at what costs to only
o Punitive damages: Courts look at hardship to to determine appropriate
punishment
Subsitutionary remedies: reasonable substitute for what the plaintiff lost
o majority of remedies since most ppl seek money damages.
Under old chancery system, equitable remedies were only available if legal remedies were
insufficient

Jury:
legal
remedies

K
55% of filings but only 1/3 go
to trial
65% - mostly bench
$45K

Specific
Replevin
Ejectment
Mandamus
Habeus Corpus

Substitutionary
Damages
Reliance
Expectation
Liquidated
Punitive

Judge:
equitable
remedies

Specific
Injunction
Reformation
Rescission
Quiet Title
Specific Performance

Substitutionary
Clean-up
(Damages)
Constructive Trust

Declaratory Relief
o Rule 57 - "The existence of another adequate remedy does not preclude a declaratory
judgment that is otherwise appropriate. The court may order a speedy hearing of a
declaratory-judgment action."
o 28 USC 2201 - "any court of the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of any interested party seeking
such declaration, whether or not further relief is or could be sought."

Incentives to Litigate Temporary

Due process is flexible: requires a balancing test, one that matches appropriate process
with the circumstances of the case.

FR 65 (a), (b)
28 U.S.C. 1292(a)(1)

CASES
Winter v. Natural Resources Defense Council, Inc NRDC sued Navy for injunction to
stop training exercises that could harm marine mammals under various protection acts. Navy
appealed and SC ruled for Navy because balance of equities and public interest weigh in the
favor the military.
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o General rule = Sliding scale for injunctive relief - likelihood of harm when the
likelihood of success is very high.
o SC in THIS CASE says harm AND probability of success have to be likely
Fuentes v. Shevin got writ of replevin, state seized s goods without notice or
opportunity to challenge it. Court rules violation of due process because property interests
need at least notice and an opportunity for a hearing before stuff is repossessed (only if done
by state).
o SC stated factor test for whether fundamental requirement of due process -- opportunity
to be heard at a meaningful time in a meaningful manner -- has been met:
(1) will private parties be affected by official action?
(2) risk of erroneous deprivation of such interest through procedures used &
probable value of additional procedural safeguards
(3) govt interest in additional or substitute procedural requirements &
fiscal/administrative burden that additional procedural requirements would
entail

Ex Parte T.R.O.

Temporary Relief Order

Preliminary Injunction

Final Injunction

- only if prevents irrep. harm

No notice or hearing required
Not appealable because very
short duration
(earliest possible hearing
date, with hearing on 2 days
notice if adversary requests
Rule 65(b))

Notice
Brief adversary hearing
Short duration
(10 days, with possible
extension for good cause)
Not appealable because
very short duration

Notice
Hearing (but perhaps on
incomplete discovery)
Lasts until trial on final
injunctive relief
Can appeal: Interlocutory
review available under 28
U.S.C. 1292(a).

Full trial
Indefinite duration
Can Appeal:
Review available either
under 1291 (if judgment
final) or 1292 (if other
matters remain to be
determined).

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Financing Litigation

FR 23(e), (h)
FR 54(d)(2)

CASES
Evans v. Jeff D fee shifting. Ps seeking injunctive relief for institutionalized children.
Ds offered settlement of everything Ps asked, but asked for waiver of attorney fees (feeshifting statute would have covered). Court held Civil Rights Attorney's Fees Awards
Act does not require courts to disapprove a settlement because it was expressly
conditioned on waiver of statutory eligibility for attorney fee.
Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res. fee
shifting. P brought suit against D state to change regulation that required home care
resisdents to be able to get out of burning buildings unassisted as against FHA and
ADA. State enacted 2 bills eliminating the regulation => court dismissed case as moot.
Attorneys not awarded fees under catalyst theory because no change in legal
relationship of parties.
o This decision encourages defendants to throw the towel in early -- and change
on their own, SC says this makes system more efficient.
o Could Congress change this result? YES - make Fees Act more clear
Supreme Court binds ONLY state and federal courts regarding
FEDERAL STATUTES (Doesn't bind STATE court applying STATE
fee-shifting statue)
4 Ways to pay for litigation
o Each Party pays own fee: Hourly rate (American Rule: most commercial litigation
financed this way)
o Cost Sharing: Insurance, Contingency fee (winning clients pay costs for their case as
well as losing cases)
Contingency fees: lawyer must have possibility of recovering damages.
Before taking a client, must know:
Remedy sought: damages? (only works for specific remedies
equitable remedies like injunctions dont pay bills)
Ability of other side to pay: Judgment proof? Assets? Will
insurance cover?
Likelihood of compensatory & punitive damages: Campbell
makes this harder if compensatories are low.
Insurance will NOT pay for intentional acts, only accidents
When insurers pay lawyers, lawyers decide based on what is best
for insurance, not client. May settle even if client isnt liable or
fight hard to prevent future similar cases from being brought
o Loser pays winner's fees English Rule Many 1-way fee shifting statutes prevalent in civil rights and "public" litigation
Usually prevailing PLAINTIFF will get fees but NOT defendant
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o Someone else pays: Legal aid (govt and private), Pro Bono, Affinity Groups
(finance to further group goals)

Pleading

FR 7
FR 8
FR 9
FR 13
FR 11
FR 12(b),(e),(f)
FR 15
FR 55

PLEADING CASES
Conley v. Gibson notice pleading alleged wrongful discharge of African-American
employees from a railroad company and unequal protection from the union. The court
ruled that general allegations of discrimination were sufficient to fulfill the Rule 8(a)
requirement of a "short plain statement" because discovery, not pleading, should do
major sorting between grounded and ungrounded claims.
Bell Atlantic v. Twombly Antitrust case with huge potential discovery costs.
Twombly brought a class action against Bell Atlantic Corp. and other
telecommunications companies alleging conspiracy to end competition (antitrust).
Conclusory. Court overruled Conley and held Rule 8(a) pleadings must be specific
enough to "nudge their claims across the line from conceivable to plausible" and
statements of assumption are not entitled to presumption of truth.
Ashcroft v. Iqbal Post 9/11, was detained and sued alleging violations of his
statutory and constitutional rights based on his treatment while confined. sued
specific government officials (head of FBI) which would require huge amounts of
discovery to prove they knew of violations. Court granted motion to dismiss. Extended
Bell's specificity standards to apply to all civil cases.
o Makes pleading more difficult BUT only affects Federal Cases 2% of all cases
since 98% are State cases
o May make standard forms for pleading invalid (unsure since fairly recent case)
Jones v. Bock prisoner sued prisoner for abuse/ forcing him to do work that
caused injury. alleged had not stated a sufficient claim because he hadnt shown
exhaustion of administrative remedies; said exhaustion of administrative remedies
was an affirmative defense. Rule 8(c) lists affirmative defenses but is not exhaustive,
court rules must use not-exhausting as affirmative defense.
o Burden of pleading also determines burden of production and burden of
persuasion. (especially important during a close case), so whether it is required
in complaint or affirmative defense sets up stage for discovery/summary
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judgment/trial/directed verdict burdens.

Stradford v. Zurich Insurance Co - Dentist sued to get reimbursed for dental molds
damaged in flooding (~$100K in value). In counter-claim Zurich insurance claimed that
lied, yet failed to identify lie. Rule 9(b) requires fraud claims to give fair notice of
precisely which statement a party alleges is false, or else dismissed.
o 9(b) is there to keep fraud out of K claims. Fraud and mistake are the "enemies
of contract law." Dont want to discourage Ks or make it too easy to get out of
K by claiming fraud/mistake because Ks are foundatin of our economy/society.
o But opportunity to amend pleadings under Rule 15(a), so was allowed to
amend their pleadings to be more specific.
PRE-ANSWER MOTION CASES

Haddle v. Garrison was an at-will employee for Healthmaster, Inc.. sued alleging
his employer conspired to have him fired in retaliation for him being a witness in a
criminal trial against Healthmaster fraud. Haddle claimed his employers' acts had had
"injured [him] in his person or property" in violation of federal law, specifically the
Civil Rights Act of 1871. Court granted 12(b)(6) motion because precedent cases held
that at-will employees suffered no actual injury because no guarantee of future
employment.
o Motion was appealed all the way up to the SC. SC ruled against , found that
's allegations did form a claim on which relief could be granted.
o Win against 12(b)(6) just means case moves on: can begin discovery, can
go back and draft an answer and deny specific facts of 's claim.
ANSWER CASES

Zielinski v. Philadelphia Piers filed personal injury claim based on forklift

accident. Sues as employer; made general denial against Rule 8(b) requiring
specific denial to each allegation and didnt realize that someone else was actually
employer (company had been sold without s knowledge). couldnt sue correct party
b/c stat of limits had run, but both covered by same insurance so court forces company
to litigate as if they were correct employer.
AMENDMENT CASES
Beeck v. Aquaslide sues for personal injury. admits to manufacturing slide but
months later realizes they didnt make it, and moves to amend answer after Stat of
Limitations has run on s claim. Court allows to amend under Rule 15 because
would be highly prejudicial not to, no bad faith on part of , and can possibly still sue
correct party.
Moore v. Baker originally sued after surgery went badly under informed consent
prior to surgery. moved to amend after discovery to include complaint of negligence
during/after surgery. Court denied motion to amend because amendment didnt relate
back, would require entirely different proof/research to prove, didnt give proper
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notice to prepare against claim.

Bonderb v. Richard J. Caron Foundation injured in basketball game as part of
rehab, originally sued for negligent maintenance of court, then moved to amend to
include counseling malpractice. Court granted motion to amend because issues arose
out of same nucleus of operative facts so on notice and amended before
discovery (depos, experts, etc.), lower burden.
o Fairness and Timing matter!
SANCTION CASES
Walker v. Norwest Corp. - Attorney incorrectly filed diversity jurisdiction because
some parties were from different states, complained proving complete diversity was
too difficult. Case dismissed for lack of jurisdiction under Rule 12(b)(1) and lawyer
sanctioned under Rule 11(b)(2) for failing to do their legal research correctly.
Christian v. Mattel filed a case against Mattel for copyright infringement for a
cheerleader doll she created, even though copyright on Barbies head clearly predated
s copyright by 6 years. Attorney sanctioned under Rule 11(b)(3) for failing to do his
factual research before filing a claim.
o Note: sanctions eventually reversed because court also used sanctions to punish
for bad behavior, which is a no-no. Rule 11s scope is for written documents
only, not being a jerk.
Common Law

Chancery

Today (combined the old systems)

Triers of
Fact

Juries and Judges

Judge, no Jury

Sometimes Judge, sometimes Judge and Jury

Pleadings

Formulaic (writs)

Extremely detailed No formulas but few facts

and factual

Witnesses

Live testimony, no
subpoenas or discovery

Subpoenas, some
discovery, no live
testimony

Extensive pretrial discovery, subpoenas, and live

witnesses

Party
Structure

Narrow

Open

Broad party structure

Appeal

Only after Judgment

Free Interlocutory
Appeals

Appeal only after judgment - w/ interloc. appeal from

prelim. injunctions (& other exceptions)

Functions of pleadings
o Notice to opposing party.
what's the claim?
what's the defense?
o Define contours of the law.
o Set the stage for discovery and trial.
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o Weed out weak cases.

RULE 7: Defines pleading
o Complaint, answer and other initial papers
Many rules only apply to pleadings, so know what is and isnt pleading
o Complaint is first chance to tell your story should get attention
RULE 8: General rules for pleading.
o 8(a) Must be short and plain and include:
Jurisdiction
Claim
Relief sought
See Conley, Bell, Iqbal
o 8(b) In answer (a responsive pleading), party must admit or deny each fact
alleged.
See Zielinski
Rule 8(b)(5) If party lacks knowledge, must so state, and this has the
effect of a denial.
Rule 8(b)(6) failing to deny is considered admission
o 8(c) Affirmative defenses
Statute of Limitations
Others are given in statutes
Some statutes make a requirement for pleading but do not specify
if it is a burden for or , then courts must look to tradition and
drafters intent (See Jones v. Bock)
language following "unless" or "except" is usually going to be an
affirmative defense
RULE 9: When alleging fraud or mistake, s complaint must state with particularity
the circumstances
o Other laws create additional requirements beyond short and plain from Rule 8:
Securities Law
CA medical malpractice
o Rule 9(g) Special Damages (e.g., follow-on damages after initial injury, such as
loss of business) must be stated specifically
RULE 11: Sanctions
o Only applies to lawyers doing civil litigation (in federal courts or states that have
adopted the FRCP)
o MALPRACTICE: Not under Rule 11. The lawyer will be liable for malpractice
only if the plaintiff shows not only incompetence but also causation--that, but for
malpractice, the client would have won.
o Applies to written motions only because of Rule 11(a), not general behavior
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if you only have 8 hours before statute of limitations runs out, court may allow a
filing with much little research (can withdraw under 11(c) if wrong)
Similarly, good faith reason to file (such as if law is debated) does not
merit sanctions
o Rule 11(c) sanctions may (at courts discretion) apply both to those who did the
writing (the lawyer and law firm) and those responsible for the claim (the party)
o Rule 11(d) Rule 11 doesnt apply to discovery SEE Rule 26(g) and Rule 37
RULE 12: Pre-answer motions
o Rule 12(b) motions are an attractive option for because they are relatively
cheap, fast
Allows for dismissal without having to discuss merits of case - no
requirement for to investigate or admit truth or falsity of factual claims
Delays time for answer to be filed until after motion is resolved
If successful, whole case goes away
o Rule 12(g) tries to prevent too much delay by allowing combination of motions
o Rule 12(h): Once you bring a 12(b) motion you WAIVE right to do so again
o EXCEPT: 3 unwaiveable super defenses:
Rule 12(b)(6) failure to state a claim
Rule 12(b)(1) lack of subject matter jurisdiction
Rule 12(b)(7) failure to join a party under Rule 19
RULE 15: Amendments
o Statute of Limitations is one of the main reasons for amending complaints
instead of filing new ones if it relates back, SoL doesnt apply.
o Rule 15(a) Amending before trial
One freebie, within 21 days of the relevant pleading (or, if in response,
within 21 days of service of the responsive pleading
After that, if
opposing party consents (ha!) OR
court grants leave, which it should freely give whenever justice
so requires
o Rule 15(c) Relating back
party can amend the complaint and it will be dated back to the original
date of the pleading (so statute of limitations not an issue)
if the amendment arises out of the same conduct, transaction, or
occurrence, OR
if you're changing the name of the party, assuming the change still relates
to the same conduct, transaction, occurrence (could have helped in
Zielinski)
o Motions to amend can reflect:
Former Adjudication
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Affirmative defenses
Note relationship between pleading and subject-matter jurisdiction

Responding to a Complaint
Defendants Action
1. Nothing
2. Answer under Rule 7 & Rule 8
3. Pre-answer motion under Rule 12

Consequences
1. Default judgment under Rule 55
2. Further proceedings
3. Delay of answer; decision on issue raised by
motion.

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Discovery

FR 26-37
FR 26(b)(2)

FR 26 (b)(3)-(4)
FR 26(c)
26(g), 37

CASES: What is Relevant?

Silvestri v. General Motors was in car crash but did not let GM view car after
crash, three years later brought suit and car was already scrapped. Because failed to
preserve property for evience, GM was prejudiced and thus court dismissed case and
sanctioned for spoliation.
o Discovery rules extend beyond discovery
o Spoliation is doctrine for what happens to evidence before discovery; you have
a duty to preserve evidence for any pending/foreseeable litigation even before
discovery protections take effect.
Davis v. Precoat Metals sued their employer about racial employment
discrimination at their plant and asked to discover other similar cases of employment
discrimination at plant. Court held other cases are relevant to (1) establish pretext for
current case (2) if they are narrowly tailored (only questions about this plant).
Steffan v. Cheney dismissed by the Navy for saying he was homosexual; Navy
wanted to discover evidence about homosexual conduct. Court held that information is
only discoverable based on complaint in pleadings because s complaint alleged he
was disqualified for statements, only evidence about statements are relevant.
o Relevance is relational
o Cant appeal discovery decision this case was only appealable because
allowed himself to be sanctioned and have case dismissed (final judgment). Big
risk!
CASES: What information is discoverable?
Hickman v. Taylor: Tugboat crash lawsuit, opposing counsel wanted notes of attorney
to make sure he asked the right questions. Court held attorney work product is not
discoverable under 26(b)(3) when other side has opportunity to get information (no
substantial need).
Thompson v. Haskell in sexual harassment claimed she was distraught and
depressed. asked to discover information about s interview with a psychologist
shortly after the harassment. Court held information was discoverable under
26(b)(4)(D) because of substantial need and party didnt have any other opportunity to
get information.
o Doctor/patient privilege for mental health was waived because she made mental
state an issue.
o Not an expert hired in anticipation of litigation, just a fact witness
Chiquita International Ltd. Chiquita sued banana shipper for damaging goods. After
bananas arrived at harbor Chiquita hired expert to inspect boat; other party wanted
examiners report but court denied
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CASES: Protection
Stalnaker v. Kmart Corp - sued for sexual harassment and asked for information
regarding the sexual activities of other witnesses who were not parties in the lawsuit.
Court held under Rule26(c) that potentially embarrassing but nonetheless relevant
information is discoverable but the courts may place certain limits on it, providing
protective order prohibiting the parties from disclosing what they find to anyone
outside litigation.
Zubulake v. UBS Warburg - Zubulake sued her employer for gender discrimination
and maintained that the evidence she needs to prove her case exists in emails kept only
on UBS's computer systems. Zubulake seeks sanctions against UBS for failing to
preserve those emails. Court denies adverse inference because no duty to preserve
everything. New rules handle electronic issues better:
o Rule 37(e): absent exception circumstances, a court may not impose sanctions
under these rules on a party for failing to provide electronically stored
information lost as a result of routine, good-faith operation of an electronic
information system
o Rule 26(b)(2)(B): excuses a party from providing discovery of electronically
stored information that is "not reasonably accessible because of undue burden or
cost"

Discoverable material is:

o Relevant to claims and defenses established in pleadings
o Non-Privileged
o Not attorney work product
Order of discovery -- cheapest to most expensive:
o Initial disclosure (supporting each side only)
o Production of docs (each side asks for more info from other side)
o Request for Admission
o Interrogatories
o (possibly) More production
o Finally, using all the above, depos
o If no response to (or failure to comply with) 37 motion, sanctions under 26(g)
Spoliation applies in settings BEFORE DISCOVERY begins and Rules kick in
o If there's no anticipated lawsuit, no spoliation - no general duty to preserve
potential evidence
Rule 26(a) Initial Disclosures- First Stage things you give other side
Includes a list for expected damages - now we know why, litigation
finance is important!
Initial disclosures include:
Computation of damages, soft or general damages in
addition to hard damages
ONLY documents supporting the case (bills, medical records,
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documents of former activities relevant to the case would

have to show insurance)
Witness list for supporting witnesses including names and
contact expert witnesses not included (scheduling for experts at
courts discretion)
Rule 26(b) Scope of Discovery Second Stage- things other side can ask for
o Rule 26(a)(2) and 26(b)(4) which experts have to write reports; experts not
retained in anticipation of litigation need not write a report.
Rule 26(c) discovery abuses gives court broad protection to limit discovery
o Too little discovery - "stonewalling" - sanctions under 26(g) and 37
o Too Much discovery - 26(b)(1) limits scope, 26(g) lawyer must certify
discovery is not "unreasonable, unduly burdensome or expensive"
o Mismatched discovery - use of "cheap" discovery & interrogatories has
expanded with technology, can also "piggyback" on other parties
o Protective orders
More likely for judges to protect NON-parties than parties
Proving what is "undue" is a difficult and ambiguous standard - very
fact-specific
o Privilege can be waived!
Does not apply to underlying or historical facts
Dr./patient privilege: By filing suit for injuries, physical condition
becomes an issue and thus waives what would otherwise be doctorpatient privilege.
Material prepared in anticipation of litigation--is, though not privileged,
protected by Rule 26(b)(3) unless the other party can make a special
showing of need and undue hardship.
Rule 26(f) - parties need to come up with a discovery plan as soon as practicable
Ties in to Rule 16
o Rule 26(g) - almost like Rule 11 BUT Rule 11(d) has an explicit exception to
discovery so this covers it
Why is there such import placed on discovery? In part it grows out of the adoption of
'notice pleading'. In Conley, we saw that there is an emphasis placed on the Rule 8
requirement of a 'short and plain' statement of the claim. Though a claim for relief is
definitely required, specificity (with exceptions like mistake and fraud) is not going to
be required.
Discovery is Party Driven but judges can play a role by setting a timetable, allowing
additional interrogatories or allowing extra time for depositions. Judges can also
determine what work product is discoverable based on urgent need.
Rule 27-32 Depositions: Advantage over interrogatories: can ask questions and follow
up to really pinpoint answers
o Interviews (voluntary) are allowed - one doesn't need formal discovery to speak
with someone (BUT this info isn't admissible - interviews are used to decide
whether or not it's worth deposing)
o Depositions can be used whether or not a previous interview has been used.
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Deposition is required to put information on the court record.

o Parties don't require subpoenas to be deposed. NON-PARTYS do require a
subpoena under Rule 45.
o In a deposition, a witness cannot simply refuse to answer. Rule 30 (c)(2).
o Lawyer may instruct a deponent not to answer only for certain stated grounds,
of which relevance is not one. Rule 30(c)(2).
o Lawyers can object on grounds of irrelevance then recess to seek a protective
order. Rule 30(d)(3) Clock stops once recess is called.
Rule 33 Interrogatories only served to parties, inexpensive but not very useful
beyond routine questions
o Because the mandatory disclosures required by Rule 26(a)(1) cover many of the
preliminary matters that were once the subject of interrogatories, # of
interrogatories can safely be limited
Rule 36 Requests for Admission: ask other party to admit a fact, takes fact out of
dispute.
o Admission only binding in current action
o Must admit, deny, or say they dont have enough info to admit or deny
Compliance: Tiered approach
o Initial request or duty
o "Meet and confer" requirement before seeking judicial intervention
o Rule 37 motion to compel response
o Sanctions motion only after failure to comply with Rule 37 order
o Note some "self-enforcing sanctions" such as initial disclosures - don't disclose,
can't use it

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Resolution Without Trial

FR 41(b)
FR 55
FR 60(b)
28 USC 1738
Rule 26(c)

FR 56

CASES: DEFAULT JUDGMENT

Peralta v Heights Medical Center (Rule 55 default judgment: notice for collection of
employee's hospital debts served after expiration) Heights sued Peralta for
collection of him employee's hospital debts. Citation issued, return showing personal
but untimely service = default judgment for on amounts claimed. placed lien on 's
house, started bill of review proceeding and asked to have judgment vacated.
Reversed for because default judgment can only be entered under Rule 55 if
gets proper notice.

CASES: SETTLEMENT

Matsushita Elec. Industrial Co. v. Epstein - class-action settlement releasing both fed
and state claims, fed courts must treat state-court judgments with same respect as state
courts under 28 USC 1738. Two class actions on behalf of MCA shareholders were
filed, one in federal and one in state court. Parties in state (Delaware) court negotiated a
settlement including a "global release of all claims" including state and fed court.
Delaware court approved settlement, but Ninth circuit held that state court could not
adjudicate federal claims. Supreme court reversed, holding under 28 USC 1738,
federal courts must give State proceedings the same full faith and credit they
would have received in the state, and thus, although state courts cannot adjudicate
federal claims, they can settle them if the state law allows them to do so.
o What Matsushita points to is the power of agreement and power of contract in
US Procedure - contract (settlement agreement) trumps jurisdictional lines
Kalinauskas v Wong - can discover facts of settled sexual harassment case, even
though confidentiality agreement was signed, under Rule 26 (discovery after
confidentiality agreements). sued for sexual discrimination, and wanted to depose a
witness who had settled a sexual harassment suit with the same employer a year earlier,
but signed a confidentiality agreement. Court held can discover basic relevant facts,
but not the terms of the settlement, because otherwise settlement and
confidentiality would be the equivalent of buying the silence of witnesses.
o Confidentiality caannot block from discovering underlying historical facts
o Confidentiality agreement can say witnesses could not volunteer information
but if deposed they have to answer

CASES: ARBITRATION
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Ferguson v Countrywide Credit Industries, Inc.- signed a binding arbitration

agreement as part of his contract. sued for sexual harassment, retaliation, and
hostile work environment and moved to compel arbitration. District court overruled
on grounds arbitration contract was unconscionable Court affirmed, holding a binding
arbitration clause in an employment contract that meets both the procedural and
substantive elements of unconscionability is not enforceable.
o Sidenote: Carter (ommitted) - same case, but decided oppositely under Texas
law
AT&T Mobility LLC v Concepcion (no requirement for class action arbitration)
Respondent customers brought a putative class action suit against AT&T in district
court, alleging false advertising and fraud. The district court denied the provider's
motion to compel arbitration, and the United States Court of Appeals for the Ninth
Circuit affirmed. The Supreme Court REVERSED, holding that even though
California found that class action waivers for arbitration are unconscionable
(state law), the Federal Arbitration Act (FAA) preempted local state rules, so as
long as arbitration is not unconscionable arbitration clauses should be enforced.
o Well designed arbitration clause can insulate against class action.
Ferguson v Writers Guild of America - P disputes his credit for screenplay. Member of
Guild, which has arbitration policy for credit disputes. Picks three anonymous
arbitrators who are writers, identities all unknown to parties and vice versa, look at
documents only (no testimony). P appeals. The court found that judicial review of
respondent's credits determinations was restricted to considering whether
appellant demonstrated a material and prejudicial departure from the procedures
specified in the credits manual, not whether or not the arbitration itself was fair
P signed contract, writers all agreed to it, system is more efficient than having courts
decide.

CASES: SUMMARY JUDGMENT

Celotex Corp v. Catrett - Catrett (P) sued Celotex (D) and several asbestos
manufacturers in federal district court, claiming that her husbands death was caused by
exposure to their products. Celotex moved for summary judgment on the grounds P had
no evidence. Catrett produced three documents. Celotex objected to the documents on
the grounds that they were hearsay. The district court sustained the objection and
granted Celotexs motion for summary judgment. Appeals court reversed. Supreme
Court REVERSED (allowed summary judgment), holding the party moving for
summary judgment does not have to show there is no genuine dispute regarding a
material fact, they only have to show the basis for their motion, which may be that
the nonmoving party does not have the evidence to support its case at the time
they moved.
o Celotex aligns burdens at trial with burdens at summary judgment - if you have
the burden to produce it at trial, you have the burden to produce it at summary
judgment.
o Rule 16 scheduling is now very important - sets a time for discovery, deadline
for having your case together. If party moves for SJ before scheduled end of
discovery, other side can ask for more time
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o Rule 56(c) - limits what kind of evidence is admissible to use at summary

judgment
o Rule 56(d) - court MAY (but not must) allow more time
o Celotex implicitly requires parties to be diligent about discovery - you have
to have evidence before you get to trial or you lose summary judgment; prevents
needless trials
o Motion for SJ is pretty standard at the end of discovery - forces both sides to put
their cards on the table
Bias v Advantage International, Inc. - Basketball player died of cocaine use. Parents
had asked agent to get a life insurance policy, when it turned out he hadn't they sued.
Court ruled no damages because the moving party made a prima facie showing
supporting its claims the nonmoving party did not come forward with specific
facts showing there is a genuine issue for trial.
o If moves for summary judgment on grounds of no evidence to allow a finder
of fact to rule for other party, other party MUST PRODUCE some sort of
evidence to contradict that assertion
Not just general evidence, must answer specific facts/assertions of other
side

Ending cases without Adjudication

1. Default Judgment under Rule 55
but Rule 60(b) might allow reopening of judgment after default
2. Voluntary dismissal can only do this once under Rule 41(a)
3. Binding Arbitration
Absence of appeal = faster but no reversal of unfair result
o Parties can choose arbitrator
o Parties can design their own procedure
o Can be less expensive than litigation (isn't always)
o Can set "high-low" arbitration
o More private than public trial
o No (or little) judicial review
Federal Arbitration Act 9 USC 2: enforceable in all states. (Polar opposite of
mediation NOT negotiation).
Only way to attack arbitration Ks is with general K tools. How does state define
unconscionability?
o Example: Fee shifting. In court-based employment discrimination actions,
there are fee-shifting statutes like 42 U.S.C. 1988(b) that, together with
the availability of contingent fee litigation, substantially lower the cost of
litigation for plaintiffs. If the terms of arbitration require plaintiff to pay
for half of the arbitration, it increases the expense and thus lowers
plaintiffs access to remedies for discrimination. Plaintiffs best argument
against arbitration is that the provision requiring plaintiff to hear half the
cost of arbitration--if interpreted to block feeshifting-- inappropriately
burdens the assertion of discrimination claims and should be
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unenforceable as a matter of public policy or unconscionability.

Can be faster and cheaper than litigation, but not always.
4. Settlement
Advantages: keep things out of public record, often faster, cheaper, more
predictable because no jury, protect PR and reputation interests
Disadvantages: settle-ee may get less money than if it had gone to trial, may not
be able to discuss/reveal what happened, can give the implication that defendant
was guilty, no vindication for either party, parties have to trust each other to keep
settlement
Consent Decree binding judgment, allows for claim preclusion but NOT issue
preclusion(because it is a final judgment but specific issues were not litigated)
o Guarantees enforcement of future disputes BUT requires public record of
dispute existing
o Matsushita: states can settle (but not adjucate) federal claims
DEPENDING on if the state court would see a consent decree as judicially
ending a case it could not try
Need a K because accord & satisfaction = affirmative defense under Rule 8(c)
Judge can order settlement conference under Rule 16(c)(2)(I), but Judge DOES
NOT have to approve settlements (there are exceptions, such as class actions)
Confidentiality Agreements - Two versions:
o Version 1: Susan sues Growco. Jane cannot say anything to Susan.
o Version 2: Susan's lawyer deposes Jane. Jane cannot respond.
o Courts can only enforce if the public interest (need for testimony in future
cases) is not harmed.
o Compromise in Kalinauskas v Wong can be deposed but not about
terms of settlement
Mediation
o A mediator assists in negotiation btw the parties to help them come to an
agreement; but doesnt decide the case or bind the parties
o Sometimes mandatory mediation is required by court or statute (frequently
in family law)
o Judges can even act like mediators (by managing the litigation, offering
alternate dispute resolution, giving early evaluations of the merits)
5. Summary Judgment under Rule 56
Whoever has the burden of proof at trial has the burden of proof to survive SJ.
CELOTEX!!!!
o Celotex changed the burden of proof and aligned burden of production
with burden of persuasion at trial.
o Celotex requires parties to make productive use of discovery (lest they
suffer summary judgment); that requirement should in turn cause parties
to be sure that the discovery schedule, established during the Rule 16(b)
conference, allows them sufficient time to uncover evidence.
o If the pretrial phase of a civil lawsuit operates in perfect accord with
theory, a judge would never have occasion to grant a Rule 50 motion
(JML/DV/JNOV) because after Celotex, a party whose evidence would
not meet the burden of production at trial should not survive summary
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judgment and thus there should--in the world of perfect procedural theorynever be the need for additional screening at trial.
o Celotex puts the burden of production in a summary judgment motion on
whomever will have that burden at trial. In most summary judgment
motions that is the plaintiff. But it can also apply to defendants if the
defendant has a burden, such as affirmative defenses (statute of
limitations).
AND: need adequate time for discovery. Cannot be "railroaded" by a premature
motion for SJ.
Need evidence that could be produced at trial: Affidavit or Deposition. Not just a
letter.
6. Dismissal

Demurrer v. Summary Judgment

Demurrer/ (12(b)(6)
Would facts, if true, state a claim?
Assume fact true, yet legal claim?

Summary Judgment
Are material facts disputed?
no genuine issue of material fact
And
Do undisputed facts state a claim?
entitled to judgment as a matter of
law
must be no issue of material fact & no
claim

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Trial

FR 16
FR 38
FR 50
FR 59
28 U.S.C. 1861-63
28 U.S.C. 455
U.S. Const. Amend. VII
US Const. Amend. XIV

JURY SELECTION
Thompson v Altheimer & Gray - sued employer and jury ruled for . appealed
arguing a juror had said that, as an employer, she thought some employees sue employers
just to get what they want, and she wasn't sure her perspective wouldn't cloud her
judgment. But also agreed to follow judge's directions. Court held a juror cannot
necessarily be excluded for holding a true belief, but the court must explore (and can
exclude) if that belief would impede juror giving due weight to the evidence and
following the judge's instructions.
JUDGE RECUSAL
Caperton v A.T. Massey Coal -m sued and jury returned verdict for . appealed.
After verdict but before appeal, donated massive amounts ($3 million, 3x more than
judge's own committee spent) of money to a judge candidate, who won and then heard
's case on appeal, reversing in favor of . Court held due process requires a judge to
recuse himself when there is a serious risk of actual bias based on objective and
reasonable perceptions (regardless of whether or not bias can actually be proved), such as
when a person with a personal stake in a particular case had a significant and
disproportionate influence in placing the judge on that case.
o Due process (constitutional issue) not 455 issue, because they tried 455 and
failed.
JML AND NEW TRIAL
Pennsylvania RR v Chamberlain - sued for negligence alleging that decedent was
killed because of a train collision caused by 's negligence. Witnesses/employees
testified they saw no collision; one witness (former employee) testified he wasn't really
paying attention but heard a crash. Judge directed verdict for , appeals court reversed
for , SC reversed and reinstated verdict for . Court held lthough it is not up to the
court to determine the facts, when there is no conflict in the facts of testimony, if the facts
can support each of two inconsistent inferences the party has not proven their burden and
judgment as a matter of law should go against that party.
o Yeazell thinks this might have been wrongly decided since witnesses were all
biased (employees who wanted to keep their jobs), jury might have rightly
believed non-employee witness
Lind
v
Schenley
Industries - sued for enforcement of an oral contract with no written

documentation. Jury ruled for even though his story was pretty incredible, but judge
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CIVPRO OUTLINE

entered JNOV and alternative new trial under Rule 59. Although new trials can be
ordered at the judge's discretion, that discretion cannot be abused to order a new trial
simply because the judge disagreed with the jury's findings.
Peterson v Wilson (Texas Southern University administrator firing) - sued for
arbitrarily firing him. Jury found for . Judge granted new trial sua sponte (of his own
accord, without a motion by a party) after interviewing jurors after the fact and deciding
they didn't understand his instructions. Court held under the common law and FRE
606(b), a judge cannot impeach a jury verdict and grant new trial under Rule 59 except in
cases of juror testimony relating to extraneous influences.
o Administrative justification - hard enough to get jurors, don't want to make it
harder by grilling them on how they reached a verdict
o Systematic justification: only close cases should reach a jury; under those
circumstances part of what we want a jury to do is outside the boundaries of logic

Demographics
o 98% State court
o Contracts mostly judges 2/3 win rate
o Torts mostly juries 50% win rates
o Remember: the burden of persuasion very rarely matters in civil trials because the
standard is only more probable than not
Burden of production is a much bigger deal
U.S. Const. Amend. VII establish right to civil jury trials
o Right to jury trial clause: In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved
Not ALL civil cases are jury trials. (All criminal cases are)
o Reexamination clause: no fact tried by a jury, shall be otherwise re-examined
in any Court of the United States, [other] than according to the rules of the
common law.
Allows for JML under Rule 50 because of common law exceptions
o Historical test for both clauses: Jury trial for anything that would have been a
common-law claim in 1791 (Bill of Rights)
SEE LIST OF Legal remedies under Incentives to Litigate
a Cases that blend equitable and legal claims, judge should defer to jury
If different claims split between Judge and Jury, whoever "finds the facts"
first binds the later decision-makers.
o Amendment VI - ALL criminal prosecutions have the right to a jury trial
Includes state and fed courts
Compare with Amendment VII - jury trial for civil cases SOMETIMES:
"in suits at common law the right of trial by jury shall be preserved."
(Only governs jury trials in federal courts, state rules apply differently)
For CRIMINAL trials judge cannot prevent a jury from acquitting even if
he thinks it's not possible for them to do so. For CIVIL TRIALS judge can
enter j.m.l. or directed verdict if he thinks no sane jury could rule for a
party.
o 2 protections of Jury Verdicts
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Substantive - Amendment VII Reexamination Clause

Procedural - Federal Rule of Evidence 606(b) blocking improper
evidence to challenge jury verdicts
Rule 38 - affirms constitutional status of jury trial, establishes timeline & waiver penalty
State vs Federal
o Rule 38 permits 10 days after the pleadings reveal a jury triable issue to demand a
jury trial if no motion made, right to demand a jury is waived
o 7th Amendment doesn't apply to states
o States generally less favorable to jury trial - more financial strain on state court
budgets, less constitutional pressure to err on side of jury trial
Assembling the jury pool
o Voir Dire
o 28 USC 1861: right to jury trial of random fair cross section of the community
o 28 USC 1863-1866 creating cross sectional summons
o 28 USC 1867(c) Challenging jury pool
Challenges for cause
Doesn't understand English, is related to party on trial, unable to be
impartial
Can be difficult to win
Peremptory challenges
No reason needed - limited in number, can be challenged for racial
or gender bias.
Selecting or Recusing Judges
o Selecting judges: Election or Appointment
Want to be a judge?
States: several patterns-o Gubernatorial appointment and periodic re-election most
common.
o Terms tend to be 7-10 years
Federal: Nomination by President, confirmation by Senate, life
terms.
o Oversight: Discipline based on Judicial Ethics (see 28 USC 351) - doesnt
remove judge from a case
Judge discipline
Federal:
o Removal only by impeachment, conviction in Senate.
o Sub-impeachment discipline mechanism in 28 U.S.C. 372
State:
o Most states now have agencies that consider complaints
and apply graduated sanctions, from reprimands to
removal.
o Recusal: Disqualifying a judge under 28 USC 455 multiple arguments
(impartiality, financial interest or other interest affected by outcome
o 28 USC 455 - two broad categories for disqualifying a judge
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28 U.S.C. 455 requires recusal only if the lawyer participated in

particular case, has knowledge of disputed evidentiary facts, a financial
interest, or would not be thought by a reasonable person to be unbiased
455(a) catch-all
455(b)(2)-(3): Served as a lawyer in the matter in controversy OR
served as a government employee and expressed an opinion
455(b)(4)also says "any other interest that could be substantially
affected by the outcome of the proceeding"
Does not mean same clients, only same clients with same issues
Any proceeding where impartiality might reasonably be questioned
Can't have a gut reaction - 455(b) is very specific
Rule 50 - Judgment as a matter of law (directed verdict and JNOV)
o ONLY at request of parties
o Entitled if either side doesn't meet their burden (proof for plaintiff or affirmative
defense)
The burden of persuasion - almost never matters in a civil case, since
burden is more likely than not
If its exactly 50/50, verdict must go for - only in these very rare
cases when both options are equally likely does the burden of
persuasion really make a difference because it makes things much
harder for whichever side has the burden
o Directed verdict motion happens before jury verdict
o JNOV motion happens after jury verdict
o Rule 50(b) - renewing a motion, CANNOT move for JNOV if you don't FIRST
move for directed verdict - must have both or just DV
Because of reexamination clause common law had something similar
to DV, so its allowed, and as long as JNOV is seen as just renewing DV,
thats allowable, but by itself its not part of common law tradition.
Rule 59 - New trial
o At request or courts discretion
o Procedural mistake, Flawed verdict, or Partial new trial for damages
Remittitur - new trial unless plaintiff agrees to reduced damages
Contrast Rule 59 with Rule 50

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Rule 50
Party Motion
o Focus on adequacy of
evidence
o Replace jurys verdict with
judges judgment: for
rational trier of fact to come
out for party opposing
verdict (the party opposing
motion meet its burden of
production?)

Rule 59
Judges Discretion OR Party
Motion
o Focus on Evidentiary
adequacy OR process

Final Judgment

Appealable immediately

Not final judgment (sends case to

new jury)
Not appealable immediately

Remember: Burdens/ ways a case can be dismissed!

o Rule 12 = before discovery, judgment based on pleading
o Rule 56 = before trial, judgment based on burden of production
o Rule 50 = during trial or before verdict, judgment based burden of persuasion
SHOULD be the same as Rule 56, but isnt always!
o Rule 59 = judgment after verdict

Burden of Pleading
Demurrer (12b6) for P;
12c/d for D or P

Burden of Production
Summary Judgment (56): w/
evid available, can parties go
to jury?

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Burden of Persuasion
Rule 50: directed verdict

CIVPRO OUTLINE

Former Adjudication Claim Preclusion

FR 13
28 USC 1738
FR 20
FR 42
US. Const., Article IV
FR 60(b),(c)

CASES: CLAIM PRECLUSION

Frier v City of Vandalia (city towed a guy's cars multiple times) - City officer towed 's
cars multiple times and left him a note where could get his car back. did not want to
pay fines and issued writ of replevin. Got some of his cars back but not all. Court denied
writ of replevin & dismissed under 12(b)(6) because city had right to remove cars
blocking the street. re-filed a federal complaint alleging Due Process/constitutional
violations. A federal court can deny a claim originally filed in state court under res
judicata if the actions involve the same parties, the same "common core of operative
facts", and the party had a full and fair opportunity to litigate his claims the first time
around.
Searle Brothers v Searle (who is precluded in land partnership decided in divorce case,
other partners/sons sued later) Wife won property in a divorce claim. Husband claimed he
only owned half property and other half was owned by partnership with his sons. Sons
sued wife for their half of property and trial court barred under former adjudication.
Appeals court reversed, saying a claim cannot be barred under former adjudication if
the party's interests were not legally represented in a prior suit.
o What could wife have done to make her sons part of the suit? File for declaratory
relief, making sons parties. Decides ownership with all sons as parties.
Taylor v Sturgell (who is precluded when two people make Freedom of Information Act
requests for exact same airplane information) Herrick filed a FOIA request for FAA
ifnormation about an airplane, which was denied because of trade secrets/privileged
information. Taylor, a "close associate" of Herrick in the same aviation club, filed an
identical request. Trial court denied under doctrine of former adjudication and virtual
representation. Appeals court reversed, holding a party cannot be denied under res
judicata simply because they have the same claim as a previous party, however they
can be denied if they are acting as a representative or agent of a party bound by prior
adjudication (no proof of such an agreement here).

Two types of former adjudication aka Preclusion aka res judicata

o Collateral estoppel (issue preclusion) - forbids a party from re-litigating an issue
involved in a claim that was previously litigated
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o Res judicata (claim preclusion) - forbids a party from litigating a claim that was
or should have been raised in former litigation
Res Judicata is an affirmative defense - tie back to Pleading and Rule 8
Move for summary judgment
Include copy of former complaint & judgment & new complaint in
motion
o Claim preclusion has three goals:
Efficiency
Finality
Consistency (stare decisis)
Rush v. Maple Heights motorcycle accident case as template -- can't sue multiple times
about the same occurrence.
Preclusion ties in with Rule 13 compulsory counterclaim: state a counterclaim or lose
it
o Prevents inconsistency so you can't get a ruling in a 2nd suit that undermines a
ruling in an earlier suit
o Preclusion can prevent you from bringing claims even if they haven't already
been litigated IF they could have been litigated in your previous claim
Due Process isn't violated because a person had the OPPORTUNITY to
raise claims and just didn't take it
Opportunity = obligation
o No clear line between ultra narrow approach and "speak now or forever hold your
peace" approach
Matter of law (judge-made law) of that jurisdiction
Transaction: bars any subsequent claim "arising from the same transaction
or occurrence" as first claim
Federal courts use the transactional theory under common law
See "relating back" rules under Rule 15
"Common nucleus of operative fact" - narrower than transactional
preclusion
Primary right" - fed courts utilize a transactions analysis in determining
whether two cases are the same (CA follows this theory)
The "primary right" theory is invoked if a plaintiff attempts to
divide a primary right and enforce it in two suits
Hard to distinguish from transactional theory, poorly defined
o If Rule 13 or Rule 15 changed, making it harder to bring claims together or
amend claims, preclusion would probably have to be relaxed because then the
opportunity angle is diminished
Rule 8(e) says party may state any separate claims or defenses the party
has regardless of consistency; doesnt require that party state any claims
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arising out of same occurrence. What if it said party MUST state claims
arising out of same transaction? Would this addition change the law? No.
Res judicata is common law, and supplements the Rules
Rule 42 judge can split parts of a complaint for trial; this rule could be
response to the incentive for plaintiff to put everything they can into the
pleadings, gives stronger justification for preclusion.
Preclusion ONLY applies to issues that happened before the lawsuit. If a new event
brings up the same claim after the first lawsuit is settled, it's NOT former adjudication
Choice of law in former adjudication
o Fundamental constitutional principle: in a nation of multiple jurisdictions, each
bound to respect the other
Artice IV, US Const - "Full faith and Credit" clause (for the states)
28 USC 1738 "Full Faith and Credit" - acts, records and judicial
proceedings shall have the same full faith and credit in every court
within the United States (binds federal courts)
Example: Matsushita
If a case is first decided in FED court and then brought to STATE court,
state must look to FED law for the scope of the federal judgment.
EXCEPT: Semtek v Lockheed International - federal subject matter
jurisdiction: a special rule for interpreting the preclusive effect of a federal
court sitting in diversity jurisdiction

FFC v. Reopened Judgments

Full Faith & Credit:
Reopened judgment
Requires second court to give same
Action in rendering court asserting that
effect to the judgment that rendering
some fundamental defect justifies
court would attach to it; correctness
setting judgment aside: not an appeal,
irrelevant.
can be brought only in court rendering
Const. Art. IV, 28 USC 1738
judgment
Exception: N/A if fed ct didnt have
Rule 60
jurisdiction

Questions to ask:
o Did you an opportunity to bring it up in first lawsuit? (even if meritorious claim)
ouch
o As relationship between original case & claim brought is less similar, efficiency
gained from combining them disappears (no sufficient rltship btw claims).
o Did it come from same factual out-of-court package? (make same/continuous
story: relation: closeness to rltship to first claim)

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Who to preclude? GENERALLY claim preclusion does not apply to biologically

distinct individuals - only operates on those who were parties to both lawsuits - "a party
is not bound by a judgment in personam in litigation in which he is not designated as a
party or to which he has not been made a party by service of process."
o Exceptions:
"in privity" contracts if original owner is bound by a contract and new
owner buys property, new owner is also bound by contract
Substantive legal relationships (one person represents another, such as "In
privity" above or beneficiary/trustee, etc.)
Express agreement to be bound by a decision to which one is not a party
Instances of "procedural representation" - legal guardians, class actions
WHEN does claim preclusion attach?
o Final Judgment or Judgment on the Merits
o Trial and judgment
Yes - claim settled. Already had your day in court (easy).
o Judgment as a matter of law (directed verdict or J.N.O.V.)
Yes - claim settled. already had a trial with final judgment
o Summary Judgment
Yes - again, nothing to settle
o Judgment of dismissal as a sanction for failure to obey a discovery order (say
Steffan v. Cheney)
Yes - because if you could just bring the same suit again, dismissal loses
its "fangs" as a punishment.
This example is NOT a judgment on the merits so don't get too
comfortable with the "preclusion applies whenever there is a judgment on
the merits" idea
Can appeal a dismissal based on a sanction, but can't bring new case
o 12(b)(6) dismissal - failure to state a claim
Sometimes
Treated as precluded in the federal system BECAUSE you are allowed to
amend your complaint, so if you couldn't fix it the first time you shouldn't
be allowed to bring it again. Not all states have same rule.
BUT see Semtek - dismissal because of DIVERSITY in federal
court is a tricky issue because not clear if its on the merits of the
case or not, probably precludes in state court but not guaranteed
States vary: in CA if you fix your complaint, not precluded (but last
decision was 50 years ago)
o Settlement & release
No - nothing is adjudicated.
You can challenge whether something can be brought to court under
settlement agreement/breach of contract, but NOT under claim preclusion.

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Any ways to get justice after the judgment?

o Legal error:
Appeal
o New evidence; mistakes; corruption
Rule 60 -- Relief From Judgment

Precedent and Preclusion

Precedent
Preclusion
Binds non-parties
Binds only parties
Law, not facts.
Law and facts
Open to argument that precedent should
Not open to reargument in most cases.
be over-ruled or distinguished.
Why is preclusion tighter than
precedent?

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Former Adjudication Issue Preclusion

CASES: ISSUE VS. CLAIM PRECLUSION

Gargallo v Merrill Lynch (claim preclusion for federal court after improper state
judgment) Merrill Lynch sued in state court to collect debts. countersued alleging
negligence, misrepresentation, churning, and violation of federal securities laws. State
court dismissed as a discovery sanction; then filed a suit in federal district court, which
dismissed under res judicata. appealed. Court held for that claim preclusion did not
apply because Federal court must give state court judgment the same preclusive
effect that judgment would have in a state court. In this case Ohio State court would
preclude based on this judgment, but would NOT have precluded a cause of action over
which the adjudicating court had no subject matter jurisdiction, so federal court must do
the same.
Illinois Central Gulf Railroad v. Parks (car crash victim sues as co-plaintiff with partner
for loss of consortium and then separately for personal injuries) (driver) and wife
(passenger) were both in a car accident when they collided with an Illinois Central train.
Wife sued for injuries and sued as part of that for loss of consortium - granted for wife
but denied for . then sued for personal injuries. Court held issue estoppel prevents
from re-litigating facts established in the last case (railroad negligence, proximate
cause, no loss of consortium damages), but new claim can be brought up on issues not
previously litigated (personal injuries and contributory negligence).
o Preclusion in bench trial versus jury trial - if judgment rests on several grounds,
what is precluded?
If its bench trial judge has to explain decision, so its easy to see if he lost
on A and didnt consider B, B will probably not be precluded.
If its a jury trial then decision is a black box and we have not idea what if
any issues they decided on. Issues should probably not be precluded.
Restatement Judgments 1st takes a position that both are precluded
Restatement Judgements 2d says neither are precluded
Idea: Dual finding removes incentives to appeal either one, and
without incentive to appeal, we should be wary of attaching
preclusive effect.
Only want claim preclusion to apply when we're sure that the first
court got it right
SO in jury trial case, since not sure why they made their decision,
not precluded
In bench case, if judge makes two findings, we don't want someone
to appeal and be told "well maybe you're right about finding A but
you're still precluded on finding B so no appeal at all for you"
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Courts like to allow and even incentivize appeals so everyone gets

the right decision
CASES: ISSUE PRECLUSION

Parklane Hosiery Co. v. Shore (Issue precluded in class action because of earlier SEC
suit) First suit: SEC v. Parklane for fraud in materially false proxy statement. A statute
prohibited private citizens from joining as plaintiffs without the approval of the SEC.
Judge found proxy statement was fraudulent. Second suit: Stockholders class action v.
Parklane. Stockholders move for partial summary judgment, want Parklane precluded
from relitigating issue of proxy statement was fraudulent. The Court of Appeals
allowed this offensive use of collateral estoppel, holding a litigant who was not a party
to a prior judgment may use that judgment offensively to prevent a defendant from
relitigating issues resolved in the earlier proceeding, as long as none of the exceptions
that would lead to injustice are present.
o D cannot relitigate if:
The defendant had a full and fair opportunity to defend himself vigorously
in the first action,
there are no other previous inconsistent judgments, and
no new procedural opportunities or change in law is available to the
defendant in the new action.
o D can relitigate if:
stakes in first case were lower than in second case
discovery (or other procedure) was not available in first case
there are prior inconsistent judgments: State Farm Fire & Casualty Co.
P could have easily joined first lawsuit, but decided to wait and see how it
turned out
o Note: Parklane abandons mutuality when party with burden had opportunity
to litigate already. The ruling does not offend the 7th amendment, because even
though offensive use of collateral estoppel was not allowed without mutuality in
1791, the fundamental elements of the jury trial did not require to remain the
same now.
State Farm Fire Casualty Co v Century Home Components (50 lawsuits for same fire)
, which stored sawdust in a box on its premises, somehow started a fire which spread to
's premises. Over 50 people sued for fire damage. In first 3 cases, 1 case came out for
but other 2 came out for . Other 47 cases consolidated and tried to push for issue
preclusion (collateral estoppel) on negligence because of prior judgments. Collateral
estoppel cannot be applied when there are multiple parties and prior determinations
are inconsistent.

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Kovach v District of Columbia (confusing red light camera refunds) - District installed
confusing red light camera, then removed it. It dismissed all outstanding claims but did
not give refunds to those who had gotten tickets. , who had paid his ticket (and thus
admitted liability), sued. Even when claim preclusion does not apply because the issues
in complaint are different and did not previously have an opportunity to litigate due to
changed circumstances, issue preclusion can still apply when had an opportunity to
contest liability but instead admitted liability.

Issue Preclusion only applies once it has been decided claim preclusion does not
apply
Black letter of issue preclusion
o Same issue in both cases
o Adequate incentive and opportunity to litigate issue: diff from claim
preclusion, where you end up precluding claims never litigated!
o Actually litigated and determined
o Essential to the judgment
Do we have same issue?
o Same definition? (For example: residency to determine a scholarship versus taxes
could be different)
o Different legal standard? (eg. criminal and civil charges)
(exception: if higher standard in first lawsuit & party with larger burden
wins, then if 2nd suit has lower standard, then precluded)
Criminal charge first (judgment for P), then civil charge preclusion.
Civil charge first, then criminal charge no preclusion.
WHEN does issue preclusion attach?
o See Rest 2d (Judgments) 27: The doctrine of issue preclusion (or collateral
estoppel) provides that a final judgment precludes relitigation of the same issue of
fact or law if:
(1) the issue was actually litigated, determined and necessary to the
judgment in the prior adjudication; and
(2) the circumstances of the particular case do not suggest any reason why
it would be unfair to invoke the doctrine
o Trial and judgment
Yes - Litigated and determined.
o Judgment as a matter of law (directed verdict or J.N.O.V.)
Yes - Litigated and determined
o Summary Judgment
Yes - Litigated and determined
*** NOTE: After Celotex, whatever you can do on JML you can do on SJ!

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o Judgment of dismissal as a sanction for failure to obey a discovery order

No - not litigated and determined
Only thing determined was that person broke x rule and deserves a
sanction
DIFFERENT FROM CLAIM PRECLUSION
o 12(b)(6) dismissal - failure to state a claim
No - not litigated and determined
Only thing determined was that a pleading with those specific details is
not sufficient to bring a claim
DIFFERENT FROM CLAIM PRECLUSION
o Settlement & release
No - nothing is adjudicated.
Multiple Parties
o HYPO: 1. Bertha v. RR = RR Negligent / 2. Jessie v. RR
No claim preclusion because biologically distinct entities
Issue preclusion because same
o (Non) Mutuality of Parties
If RR loses, RR is precluded from relitigating negligence in 2nd suit by
Jessie
If RR wins, Jessie can still relitigate negligence
o HYPO: 2. CA Real Estate Board administrative hearing = license revoked / 2.
State court hearing on similar issues
Courts have mostly accepted administrative hearings as long as they
provide similar enough opportunities to courts (discovery, hearing, etc)
Preclusion depends on the incentives and opportunities available relative
to the first trial if first trial is only for $10 judgment and second is for
$100 million judgment, no issue preclusion because your incentives are
different

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Jurisdiction

Judicial jurisdiction: the power of a court to render a judgment

o Personal Jurisdiction: the power of court over
o Subject matter jurisdiction: Power of court over cases like these
o Court must have BOTH subject matter AND personal jurisdiction to render judgment
o State courts:
"kitchen sink" jurisdiction -- practically everything, including most federal
law if they want
o Federal courts:
limited jurisdicition, primarily:
federal questions: i.e., suits "arising under" federal law
bankruptcy is always federal; so are patent and copyright
claims, securities
other federal Q's can be litigated in state courts, but one party
or the other will usually take it to fed ct.
diversity suits, ie., suits between: (28 USC 1332)
citizens of different States
i. "domicile" test
ii. residence/physical presence
iii. intent to remain indefinitely
citizens of a State and citizens or subjects of a foreign state
citizens of different States and in which citizens or subjects of
a foreign state are additional parties
a foreign state as plaintiff and citizens of a State or of different
States

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Personal Jurisdiction

US Const Art IV
US Const Amend. XIV
Rule 12(b), (h), (g)

FR 4(k)(1)(A)

CASES The evolution of personal jurisdiction from Is it there? to Is it fair?

Pennoyer v. Neff Is it there? Mitchell sued Neff for unpaid legal fees, Neff didnt
appear. M won, and court sold Ns property to Pennoyer. Now N is challenging the
jurisdiction of the first court to enter judgment against him. Court holds court did not have
jurisdiction because state can only establish personal jurisdiction over by showing power
over property or power over persons.
o attaching property at outset of case (based on assumption that if based on property,
notice sufficient) OR
o personally serving with process w/in borders of state (summons, complaint) b4
lawsuit begins
o Or, if suit for divorce, and one spouse lives in the state.
o Or, if state law requires those Contracting w/ in-state citizens to appoint an in-state
agent for service of process.
o Pennoyer as doctrine
Judgment entered without jurisdiction not entitled to Full Faith & Credit
And therefore subject to collateral attack
If youve litigated question of jurisdiction or appeared in ct, precluded
from raising jurisdiction question.
Assertion of jurisdiction can be challenged directly under Due Process clause
No opportunity to raise issue in first lawsuit (or fail to raise it) so
shouldnt be precluded from 2nd lawsuit to challenge the claim
International Shoe Co. v. Washington Is it fair? State of Washington sued International
Shoe Co to collect employer taxes, International Shoe argued that although they had
salesman in the state they did not have a business there (headquartered in Missouri). Court
held that personal jurisdiction can apply if you have minimum contacts in the state and
contacts are related to the nature of the claim.
o Overrules Pennoyer, creates sliding scale for personal jurisdiction
o Specific jurisdiction: claim arose from minimum contacts = personal jurisdiction
o General jurisdiction: contacts are so "continuous and systematic" that jurisdiction is
allowed, even for claims unrelated to contact. (Corps can always be sued for anything
in state of incorporation, same for individuals in state of domicile)
o Otherwise, NO JURISDICTION even if there are significant contacts.
Shaffer v. Heitner - Shareholders sue individual members of a board of directors of
Greyhound (incorporated in Deleware). DE court attached shares that the directors own in
that state. Jurisdiction challenged; court held stock was a contact but not enough to satisfy
minimum contacts test. Court holds that in rem jurisdiction, just like in personam
jurisdiction, must meet minimal contacts standard established by International Shoe.
o Property alone can't support jurisdiction if its unrelated to the claim. (no more
"quasi in rem" jurisdiction). Presence of property in a state affects level of contact. If
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case is about ownership of that property, then the presence in the state is enough
contact Judgment in "in rem" cases is limited to value of the property, and factual
findings do not bind in later cases.
o Individuals and corporations should be treated similarly.
o Afterward: DE established a new law that you consent to jurisdiction when you
become director of a DE corporation
TWO CONFLICTING VIEWS ON SUBSTANTIAL CONNECTION
McGee v. International Life Insurance Co - California resident had insurance from a Texas
company, Company didn't pay and his estate sued in California. Insurance Co. had no
salespersons, no office and no other business in CA, but mailed contracts back and forth with
CA. SC says that is OK for reason above. Court holds PERSONAL JURISDICTION when
K has substantial connection to state.
Hanson v. Denckla - PA woman created trust in Delaware, then moved to Florida. Trust
sent notices to FL. Did FL court have jurisdiction over Trust? Court held NO
JURISDICTION despite K because unilateral activitiy of someone claiming relationship with
does not satisfy requirement of contact with state; must purposely avail itself of the
forum state.
DEVELOPING SPECIFIC JURISDICTION
World-Wide Volkswagen Corp. v. Woodson bought car at tri-state dealership in NY,
then got into accident in Oklahoma. Sued manufacturer, national distributor, regional
distributor, and local dealer. Regional and local disputed jurisdiction. Court held that
foreseeability[that car would be driven to different state ] is not sufficient benchmark for
exercising personal jurisdiction. No jurisdiction in state unless they served or sought to serve
that state market. (Thus why national dealers did have jurisdiction.) Could be shown through
ads, regular OK buyers. Cant be a single isolated occurrence.
o Manufacturing vs. local distribution
Burger King Corp v. Rudzewicz bought Burger King franchise in Michigan; BK
headquarters in Florida. Contract had choice of law clause in Florida, and knew Michigan
office had no real authority, all business dealings would be with FL. BK sued after fell
behind on rent. Court held jurisdiction applied even without minimal contact because
had purposeful contact with forum state and purposefully availed himself of use of the
forum.
o Franchising
o Can still avoid jurisdiction if K's terms are from "fraud, undue influence, or
overweening bargaining power."
Pavlovich v. Superior Court (CA decision only, persuasive everywhere else) website based
in Texas posted source code of a program to copy DVDs (break DRM protection), film
industry sued in CA alleging jurisdiction because should have known his product would
hurt industries in CA (film and Silicon Valley). Court held no jurisdiction for passive
websites that can be accessed from anywhere based solely on knowledge of potential harm in
a state.
o Internet based business
o Do business over your website, specifically contacting people in other states: CAN
be sued everywhere.
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o Interactive website: MAYBE can be sued, depending on specifics / commericalness.

o Passive website (just shows info): CANNOT be sued anywhere.
J. McIntyre Machinery, Ltd. v. Nicastro British manufacturer sold to national distributor
in US, one machine ends up in New Jersey and injures , brings suit in NJ and J. McIntyre
contests jurisdiction. Court holds that, barring multiple sales or direct marketing towards one
state, no jurisdiction in a state if sales were directed to the U.S. generally but not a specific
state. Dissent says this allows foreign companies to dodge liability.
o Foreign businesses

GENERAL JURISDICTION
Goodyear Dunlop Tires Operations, SA v Brown sued multiple s because tire failure in
Paris killed their sons: Goodyear USA, Goodyear Luxembourg, Goodyear France and
Goodyear Turkey in North Carolina. Goodyear USA doesnt contest, but subsidiaries claim
lack of personal jurisdiction because they are separate companies. No specific jurisdiction
(no targeted sales in state), claims general jurisdiction under stream of commerce
argument. Court holds subsidiaries can be treated as separate companies, thus no general
jurisdiction when there is no continuous and systematic activity.
Burnham v. Superior Court husband and wife separate, H. in NJ, wife in CA, H says he
will start divorce proceedings in NJ but doesnt serve wife. On 3-day business trip, also
decided to visit to wife & kids in CA. Wife personally serves H with CA divorce. Court
holds that personal service in a state has always established jurisdiction even without
minimal contacts and specific jurisdiction is only needed when personal service isnt
possible.
o Rule 4(k)2: If you don't have enough contact with any individual state to support
general jurisdiction, but you do a lot of business in America, might be able to have
"general jurisdiction" in a federal court.
CONSENT TO JURISDICTION
Carnival Cruise Lines, Inc. v. Shute - booked Carnival Cruise, ticket included forum
selection clause requiring all disputes be litigated in Florida. Court held forum selection
clauses are a legitimate and enforceable contractual method to displace standard procedural
rules of personal jurisdiction.
NOTICE
Mullane v. Central Hanover Bank & Trust: NY law set up pooled trusts; periodically the
trustees chance for accounting to see how the trust is doing or challenge decisions. Bank
put notice in newspaper per minimal requirement of law even though a number of trustees
were out of state. Court held that token notice was not sufficient for due process and
members of a class had to be personally notified where the names and addresses of those
affected are available.
o Key case!
o Method must be REASONABLY CALCULATED to reach parties, and must
afford REASONABLE TIME to appear.
o Reasonable risk that notice won't reach everyone is acceptable (when others are
reached who can represent similar interests, and can object) enough bind even
people who arent notified. KEY ELEMENT of modern class actions!
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o No notice = no power. Due process issue.

SELF-IMPOSED LIMITS TO JURISDICTION
o Piper Aircraft v. Reyno Airplane crash in Scotland with Scottish passenger, but
airplane was manufactured in PA, administratirix Reyno of estate in CA. Lawsuit
originally brought in CA under chose in action claim the property in question IS
the lawsuit (assets from the damages), then removed to fed court, then transferred to
PA. Case dismissed under forum non conveniens because American incident in
accident was not enough to justify the enormous commitment of judicial time and
resources required.

Key Issues in Personal Jurisdiction

o Power
o Consent
o Notice
PROCEDURAL STUFF --- HOW TO CHALLENGE JURISDICTION?
o Do nothing and wait for a collateral attack when they try to enforce the judgment
(easy, but risky).
o Include a 12(b)(2) defense in your sole pre-answer motion can buy some time to
answer (10 days after pre-answer).
o Include in answer (if you make no pre-answer motions if you made one, 12(b)(2) is
waived).
Power
o 4(k)(1)A: Federal court has same jurisdictional power as a state court in the state
where the federal court sits.
This means diversity is not a substitute for Personal Jurisdiction. Still have to
have both!
o Specific Jurisdiction under International Shoe: Compare activities they do in state
AND activity producing claim
TEST: Is it a low level of activity?
IF YES: Is this claim related to the activity?
Quality and nature of in-state activity satisfy minimum
contacts? (Intl Shoe)
chose to conduct activity in the state? (McGee)
purposefully avail itself of the privilege of conducting activities
in the forum state? (WW VW, Hanson)
claim arise out of those activities (property Shaffer, single act
McGee)?
continuous but limited activity (such as ongoing business
relationship)? (Burger King)
action purposefully directed toward forum state, aim to affect a
particular person in forum state? (Asahi, Pavlovich, effects
test)
website interactive, profit from it? (Pavlovich)
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IF NO: High level of activity can justify claims entirely distinct from
those activities General Jurisdiction
Is it automatically Home Base?
residence or domicile for individuals,
state of incorporation OR primary state of business for a corporation.
o States will sometimes not exercise ALL their power.
Outer bounds: due process
Inner bounds state selected
Explicity reach as far as we can: CA CCP sec 410.10 all the way to
limits of due process
Statute reads narrower but is actually pretty much interpretable as
regular personal jurisdiction
NY "shopping list" statute where reach is less than constitutionally
allowed
Forum non conveniens - state says "we could hear this case but we
don't think we should"
Venue: serves parking attending function youre in the right lot, now
which space should you go to?
28 USC 1391 selecting a venue
28 USC 1404 Can move cases around freely within the federal
court system.
Consent
o Forum selection
o Choice of law: says what law applies, but not what state suit will be brought in
Rule 44.1 Determining Foreign Law: court may consider any relevant material
or source, including testimony
Often contracts trade consent-to-jurisdiction for choice of law, so international
contract will say suit has to be brought in CA but will apply Indian law
o Consent-to-jurisdiction: allows but does not require case brought in certain place (in
notes)
National Equipment Rental v. Szukhent
o Forum Selection: Requires suits be brought in specific place
o Arbitration: requires dispute to be handled outside legal system
Enforceability: no existing treaty or statute to enforce foreign judgments or
arbitration
BUT UN Convention on Recognition of Foreign Arbitral Awards signed by
129 nations provide routine enforcement of international arbitration
Gets this lots and lots in international contracts
o Confession of Judgment clause: confesses judgment and allows to enter judgment
in specific court
Waives any right to hearing BUT SC has ruled enforceable under very special
circumstances
o ETHICS ISSUE: Any lawyer drafting any contract is committing malpractice if she
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doesn't consider whether one of these clauses is useful for the client
Considering does NOT mean using

Notice
o Originally subsumed under Power in Pennoyer assumed that when you properly
assert power over persons, you also automatically give them notice
personal service or seizing property under in rem *also* counted as notice
o Mullane is for Notice what International Shoe is for power.
Notice required is relational to what's at stake
i.e. Google/internet search if you're going to sell someone's house, mail at last
known address for $3 library fine
o Rule 4 establishes procedures for notice. Several layers:
Waiver of notice as alternative to notice. (More time to answer & costs of
actually serving you if you waive without reason = carrot and stick).
Have 30 days to respond to request for waiver.
Rule 4(d)(3) same as Rule 12(a)(1)(A)(ii): If you waive, get 60/90
days to answer instead of 21 under Rule 12(a)(1)(A)(i).
Gives time to prepare answer (needs to be specific enough to
pass Iqbal test), prepare counterclaims (under Rule 13),
consider any motions (Rule 12), and gather facts.
Dont have to pay costs of actually serving you if you are under 18 or
under other handicap
Waiving service doesnt mean you consent to jurisdiction. Can still
raise a 12b2.
If waiver not obtained, multiple forms of notice provided
As specified by federal statue, international treaty, or state statute
By personal service of private process server
By federal marshal (last resort, only by court order)
Special rules for corporations, governments, incompetents, foreign parties.
Quick Cases Summary
o Pennoyer, Shoe, Mullane
Origins, followed by the two "modernist" versions of power & notice
o Pennoyer, Mullane, Shaffer
Origins, followed by two cases that undermine and eliminate in rem
jurisdiction
o Worldwide, Nicastro, Goodyear
Three cases about in stream of commerce
o Carnival Cruise Lines, Burger King
Carnival authorizes forum selection clause whose absences created the
question decided in Burger King

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Collateral Attack: Personal vs. Federal Jurisdiction

Action
appears

appears BUT
fails to raise issue

Personal Jurisdiction
(Can also file special
appearance)
Files 12(b)(2) motion and loses
is bound by the decision (if it
was fairly and fully litigated &
finally decided).
CAN appeal the jurisdictional
ruling after final judgment
If wins motion, can refile in
state court but can move to
dismiss.
waived it under Rule 12(h),
cannot relitigate issue

Federal Jurisdiction
Files a 12(b)(1) motion and
loses
is bound by the decision and
claim preclusion prevents the
issue from being relitigated.
Durfee v Duke.
If wins 12b1 motion, can
refile in state court

defaults

Can appeal or collaterally

attack.
If enforcing court finds that the
rendering court had jurisdiction,
then default judgment enforced
If rendering court did not have
jurisdiction, then prior judgment
dismissed

may be bound - (Generally

there are a couple weird
exceptions)
Chicot Co. Drainage District v
Baxter State Bank no
collateral attack allowed
Kalb v. Feuerstein collateral
attack allowed
Better to just appeal?
may be bound The issue is
not resolved.
Chicot Co. Drainage District v
Baxter State Bank
Kalb v. Feuerstein
Better to just appeal?

A 12(b)(1) ruling in fed court will have no effect in state court unless the defendant tries to remove, in which
case it will prevent removal. The ruling establishes only that the federal court does not have jurisdiction:
presumably a state court will.
A 12(b)(2) motion will not bar the re-filing of the claim but will facilitate a motion to dismiss in state court on
the same jurisdictional grounds. Because federal "long-arm" statutes are always at least as long as those of the
state (Rule 4(k)(1)(A)), if a federal court lacks personal jurisdiction, so will that of the state in question.
Moreover, the federal ruling will be preclusive on the question of personal jurisdiction, barring relitigation of
the issue in a state court.
A 12(b)(6) dismissal in federal court precludes relitigation of the same or any transactionally related claim. That
rule flows from the ease of amendment and the broad joinder of claims possible in federal courts. The hardest
case for applying such a preclusive rule would be if the basis for the trial court's ruling was the absence of a
federal claimalthough this is technically a jurisdictional ruling, since plaintiff could have asked for
dismissal to be explicitly jurisdictional and failed to do so, claim preclusion applies.

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Federal Jurisdiction

U.S. Const. Article III

28 U.S.C. 1331
28 U.S.C. 1332(a)-(c), (e)
28 U.S.C. 1367
28 U.S.C. 1441-47

CASES Federal Question/ Arising Under Jurisdiction

Louisville & Nashville RR v. Mottley: Mottleys settled an injury claim with RR and get
lifetime free passes. Then Congress passes law banning free passes because of concerns
about bribing public officials; RR refuses to honor passes. Mottleys sue for breach of
contract in federal court, and plan to argue the law is unconstitutional. Mottleys won, RR
appealed. Court sua sponte denied fed jur based on the well-pleaded complaint rule: because
the Mottleys' original claim (breach of K) is state law, not fed. Can't claim fed jurisdiction
just because an anticipated defense arises out of fed law.
CASES Diversity Jurisdiction
Redner v. Sanders is US citizen living in France. s are NY citizens. sues in federal
court, claiming diversity. Court dismisses for lack of diversity jurisdiction (subject matter
jurisdiction) because diversity is about citizenship, not residence. and are both US
citizens, so no foreign citizenship under 28 USC 1332(a)(2), and complaint doesnt give
enough info to show he is citizen of any particular state for 28 USC 1332(a)(1) different
state citizens to apply.
Hertz Corp v. Friend employees in CA sued Hertz in a class action. Court held that a
corporations place of citizenship, in addition to its state of incorporation, is the nerve
center (usually headquarters) where head officers direct and control affairs.
o If either incorp OR nerve center are in the same state as complaint, no diversity
CASES Supplemental Jurisdiction
In re Ameriquest - Two claims -- federal TILA claim (I wasn't told I could cancel the
mortgage) and state fraud claim (overestimate of the value of the home). Court applies sup.
fed. jur. because court can't resolve the TILA judgment without resolving the state fraud case
first, so they are part of the same constitutional case under 1367(a) (TILA judgment
depends on the accurate value of the home).
Szendrey-Ramos v. First Bancorp In-house counsel fired after reporting ethical/legal
violations. Both federal claims (employment discrimination under Title VII) and many
employment claims under Puerto Rican law (wrongful termination, defamation, etc.) Court
declines to hear the PR law cases under 1367(c) because they turn on complex questions of
PR law that the court has no expertise in.

Basic questions:
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o Can this suit be brought in any court (state or fed) in a particular state?
Personal jurisdiction flows from due process clause
o Assuming it can be brought in that state, must that court be a state court, a federal
court, or either?
Federal Jurisdiction : mostly from Article III and statutes.
Just because you are in FED COURT on a diversity action does NOT mean you don't have to
worry about personal jurisdiction! They are independent requirements and each must exist
for court to have adjudicatory power.
Historically 3 important branches
o Claims that arise from federal law - "federal question" or "arising under" jurisdiction
o Claimants who come from different states (diversity jurisdiction)
o Boats (admiralty jurisdiction) historically significant control over international trade;
no longer an important part of the conversation
o Newcomer: United States as a Party
Historically insignificant; now almost 20% of caseload
28 USC 1345 - fed jurisdiction brought by the US
i.e. defaults on federally guaranteed student loans
28 USC 1346 for claims brought against the US
Two parts governing federal jurisdiction
o 28 USC 1331: The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.
Applies to Federal District Courts
Interpreted more narrowly to apply only to claims that themselves arise under
federal law. Not defenses!
Congressional Limits on Federal Jurisdiction
28 USC 1331 created by Congress. They could change the rule if
they want to.
But can't expand to hear any claim that could be heard in a state court that would be beyond the constitution.
Amount in controversy, complete diversity requirement, claim "arising
under" requirement none are limits required by Constitution, instead
given by Congress
o Article III: The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made...
Applies to SCOTUS
Defines outer limits of fed jur
Interpreted BROADER than 1331 Power: SC can rule on claims and defenses
that arise under federal law.
o How could you re-write USC 1331 to be broader?
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District courts shall have original jurisdiction of all civil actions in which
either a claim or a defense arises under
o Current restriction flows from interpretation of STATUTE, not from Constitution
Challenging federal subject matter jurisdiction
o Who raised the issue in Mottley? The court itself did - sua sponte
o Fed jur can be challenged by the court even if both parties are happy to try case in
federal court
o Federal subject matter jurisdiction isn't waivable by parties
o In contrast to personal jurisdiction, we don't know for sure whether subject matter
jurisdiction can be challenged collaterally - very few cases addressing this issue
Federal power is presumptively limited: unless Constitution say fed has a certain power, it
doesn't
o State power is presumptively given: unless state or fed gov't limits a power, state has
it
o Rule 8(a)(1) - must show grounds for federal jurisdiction (thus most states that have
adopted FRCP do not have an 8(a)(1) equivalent b/ state jur assumed)
DIVERSITY
o 28 USC 1332 Diversity AND $75K Limit
o Diversity
COMPLETE diversity requirement no Ps and Ds from same state
Determine citizenship based on factual inquiry into party's intent. (Hawkins v
Masters Farms )
living abroad, after previously being a citizen of a different state, is not
enough. (Redner)
Partnership = citizen where every partner is a citizen
Corporation = citizen, where it is incorporated, or has its principal place of
business (which could be bulk of ops, or nerve center) (1332(c))
If BOTH parties are foreign (alienage jurisdiction) does NOT go to federal
court - has to be in state court, and state courts may have a problem with
personal jurisdiction
o Financial limits Note: statute says in excess of $75k, so if it's $75K exactly, no
diversity
If it's an injunction have to calculate the value of injunctive relief
Shouldn't dismiss unless apparent to legal certainty that P can't get this much.
Hope for HUGE punitives is not enough.
Can aggregate if a single Ps claim(s) against a single D add up to more than
$75,000.
If 2 Ps, their claims may not be aggregated if they are "separate and distinct."
If multiple Ps or Ds w/ undivided interest, use value of the total interest.
If 1332a class action, at least one member of the class needs a claim that
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exceed $75,000.
Compulsory Counterclaim can be heard If P's claim is above $75k.
Permissive Counterclaim must pack its own jurisdictional lunch (be above
$75k).
Law is unsettled when claim is under 75k, but counterclaim is for
more than 75k.
Supplemental Jurisdiction 28 USC 1367
o Grants fed jur of claims fed could not hear if brought independently
o Constitutional? Gibbs v. United Mine Workers says yes, if the claims all arise out of
one set of facts the Constitution talks about cases and controversies (a broader
definition than civil actions in 1331-1332) so if they are all one case based
on related facts, fed jur applies
28 USC 1367 - Supplemental Jurisdiction
o Questions to ask:
1367(a) - are claims so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution?
Applies to 1331 Arising under Jur
Compare to: claim preclusion - are cases the same enough that they
should be brought at the same time?
Compare to: relating back - do they arise out of the same facts?
What's the federal claim? What's the state claim?
o 1367(b)
Applies only to claims founded SOLELY on 1332 diversity jurisdiction
Preserves complete diversity requirement in diversity only cases
Case gets split and non-diverse (joinder part) gets sent back to state
court OR can decide to have entire complaint dismissed an bring
whole thing in state court
WITHDRAWS supp jur in diversity cases when a party is joined that would
destroy diversity
What part of 1367(a) does 1367(b) withdraw?
Withdraws supp jur to claims by PLAINTIFFS (counterclaims by do
not fall under this)
In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the district
courts shall not have supplemental jurisdiction under subsection (a)
over claims by plaintiffs against persons made parties under Rule 14,
19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims
by persons proposed to be joined as plaintiffs under Rule 19 of such
rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,
when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332.
If has a diversity case and joins a second, non-diverse then
NO supplemental jurisdiction
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If has an arising under case and joins a non-diverse then

supplemental jurisdiction
HOW TO TELL:
Is original claim properly in fed court?
Is claim a diversity ONLY case?
Does [another claim against same ] OR [same claim against different
] have its own jurisdiction? (federal question, over the amount)
If yes - no need to worry about supp jur
If no (say $5K claim or diversity joinder)
i. Is it part of the same claim or controversy?
ii. Does it have jurisdiction under 1367(a)?
iii. Does 1367(b) withdraw?
1. Does NOT withdraw different claim against
same
2. Under what rule is joined? If one of rules on
"shopping list" SUPP JUR WITHDRAWN
o 1367(c) can refuse to hear case if novel, complex, etc.
o 1367(d) - if fed court dismisses state claims and SOL has run, gives 30 day grace
Removal 28 USC 1441
o As with all jurisdiction, gets first choice and then can fight back
o WHO removes:
o WHEN can Remove:: 30 day or 1 year limit (if pleading that established fed jur
came late in the case, i.e. if a drops out and establishes complete diversity or raise
their damages over the federal limit)
If wants to keep in state court, keep prayer for damages low for a year, then
increase after removal limit is over
1 year limit applies ONLY to diversity only claim
28 USC 1446 how to remove
28 USC 1446(c) if prevents removal in bad faith then court can still
remove regardless of time limit
2011 Venue and Jurisdiction clarification act who wants to remove but
for jurisdictional amount can say that amount is not real amount in
controversy and challenge for removal
o 1441(b) - NO removal for home-state advantage for in DIVERSITY ONLY cases
o Can ALWAYS remove a federal question case

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Collateral Attack
CASES: COLLATERAL ATTACK
Durfee v. Duke P (Nebraska) sued D (MO) for quiet title over land right on border
between two states. Debatable which state land is in. D appears and the court fully
litigates and decides jurisdiction (decides Nebraska jur is ok). Court holds Full Faith and
Credit precludes collateral attack on jurisdiction since the issue was fully litigated and
decided in the first court. But if D has no notice and doesnt appear, he may challenge
personal juris on collateral attack.
United States v Beggerly land deed in 1803 potentially given to Ps ancestors, but
unsure if not, US owns land. Case settled in 1982 for modest sum reflecting uncertain
title, judgment (consent decree) entered. In 1994 new information surfaces showing that
Ps family did own land. P moved to set aside verdict under FR 60(b) and award
damages as an independent action allowing it to overcome the 1-year time limit. Court
holds independent action must only be allowed for grave miscarriages of justice , which
this case is not.

Full Faith and Credit

o Between States: Article IV of Constitution says that states must give full faith
and credit to judgments of other states. So if one state makes a judgment, another
state is precluded from re-litigating that. A judgment in any state has nation-wide
validity
o Btw State and Federal: Full Faith and Credit Act makes the same rule btw
federal and state
the second court must give same effect to the judgment that rendering
court would attach to it; correctness irrelevant, if the question had been
fully and fairly litigated and decided in the first action (so if question of
jurisdiction had not been fully litigated, often not precluded)
Collateral Attack on Jurisdiction
o jurisdiction issue precluded if fully litigated, even if incorrect
o unnotified party, over whom court lacks personal jurisdiction, may challenge
judgment.
o Party who appears and contests personal jurisdiction is bound by courts ruling.
o Party who appears and fails to contest personal juris has waived their right to
object.
o party can collaterally attack judgment in another state by showing fraud
o all other issues, besides jurisdiction, must be raised and appealed in first action.
Cant raise any other issue on collateral attack!
Reopened Judgments Rule 60(b)
o must move to reopen judgment in the same court that heard the first case,
asserting that some fundamental defect justifies setting judgment aside

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o very limited circumstances for reopening judgments w/in reasonable amount of

time such as: new evidence that due diligence could not have revealed in time,
mistake, fraud by opposing party (some w/ one year stat of limits); also allows
independent action to reopen judgment (reserved for cases w/ injustice deemed
gross enough to demand departure from rigid adherence to res judicata). This is
NOT a substitute for appeal
o easier to get court to reopen a default judgment, since party never had a fair
shot. Some advise lawyers not to take default judgment unless no other choice.

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CIVPRO OUTLINE

Joinder

FR 13
FR 18
FR 20
28 U.S.C. 1367

CASES: JOINDER
Plant v. Blazer - P sued D for federal claim under Truth-in-Lending Act, D
counterclaimed for unpaid debt. D won, P says no jurisd over Ds claim.The 5th circuit
holds the debt a compulsory counterclaim under Rule 13, with the result that supp jur
extends to counterclaim. Other courts have reached different conclusions on similar
counterclaims if its permissive only, fed jur does not necessarily apply.
Mosley v GM - multiple Ps complaining of multiple kinds of Title VII discrimination by
the same D. Are these claims close enough -- is there a way to frame "transaction or
occurrence" -- to justify bringing all these claims in a single suit? Court holds definition
of transaction is flexible and thus parties meet requirement for joinder under FR 20(a)
because the activities can be seen as part of the same transaction of a company-wide
system of discrimination.
o Strategy/Policy:
Join under Rule 20 b/c show GMs pattern of discrimination, fee-shifting
(more expensive for individuals if separate trials).
Dont join b/c: divide & conquer: easier to paint individual P as
disgruntled employee as oppose to 10-20 employees who experience this,
Ps are more likely to get punitive damages if joined.
Either way, prejudicial to a party.
o ISSUES
SCOPE of joinder relates to preclusion: if joinder is broad enough
(discrimination against women and blacks), futures Ps with similar claims
might be precluded because claims would probably be considered
compulsory
Rule 42 allows judge to separate claims for trial, could be broken back
down into women, blacks, etc. - this is meant to solve some of the broad
joinder problems.

Joinder:
o Does the rule or rules permit joining of the claims or parties?
o Does federal subject matter jurisdiction extend this far?
o Does personal jurisdiction apply?
o If we join or cannot join claims, how does that effect preclusion?
Rule 18 - Joinder of claims
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o Party asserting a claim may join, as independent or alternative claims, as many

claims as it has against an opposing party
o IMPLICATIONS FOR PRECLUSION - ability to join claims gives claim
preclusion it's teeth - if you didn't have this opportunity you could bring all these
claims separately
BUT FR 18 is limited by 28 U SC 1367 - for federal cases, if you combine claims
(under Rule 18), some will be pushed back to state court if there's not supplemental
jurisdiction
o Case or Controversy vs same transaction
Case or controversy CAN BE read as broader than same transaction,
giving some permissive counterclaims sup jur.
Example 1:Could join a civil rights claim and wrongful discharge claim
because is says you "may" join any claims
Does 1367 give supplemental jurisdiction to wrongful discharge
claim? Yes, most likely, because they're both from the same
"constitutional case" about her being fired. And you don't have to
worry about 1367(b) because it's not a diversity case (civil rights =
federal question).
Example 2: Federal civil rights claim and negligently inflicted injuries.
Can join under rule 18. Arising under jurisdiction for civil rights claim but
not for car accident.
Example 3: Ann sues Barbara under federal civil rights claim, plus state
law claim against Charles for sexual harassment. Can join under rule 20.
Can join under 1367 (a) because supplemental jurisdiction includes claims
that involve joinder or intervention of additional parties.
Example 4: Ann (IL) sues Barbara (WI) for breach of employment K. Ann
seeks to join Charles (IL) because he conspired to breach K. Rule 20
Permits joinder. NO supplemental jurisdiction because it's a diversity case,
withdrawn under 1367(b). Withdraws jurisdiction for parties joined under
rule 20.
Tying in to Rule 13 - joinder for compulsory counterclaims
o Compulsory counterclaims always fall within the supplemental jurisdiction of
federal courts, but permissive counterclaims must pack their own jurisdictional
lunch.
Rule 20 joinder of plaintiffs may join in one action as Ps if they assert a right arising
from the same transaction AND there is a question of law or fact common to all Ps

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Context-Sensitive Joinder
Impleader

FR 14(a) & (b)

FR 13(g)
28 U.S.C. 1367

CASES: IMPLEADER
Price v. CTB - farmer sued chicken house builder in Fed Court (most likely on diversity).
Constructor moves to file a third party complaint under Rule 14 to pass on liability to
person who designed nailes used in construction. Court holds since Alabama state law
allows sellers to pass on liability, D properly impleaded nailmaker.
o ISSUES
Impleader increases costs of litigation for - so Price isn't very happy
about impleading nailmaker
40 similar suits against chicken house builder - if housemaker loses, issue
preclusion could apply to housemaker in other suits
Might encourage housemaker to SETTLE with farmer because settlements
can't be precluded
Kroger - P (IA) sues D1 Power Co (NB). D1 impleads D2 Equip co (IA/NB). D2 says it
is incorporated in NB but doesnt say anything else about citizenship, so P amends
complaint to add suit for D2, thinking there is diversity. D1 successfully drops out on
Summary Judgment. Left w/ P vs. D2. Suddenly D2 announces it is a citizen of IA
because its primary place of business is there. Lower court tries to estop D2 from
dismissing from fed court because it mislead P, but SC reverses: because no
supplemental jurisdiction is allowed for claims by plaintiffs brought against 3rd
party defendants. There must still be complete diversity for claims by P.
o This rule now codified in 28 USC 1367(b)
o Sue Equip co in state court. Many states have savings statutes that will allow P to
sue even though stat of limits has probably run for state claim.

Impleader under FR 14: passing the buck on derivative liability

o Impleader (rule 14 - passes on derivative liability) vs. Interpleader (joinder that
forces two or more claimants of a single fund into same lawsuit to litigate
entitlement between them)
o Rule 14 allows but does not require joining party
o CANNOT implead on the "it was him not me" theory
If homeowner hires roofer and waterproofer to fix roof, then sues roofer
only for leak, roofer CANNOT implead waterproofer.
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What should roofer do instead? DENY LIABILITY in answer and assert

evidence showing roofer is liable.
o Can only implead people who are liable to YOU, not someone else.
Rule 14(a)(1) a defending party can implead a nonparty
o Nail company could implead steel company could implead mining company
Other issues for impleader:
o Impleader does not CREATE liability. It can only be applied if state law (usually
tort or contract law) allows derivative liability (also known as indemnity clauses).
o STILL have to deal with issues of personal jurisdiction for each impleaded party
This is a problem -- there must be personal jurisdiction over the 3rd-party
defendant in the original claim.
But Rule 4(k)(1)(b) service establishes personal jurisdiction for impleaded
parties IF they are served in US and not more than 100 miles from
courthouse where summons are issued
How is this constitutional? No substantial burden to travel 100 miles
o Subject Matter Jurisdiction
Must be either original fed. jur. over the impleaded claim, or supp. jur.
1367a-allows suppl jurisd over the impleaded claim IF the original
jurisd is based on federal question (same case or controversy)
1367b-if original jurisd is based on diversity, the D can implead
any party for claim (who meets rule 14) since 1367b only applies
to claims by plaintiffs
Supp jur will ALWAYS attach if needed to a third
party defendant PROPERLY impleaded by a defendant
(aka third-party plaintiff)
but if original plaintiff files a claim against the third party
D, that can NOT be inconsistent w/ diversity (there must
still be complete diversity)
EXAMPLE CASE: Buyer vs. Dealer
o If Dealer wants to pass liability on to Mfr, what pleadings does dealer file?
Answer (respond to the complaint)
File a 3rd party complaint (Form 16) to use Rule 14 motion to implead a
party
If Buyer vs. Dealer AND Mfr, so party is already in lawsuit, Dealer can
crossclaim under Rule 13(g) : The crossclaim may include a claim that
the coparty is or may be liable to the crossclaimant for all or part of a
claim
If it's a proper counter or cross claim, no supp jur issues because Rule 13
is NOT listed in 1367(b)
o If mfr wants to deny liability, can answer mfrs complaint with a denial.
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If mfr wants to assert a claim against Dealer for not paying for other
vehicles, can it?
Rule 13(b) - permissive counterclaim
Rule 14(a)(2)(B) 3rd-party D must assert any counterclaim against the
third-party plaintiff under Rule 13a, and may assert any counterclaim
against the third-party plaintiff under Rule 13(b) or any cross claim
against another third-party defendant under Rule 13(g);
BUT 13(b) motion is not part of same constitutional case, will have
to carry its OWN jurisdiction, NO SUPP JUR

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Compulsory Joinder
FR 19
CASES: COMPULSORY JOINDER
Temple v. Synthes - had back surgery to place screws in spine, screws broke. could
have sued manufacturer, surgeon and hospital but only sued manufacturer in federal court
and filed state administrative action against doc and hospital for malpractice. Doc filed
motion to dismiss for failure to join but court held that Rule 19 does not require party to
join all tortfeasors in the most efficient package possible.
o Rule 19 DOES NOT require P to join all joint tortfeasors as Ds.
o If judgment for full amount entered against Ds, they can sue other tortfeasors for
indemnity in separate action.
o Rule 19 DOES NOT require packaging lawsuit in the most efficient manner.
Helzberg's Diamond Shops v. Valley West - "Crocodile tears" case - "gee darn, this party
HAS to be joined and CAN'T, guess we can't have the lawsuit, shucks." Helzberg signs
lease with Valley West that Valley West will not rent to other jewelry stores. Valley West
rents to Lords a "specialty" store which may actually be a jewelry store. Helzberg sues
VW and court grant injunction, VW moves to dismiss b/c Helsberg failed to join Lords
as a defendant. Court holds that Lords was given the opportunity to join and didnt, but
none of Lords right will be determined in the suit so they will not be prejudiced under
19(b) and thus the injunction against VW was allowable.
o What's the problem with NOT joining? If Case 1 allows injunction so VW cannot
rent to Lords, then Lords sues to enforce lease, could get contradictory judgments
saying
o Rule 19 (a)(1)(B)(ii): if claims leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations because of the
interest.
o Why can't they join Lord's? Personal Jurisdiction
o What could court have done? Transferred under 1404 convenience

Who has to be joined?

o court cannot accord other parties complete relief without the 3rd party
o disposition w/o 3rd party would impair his ability to protect his interest
o disposition w/o 3rd party would subject him to multiple or inconsistent
obligations
Anatomy of compulsory joinder
o Do we have a problem? 19(a)
What sort of problem? 19(a)(1), (a)(2)
Should absentee be joined?
Can absentee be joined?
o If we have a problem and if absentee can't be joined, what should be do? 19(b)
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Intervention
FR 24
CASES: INTERVENTION
NRDC v. US Nuclear Regulatory Commission - NRDC originally sued NRC and
NMEIA to prohibit them from issuing licenses for the operation of uranium mills, Kerr
moved to intervene under 24(a)(2) b/c Kerr was one of the largest holders of uranium
properties, EIR would delay and possibly harm the activation of their license. United
Nuclear's intervention not challenged b/c they already had a license so this could clearly
impact them. Court holds Kerr can intervene because United Nuclear does not adequately
represent their interests - UN already has a license, would love if they were the only one
in the state with a license, outcome substantially affects Kerr.
Martin v. Wilks black firefighters sued for racial discrimination, gave notice of
hearings. After hearings and coming to settlement, but before final decree, white
firefighters moved to intervene, court held that firefighters could intervene because they
had neither intervened nor joined prior suit so they shouldnt be deprived of their legal
rights to protect their interests.
o Seems to imply that "lurkers" are not precluded from bringing their own claims
Plaintiffs didn't want whites to join because they had notice and
opportunity to join but instead they waited and pounced after judgment
was made - impermissible collateral attack
Court says no, lurking is allowed
Compare to other cases:
Searle bros - holding that witnesses called in lawsuit to which they
were not parties are not precluded
Parklane hints that if you do have an opportunity to join but dont,
you may not be able to take advantage of issue preclusion.
Other casesTaylor v. Sturgell, for example, say that the
opportunity to join isnt enough: that if I want to bind a person I
have to join him, which is consistent with Martin v. Wilks.

Rule 24(a)(2) - very similar to rule 19!

o Party claims an interest relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect its interest, unless existing
parties adequately represent that interest.
o Courts discretion - IF certain requirements are met, intervention MUST be
allowed. Then the discretion is in if the requirements are met.

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Interpleader
SEE CHART p. xiv

FR 22
28 U.S.C. 1335
1397
2361

Paragon Molding, Ltd. v. Safeco Insurance Company - "Duck call" store burns to
ground, likely will go bankrupt. Original suit: Business sues Insurer for money from fire,
federal district court (diversity). Creditor scramble: don't want other creditors to get paid
before they do, all seek to intervene. Court holds parties should proceed under
interpleader to make Duck Call Co only plaintiff (stakeholder) and all other parties
claimants/party defendants to figure out who gets owed what and whose claims take
precedent over other claims. Judge hopes with all his strict directions to force case to
settle (interpleader cases often do).

You - "stakeholder"
Other members of party -"claimants"
Rule 22 - procedural channel to create interpleader (see Form 31)
Statues come in to play to make things easier when case isn't "clean" - not complete
diversity, diversity between claimants
o 28 USC 1335 - deals with diverse claimants
o 1335(a) - removes limitations on federal subject matter jurisdiction, removes
complete diversity, requires only minimal diversity for claimants
o 2361 - allows nationwide service of process, establishing personal jurisdiction
(service = PJ)
Does it still work after International Shoe requirement of minimal
contacts?
Yes - due process requires SOME forum where case can be held and if this
didn't establish PJ, cases with diverse defendants couldn't be heard in any
state or fed court
If you have CA and AK claimants, case could be in EITHER state

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