Civil Procedure

George Shepherd + Freer Tapes

Fall 2011

I. Personal Jurisdiction / Territorial Jurisdiction

Sources of Personal Jurisdiction
Power over the defendant himself / herself
Power over the defendants property
Three Types
1. In personam - Court has power over the defendant herself because of some
connection with the forum
Present when served
Domicile
Action
2. In rem - Court has power over the defendants property
3. Quasi In Rem - Court has power over the defendants property
Limitations

State statutes
- Can go as far as the Constitution allows or not.

Constitutional Limitations
General Jurisdiction
Defendant can be sued in the forum for a claim that arose anywhere in the world
Specific Jurisdiction
Defendant can only be sued for a claim that arose in the forum
PERSONAL JURISDICTION
Rule 4(k) - Federal court has jurisdiction only if the court of the state in which it sits
would have had personal jurisdiction

Exception: Federal question where jurisdiction is constitutional and no state

would have jurisdiction

Statutory Analysis
Traditional bases - every state has statutes establishing these
1. Service of process within the forum (General jurisdiction)
Presence
2. Agent receives service of process within the forum
3. Domiciled within the forum
4. Consent to jurisdiction - PJ is waivable
Nonresident motorist act
Purposeful availment and consent
Long-arm Statutes
1. California-type: Statute reaches to the full extent of Constitutional due process
2. Laundry List Long Arm Statute - Specific jurisdiction statutes - nonresident
defendant can be sued in a state if they do one of the following in the forum:
Transacting business (transacts any business in the forum or transacts
substantial business there - same language is sometimes interpreted in different
ways)
Use real property
Commit a tort
Enter a contract
Insure a risk
Constitutional Analysis

Analytical Framework
- Traditional Bases
- Minimum contacts
Contact between defendant and forum
Purposeful availment
Foreseeability
Fairness
Relatedness
Inconvenience
States interest
Plaintiffs interest, efficiency, interstate interest in shared substantive policy
- Unclear:
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 Stream of Commerce
Presence in the forum for general jurisdiction without minimum contacts
Pennoyer v. Nef - Power over people and things that are located within their boundaries
4 Traditional Bases
1. Service of process within the forum (General jurisdiction)
Presence
2. Agent receives service of process within the forum
3. Domiciled within the forum
4. Consent to jurisdiction - PJ is waivable

Hess v. Pawloski - Expansion of the four traditional bases

- Nonresident Motorist Act - Driving in a state equates to consenting to jurisdiction,
appointment of the Commissioner of Motor Vehicles as drivers agent
International Shoe (jurisdiction is found)
Such minimum contacts with the forum so that exercise of jurisdiction does not
offend traditional notions of fair play and substantial justice
- We CAN serve process outside the forum
- International Shoe does not overrule Pennoyer
Related
Continuous and
Systematic
Sporadic and Isolated

Unrelated

Jurisdiction granted
(International Shoe)

Sometimes (general
jurisdiction)

Sometimes (ex: Hess)

No jurisdiction

Two part test:

1.1.1. Minimum Contact
1.1.2. Fairness
McGee (jurisdiction is found)
One contact with CA is minimum contact because:
the defendant solicited the contract
relatedness: plaintiffs claim arose from defendants contact with the state
states interest: California had an interest in protecting its people
3 Factors that go into the Pennoyer list
Hansen (no jurisdiction because plaintiff and not defendant caused contact with FL)
Purposeful Availment: to be a contact under the International Shoe test, the
defendant must direct his activities to the forum in some way
Keeton
-

Substantial state interest in cooperating with other states to settle libel

claims in one place

Minimum contacts with plaintif are not necessary (personal jurisdiction is

waivable)
Calder

Reasonable anticipation that the defendant might be haled into court

Worldwide Volkswagen (no jurisdiction, because the contact was the unilateral act of a
third party)
Relevant contact: Contact must NOT be the unilateral act of a third party
Foreseeability: Not whether the defendants product could get to a state (foreseeable
use), but whether it is foreseeable that the defendant might get sued there.
Substantial revenue coming from the state? (state statute)
Gray

Foreseeability - the use of the product in another state was not unique, so the
company benefits from some of the laws in those states

Stream of Commerce
Burger King (jurisdiction is found)
Reinforces International Shoes 2 part test: (1) contact and (2) fairness
Fairness: burden on defendant (not in this case), forum states interest (yes),
plaintiffs interest (yes), interstate judicial interests (yes)
Burden is on the defendant to show that the forum is unconstitutionally inconvenient,
and the financial standing of the parties is irrelevant
Asahi (4-4 split) - specific jurisdiction
Stream of Commerce (two theories)
1.1. Reasonably anticipate that it will reach the state (Brennan)
1.2. Reasonable anticipation + Intent or purpose to serve the state (OConnor)
1.3. Reasonable anticipation + Quantity (Stevens, also in McIntyre)
Burnham (jurisdiction even though the claim arose in a different state)
Does presence give general jurisdiction? Yes! (but 4-4 split as to why)
1.1. Presence gives in personam and general jurisdiction with or without minimum
contacts; based on historical pedigree (Scalia)
1.2. By hanging out in a state and benefiting from being there, you do have
minimum contacts - might depend on voluntariness (Brennan)
Helicopteros
General Jurisdiction is ok when the action is continuous and systematic /
substantial
Goodyear

 Subsidiary is typically a separate entity unless they pierce the corporate veil
Stream of commerce here was found insufficient because it failed systematic and
continuous
Shafer v. Heitner - ownership of property in a state constitutes continuous and
systematic contacts for general jurisdiction
Why jurisdiction matters
1.
Convenience
2.
Judicial bias (partially solved by diversity)
3.
Choice of law
IN REM AND QUASI IN REM
Expansion of in personam has lessened the impact of in rem
Ex: many long arm statutes do not cover defamation, so there can be no in personam
jurisdiction. But in rem or quasi in rem might be put to use instead
The maximum recoverable amount is the value of the property that provides
jurisdiction
In rem - the case itself is about the ownership of the property in the forum
Quasi In Rem - property is simply used as a jurisdictional basis

Quasi-in-rem Type 1: The focus of the case is who owns a certain amount of
property, only among the parties in the case.

Quasi-in-rem Type 2: The property has nothing to do with the underlying dispute
Statutory Analyses
Attachment Statutes - put a lien on the property, notice on property itself
Constitutional Analyses
Property must be attached at the outset of the case - because jurisdiction must be
determined first thing
Shafer v. Heitner - For quasi in rem jurisdiction, the Constitution requires that the
defendant have minimum contacts within the forum
FULL FAITH AND CREDIT
For in personam - The judgment is good everywhere, and the plaintiff can go to other
states and have the judgment enforced. There is a personal obligation
For quasi in rem - Judgments do not create a personal obligation, so the judgment is
only good to the value of the attached judgment

II. Notice and Opportunity to be Heard

Service of Process - Rule 4
1. What is process?
Summons
From the clerk of court - 4(a) and 4(b)
Symbol that the court is exercising jurisdiction
Copy of the Complaint
2. Who can serve process?
Any nonparty who is at least 18 years old - Rule 4(c)(2)
3. When do we serve process?
Must be within 120 days of filing the complaint
Otherwise, claim will be dismissed without prejudice unless there is good cause Rule 4(m)
Defendant has 21 days to respond
4. Service on an individual - Rule 4(e)
Rule 4(e)(2)(A) - Personal service - by hand, anywhere in the state
Rule 4(e)(2)(B) - Substituted Service
Allowed only at the defendants dwelling or usual abode (where you live at the
time of service) (National Dev. Co. v. Triad Holding Co.)
Must be to somebody of suitable age and discretion (no set age) who
resides there (baby sitter is excluded, butler works)
Rule 4(e)(2)(C) - Service to Defendants Agent
Expressly appointed as agent
Appointed as an operation of law
Rule 4(e)(1) - Any method of service that is allowed by state law.
State in which the federal court sits
State in which process is served
5. Service of process on a corporation or other association
Rule 4(h)(1) - Serve an officer or managing or general agent
Someone who has sufficient job responsibility so that we expect her to transmit
important papers
Rule 4(e)(1) - Methods of serving process from state law (where the court sits or
where service is effected) - usually includes by mail
6. Waiver of Service - Rule 4(d)

 Defendants can waive service by mail if the defendant sends them the process and
a prepaid way to respond
If the defendant does not, he must pay for the cost of formal service
Defendant does not waive any defenses
If service is waived, the defendant gets 60 days to respond (or 90 days if the
defendant is out of the country).
7. What is the geographic limitation? - Rule 4(k)(1)(A)
Process can be served throughout the state in which the federal court sits
Exceptions:
Rule 4(k)(1)(B) - Process can be served outside the state in which the federal
court sits within 100 miles of the federal court house - the bulge rule
Does not work for serving proess on the original defendant. Only for people
being joined under Rules 14 or 19.
Rule 4(k)(1)(C) - Process can be served outside the state if a federal statute
allows
Statutory interpleader - allows nationwide service of process
Immunity to service

Witnesses, litigants, or lawyers who come into a state to participate in one suit
may be immune from process there concerning other suits.

Immunity may be granted to people induced to enter the state through fraud or
deceit.

Some states prohibit service on Sunday

Sewer Service

Whoever serves process must certify with the court that he has done so. Sewer
service is when a server dishonestly claims to have effected service.
The Constitutional Standard for Notice
Notice must be reasonably calculated under all the circumstances to apprise the

party of the proceeding

Anything listed above is ok even without actual notice

Posting notice on property for in rem cases

Jones v. Flowers - If the government knows there was no actual notice, Due

Process requires the government to take other steps

In some circumstances, if you dont know exactly who or where the opposing

party is, constructive (virtual) service by publication may be ok

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The Opportunity to Be Heard

Does not apply to typical lawsuits because the service of process informs the

defendant of how long he has to respond

Prejudgment seizure of property - usually in commercial transactions

Buyer buys item on an installment plan and defaults

Historically, replevin allowed the sheriff to go seize the property
Now, there are various factors which protect the defendant from having property
seized before he has a chance to be heard, in case there is a good reason (but we
dont know which of these are actually required)
Defendant would get a hearing on the merits at some point before the seizure
Seller is required to give an affidavit showing that it can recover the property
In the plaintiffs affidavit, specific facts must show why the seller is entitled to
possess the property
Judge must give an order to make a prejudgment seizure legitimate
Plaintiff must post a bond

III. Subject Matter Jurisdiction

Big Question: State court or federal court?
PJ covers the parties, SMJ covers the case and the claims

State courts can hear almost everything

State courts have general subject matter jurisdiction, so they can hear any

cognizable claim
This does not mean that SMJ is never a problem in state court, but you can always
find some state trial court that can hear the case
Exception: A few federal question cases where federal question jurisdiction is
exclusive (antitrust, securities, patent infringement, Federal Tort Claims Act)
State courts can split up subject matter however they wish (traffic, juvenile,
probate, small claims, etc.)
Federal courts have special requirements:
Subject matter jurisdiction is not waivable, so parties cannot stipulate into federal

court

 The burden is on the plaintiff to prove SMJ, and it must state citizenship of each
party in the complaint (Randazzo)
If dismissal for SMJ comes after statute of limitations, there may not be remedy
Fulfillment of these requirements does NOT mean the case must go to state court

1. Diversity of Citizenship
2. Federal Question
Federal courts have general jurisdiction for a few federal questions: admiralty,

bankruptcy, patent and copyright infringement, antitrust and securities

Alienage
Intended to give foreigners a forum free from political influence

Diversity of Citizenship - 1332(a)(1)

1. The case must be between citizens of different states
1. Complete Diversity Rule - there is NO diversity if any plaintiff is a citizen of the
same state as any defendant
Exceptions:
Federal Interpleader Act in cases over ownership of property
Multiparty, Multiforum Trial Jurisdiction Act - minimal diversity requirements
when the accident caused at least 75 deaths
2. The test for diversity is applied when the case is filed, so subsequent changes
dont matter
3. Citizenship for a human being is defined as the state in which she is domiciled.
(Only 1 state)
State includes territories (federal enclaves as well (1332(e)).
Domicile (Mas v. Perry)
1. Must be present in the state
2. Must form the intent to make the state your permanent home
Only one domicile at a time, and it is retained until it is affirmatively changed
Intent is subjective (in state tuition, voter registration, etc.)
4. Citizenship for a corporation - 1332(c)(1) (potentially multiple states)
Corporation is a citizen of all states where it is incorporated AND
The one state where the corporation has its ONE principal place of business
Nerve center test - Where decisions are made (HQ) (Hertz)
Muscle Center test - Where the corporation carries out its activities
(manufacturing, for example)

 Total Activities test - most common - Compares nerve and muscle

center
Nerve center unless ALL of the activity is done in one state
The opposing party must be diverse from BOTH
5. Citizenship of unincorporated associations
All the states of the citizenship of all the members
Diversity must be from each member of the association
6. Representatives
1332(c)(2) - decedents, minors, and incompetents - look to the citizenship of
the person being represented. The representatives citizenship is irrelevant.
Class Action - Look at the citizenship of the representative only
If a case is assigned, the courts must determine whether the assignment was
improperly or collusively made to manufacture diversity of citizenship.
2. The amount in controversy rule
3. Amount must exceed $75,000 not counting interest on the claim and not counting
costs - 1332(a)(1)
4. Plaintiffs claim governs unless it is clear to a legal certainty that she cannot
recover that much (good faith allegation)
5. Plaintiffs ultimate recovery is irrelevant
1332(b) - The plaintiff might have to pick up defendants costs if her judgment is
for less than $75,000
6. Aggregation - Add together two or more claims to reach the amount in
controversy limit, but where neither by themselves reach it.
We can aggregate claims if there is one plaintiff versus one defendant
Aggregation is NOT allowed if there are multiple parties on either side
If there are joint claims, the total value counts for this rule
Exceptions to diversity

Domestic Relations (divorce, alimony, child custody)

Probate cases
Federal Question - 1331

Well-pleaded complaint rule - look only at the plaintiffs actual claim for the
federal question
- Is the plaintiff enforcing a federal right?
- Mottley railroad passes - their complaint mentioned federal law, but did not
attempt to protect a federal right (they were only assuming the railroad would use
the statute for their protection)
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Supplemental Jurisdiction - 1367

The plaintiffs original claim still must meet either diversity or federal question.

Once it does, claims joined by any party may be able to be heard in federal court
under supplemental jurisdiction (jurisdiction-invoking claim)
If the second claim is part of the same overall case as the original federal
jurisdiction-invoking claim, it can be brought along under supplemental jurisdiction
Common nucleus of operative fact with the jurisdiction-invoking claim or same
transaction or occurrence - Constitutional standard (Gibbs)
Two steps

1. Does 1367(a) grant supplemental jurisdiction for this claim? Yes, if the claim
meets Gibbss common nucleus of operative fact
2. Does 1367(b) restrict supplemental jurisdiction?
Applies ONLY in diversity cases and only against claims asserted by plaintiffs
Claims asserted against parties joined under Rules 14, 19, 20, 24
Claims by Rule 19 plaintiffs
Claims asserted by people seeking to intervene as a plaintiff under Rule 24
1367(c) Exceptions:
If the federal claim is dismissed before trial
If the state claim is substantially predominant
If there is risk of jury confusion
If the judge would have to try a tricky issue of state law
1367(d) tolls the statute of limitations while claims are pending in federal court
Removal to Federal Court - 1441, 1446, 1447
1. Requires no approval. If removal was improper, the federal court will simply remand
it to state court
2. All defendants must agree to remove
Exception: If there is a separate and independent federal question against one
defendant, she can remove individually
3. Only defendants can remove even if the defendant counterclaims
4. Remove to the federal district embracing the state court where the case was filed
5. Defendant must remove within 30 days of the case becoming removable
Usually at the outset, but occasionally later
Exceptions (only apply in diversity cases)

1. No removal if any defendant is a citizen of the forum

2. Defendant cannot remove more than a year after it was filed (1446b)
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If youre a plaintiff and you want to prevent removal, you can bring suit that isnt
on a federal question and either attach a defendant from your home state or file in the
home state of the defendant

IV. Venue

In which federal district will the case be heard? Mostly a matter of convenience

Basic Provisions

No constitutional right to venue in a particular case; largely defined by statute

Three Rules
1. In removal cases, venue is in the district embracing the state court
2. Local actions (ownership, possession, or injury to land) must be brought in the
district where the land lies
- Three major categories of disputes:
1. In rem/quasi in rem cases where real property is the basis of the jurisdiction
2. Cases in which the plaintiff seeks a remedy in or to realty (claim to a quiet
title, ejectment, foreclosure, enforcement/removal of a lien, etc.)
3. Claims for damages for injury to land, such as trespass
3. For transitory cases (non-local actions)
- 1391(a) for diversity and 1391(b) for federal question
- Plaintiff has two basic choices of where to lay venue:
1. Any district where ALL defendants reside (domicile) - 1391(a)(1) and 1391(b)(1)
1391(c) - a corporation resides in all districts where it is subject to personal
jurisdiction when the case is commenced
Same with an LLC
A human being resides in the same place where she is a citizen for diversity
issues
Exception: if all defendants reside in different districts of the same state, you
may lay venue where any one of them resides
2. Any district where a substantial part (probably 10% or less) of the claim arose
or where the defendant carries on regular business - 1391(a)(2) or 1391(b)(2)

When can there be personal jurisdiction without venue?

- Corporate defendant: never (or at least almost never), because there is venue
anywhere that personal jurisdiction can be shown
- Individual defendant: served personally in a state different than the domicile and
the location of the events
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Transfer of Venue - From one trail court in a judicial system to another trial court in the
same judicial system (Intrasystem).
Allowed if the defendant is unlikely to get a fair trial where the case is originally

filed.

Either two courts within the state or two federal courts across state lines

Original court: Transferor Court

Court to which we are transferring: Transferee

Both transfer statutes require that the transferee court be a proper venue and
have personal jurisdiction W/O waiver.

1404(a) - 1404 Transfer - Transferor court is a proper venue

- Permits transfer to any district where the suit might have been brought prior to
waiver (where venue, SMJ, and PJ would have been proper)
- May transfer based upon three factors:
1. Convenience of the parties
2. Convenience of the witnesses
3. Interests of justice
- Transferee court applies the choice of law rules of the transferor court
- Center of gravity might just be better

1406(1) - 1406 Transfer - venue in the transferor court is improper

- The court may transfer in the interest of justice, or it may dismiss
- Transfer may be better for statute of limitations reasons
- Improper venue is waivable

Goldlawr Transfers - A court can issue a transfer even if that court lacked
personal jurisdiction to hear the case

Forum Selection Clauses are not absolutely binding on federal courts, but they
usually apply state law concerning enforceability.

Multi-district Litigation - 1407 - Allows for the transfer of mass torts cases for
determining shared questions in pretrial procedings, after which they will be
remanded back to their original courts.
Forum Non Conveniens
The court dismisses the case because some other forum would be more

convenient
However, the plaintiffs choice is rarely disturbed

Standard: Abuse of the courts discretion

If no other forum is available, it cannot be dismissed for forum non conveniens

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Dismissal because transfer is not available, since the proper forum is in a

different judicial system
- Proper venue might be abroad
Common sense, center of gravity factors:
- Public Factors
What law would apply?
Familiarity with the law in the original forum
What community should be burdened with the case?
- Private Factors
Where are the witnesses?
Where is the evidence?
Court can impose conditions on the defendant
- For instance, the defendant has to waive a statute of limitations defense or PJ
challenge
The fact that the plaintiff may recover less in the other forum is not determinative
(Piper Aircraft v. Reyno - proper forum was Scotland)

V. Challenging Forum Selection

Special Appearance - contesting personal jurisdiction - you cant be served (dont
subject yourself to personal jurisdiction)

Some states say that if the defendant raises any other issues, he DOES submit
himself

Federal rules:
- Threshold defenses that a defendant can use all together
Rule 12 - Choice of defensive response - within 20 days of service, the
defendant must:
Submit an answer (a pleading)
OR make a motion
Rule 12(b) - 7 particular defenses that can be raised either in answer or
motion to dismiss
1. 12(b)(1) - Lack of SMJ
2. 12(b)(2) - Lack of PJ
3. 12(b)(3) - Improper Venue
4. 12(b)(4) - Insufficient Process
5. 12(b)(5) - Insufficient Service of Process
6. 12(b)(6) - Failure to state a claim (demurrer in state court)
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7. 12(b)(7) - Failure to join an indispensable party

Timing requirements
- 12(g) and 12(h)
12(b)(2-5) must be put in the first Rule 12 response or else they are
waived
12(b)(6) and 12(b)(7) can be raised anytime through trial
12(b)(1) can be raised anytime (including on appeal), and cannot
be waived because it is an issue of the constitutional allocation of
power between federal and state
Challenging Personal Jurisdiction

Direct Attacks - appeal

Collateral Attacks - Separate lawsuit, limited to procedural questions

VI. Erie Doctrine

Question: Does the federal judge have to follow state law?

Black letter law: The federal court must apply state substantive law.
- Required by
1652 - Rules of Decision Act
Constitution (implicitly, 10th Amendment)
- This only applies in diversity cases. If there is a federal question, that always
applies.
- Whenever we are laying out the elements of the case, its clearly substantive law.
In addressing issues of state law, the federal court should do what it believes the
state supreme court would have done
Swift caused vertical forum shopping. Erie solved vertical forum shopping, but
encouraged horizontal forum shopping

Hanna prong of the Erie Doctrine (Rules Enabling Act)

IF there is a FRCP on point, that applies. In this case, it isnt an Erie question at
all.
- Authority comes from Rules Enabling Act, as long as the Rule is valid under both
REA and the Constitution (if it is arguably procedural)

Walker - narrowly construes FRCP, so it might not apply

Stewart - broadly applies FRCP, so it would apply

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Erie Rules of Decision Act Problem

If there is NOT a FRCP, the court must apply state substantive law and can do
whatever on procedural rules

Factors:
1. Outcome determination (York)
Problem: nearly everything is potentially outcome determinative.
2. Balancing of Interests (Byrd)
(1) State interests, (2) federal interests, (3) outcome determination
If a state rule is not clearly substantive, the federal court can defer to state law
unless the federal court system has some interest in doing it differently.
3. Twin Aims of Erie (Dictum from Hanna)
1. Avoidance of forum shopping
If the federal court ignored state law, would it cause litigants to flock to
federal court? If so, we apply state law.
This forum shopping is unfair because it would not be available to instate citizens, who cannot go to federal court for diversity.
2. Avoidance of the inequitable administration of law
Choice of Law
It is unconstitutional for a state with no connection to the transaction or parties to

apply its law even if it has personal jurisdiction. It can adjudicate, but it must apply the
law of a state with the required connection.

VII. Pleadings
Primarily intended to give notice (historically, they also fulfilled the duties now
fulfilled by discovery, pretrial motions, etc.)

Form of pleadings
- The caption must contain the name of the court, title of the case, and identity of
the document itself
- It also lists the file number (case/docket number) which is assigned to the case
when it is filed
- Civil cases are usually preceded by CV, followed by the year, the number
assigned to the case, and the initial of the judge. (CV-11-0001-S)

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Service of pleadings and other court documents - Rule 5 - NOT the same as service
of process
- Delivery to the partys attorney or regular mail
- Rule 5(b)(2)(C) - Service is deemed complete upon mailing
- Rule 5(b)(2)(E) - With consent, you can serve by email
- Rule 6(d) - if served by mail/email, the receiving party has an extra three days in
which to respond
Rule 11 - Aimed at avoiding frivolous documents and baseless claims

Rule 11(a) - The attorney must sign all documents to certify

- Does not apply to discovery documents

Rule 11(b) - The attorney is representing 4 things based on knowledge,

information, and belief after a reasonably inquiry.
1. The document is not for an improper purpose
Unnecessary delay
Increase the cost of litigation
Harassment
2. The legal contentions are warranted by the law or by a non-frivolous argument
that the law should change
3. The factual contentions have evidentiary support or likely will after further
investigation
4. Denials of factual contentions have evidentiary support or are likely to after
further investigation
Inquiry reasonable under the circumstances clause allows you to do a fairly
minimal job if a client comes to you 3 hours before the statute of limitations runs

Certification is called a Continuing Certification - When the attorney advocates

from something contained in the document, he once again asserts that it is true

Sanctions are discretionary with the court - Rule 11(c)(4)

- For deterrence, not punishment
- Can be non-monetary

Motion for sanctions under Rule 11 is served on the other parties, but is not filed
- 11(c)(2) - the violating party must be given a 21 day safe harbor in which to fix
the problem before it is filed
The Complaint - Rule 3 - Commences the case

Rule 8(a) - The complaint must include:

1. Rule 8(a)(1) - The grounds for the courts jurisdiction (SMJ)
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2. Rule 8(a)(2) - Short and plain statement of the claim showing that the plaintiff is
entitled to relief
Federal complaints are called Notice Pleadings and dont require much
detail. We want cases decided on the merits, not technicalities.
This is in contrast to Code Pleadings at the state level, which must
include the facts; but this caused a lot of problems, and led to many cases
being dismissed on technicalities.
But the courts still require that you address each element (Twombly)
The plaintif must allege enough facts to state a plausible claim
Overruled the old rule that the complaint is sufficient unless there is no set
of facts that, if proven by the plaintiff, would support its claim
Rule 9(b) and 9(g) expressly require more detail
Rule 9(b) - When you allege fraud or mistake, you must allege the
circumstances with particularity
Rule 9(g) - If you are going to allege special damages, they must be
alleged with specificity
- Special damages: damages that do not usually flow from an event of
that kind
Unless there is a rule or federal statute requiring extra detail, the court cannot
impose that requirement
3. Rule 8(a)(3) - Demand for the relief sought (does not have to include a dollar
amount, but it must say damages, injunction, etc.)
The Answer - Rule 8(b)
Two requirements:
1. Respond to the allegations of the complaint with either an admission or
denial, under Rule 8(b)(1)(B), or claim that the defendant lacks sufficient
information to admit or deny under Rule 8(b)(5)
Cannot use Rule 8(b)(5) if the knowledge that the defendant lacks is (a) a
matter of public knowledge or (b) is in the defendants control
Any assertion that is not denied is deemed admitted
Allegations that are denied are joined - they are in dispute and will be part of
the litigation
Defendant can issue a general denial of all facts, or a specific denial with
some admissions
Qualified general denials are also acceptable (deny everything except one
or two admitted facts)
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Negative pregnant--comes from a denial that is too literal, and might

inadvertently admit the general allegation while denying only the specifics
2. Raise affirmative defenses - Rule 8(c)(1)
Ex: accord and satisfaction, res judicata, statute of limitations, statute of
frauds
Affirmative defenses admit the plaintiffs assertion, but they inject a new fact
into the case, and if the fact is correct the defendant will win.
If affirmative defenses do not show up in the answer, they may be
deemed waived
Within 20 days of being served process, the defendant must either answer or bring
a motion
- Rule 4(d)(3) - If you waived formal service of process, the defendant is granted
60 days to respond.
- Can include the Rule 12(b) defenses (see V. Challenging Forum Selection)
Whatever is stated by the defendant is deemed denied by the plaintiff. Exception is
only if the court requires that the court order a Reply

Amending Pleadings - Rule 15

The federal rules are fairly liberal
Rule 15(a) - before trial
1. Rule 15(a)(1)(A) - Plaintiff has a right to amend once before the defendant serves
her answer
2. Rule 15(a)(1)(B) - The defendant has a right to amend once within 20 days of
serving her answer
3. Rule 15(a)(2) - The party may ask the court for permission to amend even if
these first two dont apply. The court should freely give leave when justice so
requires. But they wont grant leave if you delayed too long or if it would prejudice
the other party
Rule 15(b) - concerns variance, where the evidence put on at trial does not show up
in the pleadings - only an issue at trial
- Rule 15(b)(2) - If the opposing party does not object: the evidence is allowed to
come in at trial, and the party can amend the pleading to show the additional
evidence
- Rule 15(b)(1) - If the opposing party does object: the evidence is inadmissible.
The party proffering evidence may still be granted leave to amend the
pleading. That party must show that the amended pleading will aid in

19

presenting the merits of the case, and the opposing party must NOT be able
to show that the new pleading will prejudice them.
Rule 15(c) - Where a party is trying to amend after the statute of limitations has run
- Rule 15(c)(1)(B) - Adding a new claim after the statute of limitations has run
We get relation back when the amendment adds a new claim if that new
claim arises from the same conduct, transaction, or occurrence as the
original.
If it does, the amended claim is treated as though it was filed at the same time
as the original claim.
- Rule 15(c)(1)(C) - Adding a new party after the statute of limitations has run
We get relation back if the plaintiff can show:
1. That the amendment concerns the same conduct transaction, or
occurrence as the original pleading.
2. That the new party knew about the case within 120 days of the original
filing of the case
3. That the new party knew or should have known that the original suit
should have been against him.
Only fact pattern that fulfills this: The plaintiff has sued the wrong defendant
first, and then wants to amend to add the correct one.
Usually comes up when we have misnamed the original defendant.

VIII. Joinder

Determine the scope of litigation: how many parties, how many claims
Remember: There are two questions included in a joinder issue
1. Is there a FRCP allowing joinder of the party or the claim?
2. If so, is the claim supported by SMJ or supplemental jurisdiction?

Claim Joinder by the Plaintif - Rule 18(a)

The plaintiff can assert any and all claims he has against the defendant

Also applies to all other claimants

But they still MUST be covered under federal SMJ.

Claim Joinder by the Defendant
Counterclaim - A claim against an opposing party

Rule 13(a) - Compulsory Counterclaim - all transactionally related claims

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Restatement (Second) of Judgments 22(2) - failure to assert a counterclaim

does not preclude subsequent litigation unless the counterclaim is compulsory or
the relationship between the counterclaim and the plaintiff's claim is such that
successful prosecution of the second action would nullify the initial judgment
- Arises from the same transaction or occurrence as the plaintiffs claim against the
defendant
Legal and factual similarities
Logical relatedness
Overlap of evidence
Common sense
- If the compulsory counterclaim is not asserted, it is waived
This includes defaults (Carteret Savings v. Jackson)
Should also include settlement, but courts have ignored this at times (Dindo)
- If compulsory counterclaim does not have SMJ, there will ALWAYS be
supplemental jurisdiction
1367(a) - Common nucleus - always fulfilled because it otherwise wouldnt be
compulsory
1367(b) - Diversity case? If yes, it still only kills claims asserted by plaintiffs.

Rule 13(b) - Permissive Counterclaim

- Does NOT arise from the same transaction or occurrence.
- But if it requires supplemental jurisdiction, it still must meet Gibbs

Rule 13(c) - There is no longer a limit on recovery in counterclaims (remedy used

to be available only up to the amount plaintiff recovered for original claim

Rule 13(h) - Points back to Rules 19 and 20

Rule 42 - The court can always order a separate trial based on claims
Crossclaim - A claim against a co-party - Rule 13(g)
Must arise from the same transaction or occurrence

NOT compulsory

Proper Parties - Rule 20

Available to the plaintiff if she wants to have multiple plaintiffs or defendants

The court can sever cases as long as it doesnt prejudice the plaintiff (Schwartz
v. Swan)

Improper parties are not grounds for dismissal; the court will add or drop claims,
or sever parties

21

Less risk of underinclusive defendants than underinclusive plaintiffs because the

plaintiffs only want to sue once. On the other hand, plaintiffs may very well want to
sue alone (more sympathetic, greater recovery, etc.)
Rule 20(a)(1) - Co-plaintifs
- Two requirements:
1. Claims must arise from the same transaction or occurrence
2. Claims must raise at least one common question of fact or law
Rule 20(a)(2) - Co-defendants
1. Claims must arise from the same transaction or occurrence
2. Claims must raise at least one common question of fact or law
If only one of two plaintiffs has a proper federal claim due to the amount in
controversy requirement for diversity claims, the second claim may be added by
supplemental jurisdiction
- 1367(a) - Supplemental Jurisdiction? Yes, because it arises from a common
nucleus of operative fact.
- 1367(b) - Claim is by a Rule 20 plaintiff, but not against a Rule 20 defendant
Consolidation - Rule 42(a)(2)
- The court may consolidate cases for any specific purpose, such as discovery,
without actually merging. Even if the entire proceeding is consolidated, the cases
have separate docket numbers and result in separate judgments.
Enterprise Liability Theory - Plaintiffs suing an entire industry for failure to warn

Necessary and Indispensable Parties - Rule 19

1. Is the absentee necessary / required?
- Rule 19(a)(1) - 3 Elements
1. Rule 19(a)(1)(A) - If in her absence, the court cannot accord complete relief
among the existing parties. (Aimed at efficiency)
2. Rule 19(a)(1)(B)(1) - If the absentee claims an interest relating to the case
and if her interest may be harmed if she is not joined
3. Rule 19(a)(1)(B)(2) - If the absentee claims an interest in the case and, if she
is not joined, the existing party will be subject to a substantial risk of double,
multiple, or inconsistent obligations.
- Note: Joint tortfeasors are not necessary
2. Is joinder of the absentee feasible? - Rule 19(a)(2)
- Personal Jurisdiction
- Subject Matter Jurisdiction - Will bringing the absentee into the case break
diversity of citizenship?
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 The court must determine which (between the existing plaintiff and defendant)
interests the absentees are more aligned with. If the absentee would be a
defendant, and she is not diverse from the plaintiff, joinder is NOT feasible
3. What if joinder of the absentee is not feasible? - Rule 19(b)
- The court has two choices
1. The court may proceed with the pending case
2. The court may dismiss the pending case
This choice is in the discretion of the court. Overarching theme: Equity and
good conscience
Four factors - Weighed according to the facts of the case
1. Rule 19(b)(4) - Whether the plaintiff would have an adequate remedy if
the case were dismissed. That is, whether another forum (state court)
would allow all the parties (P, D, absentee) to be joined in one case. If
not, the court will almost never dismiss.
2. Rule 19(b)(1), (2), (3) - Similar to Rule 19(a), but with the question of
whether the concerns are actually going to be problematic. Will the
plaintiff win against the defendant, causing the trouble the court wants
to solve?
- If the court decides to dismiss, the absentee is called absentee indispensible
- This is a basis for dismissal under Rule 12(b)(7)
Impleader / Third Party Practice - Rule 14

Defending party (defendant or counterclaimed plaintiff) is adding a new party

Once third party plaintiff is added, she can add claims or have claims added
against her (upsloping / downsloping 14(a) claims)

Rule 14(a)(1) - Plaintif may join a third party defendant only if that party is or
may be liable to the defendant for all or part of the claim asserted against the joining
party
- Almost always concerns indemnity or contribution

Rule 14(a)(2)(D) - Third party defendant may assert a claim against the
plaintif, but the claim must arise from the same transaction or occurrence.

Rule 14(a)(3) - The plaintif may assert a claim against the third party
defendant, but it must arise from the same transaction or occurrence as the
underlying case.

Diversity doesnt matter except between the original defending party and the third
party defendant. Dont forget to walk through supplemental jurisdiction

23

No supplemental jurisdiction for claims by plaintiff against the third party

defendant because we dont want the plaintiff to be able to play games with the
complete diversity rule.
- If the underlying case is a federal question, however, 1367(b) does not apply

Intervention
Interpleader

Allow third parties to override the plaintiffs desired structure

IX. Discovery
Purpose:
1.
Permit the preservation of evidence that might otherwise be lost prior to trial
2.
Provide mechanisms for narrowing the issues in dispute
3.
Permit the parties to acquire greater information about each sides case
We want to avoid trial by ambush

Encourages settlement

Required Disclosures - Rule 26(a)

Doesnt require the opposing party to ask for it, which was controversial because it does
not follow the adversary system
1. Initial disclosures - 26(a)(1)
26(a)(1)(A) - without an exemption, you must provide the following information:

1. Name and telephone number of everybody who is likely to have discoverable

information and the subjects of that information AND who you are likely to use to
support your claim (except for the purpose of impeachment)
2. Copy and description of all documents that you have in your possession, custody,
or control, that may be used to support your claim.
Disclosure is not required if the information is only going to be used to impeach
3. (Plaintiff) computation of damages, and any documents that support that
computation
4. (Defendant) any insurance coverage
26(a)(1)(b) - Exceptions to initial disclosures

26(a)(1)(c) - within 14 days of a 26(f) conference [early in the proceedings, after

the pleadings have been filed]

2. Disclosure of expert testimony - 26(a)(2)
Much later, after discovery

24

Give info about the expert and a written report from the expert

3. Pretrial Disclosures - 26(a)(3)

26(a)(3)(a) - Give the names of everybody who is going to present on your behalf

Identify every document (exhibit) that may be offered at trial

Discovery Tools
All five can be used to get information from a party

Rule 26(g) requires counsel to certify that the requests and responses are not

frivolous
1. Deposition - Rule 30 (oral questions) and Rule 31 (written questions)
Sworn oral statements in response to questions that are asked
CAN be taken against a nonparty, but without a subpoena the nonparty does not
have to show up.
Entire organizations can be deposed if the party does not know who specifically
has the information. The organization is then expected to identify the appropriate
witness.
Subpoena duces tecum - requires that the witness bring documents to deposition
Cannot depose more than 10 people without court order or stipulation
Presumed to be 1 day of 7 hours maximum without a court order or stipulation
Rule 31 permits a variation to the traditional oral deposition by allowing a party to
serve on the other parties a set of questions that will be asked a witness, which are
then administered by a court official. The disadvantages are that the witness will
know the questions in advance and there is no opportunity for follow-up questions
Expensive and time consuming
2. Interrogatories - Rule 33
Cannot be taken against nonparties
Answered in writing, by the opposing partys attorney, under oath, and within 30
days
No more than 25 interrogatories without court order or stipulation
Less expensive and more effective at acquiring specific information than deposition
Parties are required to provide facts that are reasonably available to them even if
they must review files of documents They do not, however, have to provide
information they do not already have.
Parties may object to questions.
3. Request to Produce - Rule 34
Can be had against a nonparty (Rule 34c, Subpoena under Rule 45)
Request for documents
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 Subpoena duces tecum

4. Physical or Mental Evaluation - Rule 35
Only had against a party or someone in the partys custody or control (narrowly
construed, does not include employees)
Only available through court order
The movant must show good cause and the condition of the person must be in
controversy
5. Request for Admission
Sent only to parties
Ask the party to admit the truth of any discoverable information
Failure to respond can be seen as an admission
Scope of Discovery
Standard - 26(b)(1)
We can discover anything relevant to a claim or defense of a party

Nondiscoverable Material
1. Privileges (communications must have been in the course of the duty of the
relationship)
Attorney-Client
Priest-Penitent
Doctor-Patient
Spouses

These are a policy judgment that some interests are more important than factfinding and truth seeking.

They are narrowly construed

Privileges can be waived (just tell a third party)

Privilege must be claimed expressly, not simply withheld. Failure to properly claim
a privilege may be deemed a waiver.

The party must describe in sufficient detail the things not produced so that other
parties may assess the claim. The requirements:
- A brief description or summary of the contents of the document
- The date the document was prepared
- The person(s) who prepared the document
- To whom it was directed
- The purpose of the document
- The privileges asserted as to the document
- How each element of privilege is met
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2. Work Product - Rule 26(b)(3)

Anything prepared with in anticipation of litigation by a party or a representative of
a party is immune from discovery
This is to avoid the freeloader problem
Protection can be overridden if the opposition can show two things:
1. Substantial Need
2. Unavailability without substantial hardship
Absolute protection for mental impressions, conclusions, opinions, and legal
theories
Discovery Sanctions
Before asking for sanctions, counsel is expected to meet and attempt to work it

out
To ask for sanctions, attorneys must certify in good faith that they tried in good

faith to solve the issue

Sanctions sought - Motion to compel - Rule 37(a)(3)(B)

Recovery of costs for having to bring the motion

If the party STILL violates the order, Rule 37(b)(2)(A) says the court may do

whatever it thinks is just.

1.1. Establishment Order - Avoided facts are deemed established
1.2. Strike the pleadings of the disobedient party
1.3. Disobedient party cannot put on evidence about the issues at trial
1.4. Contempt
1.5. Attorneys fees and costs
1.6. ...etc...
37(c)(1) - Failure to make required disclosures or supplement responses
You cannot use that information at trial or for any other purpose in the litigation

unless the failure was harmless or justified

37(c)(2) - Party fails to admit something that she should have admitted
Party that proved the issue can recover all the costs and expenses, including

attorneys fees, of having to prove the issue at trial

26(c)(1) - Party asks for a protective order to protect a material requested for discovery
(overburden, trade secret, expense in obtaining information)
Protect a party from annoyance, embarrassment, oppression, undue burden or

expense
Partial Failure to Comply - relatively light sanction
1. Failure to answer a question at a deposition
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2. Failure to answer an interrogatory

3. Renege on a response
Total Failure to Comply
Before asking for sanctions, counsel is expected to meet and attempt to work it

out
To ask for sanctions, attorneys must certify in good faith that they tried in good

faith to solve the issue

1. Failure to show up at a deposition even after proper notice
2. Failure to respond to interrogatories
3. Failure to respond at all to a demand for production
Rule 37(d)(1)(A) - Subject to 27(d)(3) sanctions

Same as sanctions for failure to abide by motion to compel with the exception of
contempt (because there is no violation of a court order)
Rule 37(e) - outside of exceptional circumstances, a court should not sanction

parties that fail to provide electronically stored materials that were lost as a result of a
routine good faith operation

X. Pretrial Adjudication
Voluntary Dismissal - Rule 41(a)
1. Stipulation of the parties
2. Court Order
3. Unilateral - Written notice of dismissal
Plaintiff may dismiss without prejudice once by serving a notice of dismissal
BEFORE the defendant serves her answer or a motion for summary judgment
The second time a notice of dismissal is filed is with prejudice, and the case is
permanently over
Involuntary Dismissal - Rule 41(b)
Court can raise these sua sponte

Court will usually warn the plaintiff

Order to Show Cause (OSC)

Dismissals are treated as an adjudication on the merits (with prejudice) unless it

was based on jurisdiction, venue, or indispensable parties, or if the court said so

1. Failure to prosecute
28

2. Failure to abide by federal rules

3. Failure to abide by a court order
4. Other grounds under Rule 12(b) - jurisdiction, etc.
Default - Rule 55(a)
If the defendant does not respond within 20 days after service of process, the

plaintiff may request the entry of a default from the clerk of the court
Default Judgment - Rule 55(b) - How the plaintiff actually recovers following a default

55(b)(1) Liberal, mechanical rule - can be given by the clerk without ever seeing
a judge

55(b)(2) Default judgment from the judge

- Plaintiff cannot recover more or a different type of relief than he asked for in the
complaint - Rule 54(c)
Rule 12(b)(6) Motion - Motion to dismiss for failure to state a claim
Serves two functions: (1) Tests the legal sufficiency of the claim (general

demurrer) and (2) tests the factual sufficiency (special demurrer)

Demurrer in state court

Court looks only at the complaint, not the undisputed facts

Question the court asks itself: If the plaintiff proved everything alleged in the

complaint, would the court be able to provide a remedy?

Almost never granted with prejudice (usually actually granted 3 chances)

A complaint cannot simply state conclusions without even a hint as to how those

conclusions were reached (Twombly)

Summary Judgment - Rule 56

The court can look at any undisputed facts

- The court can prevent the case from reaching the jury when there is no material
issue of fact

The parties give written evidence to the court

- The court can look at:
Admissible evidence
Sworn statements (Deposition testimony, answers to interrogatories,
affidavits)
Admissions - Rule 36
Verified Pleadings - pleadings that are signed under oath

29

Otherwise, pleadings are not sworn to and are not evidence except for
purposes of admissions
- The court cannot look at hearsay - Rule 56(c)(2)
The facts are viewed in the light most favorable to the nonmoving party.
Courts favor the nonmoving party so as not to usurp the jury function
- Discretionary motion - the moving party does not have a right to summary
judgment
- If multiple inferences from the facts are equally plausible, deny summary
judgment
But if one is more likely than another, summary judgment is ok
- Rarely granted for the party with the burden of proof (plaintiff)
- Harder to get summary judgment in torts cases, especially negligence cases and
cases dealing with credibility
Defendant can win summary judgment by raising the point that the plaintiff has
no evidence to support an element, the statute of limitations has run, or the claim is
barred by claim or issue preclusion
The judge cannot weigh affidavits or rule on matters of fact
Partial Summary Judgment - Summary judgment can knock out one of several
actions in a case
The standard - Rule 56(c)
Moving party must show:
1. There is no genuine issue of material fact
2. She is entitled to judgment as a matter of law
Note: Summary judgment, JMOL, and renewed JMOL are all the same motion,
just done at different times

Other Motions

Motion on the Pleadings - Rule 12(c)

Motions for a more definite statement - Rule 12(e)

Motion to strike - Rule 12(f)

- For reflect[ing] cruelly on the defendants moral character (impertinence)
- For using repulsive language
- For detracting from the dignity of the court
- As a matter of law

Judges may entertain motions at any time, even though the defendant should file
them before responding to a pleading

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XI. Trial and Related Motion

Right to a Jury Trial
Rule 38(b) - The right to a jury is waivable, and the right must be invoked in

writing
If neither party requests a jury, we have a bench trial

Seventh Amendment applies only in federal court and in civil cases

Preserves a right to jury trial in actions at law and not in suits at equity

Depends on whether there would have been a right to a jury trial under common
law of England in 1791
- Law and equity delivered different remedies
Law: Money damages
Equity: Specific performance, injunctions, reformation/rescission of contracts
etc.
Arose because the money was not always adequate to make the plaintiff
whole
- What if the issue deals with both?
Old rule: Center of gravity
Now:
1. We determine the right to a jury trial issue by issue
2. If an issue of fact underlies a remedy at law and equity, there must be a
jury
3. Generally the jury issues will be tried first
- What if the issue arose out of equitable procedural posture?
Once the judge determines whether the action is proper, the underlying claims
themselves are tested in the same way as any other claim.
- 2 tests to apply 1791 rule:
Was there a 1791 common law analogy to this claim?
Fairly loose standard
Look to the purpose of the remedy.
If compensate in money: legal claim with jury - not enforceable by the
court. Its the plaintiffs responsibility to execute the judgment
Injunction: equitable claim with no jury
Selection of the Jury

31

Venire - The large group of jurors spread around the court rooms
The selected jury is called the panel
Rule 48 - 6 to 12 jurors, each must participate in the verdict unless one is
excused for good cause
No alternate jurors in federal court
No verdict can be taken from fewer than six jurors
Verdict must be unanimous unless the parties stipulate otherwise
Voir Dire - Jury selection
Unlimited number of strikes/challenges for cause

Ex: bias, relative, etc.

Peremptory challenges - Rule 47(b)

No justification required
Number is set by statute 1870 - 3 peremptory challenges
Race- and gender-based discrimination is not acceptable even for peremptory
challenges

Admissibility of Evidence

Judges may exclude where probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury.

Criminal history, hearsay, privileged material are inadmissible

Expert Witnesses
The courts act as gatekeepers to eliminate junk science

Peer review, general acceptance by scientific community

General Verdict
Most verdicts are giv
en without revealing the jurys reasoning
Special Verdict - Rule 49(a)

Jury verdict answers specific factual questions, which are then applied by the
judge

Problem of inconsistent responses

32

Post Trial Motions

In a criminal case, the defendant always has the right to go to a jury, and the jury is
always allowed to acquit (jury nullification)
BUT in civil cases, the judge performs a gatekeeping function and can prevent a case
from going to the jury and can in limited circumstances undo what the jury did
3 motions that ensure the jury doesnt do anything goofy

1. Motion for Judgment as a Matter of Law (JMOL)

2. The Renewed Motion for JMOL
3. Motion for New Trial
Motion for Judgment as a Matter of Law - Rule 50(a)
Formerly called a directed verdict

Takes the case away from the jury

50(a)(1) - Motion is made at trial, only after the other party has been fully heard

and before the case is submitted to the jury

Plaintiff puts on evidence
Defendant can motion for JMOL
Defendant puts on evidence
Either or both P or D can motion for JMOL
Granted if the court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the nonmoving party

If reasonable people could not disagree on the result
Functional equivalent to summary judgment

Based on evidence proffered at trial instead proffered before trial

Same rules
Rules:

The court may consider all of the evidence favorable to the position of the party
opposing the motion as well as any unfavorable evidence that the jury would be
required to believe.
Where evidence is conflicting, the courts should not make judgments (this is the
jurys job)
Renewed Motion for Judgment as a Matter of Law - Rule 50(b)
Formerly JNOV
Exactly the same motion as JMOL, but its made after the jury verdict has been

entered. The losing party can make the RJMOL no later than 28 days after entry of the
judgment
Standard: the same as JMOL - Reasonable people could not disagree on the

result
33

 Basically the jury reached a conclusion that reasonable people could not have
reached
Parties cannot bring motion under 50(b) unless it brought the 50(a) motion at an

appropriate time
No longer requires that the motion for JMOL be entered at the close of all the
evidence.
Motion for New Trial - Rule 59(a)
Judgment has been entered, but there have been errors at trial that require a new

trial
Sua sponte - can be entered by the judge without a motion

Classic grounds:

The judge made some substantial error - wrong burden, wrong jury instructions,
bad evidentiary ruling
New evidence is discovered after trial that could not have been discovered in time
for trial - must be filed within 28 days after judgment, but relief may be granted
under Rule 60(b)(2) for up to a year.
Prejudicial misconduct of party, attorney, or juror
Timing: same as a judgment as a matter of law (28 days after the entry of the

judgment)
Order of new trial can be partial (ex: only for damages, etc.)

Conditional new trial

- Court can enter remittitur and if the plaintiff rejects, the court will order a new trial
Additur is unconstitutional under the Seventh Amendment, but state courts
can still utilize it
- Standard: shocks the conscience of the court

Judge may also grant a new trial if it believes the jury found in error
- Standard: Great weight of the evidence for appellate court (Dadurian), clear
weight for trial court
The judge is permitted to weigh the evidence, but should not substitute its
judgment for that of the jury.
Motion to Set Aside the Judgment - Rule 60(b)
Jury Misconduct

Narrowly construed:
- Stability of verdicts
- Protect jurors from fraud and harassment
- Prevent prolonged litigation
34

Prevent verdicts from being set aside because of subsequent changes of attitude
by jurors
Sanctity of the jury room

Judgment

Standard: Preponderance of the evidence (the party with the burden of proof
must show 51% likelihood that she is right)

XIII. The Preclusion Doctrines

Claim preclusion prevents you from doing something you didnt do before
Issue preclusion prevents you from re-doing something you did to before

Res Judicata - Claim Preclusion

General principle: Rule against splitting claims; if she should have done so in an

earlier case, she may not raise it later.

Case 1 has gone to judgment, and Case 2 is pending with the question of

whether the judgment from Case 1 stops us from litigating an issue in Case 2
General rule: The court in Case 2 will apply the preclusion rules of the jurisdiction

that decided Case 1.

A party gets one chance in which to vindicate his claim/cause of action, so all

relief possible must be sought in that single case

In a contracts suit, the plaintiff must sue for breach up to the point where the suit is
filed (late rent payment)
Elements:

1. Case 1 and Case 2 were brought by the same claimant against the same defendant
(same parties AND same configuration)
Or if the parties in the second case were in privity with those in the first case
Nonparty was represented
Substantive legal relationship
Ex: successive property owners, assignor-assignee, decedent-estate, parentchild
Virtual Representation Rule - A party may be bound by a ruling on a claim
involving another party so closely related that it is the virtual representative
2. Case 1 must have ended in a valid final judgment on the merits

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Valid - Jurisdiction
On the merits - Rule 41(b) - Any judgment in favor of the claimant is seen as on
the merits for res judicata purposes (including default judgments, etc.). All involuntary
dismissals are adjudications on the merits unless they were based on jurisdiction,
venue, or indispensable parties. The court can always say it was not on the merits
(without prejudice)
SEMTEK - Case 1: fed. ct. CA., involuntary dismissal because the case was barred
by statute of limitations. Same claim filed in MD state court. Supreme Court took
this to mean that the case cannot be refiled in the same court, subject to the law of
the case that dismissed the first case
3. Case 1 and Case 2 must involve the same claim
Different jurisdictions define claims differently
1. Majority view - Single Wrongful Act Test
2. Some jurisdictions - Rights Invaded - Primary Rights Theory - Different
claim for each right invaded
3. Sameness of the evidence test - if the same evidence would prove both
claims, they are the same claim (comes out the same as single wrongful act)
4. Transaction or connected transaction rule - broadest, resulting in the
fewest cases, used in federal court

Merger - when the claimant won Case 1, the other claims are merged

Bar - when the claimant lost Case 1, the other claims are barred

REMEMBER: Compulsory counterclaim rules (rule preclusion) can still bar

claims even if they dont fulfill element #1

Collateral Estoppel - Issue Preclusion

General Principle: Prevent relitigation of particular issues that were actually

litigated and determined previously

Elements:
1. Case 1 ended in a valid final judgment on the merits
2. The same issue was actually litigated and determined in Case 1 (default judgments
and stipulations arent good enough)
3. The issue was essential to the judgment in case one - without that finding, we would
not have had the same judgment (Rios v. Davis)
4. Collateral estoppel can only be used against someone who was a party in case 1 (or
in privity to a party in case 1) - Due Process Requirement, so its the same in every
court in the land (Hardy)

36

5. Mutuality Requirements - can only be used by someone who was a party in case 1 NOT required by Due Process, so this is only the majority view

Nonmutual collateral estoppel - the person using collateral estoppel in case 2

was not a party in case 1
- Nonmutual defensive collateral estoppel - Used by defendant in case 2
Acceptable as long as the plaintiff had a full and fair opportunity to litigate in
Case 1
- Nonmutual offensive collateral estoppel - Used by plaintiff in case 2 who was
NOT a party in case 1 (Parklane Hosiery Co. v. Shore)
Case by case determination to ensure fairness
Factors:
1. Defendant in Case 2 had a full and fair opportunity to litigate in Case 1
2. Defendant could foresee multiple suits
3. Plaintiff in Case 2 could not have joined easily in Case 1
4. No inconsistent judgments
5. Procedural disadvantage to the party being precluded (different rules
depending on where the litigation was happening)

37