CIVIL PROCEDURE_SARAH CLEVELAND_outline

TABLE OF CONTENTS
Introduction.........................................................................2
Elements of a Fair Procedural System (in the US) The Neutral Judge?....2

Constitutional Due Process....................................................4

Due Process & Pre-Judgment Remedies..................................................4
TROs and Preliminary Injunctions...........................................................9
Due Process and the War on Terrorism.................................................10

Pleading a Claim and Answer...............................................12

The Complaint: Specificity & Inconsistent Allegation.............................12
Rule 11 Sanctions................................................................................14
Service of Process...............................................................................15
Motion to Dismiss................................................................................17
Heightened Specificity under Rule 8?....................................................18
The Answer: Admissions, Denials, Affirmative Defenses & Default.........18
Default Judgment................................................................................19
Counterclaims, Voluntary Dismissal......................................................20
Crossclaims.........................................................................................20
Voluntary Dismissal.............................................................................21
Amendments to Pleadings....................................................................21

Preclusion: Res Judicata & Collateral Estoppel......................23

1.
2.
3.
4.

Law of Case.....................................................................................23
Res Judicata (Claim Preclusion)........................................................23
Collateral Estoppel (Issue Preclusion)...............................................25
Other Action Pending.......................................................................27

Joinder...............................................................................27
Joinder of Claims.................................................................................27
Joinder of Parties.................................................................................27
Impleader...........................................................................................28
Intervention........................................................................................29
Class Action........................................................................................31

INTRODUCTION
ELEMENTS OF A FAIR PROCEDURAL SYSTEM (IN
NEUTRAL JUDGE?

THE

US) THE

Rule 1: Scope and Purpose

These rules govern procedure in all civil actions and proceedings in the
United States district courts, except as stated in Rule 81. The should be
construed and administered to secure the just, speedy and inexpensive
determination of every action and proceeding.

Creates a rule of construction for all the other rules

Rule 2: One Form of Action

There is one form of action the civil action
Cases
Bands Refuse Removal, Inc. v. Borough of Fair Lawn
- a judge intervenes heavily by: calling his own witnesse, raising new issues,
allowing to change his case, met w/ /co w/o /co present (ex parte),
appointed his own amicus curiae
- although technicaly the judge can do these things (except add claims), he
cant substantially change issues w/o giving all /co notice
- considered the combo/totality of what the judge did instead of isolated acts:
There is a point at which the judge may cross that fine line that separates
advocacy from impartiality.
Lon Fuller, The Problems of Jurisprudence (p. 13 CB)
- The moral force of a judgment or decision will be at a max when:
o The judge does not act on his own initiative, but on application of one
or both disputants
o The judge has no direct or indirect interest in the outcome of the case
o The judge confines herself to the controversy before her
o The case involves some existing controversy, not the prospect of future
disagreement
o The judge decides the case solely on the basis of the evidence and
arguments presented to him by the parties
o Each disputant is given ample opportunity to present his case
Problems with the Adversarial System
- there is inherent inequity: different resources available to each side and
const. right to counsel in civil cases
- cross examination may distort the truth; however, in civil law systems, a
neutral party may be too disinterested
Other Systems
- German judges can call witnesses and ask many/most questions; because it
is the chief function of a court of law to find out the truth -- W. Zeidler,

Evaluation of the Adversary System: As Comparison, Some Remarks on the

Investigatory System of Procedure (p. 14)
o The inquisitorial system
But, Judges are often poorly equipped to intervene in trials because they often
know litte about the case a a whole -- Marvin Frenkel, The Search for Truth:
An Umpireal View (p. 15)

CONSTITUTIONAL DUE PROCESS

DUE PROCESS & PRE-JUDGMENT REMEDIES
- Procedural device permitting some form of interim relief before the case goes to
trial.
- Litigation is societys preferred substitute for private self-help; for that purpose the
remedies it offers (using the assistance of the government) need to be sufficiently
attractive to induce citizens to forgo other (possibly even more primitive) means.
- An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to appraise interested parties of the pendency of the action and
afford them an opportunity to present their objections. Mullane v. Central Hanover
Bank (Glannon).
Fifth Amendment
No person shall be deprived of life, liberty, or property, without due
process of law
Fourteenth Amendment
[N]or shall any State deprive any person of life, liberty, or property,
without due process of law
Rule 64: Seizing a Person or Property
Follow state law for seizure of person or property (arrest, attachment,
garnishment, replevin, sequestration, or other equivalent) unless a federal statute
applies
Notes
-

When a party engages the state for seizure of property, the party is generally
entitled to prior notification and hearing (absent an extraordinary situation)
o There is an exception: for creditor/debtor relationships wherein
property may be seized w/o advance notice and a hearing if sufficient
protections exist for defendants
i.e. If the process requires a factually convincing showing
that the claim is valid as determined by a judge, and the
asserts fear of loss/damage, the court can order the good
seized *and* an immediate hearing for to assert a defense
especially the case if the claim is uncomplicated and lends
itself to clear documentary proof
o under UCC 9-503, the party can self-collect if it can do so w/o
disturbing the peace

When determining if the procedure satisfies procedural due process, the court
applied the Mathews test (reformulated in Doehr). Three factors are
balanced:
1. Private interest that will be affected (s interest in retaining the
property)
2. Risk of erroneous deprivation of such interest and probably value of
safeguards
3. Private interest ( s interest in seizing w/ due regard for the govt
interest both in function and in administrative burden)
(Mathews v. Eldridge (U.S. 1976) (p. 48))

Cases
-

Sniadach v. Family Finance Corp. (U.S. 1820) (p. 28)

o Ct found that garnishing a debtors wages w/out notice or opp. to be
heard was unconstitutional. This was the early case that introduced the
concept of due process rights for property seizure.

Funtes v. Shevin (U.S. 1972) (p 29)

o Fuentes purchased a stove and stero from Firestone under conditional
sales K; goods were later replevined. Ct held: that the FL and PA
prejudgment replevin provisions violated the 14th amendment b/c they
denied the right of a prior opportunity to be heard before property
seized. Individuals have a right to: (1) notice, (2) a hearing, (3) a real
test of the validity of the claims, and (4) a neutral arbiter.
DP entitles parties to: notice and opportunity to be heard (p. 32,
citing Baldwin v. Hale)
Protected property includes: ANY significant property interest,
even if ownership is disputed (p. 34)
Temporary deprivation of property is still deprivation (p. 34,
citing Sniadach)
Even non-essential goods count as protected property (p. 35)
Possessions that count as extraordinary situation (urgent need
and/or reasonable belief that would abscond w/ or destroy the
property), serving an important govt or public interest, with a
need for prompt action, and where the state has kept strict
control over its monopoly of legitimate force, may be able to
bypass this requirement, but this is not such a case (p. 37)
Even thought the K of sale authorized repossession, it does not
waive the right to a hearing
o Dissent (White): Ks can now just explicity waive the right ot a
hearing. The risk of false claims of repossession is small, since the
lender has put up a large bond and its in their interest to have
purchases continue to use the property
Majority response: creditors will think theyre right, even if
theyre wrong. People are targeted when uneducated and
uninformed about the law, and may not even challenge the
seizure

Mitchell v. W.T. Grant Co (U.S. 1974) (p. 42)

the ct held: the LA statute not inviolate of the 14th amendment b/c it
requires a factually convincing showing on the part of the lender
(before a judge), minimized the impact on the debtor and minimized
the risk of mistaken seizure. Evidence was documentary and easy to
judge, and the was entitled to an immediate hearing. This case
countered Fuentes and established that its possible to have
prejudgment replevin in certain circumstances

North Georgia Finishing, Inc. v. Di-Chem, Inc (US 1975) (p 44)

o The ct held: a GA statute unconstitutional because, even though the
asserted fear of loss, he only needed to supply a conclusory allegation
to the clerk, and the had to post a counterbond to even get a postseizure hearing

Goldberg v. Kelly (US 1975) (p 41)

o The ct held: that for govt denial of welfare benefits, there must be in
person pretrial procedures, and welfare beneficiaries must be allowed
to cross-examine witnesses to dispute the claims. Must be allowed to
contract counsel if desired.
o
Connecticut v. Doehr (US 1991) (p 49)
o The ct applied the balancing test from Mathews to a private dispute,
which changed the third prong from govt interest s interest w/ due
regard for the govts interest
o Here, there were significant costs imposed ont eh by having his real
estate attached (cant sell it). Also, the merits of the claim (assault)
were highly fact specific, making it hard for a judge to get the full
picture from only one sides story
o Shaumayan v. ONeil (2nd Cir. 1993) (p 61)
The ct upheld the same statute in Doehr under different facts.
A Yale prof. refused to pay a contractor for housework. Ct found:
the risk of erroneous deprivation was not high because
evidence = easily documented

Comparison of Replevin/Seizure Statues

Case

Fuentes (Pa.)
1972

Fuentes (Fla.) Di-Chem (Ga.) Doehr (Conn.) Mitchell

1972
1975
1991
(La.) 1974

Ruling

Unconstitutio
nal

Unconstitutio
nal

Unconstitutio
nal

Unconstitutio
nal

Constitutio
nal

Type

Replevin of
household
goods

Replevin of
household
goods

Garnishment
of bank
account

Limited to real
estate
attachment

Replevin of
household
goods (rule
limited to
parish)

Complaint?

Not required

Complaint
required

Not required

Complaint
required

Complaint
ordinarily

required
Verified
Affidavit?

Only required
to state value,
doesnt have
to state
entitlement to
goods

Required to
state value
and
entitlement to
goods

Only required
to state
amount and
reason to fear
loss if account
not garnished,
no personal
knowledge
required;
merely
conclusory
allegations

Verified
affidavit
required
attachment
not related to
cause of
complaint,
merely a
means of
ensuring
payment if suit
successful

Bare
conclusory
claims
insufficient,
P needs
factually
convincing
showing
(specific
facts) that
claim is valid
and that D is
capable of
wasting or
losing the
property

Standard?

Dont have to
even claim
goods are
wrongfully
detained

No need for a
convincing
showing that
goods are
wrongfully
detained

No finding
required

Must show
probable
cause of
validity of
complaint, but
case was fact
intensive and
not easily
provable

Need
convincing
showing
that goods
are
wrongfully
detained.
Facts in this
case were
easily
provable

Judge/Clerk? Clerk

Clerk

Clerk

Judge

Judge (not a
statewide
policy)

Bond?

Double bond
required

Double bond
required

No bond
requirement

No bond
requirement

Double bond
required

Hearing?

No hearing
available
unless D
initiates a
lawsuit
himself to
return goods

Eventual right
to a hearing,
not prompt

No prior
hearing
available, no
post hearing
unless D
sought one

Notified of
Immediate
right to hearing hearing w/i 5
at seizure,
days
disputed how
prompt

Damages?

Unspecified

Return of
goods plus
some amount
of recovery

No damages
award

Double
damages
award if
original suit is
commenced

Damages
award and
attorneys
fees

without
probable
cause
Extraordinary Extraordinary
Circumstanc circumstances
es?
not required
nor presented

Extraordinary
circumstances
not required
nor presented

Had to state
fear of loss

Extraordinary
circumstances
not required
nor presented

Must claim
it is within
the power
of D to
destroy
property. P
claimed he
also had
reason to
believe D
would
destroy
property.

Counterbond
Option?

D may file
counterbond
w/i 3 days to
return goods

D had to file a
bond to if he
ever wanted to
lift the lien

Could attempt
to substitute a
bond for the
attachment at
the hearing

At
immediate
hearing can
dissolve the
writ if P cant
prove case

D may file a
counterbond
w/i 3 days to
return goods

TROS

AND

PRELIMINARY INJUNCTIONS

Rule 65: Injunctions and Restraining Orders

Preliminary Injunction must notify the defendant; can consolidate preliminary

injunction hearing with trial (but defendant can assert right to jury trial). Right to
immediate appeal from preliminary injunction.
o

Judge must weigh: ***irreparable harm*** to the plaintiff if no PI (takes into

account plaintiffs interest in exigent circumstances),
substantial likelihood of success by plaintiff on the merits,
a balance of the equities (includes defendants interest) and
the interest of the public. (from STC)

Temporary Restraining Order can issue without notice to defendant only if plaintiff
shows through affidavit of specific facts that there will be immediate damage if defendant
is notified and also certifies its efforts to notify the defendant.
o

The order expires no later than 14 days after issuance unless extended on good
cause for like period or defendant consents to longer period.

If issued without notice, the court must hear the motion for preliminary injunction
at the earliest possible time.

Defendant may move to dissolve or modify the TRO within (generally) 2 days, at
which point court must have hearing.

Bond may be required at courts discretion.

Cases
-

McNary
o In the Baker case, trial ct had granted a TRO allowing discovery on the
Coast Guard cutters (later dismissed by the 11th circuit). In McNary,
sought TRO to stop 2nd screenings w/o counsel on Gitmo
Rational for TRO rather than PI: No need for complaint, it would
give them ability to do discovery, provides immediate relief, no
notice reqd
Showed irreparable harm via portion of refugees w/ valid
asylum claims, and actual stories
Showed substantial likelihood of success on the merits of claim
that lawyers had 1st amendment right on US military base
Showed balance of equities against govts magnet effect
argument
Showed public interest because Haitians had already been
screened in

DUE PROCESS

AND THE

WAR

ON

TERRORISM

Cases
Hamdi v. Rumsfelt (US 2004) (Supp)
-

the ct applied the Mathews test to judge whether holding Hamdi w/out a
hearing was justifiable. Determined that procedure failed the Mathews test. A
state of war is not a blank check for the Pres. when it comes to the rights of
the nations citizens. A citizen-detainee must be notified of the factual
basis for his classification, and afforded a fair opportunity to rebut
the Governments factual assertions before a neutral decision-maker
in a meaningful time and manner.
o

Defendants Interests Detention without being able to contest facts or legal

basis. Court calls this a fundamental right of a citizen.

Risk of Error Government claimed the risk was low because he was
undisputedly captured in a combat zone and thus habeas determination could
be made as a matter of law. In view of the separation of powers, the court should
assume the accuracy of the Governments articulated basis (colorable basis) for
Hamdis detention, and assess only whether that basis is legitimate.

Governments Interests Retaining control over military matters. Preventing

combatants from returning to battle against the U.S. Practical difficulties in doing
a trial-like procedure.

Hamdan v. Rumsfeld (US 2006) (Supp)

-

the ct held: that the special military commission lacked the power to try
Hamdan b/c it violated the UCMJ and the Geneva Conventions (bc there is no
logical reason to deviate from the rules of courts-martial, detainee must be
tried by regularly constituted court

Case

Hamdi 2004

Hamdan 2006

Citizen?

U.S. citizen captured in

Afghanistan and retained as an
enemy combatant
government asserted he could
detained indefinitely.

Yemeni citizen captured in Afghanistan

and transferred to Guantanamo Bay,
charged with one count of conspiracy.

Holding

A citizen-detainee must be
notified of the factual basis for
his classification, and afforded
a fair opportunity to rebut the
Governments factual
assertions before a neutral
decision-maker in a meaningful
time and manner.

The military commission lacked the

power to proceed because it violated
the UCMJ and the Geneva Conventions
(because there is no logical reason to
deviate from the rules of courtsmartial, detainee must be tried by
courts-martial).

Evidence?

Evidence standards may need

to be relaxed (e.g. allowing

The accused must be able to access

the evidence presented against him,

hearsay).

and the regular rules of evidence and

relevance apply.

Counsel?

Detainee has a right to counsel. Plurality held that he has a right to

independent counsel.

Burden of
Proof?

There may be a lower burden of

proof (e.g. a rebuttable
presumption of Governments
accuracy).

Ordinary burden of proof applies. Four

members held that conspiracy was
not a violation of the law of war and
thus not try-able by a military
commission.

Format?

May be satisfied by a military

tribunal.

The Geneva Convention requires that

he be tried by regularly constituted
courts, which can include courtsmartial, but does not include speciallycreated tribunals. Because no need
has been demonstrated to deviate
from the standard courts-martial
practice, using a special tribunal is
illegal.

PLEADING A CLAIM AND ANSWER

THE COMPLAINT: SPECIFICITY & INCONSISTENT ALLEGATION
Rule 3: Commencing an Action
A civil action is commenced by filing a complaint with the court.
Rule 7: Pleadings and Motions
Only 7 kinds of pleadings are allowed:
1.
2.
3.
4.
5.
6.
7.

Complaint
Answer
Answer to counterclaim
Answer to Crossclaim
3rd Party Complaint
Answer to 3rd Party Complaint
if ordered, a Reply to an Answer

Request for court order must be made by a motion. Motions must:

o
o
o

be made in writing (unless during hearing or trial)

state particular grounds
state relief sought

Rule 8(a): Claim for Relief

Claim for relief must contain:
-

short and plain statement of grounds for jurisdiction

short and plain statement of claim showing entitlement for relief
demand for relief sought

All of the elements of a complaint, if proved, must show that is entitled to relief
How much detail do you need to provide in the complaint? J. Posner says litigation
is expensive, and shouldnt allow opening the door w/out real grounds for complaint.
SCOTUS is evolving its view of how much needs to be included in a complaint.
Complaint in McNary was very long, which isnt prohibited, but may irk the judge.
Rule 8(e): Construing Pleadings
Pleadings must be construed so as to do justice.
Rule 10: Forms of Pleadings
Claims or defenses must be in numbered paragraphs.
Rule 12(e): Motion for a more definite statement

A party may move for a more definite statement of a pleading to which a

responsive pleading is allowed if it is so vague or ambiguous that it cannot
reasonably prepare a response. Must move prior to responding. If ordered, first party
has 14 days (or other time ct sets) to amend, otherwise pleading can be stricken
Notes
Ways to keep out non-meritorious claims:
o
o
o
o
o

filing fee
pleading requirements
standing
motions to dismiss
summary judgment

Goals of claim adjudication:

o
o
o

create predictability
produce equitable results
manage in a safe matter

Case
United States v. Board of Harbor Commissioners (D. Del. 1977) (p 128)
- where s moved for a more definite statement in govts complaint alleging they
discharged oil in to Delaware River. s argued that it did not specify: which s were
responsible; how much oil was discharged; removal cost; or the actions which caused
the discharge.
- Ct denied the motion, arguing these were matters for discovery. is the least-cost
provider of this information

Rule 8(d)(2): Alternative Pleadings

A party may set out 2 or more claims or defenses alternatively or hypothetically

(either in a single count/defense or separately). The pleading is sufficient if any one
alternative is sufficient.
- I didnt borrow it, it was broken when I borrowed it, and I returned it in
perfect condition.

Advantages of permitting alternative pleading:

more efficient and cheaper for to collect evidence all at once

removes chances of inconsistent judgments

removes ability for s to blame each other in separate suits

Strategically (for ), 2 s have vested interests in bringing convincing proof

against each other

Case

McCormick v. Kopmann (III. App. 1959) (p 133)

-

where the complaint alleged either that drove negligently over the centerline, or that another served the alcohol which caused him himself to go
over the line and cause the crash. Wife sued BOTH the bar owner that
supplied her husband with alcohol, as well as the other driver in alternative
counts. The ct held that this was permissible so long as recovery was
only on one count.

N.b. that pleading in the alternative is not justified when the has knowledge
that facts do not support a count

However, s dont have to swear to the truth of complaints, merely assert

that they believe they are true, even if they dont have first-hand knowledge
of the matters. In this case the key witness was dead so didnt know which
count was true.

Surowitz v. Hilton Hotels Corp (US 1966)

-

, a Polish immigrant, sued for defrauding her, but she couldnt read English
and didnt really know what the complaint said. She got her info from her sonin-law, a lawyer. Ct allowed it because it was based on reasonable beliefs
growing out of careful investigation.

Sufficiency of Complaint: Civil Rights Claims

Civil rights claims were trending to require heightened pleading plaintiff

needed to plead with specificity the grounds for their discrimination claim.
Plaintiff must show intent. He fired me because I am a woman is a
conclusory allegation. This is a barrier for the plaintiffs, because this is a state
of mind of the defendant. Unless defendant has acted overtly, it is hard to
know state of mind.

RULE 11 SANCTIONS
Rule 11: Signing Documents; Sanctions
(a) Provides that every paper must be signed by an atty or party.
(b) Presenting party certifies to the best of their knowledge, info, & belief,
formed after a reasonable inquire under the circumstances that:
o It is not for improper purpose (harass, delay, etc)
o Legal contentions are warranted by existing law or a nonfrivolous
argument for extending, modifying, or reversing existing law or
establishing new law
o Factual contentions have evidentiary support or (if specified) will likely
have evidentiary support
o Denials of factual contentions are warranted on the evidence or (if
specified) on belief or lack of information
(b) Court may impose sanctions on lawyers or parties for violation of (b) after
notice and opportunity to respond, either on its own initiative or by motion
of the party
o opposing party may move for sanctions, but then original party has 21
days to withdraw. Sanctions given to the other party if appropriate to
deter and onlyt o cover costs of motion. If court-initiated, then no right
to withdraw.
o The ct may issue a show-cause order on its own initiative
o Sanctions must be the minimum that will adequately deter behavior
monetary sanctions are disfavored.
o must provide rationale for sanction
-

sanctions cant be imposed against a represented party for faulty legal

contentions
monetary sanctions cant be imposed on the courts initiative unless it issued
the show-cause order prior to the voluntary dismissal or settlement of the
case
R11 is not applicable to discovery

Notes
-

If, after discovery, a party learns that one of its allegations is unture, it has an
obligation to stop advocating that position, but does not have an affirmative
duty to inform the other party
Cts have 4 tools to impose sanctions:
1. Inherent power of the ct to control proceedings
2. Rule 11

3. 28 USC 1927 for vexatiously multiplying the proceedings

4. referring attys to the bar for professional misconduct
-

having your claim dismissed on a 12(b)(6) motion does not automatically

subject you to sanctions.

Cases
Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of
Pennsylvania (3rd Cir. 1996) (P 137)
-

sued for infringement for lending out videos of his that were used as the
basis for a copyrighted book. Case was dismissed under 12(b)(6) b/c SOL had
run. Trial ct held: both and atty liable for attys fees and sanctions per 28
USC 1927 (for unreasonable and vexatiously multiplying the proceedings). Ct
held: that the atty could not be sanctioned under the statute b/c no bad faith
on his part; but that monetary R11 sanctions were warranted.
o Held that atty failed to conduct a reasonable inquiry under the
circusmtances into whether his legal contentions were accurate.
Obligated to investigate his clients claims to see if tapes had been
rented in past 3 years.
o Had no duty to plead that the SOL had run, but would have been reqd
to concede if had raised

McNary where govt argued that claims were virtually identical to Baker and
frivolous

SERVICE

OF

PROCESS

(a) after initial service, you can usually just mail stuff to them
(b) content requirements:
a. name the court and the parties
b. be directed at the
c. state name and address of s attorney or, if unrepresented, of
d. state time within which must appear and defend
e. notify that a failure to appear and defend will result in default
judgment for
f. be signed by a clerk
g. bear the courts seal
(c) how to serve
a. can be served according to laws of the state where fed court sits or
according to the laws of the place where the order is served, OR
according to the method in Rule 4
b. Serving requirements:
i. Must be served w/ a copy of the complaint
ii. Must be served by someone who is at least 18
iii. Must be served by any person not a party
iv. If requests, can be someone appointed by the court (deputy,
etc)
(d) Waiving service duty to avoid unneccesary expense
a. can write and ask them to waive the service (sends 2 copies of
waiver forms and the complaint to , then

b. doesnt have to, but if no god reason, has to pay cost of service and
attorneys fees in securing service
i. If waives, he gets extra time to respond (60 days instead of
21)
c. Waiving service of a summons does NOT waive any objection to
personal jurisdiction or venue
(e) Rule 4(m): Time limit for service:
a. 120 days if is not serice w/in 120 days after complaint is filed, the
court must dismiss the action WITHOUT prejudice against that OR
order that service be made w/in a specified time
i. good cause exception if shows good cause for failure to
serve, court must extend the time for service
(f) Rule 4(e): Regular Service to Individuals
a. 5 methods:
i. personal delivery
ii. leaving copies at usual abode w/ someone of age who resides
there
iii. delivering to authorized agent
iv. serve under state law provisions
v. serve under state service provisions of state of s residence
(g) foreign countries, minors, corps., US govt
a. 4(f) foreign countries follow international agreements
b. 4(g) minors/incompetent under state service provisions
c. 4(h) corporation similar to individual: to office/manager/agent &
under state provisions
d. 4(i) US govt personally serve US Atty or mail to USAO

MOTION

TO

DISMISS

Rule 12(b): Defenses the May be Asserted by Motion

-

There are 7 defenses that may be asserted by motion prior to a responsive

pleading.
o Most Favored (can be asserted at any time, even after trial see
12(h)(3)):
1. Lack of subject matter jurisdiction
o Least Favored (must be asserted in the first responsible pleading or
else waived see 12(h)(1)):
2. Lack of personal jurisdiction
3. Improper venue (e.g. statute governing where case must be
heard)
4. insufficiency of process (waived if has waived formal
service)
5. Insufficient service of process (waived if has waived formal
service; an exception to the Least Favored status can be made if
there is a fundamental problem with service)
o Favored (can be asserted at any time during: the pleadings, a motion
for judgment on the pleadings, trial See 12(h)(2)):
6. Failure to state a claim upon which relief can be granted
7. Failure to join a necessary party

Rule 12(g): Joining Motions

-

Any Rule 12 motion can be joined with other Rule 12 motions.

Except for the favored and most favored defenses, a party that makes a
motion under Rule 12 cannot make another motion under Rule 12 asserting
defenses that it could have raised earlier
o

This means that: Least Favored defenses must be asserted in the

first responsive pleading, whether a Rule 12 motion, or the Answer, or
else they are waived.

Rule 12(h): Waiving and Preserving

1. Least Favored Defenses
a. Lack of personal jurisdiction, improper venue, or improper process
must be asserted in the first responsive pleading or else waived
2. Favored Defenses
a. Failure to state a claim and failure to join a party can be asserted at
any time during the pleadings, during a motion for judgment on the
pleadings or at trial
3. Most Favored Defense

a. Lack of subject matter jurisdiction can be asserted at any time, even

after trial, and even by the court itself

Cases:

Mitchell v. Archibald & Kendall, Inc (7th Cir. 1978) (p. 151), where the driver of a
truck got shot in the face outside a warehouse where he was told to park. moved
under 12(b)(6), which was granted. Appeals court: affirmed, arguing judge was
proper in dismissing claim once he determined this new interpretation of law was
incorrect. Dissent: argued tha t did have a duty b/c of his affirmative actions, but
that wasnt asserted in complaint. had opportunity to amend compliant to
argue are was in premises, but failed to amend, just appealed.

McNary: In the govts motion to dismiss, they assert that s dont have legal rights
and that res judicata bars the case.

Mullane: notice must be reasonably calculated, under all circumstances, to put the
on notice

HEIGHTENED SPECIFICITY

UNDER

RULE 8?

THE ANSWER: ADMISSIONS, DENIALS, AFFIRMATIVE DEFENSES &

DEFAULT
Rule 12(a): Time to Serve a Responsive Pleading
- Response to a complaint must ordinarily be made w/in 21 days (60 days if
service waiver or if against U.S.; 90 if waived and outside of the country)
- A motion to dismiss must be made before and answer. If motion denied, you
have 14 days after denial to file and answer.
Rule 8(b): Asserting Defenses
-

In its answer, a party must state in short and plain terms its defenses to
each claim asserted in complaint and admit or deny the factual allegations
You can make a general denial if you intend to deny everything (incl.
jurisdictional grounds), otherwise you need to pick out and specify what you
deny and what you admit.
You must state if you lack sufficient knowledge or information to form a
belief about the truth of an allegation (this has the effect of a denial)
If a responsive pleading is reqd and an allegation is not denied, it is
considered admitted

Rule 8(c): Affirmative defenses

Lists 18 affirmative defenses that can be asserted. Not waived if they are not
asserted in the first responsive pleading; but do need to be asserted in the
answer. Generally bears the burden of proof for affirmative defenses.

Rule 8(d): Inconsistent Defenses -- OK to assert inconsistent or alternative

defenses
Notes:
Purpose of the answer:
-

Responds to allegations in complaint

Sets forth any affirmative defenses asserted by
Sets forth any counterclaims may have against

There is nothing in a complaint or an answer that causes a case to go forward, must

make a motion to get the ball rolling.
There are two ways to attack an answer (there are no Iqbal-type rules yet, but it is
logical that counterclaims would be held to the same standard):
1. Motion on the pleadings 12(c)
2. Motion to strike an insufficient defense 12(f)

has a duty to answer truthfully and not to obstruct the truth. Rule 11 sanctions
could be imposed on . Rule 11(b)(4) ~denials must be warranted on evidence or
otherwise indicated that it lacks knowledge

Cases
McNary: In govts answer, they responded to allegations, set forth affirmative
defenses, and set forth any counterclaims. They responded sentence-by-sentence, w/
specificity down to the words. Answer responds to factual allegations, s not
obligated to respond to legal conclusions. In some places, the govt explains (avers)
whats going on. E.g., deny that Haitians were detained by aver that they werent
free to roam around or go to the US. In this case, very unusual that answer was filed
after the trial.

Zielinski v. Philadelphia Piers (E.D. Penn. 1956) (p. 210): where a worker injured
in a forklift accident sued the wrong company. PPI was leasing the forklift to CCI, and
didnt clarify in its answer that it was the wrong company, and that main witness
thought he worked for PPI, but he was actually technically an employee of CCI. Ct

holds: that principles of equity require a jury instruction establishing PPI as the owner
of the forklift.
-

Principles of equity require that defendant be estopped from denying

agency because, otherwise, its inaccurate statements and statements in
the record, which it knew (or had the means of knowing within its control)
were inaccurate, will have deprived plaintiff of his right of action.

Ct developed a 3-part balancing test to determine if the instruction was

appropriate:
1. Interest of the (harm of not imposing the order)
2. Interest of the (harm of issuing the order)
3. Bad faith actions

Rule 12(c): Motion for Judgment on the Pleadings

- After pleadings are closed but early enough not to delay trial either party may
move for judgment on the pleadings

DEFAULT JUDGMENT
Rule 55: Default, Default Judgment
-

If fails to answer, court can issue default judgment.

The clerk must enter default if does not appear. This is a mechanical
process for which you do not need any neutral arbiter.
The clerk must enter default judgment if s claim is for an amount certain
against a for not appearing. Must be an affidavit to determine amount.
In all other cases, a judge must make default judgment decision. must
be served w/ written notice of the application at least 7 days before the
hearing. Court may have to conduct a trial.
Default judgment can be lifted for good cause

N.B.: reasons why someone might default: clueless, judgment-proof, objecting

to personal jurisdiction (post-judgment they can argue in their home
jursidction that the first was not valid b/c there was no personal jurisdiction).

COUNTERCLAIMS, VOLUNTARY DISMISSAL

Rule 13(a): Compulsory Counterclaims
-

Claims must be brought in the same suit (otherwise barred) if they arise
out of the same transaction or occurrence as the subject matter of the
opposing partys claim and does not require adding another party over
whom the court cannot acquire juriscition

Rule 13(b): Permissive Counterclaims

-

- Counterclaims can be brought in the same suit (or may be brought in a

separate suit) if its not a compulsory counterclaim, even if totally
unrelated to the facts of the first case

Notes:
-

The rationale for Rule 13 is efficiency. Compulsory counterclaims DENY the

the right to choose a venue for purposes of judicial economy (we dont
want competing or inconsistent judgments).
Usually its immaterial whether it is compulsory or permissive (that
question usually arises later, when attempts to sue separately).
o may want to sue in a seperate case in order to take advantage of
another jurisdiction
o s may want to sue as a counterclaim in order to strengthen its
defense, or to save time or resources
4 ways to show same transaction or occurrence:
1. Logical relationship between the factual backgrounds of the two
claims
2. Same evidence standard: must be same evidence used to prove
the counterclaim as the original claim. E.g., Wigglesworth
3. Same issues of fact and law
4. Res Judicata

Cases
Wigglesworth v. Teamsters Local Union No. 592 (E. Dist. Va. 1975) (p. 215):
where counterclaims alleging libel and slander from s press conference while
filing complaint. Court held: that the counterclaim was not based on the same
transaction as the initial complaint, and therefore not compulsory (and could not be
heard in federal court because it was a state law matter).
Great Lakes Rubber Corp. v. Herbert Cooper Co. (3rd Cir. 1961) (p. 219): where
the initial complaint alleging theft of trade secrets was dismissed for lack of SMJ.
However, s had made a counterclaim under federal antitrust laws, which could not
be dismissed on jurisdiction grounds. Original just re-asserted their initial claims as
compulsory counterclaims. If the initial claim was SMJ, counterclaims get in,
but not the reverse.

CROSSCLAIMS
-

Any crossclaim that is based on the same transaction or occurance

may be asserted.
Once a propert crossclaim has been asserted, any other unrelated claims
may be joined with it under Rule 18(a).
Once a crossclaim ahs been asserted, the parties become adversaries and
thus are subject to the rules on counterclaims ( to crossclaim must assert
compulsory counterclaims)
There are no compulsory crossclaims; all are permissive.
Can be either multiple s or multiple s suing each other
Crossclaims and interpleaders dont have to be addressed by the court
unless wins

VOLUNTARY DISMISSAL
Rule 41(a): Voluntary Dismissal
-

can voluntarily withdraw a complain PRIOR to service of answer or a

motion for summary judgment w/o leave of court
Unless stipulate, or if the previously dismissed any federal or state court
action based on or including the same claim, the dismissal is not a
judgment on the merits
After service of answer or motion for summary judgment, can only
withdraw complaint with consent of all parties, or with leave of the court

Notes
-

If voluntary dismissal without prejudice, you may re-file in another

jurisdiction, but on second filing, you CANNOT withdraw without prejudice
You can withdraw complain after filing of 12(b)(6) motion, but not after it is
granted and entered. A few jurisdictions permit withdrawal after granting
but before entering.
Some Courts have said that: if some of the merits have been adjudicated,
cant withdraw even before the answer.

AMENDMENTS

TO

PLEADINGS

Rule 15(a)(1): Amendments Filed as a Matter of Course

-

Allowed to re-file an amended complaint once as a matter of course if:

o Filed within 21 days of service; or
o Filed within 21 days of service of responsive pleading or motion
under 12(b), (e), or (f), whichever is earlier

Rule 15(a)(2): Other Amendments Before Trial

-

Unless filled as a matter of course, amendments prior to trial can only be

granted with opposing partys written consent or by the courts leave

The court SHOULD give leave when justice so requires. The judge will
inquire as to: why the party wants to amend, why it wasnt changed
earlier, what the prejudice will be to seeking party if denied, and the
prejudice to the adverse party if granted

Rule 15(b): Amendments Allowed During Trial

-

If there is an objection that evidence is outside scope of pleading, court

MAY permit amendment if:
o It will aid in presenting the merits
o Objecting party fails to show that the evidence would prejudice
their aciotn of defense on the merits. Can grant a continuance in
order to allow adverse party to meet the evidence
Tried by the parties (express or implied) consent

Rule 15(c): Relation Back of Amendments

-

only relevant when SOL has run

situations where amendments can relate back:
o 15(c)(1)(A): When the applicable SOL [for the new claim] allows
relation back
o 15(c)(1)(B): New claim (or defense) arising out of the same
conduct, transaction, or occurrence as set out or attempted to set
out in the orginal pleading
n.b.: almost the same test as 13(a) but slightly broader b/c
adds conduct and attempted to set out (in the original
pleading)
o 15(c)(1)(C): Changes the opposing party or naming of party [not
adding a new party this can be done any time before SOL runs]:
Rule 15(c)(1)(C) must also be satisfied (same t/o)
Within the period for Rule 4(m) for serving the summons and
complaint (generally 120 days after complaint was filed, the
new party:
Must have recvd notice of the action so that it will
not be prejudiced in defending itself on the merits
(by any means, not necessarily formal service); AND
Knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper partys ID

n.b: even if you can satisfy the letter of claim 15(c), the court can still decide that
opposing party could still be prejudiced and thus deny it. Simply satisfying 15(c)
doesnt automatically/guarenteedly get you an amendment
Cases
Worthington v. Wilson (7th Cir. 1993) (p. 235): where a man whose arm was broken
during an arrest sued for damages under the Civil Rights Act. He amended his
complaint to name the specific cops and drops the case against the full police dept
after the SOL had run. s claim they had no notice of the suit within the SOL. Ct held

that: this change was not a mistake b/c he intentionally left officers unnamed in the
initial complaint. 3rd Cir. Does allow John Doe, however.

PRECLUSION: RES JUDICATA & COLLATERAL ESTOPPEL

4 types of estoppel:
1.
2.
3.
4.

1. LAW

Law of Case
Res Judicata (claim preclusion)
Collateral Estoppel (Issue Preclusion)
Other Action Pending

OF

CASE

Bar of the case precludes claims that are:

- The same case
- The issue was litigated or could have been litigated in trial court
An appeals bar reconsideration on remand (cant relitigate issues that werent part of
the remand from appellate court)
Can always ask the trial court to revisit issues they have decided, as long as it hasnt
been appealed

2. RES JUDICATA (CLAIM PRECLUSION)

The prohibition on relitigating a claim that has already been litigated and gone to
judgment.
When a party obtains a final personal judgment in its favor, its claim is extinguished
and merged into judgment, thus precluding further litigation on the same claim.
Likewise, when a party suffers a judgment against it, the claim is also extinguished
and the party is barred by the judgment from relitigating the same claim.
Elements of Res Judicata:
1. Same Claim
a. claim means same transaction or occurrence, and covers claims not
asserted relating to the same transaction or occurrence but
that could have been asserted in the first case (Rstmt 2nd /
Judgments 24)
i. This includes things like: latent injuries that appear after your
first case. There is the two disease exception for cancer
resulting from asbestos exposure. (Glasson 552-553)
ii. In NJ, you have to plead future injury, but you dont have to
litigate it until it manifests itself at a later time
b. Doesnt preclude: permissive counterclaims or any crossclaims
c. Does preclude: claims on the same t/o that could have been joined
with an impleader or other claim
d. Doesnt preclude: cases that COULDNT have been brought in the first
case b/c of lack of jurisdiction, like a state breach of K claim and a
federal patent claim
2. Same Parties
a. Incl. those in privity w/ them

3. Final Judgment
a. For cases that are currently on appeal, judges may decide to delay the
second suit until the appeal is finalized, or may consider the original
decision final for the purposes of the second claim
b. Under Fed.R.Civ.Pro, a final judgment occurs when a trial court
decides an issue
4. On the Merits
a. Things that are generally considered to be decisions on the merits:
i. A 12(b)(6) motion, assuming had the opportunity to amend
ii. Voluntary dismissal with prejudice
iii. Default judgment
iv. Dismissal for failure to prosecute (Glannon p. 545)
Notes
-

The rule is justified b/c we have liberal pleading and amendment rules, so
as to ensure/promote a just outcome in the first decision
Once your case is truly over, you CANT take advantage of a change in the
law
o This encourages people to keep case alive as long as possible (?
strange incentive)
o Rehnquist says: there is a value greater than legal accuracy (that
once you had a full and fair opportunity to litigate your case, its
settled)
o Cant benefit from a windfall from someone elses appeal
On the merits is a term that has expanded over the years. Now, most
courts favor requiring s to plead all their claims in the first case, and not
take up time with repetitive suits
A second case, based on a first case (e.g., seeking enforcement of a first
decision), could be brought while first is still on appeal. If first decision is
revered on appeal, and the second decision was not properly appealed, it
could result in 2 incompatible decisions. Reed v. Allen.
o Rule 60(b)(5) allows a court to provide relief from a final judgment
if the first decision upon which it was based has been reversed
If a party sues another for damages resulting from breach of K and loses,
and then the second party sues the first for damages from their breach of
K, the suit is not barred by Res Judicata, but instead b/c it was a
compulsory counterclaim

Cases
Federated Department Store, Inc. v. Moitie (US 1981) (p. 1114): where several
customers sued dept stores for illegal price fixing. All cases dismissed at federal
trial ct b/c retail purchasers could not sue b/c they had not suffered harm to
business property within the meaning of the federal antitrust statute. Some s
appealed and the 9th cir. reversed saying: individuals can sue under federal antitrust
laws. Moitie and Brown (neither of whom appealed orig decisions) filed new suits. Ct
held that: Res Judicata consequences of a final, unappealed judgment on the merits
are NOT altered by the fact that the judgment may have been wrong or rested on a
legal principle subsequently overruled in another case.

There is simply no principle of law or equity that sanctions the rejection by a

fed court of the salutary principle of RJ (p. 1116)

McNary: where govt asserts the case is barred by RJ of Baker. Analysis:

Same Claim: In Baker, the claims were that screened out people were being
returned without due process and without counsel. In McNary, claiming first
amendment access to counsel and service organizations, both are arguing due
process protections, both are arguing for violations of immigration and
nationality act. There was a totally new claim of equal protection in McNary.
Cases are also based on different transactions the new policy issued after
Baker (HIV positive individuals screened again on Guantanamo without
counsel rather than in Miami).
Same Parties: Baker class action asserted a very broad class. The class was
defined based on the program in existence at the time (those already
screened out and sent back), now the program has changed (McNary class is
only those screened in). HCC and HRC, although similar organizations, had
separate legal interests.
Final Judgment on the Merits: 11th Circuit ruled against plaintiffs (after trial
court had found for them) by dismissing case for failure to state a claim with
prejudice.

3. COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

Collateral Estoppel bars relitigation by a party who litigated the issue before and
lost on the issue. A different party can raise CE either offensively or defensively
against the party that was in the original suit.
Elements of CE:
1. Same issue
a. Defensive CE: raised by new against old to bar them (old cant
use CE defensively against a new )
b. Offensive CE: raised by a new against original (old cant use CE
offensively against a new )
c. NOT limited to same t/o; and NOT to the same parties
d. Party whos going to be estopped must have been in the prio suit
2. Actually litigated and decided
a. Default Judgment does NOT count as actually litigated and decided
b. A sustained 12(b)(6) motion DOES count as actually litigated and
decided
c. Narrower than RJ if it could have been raised in the orig suit but was
not, then it isnt barred by collateral estopped. Only bars repeat issues.
3. Final Judgment (contested & same standard of proof)
4. Necessary to Decision

a. The issue in question must have led to the decision. If some element is
determined in As favor, but the case ultimately was decided in Bs
favor, then that element holds no CE effect
Notes
-

The tradition view of CE and RJ is that they only bind the original parties
and those in privity with them
o Most courts dont require privity now (incl federal courts)
Non-mutual collateral estoppel
o Defensive: generally using prior decision against different
where lost to estop second suit by same . Key questions: Did
have fair opportunity to litigate the first case?
Encourages to group all s together in the first suit
o Offensive: using priod decision against same by different to
estop. Key questions:
Whether had strong incentive to litigate first suit?;
prior inconsistent judgments?;
whether there are procedural differnces in the two venues
that would prejudice the ?;
why the didnt join the first suit (are they wait-and-see?)?

Cases
Hardy v. Johns-Manville Sales Corp. (5th Cir. 1982) ( p. 1150): where s sued
asbestos manufacturers for a variety of causes of action, including failure to warn.
Trial ct entered CE order that certain issues had been determined in the s favor by a
previous case (Borel v. Fibreboard). Ct held that: previous decision did not
collaterally estop b/c jury had not specified which of several possible issues had been
decided to justify its conclusion (specifically: when duty to warn began). There were
also material differences in the cases.
n.b: Can request a special verdict form under R49 to make the jury specify
their ground, f you can foresee future litigation on same issues.
Parklane Hosiery Co. v. Shore (U.S. 1979) (o. 1187): where shareholders sued
Parkland for false statements in proxy statements; and the SEC sued Parklane for the
same reasons. The SEC case went to trial first and won. Shareholders tried to use the
SEC case to collaterally estop relitigation of the issue of the proxy statement being
materially false and misleading. Court holds that b/c plaintiffs could not have easily
joined first suit, and had full opportunity to defend the case, they werent waitand-see and could invoke CE. Shareholders still needed to establish injury and
damage (can only seek partial summary judgment, b/c SEC case was just to enjoin
the merger)
Dissent (Rehnquist): argues it violates s right to a jury trial to allow CE in
this case. Since s werent entitled to jury trial in first suit, they ought ot be able to
assert that right in the second suit. He also says it doesnt help judicial economy.

Halpern v. Schwartz (2nd Cir. 1970) (p. 1161): where the court said that if there
were multiple elements necessary to the prior decision, they cant have estoppel
effect because it is unclear which ones were actually decided.
McNary: Government asserts defensive collateral estoppel, arguing it has been
established that the Haitians have no first amendment rights extraterritorially, there
is no extraterritorial application of the INA and no extraterritorial due process right.

4. OTHER ACTION PENDING

Bars repeating a case currently being decided.

JOINDER

Remember: joinder rules do not provide a basis for subject matter jurisdiction

JOINDER

OF

CLAIMS

Rule 18: A party asserting a claim, counterclaim, crossclaim, or third-party claim may
join any claim it has against an opposing party
-

JOINDER

it may join claims even if one is contingent upon the adjudication of the
other liberal joinder rule

OF

PARTIES

Rule 19: Required Joinder of Parties

-

A party must be joined (as long as doing so doesnt deprive court of SMJ)
if:
o In their absence, the court cant accord complete relief (for the
benefit of previous parties) OR
o They claim an interest relating to the subject of the action such that
their absence may impede their ability to protect that interest or
may leave existing parties at substantial risk of inconsistent
obligations or judgments.
o (NB: having to determine a third partys liability in the suit is not
necessarily sufficient to make them a required party, since they
arent themselves bound by the decision. Thus, if A sues Bs
employer, C, for Bs negligence, the fact that Bs negligence is a
matter of the suit, B is still not a necessary party.)
Courts can force required parties to join via order, but if the party
appropriately objects to venue, they must be released. If joining them

would deprive court of SMJ, they cant be ordered to join. Can also object
to personal jurisdiction and other defenses.
If its not feasible to join a required part, the court must determine in
equity and good conscience whether the action should proceed without
them. Factors to consider:
o Prejudice against absent party
o Mitigating factors for such prejudice
o Whether judgment in their absence would be adequate
o Prejudice against plaintiff if case is dismissed.

Rule 20: Permissive Joinder of Parties

-

Either s or s may be joined if:

o The relief is asserted jointly, severally, or in the alternative w/r/t the
same transaction or occurrence; AND
o Any question of law or fact common to all s or s will arise in
the same action
can join two s on alternative theories
Court can grand different judgments depending on rights/liabilities
Court can issue orders to protect parties against embarrassment, delay,
expense, or other prejudice from joining a party to a claim to which they
are not a party.

Rule 42: Consolidation and Severance of Trials

-

Courts can consolidate trials or actions if they involve a common question

of law or fact
Courts can sever trials (or discrete parts of trials) to avoid prejudice or if
efficient

Cases
Kendra v. City of Philadelphia (E.D. PA. 1978) (p. 245), where the court held: that
the joinder rule should be interpreted liberally to permit all reasonably related
claims for relief to be tried in a single proceeding. FACTS: multiple Kendra family
members were wrongly arrested and beater over 1+ year period. All claims were
combined. s contend that: its improper b/c they do not arise out of same t/o; and
that joinder would prejudice some of the defts b/c some were involved in only one
incident. Courts conclude that joinder is appropriate b/c underlying question was:
systematic practice of targeting the family. R
- Under the Rules, the impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties: joinder of claims,
parties and remedies is strongly encouraged. United Mine Workers v.
Gibbs (U.S. 1966).
-Transaction or occurrence language of Rule 20 has been interpreted to
permit all reasonably related claims for relief by or against different parties to
be tried in a single proceeding. Absolute identity of all events is unnecessary.
Mosley v. General Motors Corp. (8th Cir. 1974).

-Rule 20(b) provides the court with the power to remedy the prejudice that
arises from joining parties. (Rule 20(a)(3) also permits different judgments for
different plaintiffs/defendants).
Insolia v. Phillip Morris, Inc. (E.D. Wisc. 1999) (p.247), where court held that:
complicating factors necessitated severance of trials not based on the same t/o.
Three plaintiffs sued 5 tobacco companies alleging an industry-wide conspiracy to
deceive consumer-smokers about the addictive, deadly characteristics of cigarettes.
However, plaintiffs begam smoking at different times, for different periods of time,
and quit for different reasons and at different times a material fact in determining
whether they were influenced by the same conspiracy. There were also complicating
medical causation factors specific to each that could confuse the jury.
Mosley v. General Motors Corp (8th Cir. 1974) and U.S. v. Mississippi (U.S. 1965) are
examples of cases where the same evidence of a common discriminatory policy was enough
to join claims and parties.

IMPLEADER
Rule 14: Impleader
-

Cases

impleader is a specialized form of joinder. s can bring in another who

is liable if they are liable to the . The claim must be derivative of the
claim against it (not necessarily the same things as the original claim;
doesnt have to be from same t/o)
o Cant implead an alternate ; only a joint/derivative (Can implead
a joint tortfeasor who was also negligence and thus shares in the
liability for s injuries)
o Can implead multiple third party defendants on joint or alternate
grounds
o Impleader is never mandatory always up to courts discretion
(economy, inconsistent judgments, possibility of prejudice)
o Impleader is subject to rules of PJ
Can implead w/in 14 days of filing an answer (implead as a right); or with
motion and notice to all parties (implead with leave of court)
Third party s are subject to rules on crossclaims and counterclaims. They
may also assert defenses against the original or new claims arising out
of the same arising out of the same t/o as the original claim.
Original may assert new claims against third-party arising out of the
same t/o as its claim against the original .
Any party may move to strike or sever a third party claim
A third-party can go through the same impleader process herself. A
can impleader another in defense of a claim against it.
A s ability to join party is different than the s (not just R20), can also
argue they are indispensible under R19, or under R13(h) cross-claim rule.
Common situations with impleader:
o Indemnification by insurance company
o Agency relationship

Clark v. Associates Commercial Corp. (D. Kan. 1993) (p. 263), where court
affirmed that: impleader is proper even when defendant is claiming alternative
defenses. Clark took out a loan w/ Associates, using tractor as collateral, then
defaulted. Associates hired Howard, who hired Clark(2) to investigate, who in turn
hired Lett and Some John Doe to perform the repossession. sued associates for
injuries during repo (they broke his arm). Associated impleaded Howard, Clark, Lett,
and John Doe. Associates moves to strike and moves to srike the impleader rule
under R14(a)(4).
-

Its OK for to allege that injuring parties were not their agent, and
alternatively, if they are their agents, that they are derivatively
responsible.
Court says: that not allowing the impleader could result in collateral
estoppel for Associates against third parties, but really its a risk of
inconsistent judgment

Klotz v. Superior Electric Products Corp. v. Butz (E.D.Pa. 1980) (p. 273), which affirms the no
impleading an alternative defendant rule, only derivative liability.

INTERVENTION
Rule 24: Intervention
-

Intervention as Right: On timely motion, Court must permit intervention

if:
o Party is given unconditional right to intervene via statute
o Party claims some interest in property or transaction that is subject
of action such that as a practical matter, / its interests may be
impaired, / unless existing parties are adequate representation.
Permissive Intervention: On a timely motion, Court may permit
intervention if:
o Party is given conditional right to intervene via statute or
o Party has a claim or defense that shares with a common question of
fact of law with main action
o (A govt agency may be allowed to intervene if claim/defense is
based on statute or regulation of agency)
o Court must consider whether: intervention will unduly delay or
prejudice all parties
Timeliness is determined by: balancing when intervener knew or should
have known of interest with prejudice for or against parties is allowed or
denied. Stallworth v. Monsanto Co. (5th Cir. 1977) (p. 292).
Intervener cant challenge rulings before their intervention. Court can
severely limit the ability of interveners to participate in litigation.
Stringfellow v. Concerned Neighbors in Action (U.S. 1987) (p.
292).
Party might intervene on a particular discrete issue only Sackman v.
Liggett Group (EDNY 1996) (p. 292)

Cases
Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Commission (10th
Cir. 1978) (p. 285), where the court held that: interveners sufficiently showed that they
met the qualifications for intervention as right. In the case, plaintiffs were seeking
declaration that issuing a license to mine uranium was a major federal action and thus
required environmental impact study even though delegated to N.M. agency. Trial court
allowed United Nuclear (already gotten a license) to intervene but denied it for an
additional company (with license pending) and an industry group. Court holds that
interveners only have to show that current representation may be inadequate.
Sufficiency of Protectable Interest for As-a-Right Intervention:

Case

Donaldson
(1971)

Allard
(1976)

NOPSI
(1984)

Trbovich
(1972)

Cascade
(1967)

Facts

IRS sought
information
from
employer.
Employee
attempted to
intervene.
Interest was
in preventing
information
for being
released
which would
likely show
tax fraud.

Environmenta
l groups
sought to
intervene in
suit over use
of
endangered
eagle
feathers by
American
Indian
groups.
Justice
Department
was pursuing
suit.

City sought
to
intervene
in contract
dispute
between
local utility
and
supplier
challenging
a rate
increase.

Union
member
sought to
intervene in
suit by Sec.
of Labor
invalidating
union
election. Law
did not
permit him to
bring suit
himself.

State of
California
and a utility
sought to
intervene in
suit on
remedies for
illegal
merger of
two other
companies
because they
sought to
influence
divestiture
process

Outcome

Denied

Denied

Denied

Allowed

Allowed

Descriptio
n of
Interest
Required

Significant
ly
protectable
interest
required, not
just a
practical
one.

Interest must
be specific

Interest
must be
within the
zone of
interests
protected
by the
statute.
Significantl
y
protectable
interest
does not
include a
purely

Only
minimal
burden of
showing
representatio
n may be
inadequate.
Basis for the
zone of
interest
description in
NOPSI, which
narrowed its
reach.

Intervenors
that will be
negatively
economicall
y impacted
by the
outcome of
the suit
should be
allowed to
intervene.
Considered a
very liberal
standard.

legal or
equitable
one, not
just an
abstract or
general
one. The
interest of
the public in
protecting
birds is
insufficient.

economic
one.

CLASS ACTION
Rule 23: Class Actions

Prerequisites for class certification: R23(a)

1. Numerosity class must be so numerous such that joinder is impracticable
2. Commonality common questions of fact or law among class members
3. Typicality representative party claim must be typical of class
4. Adequacy representatives will fairly and adequately represent class
i. Clevelands two part test:
1. Whether reps have interests that are antagonistic to
class in some way
2. Whether class counsel is qualified, experienced, if they
have the resources to support the litigation, etc.
ii. How adequate do you have to be?
1. Surrowitz v. Hilton HotelsPolish national who sued
about stock problems allowed to be class rep even
though she didnt know the claims or defenses and
couldnt speak English. The issue is not how educated
you are or how much law you can understand, etc. it is
only about if they have suffered the violation and be
interested in having it remedied. Caveat: if the class is a
group of sophisticated stock traders, then you are likely
to want the class rep to be typical of the class in that
sense.
iii.

Types of class actions

B(1): risk of inconsistent or varying judgments w/r/t individual class members

that would result in confusion in standard of conduct expected of opposing party

Or, adjudications w/r/t individual class members that would be

dispositive of interests of other members not party to the individual
action or would substantially impede/alter their ability to protect
their own interests
B(1) classes are often done if has limited pot of money to split
between everyone
Require:
Notice
Cant opt out

Close identity of interests and good reason to avoid

individual litigation

B(2): opposing party has acted on grounds that apply generally to class, such
that injunctive relief or corresponding declaratory relief is appropriate to class as a
whole

Often: civil rights cases

Relief: Injunctive or declaratory
Notice: not required
No predominance requirement so its ok to have different factual
issues
Cant opt out
Walters v. Reno (US Ct. App, 9th Cir, 1998)-- Ps brought suit seeking
injunctive and declaratory relief on grounds that administrative
procedures used by INS to obtain final orders under the document
fraud provisions of the Immigration and Naturalization Act of 1990
violated their rights to procedural due process. Class of 4000
aliens. Just has to be a common allegation, not a common factual
question. The need for individualized proceedings doesnt defeat
class status. Also, class reps ok even if some committed document
fraud because the individual factual differences arent that
important.

B(3): questions of law of fact common to class members predominate over

questions affecting only individual class members, and CA is superior to other
adjudication methods (fair, efficient). Consider:
1. The class members interests in individually controlling the prosecution or
defense of separate actions;
2. The extent and nature of any litigation concerning the controversy already
begun by or against class members;
3. The desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
4. The likely difficulties in managing a class action.

Generally, B(3) are damages cases

Can opt out must affirmatively do so or youre included

In re Rhone-Poulenc Rorer Inc. (7th Cir. 1995) (p. 331), where class certification
was overturned because different state laws applied to various plaintiffs. Trial judge

had proposed melding laws of 50 states into one instruction, which Judge Posner
concluded was ridiculous.

Comcast v. Behrend
o

Scalia: NO class cert b/c s provided 4 theories for anti-trust violation

Ginsburg Dissent: s didnt really even need to bring up damages at the

class certification stage, they could have stayed silent when it came to
damages

Courts have long held that class could be based on some damage, then the
specifics of the damage amount be worked out later

Scalia gets away with this because s themselves started talking about
damages back at the district court stage

Butler v. Sears
o

DC/PH: mold class; stop control unit class; 7th cir.: both classes

Mold: common issues; but damages will vary because different models and
different state laws

DC rejected theories; certifies only theories; but the damages

model had taken all 4 models into account

Fine to calculate damages separately here; damages are still extra,

not the foundation upon which damages are based

Posner: in Rhone-Poulenc, you couldnt cut at the joint between liability and
damages proceedings, whereas in Butler, you can

Walmart v. Dukes
o

All managers have similar discriminatory (against women) policy

clear factual evidence

b(3) class b/c damages are so high

Scalia doesnt see commonality at individual manager level; Ginsburg

(dissent) sees commonality at higher corporate governance structure

Class Action Notice

R 23(c)(2)
o

(A) b(1) and b(2) classe: Ct may direct notice to class members

(B) b(3) members must get best practicable notice (from Mullane)
reasonable calculated under all of the circumstances

In Eisen, under R23(c)(2)(B), 2.5 million shareholders must get individual

notice

DISCOVERY
Rule 16: Pretrial Conferences
-

court may order pretrial conference to discuss various matters, like

organizing trial and facilitating settlement

Rule 26(a): Mandatory Discosure

-

parties required to provide the following:

o names and contact info of people they may use to support
claim/defense
o copies (or desc and loc) of dos that may use to support
claim/defense
o computation of damages claimed
o description of insurance that may cover any of the judgment
o DONT have to reveal smoking gun info unless asked
o DONT have to reveal any info being used for impeachment
purposes
Disclosure must be made within 14 days of 26(f) conference unless court
sets another time. Parties added later have 30 days after being joined to
comply. Party must disclose what it has available at the time, even if not
through investigating.
At least 90 days before trial, parties must provide info of any expert
witnesses they intend to call. If solely rebuttal witness, must disclose w/in
30 days of other partys expert witness disclosure.
At least 30 day prior to trial, parties must provide info on any other
witnesses.

Rule 26(b): Discovery Scope and Limits

-

parties can usually get non-privileged matter that is relevant to any

partys claim/defense, incl documents, things, and people.
Info does not need to be admissible at trial if discovery appears
reasonably calculated to lead to discovery of admissible evidence
Court may order discovery on any subject relevant to subject matter of
action
If unduly burdensome to comply w/ discovery request, can shift cost to
requesting party

Rule 26(e): Supplementing Disclosures

-

parties must supplement discovery responses (except deposition

testimony, although good practice to do so) in timely manner when they
learn something new or different

Rule 26(f): Mandatory Discovery Conference

-

must be held ASAPracticable, at least 21 days before scheduling R16

conference

Within 14 days of conference parties must submit discovery plan

Cant file discover motion ebfore this conference

Rule 26(g): Signing Disclosures

-

Every disclose and request must be signed my partys atty, certifying it is

complete and correct, and follows the rules.
separate discovery sanctions regime under R37.

Rule 30: Depositions

-

Reqs court permission to depose:

o someone in prison
o if opposing party objects, and it is past the 10th deposition
o someone already deposed
o someone outside of R26 timing requirement
must notify every other party in advance, OK if name unknown
companies designate an individual to testify on their behalf
limited to 7 hours in 1 day, besides with court leave
witnesses can be asked to bring documents with them to depo
No contact between party being deposed and his lawyer while deposition
is going on (including recesses) Hall v. Clifton Precision

Rule 33: Interrogatories

-

25 question max (except w/ court leave)

If answer can be gotten from reviewing documents, and if burden of going
through docs would be the same for each party, then its OK to respond by
giving opposing party access to the documents/records

Rule 34: Document Production, E-Discovery, Physical Inspection of Places

-

Request with reasonable particularity items or sets of items to be

inspected
Other party must respond w/in 30 days
Items requested must be in other partys control
o Societe Internationale v. Rovers developed influence test,
where Swiss corp. was in best position to negotiate with its own
sovereign (Swiss govt) to get documents being requested.
Presented items can be presented as they are ordinarily kept in course of
business, or specifically according to the request for them Kozlowski v.
Sears
Physical inspections only allowed for things/areas that would actually
affect Wiele v. Zenith Arizona where handicapped in wheelchair
only allowed to inspect barriers that would actually affect her disability
Social media e-discovery can be relevant Mailhoit v. Home Depot

Rule 35: Physical Exams

-

Ct may order a party subject to mental or physical exam if some aspect of

their condition is in controversy

Examiner must provide report to any requesting party

Rule 36: Requests for Admission

-

Can serve other party a request for admission. Other party must
responding w/in 30 days w/ an answer admitting or denying (must qualify,
assert lack of knowledge, or admit parts when good faith requires)

Rule 37: Discovery Sanctions

-

Differ from R11 sanctions (may impose) b/c these are mandatory
(must impose)
Can move for court-ordered discovery if made good-faith effort to obtain it
without court action
Court authorized to grant limited discovery (CA cert, PJx determination,
etc)
Cant impose sanctions for electronic info lost in routine, good-faith
cleaning up of electronic information system

Rule 45: Subpoena

-

Can order non-party to testify at trial or deposition; or produce docs

Non-parties can sometimes be compensated for costs of responding to
requests United States v. Columbia Broadcasting System

SUMMARY JUDGMENT
Rule 56: Summary Judgment
-

either party may move for SJ

SJ tests whether the opposing party can prove the merits of their claim. If
there is enough evidence that a reasonable trier of fact could find for
them, then SJ is denied.
Timeframe: anytime before 30 days after the end of discovery
OK to object that supporting evidence should not be considered because it
couldnt be reduced to admissible evidence

can move for Directed Verdict after either side presents its case for failure
to establish a prima facie case
Initial Q of SJ: Is there a genuine issue of material fact and is the moving
party entitled to SJ?
o If there is, in fact, genuine issue of fact, then trial must commence.
On its own (i.e., w/o trial) a court can only resove matters of law
There is a question of: what burden a moving for SJ has (since he would
have no burden of proof at trial). This question is answered in Celotex.
Rule no holds that: moving party has burden to show that there is no
genuine issue of material fact (burden of production)
Scott v. Harris allows for court to make its own SJ conclusion after
viewing videotape of events in question thereby skipping trial (where

ct watched videotape of police officer ramming quadriplegic runaway

car driver. Held: for on SJ)

Burden Shiftingwhat the moving party must do to trigger a response from the
other party.
a. Burden of proof has two meanings in law:
i. Burden of Persuasionwhich party must convince the trier of
fact at trial of the accuracy of his factual assertions
1. Question for the jury
2. Generally remains on P (except for affirmative defenses)
ii. Burden of Productionwhether a party has sufficient evidence
to go to trial in the first place.
1. Summary judgment concerned only with this one.
2. Must present enough evidence that a jury could find for
him.
3. Can shift from party to party
a. If party with burden of production does more than
meet his burden (where reasonable fact finder
could find for him) he shifts his burden (where
reasonable fact finder must find for him).
b. Shifts back and forth until one party just meets
the burden, in which case it goes to the jury.
i. Party with burden at trial doesnt have to
depose their own witnesses until burden is
shifted.
Cases
Celotex Corp. v. Catrett (U.S. 1986) (p. 440): where moved for SJ by just
pointing to interrogatory and claimed it showed a lack of evidence. points to other
evidence to rebut, but objects that its inadmissible hearsay.
Majority (Rehnquist, White) hold that: does not have the burden of
production for SJ motion, point holes in evidence is find. As long as the evidence can
be reduced to admissible evidence, it is acceptable. Affidavits arent acceptable at
trial, but they can be used. But, the mere pleadings themselves cant be used

because its not under oath and its not on personal knowledge of anybody, it just the
allegations of a party.
Dissent (Brennan) argues that: does have burden of production, and that it
was met, but failed to respond adequately to s evidence
Arnstein v. Porter (2nd Cir. 1946) (p. 455): where case turns on credibility of a
witness (an issue of fact for jury). Established the slightest doubt standard for
denying motion for SJ. Later cases changed this to more than a metaphysical doubt
a reasonable possibility
-

holds that: issues of state of mind are generally inappropriate for SJ.
Poller v. Columbia Broadcasing System (whether motivation for
purchase of television station was anticompetitive) There are issues of fact
and must go to jury.
Matsushita Electric Industrial Co v. Zenith Radio Corp. gets rid of
slightest doubt test; Scott v. Harris introduces more than metaphysical
doubt test

Adickies compared with Celotex (in Nissan Fire & Marine Ins Co v. Fritz
Companies): The central question in Adickies was: whether the moving party
carried its initial burden/production by producing affirmative evidence negating an
essential element of the nonmoving partys claim. The central issue is Celotex was:
whether the moving party carried its initial burden of production by showing that the
nonmoving party did not have enough evidence to carry its ultimate burden of
persuasion at trial.