Professional Documents
Culture Documents
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FEDERAL SUBJECT MATTER JURISDICTION ................................................................................. 4
1. FEDERAL QUESTION28 USC 1331 ........................................................................................ 4
2. DIVERSITY28 USC 1332 .......................................................................................................... 4
SUPPLEMENTAL JURISDICTION ....................................................................................................... 6
ANALYZING SUPPLEMENTAL JURSIDICTION ............................................................................... 7
REMOVAL .............................................................................................................................................. 7
PERSONAL JURISDICTION .................................................................................................................. 8
ORIGINS .............................................................................................................................................. 8
TYPES OF PERSONAL JURISDICTION ............................................................................................ 9
CHALLENGING JURISDICTION ....................................................................................................... 9
CONSTITUTIONAL STANDARDMINIMUM CONTACTS ............................................................ 10
CONSENT .......................................................................................................................................... 11
NOTICE AND SERVICE OF PROCESSFRCP 4 ........................................................................... 12
LONG-ARM STATUTES .................................................................................................................... 13
PERSONAL JURISDICTION ANALYSIS........................................................................................... 14
II. VENUE ................................................................................................................................................. 14
28 USC 1391 .................................................................................................................................... 14
28 USC 1392 .................................................................................................................................... 15
TRANSFER ............................................................................................................................................ 15
FORUM NON CONVENIENS .............................................................................................................. 15
DIFFERENCE B/T FORUM NON CONVENIENS AND TRANSFER............................................... 16
III. PLEADING ......................................................................................................................................... 16
COMPLAINT ......................................................................................................................................... 16
SPECIFICITY OF A COMPLAINT: FRCP 8(a)(2) ........................................................................... 16
PLAUSIBILITY IN PLEADING ......................................................................................................... 17
BURDENS IN PLEADINGFRCP 8(C) .............................................................................................. 19
FRCP 8(c)AFFIRMATIVE DEFENSES ......................................................................................... 19
CONSISTENCY IN PLEADING: FRCP 8(D) ....................................................................................... 19
DISFAVORED CLAIMS: ................................................................................................................... 20
HONESTY IN PLEADINGFRCP 11 ................................................................................................. 21
FRCP 11(a): SIGNATURE................................................................................................................. 21
FRCP 11(b): REPRESENTATIONS TO COURT ............................................................................... 21
FRCP 11(c) SANCTIONS FOR VIOLATIONS OF 11(b)................................................................ 22
FRCP 11(d)INNAPLICABILITY TO DISCOVERY ........................................................................ 22
RESPONDING TO A COMPLAINT ..................................................................................................... 23
DEFAULT .......................................................................................................................................... 23
PRE-ANSWER MOTIONS.................................................................................................................. 23
THE ANSWER .................................................................................................................................... 25
COUNTERCLAIMS .............................................................................................................................. 26
COMPULSORY COUNTERCLAIMS: FRCP 13(a): ......................................................................... 26
PERMISSIVE COUNTERCLAIMS: FRCP 13(b): ............................................................................. 26
CROSS-CLAIMS: .................................................................................................................................. 27
REPLY ................................................................................................................................................... 27
AMENDMENTS .................................................................................................................................... 27
FRCP 15(a) ........................................................................................................................................ 27
FRCP 15(c): RELATION BACK ........................................................................................................ 28
AMENDMENT ANALYSIS ................................................................................................................. 28
IV. PRE-TRIAL DISCOVERY ............................................................................................................... 29
SCOPE AND RELEVANCE .................................................................................................................. 29
PRIVILEGE ........................................................................................................................................... 30
DISCOVERY DEVICES ........................................................................................................................ 30
I. JURISDICTION
TWO TYPES OF JURISDICTION: Generally need both:
SUBJECT MATTER JURSIDICTION: the power to hear the particular type of case Plaintiff
plans to file
The subject matter jurisdiction of the federal courts is defined by who the parties to
the suit are, rather than the subject matter of the underlying dispute.
CONCURRENT:
Federal Question jurisdiction is concurrent (can also be brought in state court)
o If state law creates a cause of action dependent on analysis of some federal issue,
usually deny SMJ. (E.g. State tort claim for improperly labeled food, includes FDA
statutes)
o For federal law to be an ingredient of a case, one of the parties in the case would
have to rely on federal law to establish either a claim or a defense in the lawsuit, or at
least raise a federal issue in proving her case.
o Exclusive Federal jurisdiction for: patent,
Mottley- only the defense was rooted in federal law (5th amendment defense) but the claim itself was a
matter of state law. Holding: It is not enough for there to be some question of federal law in the case; the
plaintiffs claim must itself be founded on federal law (well-pleaded complaint rule).
2. DIVERSITY28 USC 1332
28 U.S.C. 1332
(a): Federal courts shall have jurisdiction of all civil actions where the matter in controversy
exceeds $75,000 w/o interest and costs, and is between-(1): citizens of different states
COMPLETE DIVERSITY:
All plaintiffs in a suit are from different states than all defendants at the time suit is brought
o
o
o
Hawkins v. Masters-
Holding: Man dies in tractor accident. Girlfriend and mother sue for recovery of him
in federal court but found that his domicile did not create complete diversity.
AMOUNT-IN-CONTROVERSY REQUIREMENT
Aggregating Claims:
Single Plaintiff can aggregate any claims against single Defendant to reach the
requirement, regardless of same case or controversy
Two Plaintiffs cannot aggregate claims against single Defendant if claims are
separate and distinct
Multiple Plaintiffs against multiple Defendants must have undivided interest
and single title or right.
Class actions: all members must individually satisfy the requirement
If original claim is over 75k, then the counter-claim from other side can be heard
regardless
Actual recovery is irrelevant:
Case is dismissed if claim is apparently less than $75,000 to a legal certainty
What about cases of intangible loss where the outcome is uncertain?
A plaintiffs good-faith claim for more than the amount required
controls, unless it appears to a legal certainty that the claim is really for
less
CORPORATE CITIZENSHIP
Corporation is citizen of state where incorporated and principal place of doing business (See
Personal Jurisdiction | International Shoe)
Corporation that is incorporated is outside US is alien, but could also have state citizenship if
it has a principal place of business inside the US.
Test:
Direct control nerve center. The statutes language supports the approach and theres
administrative simplicity. Language seems to support simplicity in statute.
o Where the corporation maintains its headquarters and whre its officers direct, control,
and coordinate the corporations activities
Partnerships- different, every single partner counts a separate domicile (so its difficult to
have diversity if you have a lot of partners)
Hertz v. Friend- Principal Place of Business= nerve center
The courts have equated state citizenship for diversity purposes with the common law
concept of domicile
Domicile: defined as the state where a party has taken up residence with the
intent to reside indefinitely (or you don't have a specific intention of going
somewhere else)
Problem with domicile: determining what it means to intend to stay
indefinitely in a state.
Persons can only have one domicile for purposes of diversity jurisdiction
o It means that a persons presence in the state is open-ended.
Redner v. Sanders-
Holding: a person is a citizen of New York but lives in France. Lacks Domicile
for Diversity.
SUPPLEMENTAL JURISDICTION
28 USC 1367: jurisdiction over state claims that forms part of the same case or controversy with
federal court claim
Legal justification- efficiency, convenience, and fairness to litigants, would be
awkward to permit them to join claims under rule 18 and then preclude federal courts
from hearing the entire case.
1367(a): grants jurisdiction if it is part of the same case or controversy; includes joinder of
additional parties
1367(b): takes away jurisdiction: applies only to diversity cases, not fed. Question cases.
1367(c): district court can decline supplemental jurisdiction
To get to 1367c, logically you have to figure out if the power even exists as filtered
through 1367 (a) + (b)
If claim raises novel issue of state law, state law claim dominates, original jurisdiction claims
have been dismissed, or other compelling reasons/exceptional circumstances
If the federal claim gets dismissed early on in litigation process, it's proper to
dismiss state claim
If the federal claim gets dismissed very late: it would be serious waste of
resources to dismiss
First, claim must have federal jurisdiction under federal question or diversity
o Second, claim can be heard if it satisfies supplemental jurisdiction
To satisfy supplemental jurisdiction:
o State and federal claim must derive from a common nucleus of operative fact
o So closely related that p would be expected to try them all in one judicial
proceeding.
NOTE: a second claim can be against a different Defendant if common nucleus of operative fact
(STO)
REMOVAL
There are many cases of concurrent jurisdiction: if Plaintiff files a concurrent claim in state court,
Defendant may remove it to federal court. But only original defendants can remove, those made
defendants by a counterclaim cannot (SCOTUS statutory interpretation)
28 USC 1441
(a): Removal from state court to federal court in the district where the action is pending.
Only if federal courts have original jurisdiction.
(b): Limitations:
If the claim is based solely on diversity, cannot remove if Defendant is on "home
turf" (even if it could have been brought in federal court)
o If federal question, Defendant may remove regardless of citizenship of
parties.
o If Plaintiff dismisses claim against 'home turf' Defendant, then removal OK
(c): allows removal of entire case if federal question claim is joined to state claim.
1446a allows defendant to include in notice of removal any further allegations that are necessary
to demonstrate his right to remove. The allegations are subject to the same ethical standards as
the allegations in pleading.
PERSONAL JURISDICTION
A geographical limitation on the places where a plaintiff may choose to sue a defendant for a
particular claim. Consent makes personal jurisdiction OK, regardless of other factors.
ORIGINS
Pennoyer v. Neff Presence and Consent
Case I: Mitchell v Neff, a non-resident, who was not served with process. Default entered against Neff. He
then got land in the state which was seized and sold to Pennoyer.
Case II: Neff v Pennoyer (for the land).
Due process requires appearance or personal service b/f D could be personally bound by any
judgment.in personam.
o Notice? No holding on the issue: they state the negative:
Because state sovereignty is a central idea, it can never be appropriate for
service to go out of state.
Service of process by publication is only allowed where non-resident property in state is attached
by the court before the litigationin rem. (You cannot get an adjudication beyond the value of
the property. This is the only holding about notice).
Resident: D is found within the state (not being present even though you have a domicile is not
good enough).
Case I: jurisdiction was invalidhe didn't have property at the time suit was filed. Case II: full faith and
credit requires the federal court to give effect to the judgment in case 1. Exception: if the court in Case 1
lacked personal jurisdiction.
Lack of personal jurisdiction in Case 1 is the only universally accepted basis for refusing to give
effect to that judgment, which is what happens in Case 2.
If full faith and credit clause and Mitchell v. Neff was done correctly, then second case would
have to respect that.
No collateral attacks on a first case except for the absence of personal jurisdiction in the first case.
No person is subject to the jurisdiction of a court of the state, unless he appear in the
court, or be found within the state, or be a resident thereof, or have property therein; and
in the last case, only to the extent of such property at the time the jurisdiction attached.
Under Pennoyer, a deserted spouse could sue for divorce (though not alimony or child support) even if absent
spouse could not be served within the state.
beginning of suit). Whatever damages can be recovered are limited to the value of the
property.
"TRUE" IN REM: action literally against the property. Probate, registration of title.
GENERAL JURISDICTION
Defendants contacts with the forum state are sufficiently substantial to support jurisdiction over
claims unrelated to the contacts." Contact with the states are so pervasive that any aspect of their
operation can be sued
SPECIFIC JURISDICTION
The more closely related the contacts and the facts giving rise to the claim, the more likely the
court is to uphold jurisdiction. Claims only related to the contacts.
CHALLENGING JURISDICTION
COLLATERAL ATTACK: a defendant may attack a judgment rendered without jurisdiction in a
2nd, collateral proceeding if the defendant did not appear at all in the proceedings
SPECIAL APPEARANCE: show up for the purpose of contesting jurisdiction. This is different
from presence and consent.
CA: this is called "move to quash service of process" (If denied, Defendant must seek immediate
appellate review)
Casual or
Isolated
Single
Act
Continuous
But limited
Substantial or
Pervasive
No
Jurisdiction
No
Jurisdiction
Specific
Jurisdiction
Specific
Jurisdiction
General
Jurisdiction
1985
Burger King
Specific
1990
Burnham
2011
McIntyre
specific
2011
Goodyear
Pavlovich
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contacts w/OK b/c they did not purposefully avail themselves to the state. Factors to determine
jurisdiction:
o Foreseeability: foreseeable that a car will end up in OK
But it's NOT foreseeability that a car will end up in OK
Foreseeability that D should reasonably anticipate being hailed into court in forum
state
Here, Ds do not advertise or distribute in OK, P's unilateral action took car there.
o Stream of Commerce:
o Purposeful availment: the defendant chose to have some contact with the state; the idea of
After Burnham: (assuming Scalia's plurality opinion is good law) must ask if there are minimum
contacts or if there is residence (defined as presence in the state).
Burnham v. Superior Court(Plurality) No Need Contacts: Presence is Enough
W moved to CA. H served w/divorce papers while in CA doing business and visiting children. HELD:
Scalia: jurisdiction based on physical presence alone constitutes due process b/c it is one of the
continuing traditions of our legal system. Minimum contacts are fine but Shoe and the minimum contacts
test were devised to apply only to cases that fall outside the Pennoyer theory. Contacts are not an issue
with individuals. (But must still look to contacts with people).
Brennan: reaches the same result but applies reasonableness and fairness: protected by CA laws, etc.
Contacts do apply. (Spilly: trivial and in any way at looking at the case).
McIntyre Case
Fair to the defendant to subject them to litigation in forum only if they have purposely availed
himself or herself in that forum.
Pavlovich- not the typical internet case, since its not commercial
CONSENT
A Defendant can consent to jurisdiction: this creates jurisdiction in a court that would otherwise lack
jurisdiction
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LONG-ARM STATUTES
Statutes authorizing courts to reach beyond their borders
1. Is it constitutional?
2. Does it comply with the applicable long-arm statute?
28 USC 2361: FEDERAL INTERPLEADER RULE
In any civil action of interpleader under 1335, a district court may issue process anywhere in the
US: it doesn't have to remain in one area.
Gibbons v. Brown-Personal Jurisdiction for D whose only contact is lawsuit in FL earlier?
G sued Mr. B in FL for crash; 2 yrs later, Mrs. B sues G in FL for her injuries in same crash. Rule: FL
long-arm statute: Defendant must be "engaged in substantial and not isolated activity within the state."
HELD: no personal jurisdiction over G. Mrs. B must show that long arm extends to G (statutory) and that
the minimum contacts are sufficient to satisfy due process (constitutional). Case 1 was 2 years earlier and
involved G plus a non-party (Mrs. B not even involved.) Even suit with same subject matter is not
'substantial' enough contact.
NY Long-arm: Defendant must regularly solicit business or engage in any other persistent
conduct and should reasonably expect act to have consequences in the state.
CA long-arm: authorizes jurisdiction in any case that would be permitted by Constitution
Don't need 2 part inquiry (just Constitutional inquiryminimum contacts)
Long-arm that specifies activities or effects within state: pretty similar to minimum
contacts
COMPARISONPERSONAL v. SM JURISDICTION
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II. VENUE
28 USC 1391
(a): venue for an action based only on diversity:
(1): district where any defendant resides, if all defendants are from the same state
(2): where a substantial part of the events occurred, or substantial part of property is situated.
(3): a district in which any defendant is subject to personal jurisdiction at the time action is
commenced, if there is no district in which the action may otherwise be brought.
(b): venue for non-diversity only actions:
(1): same as for (a)
(2): same as for (a)
(3): a district in which any defendant may be found if no other district is available.
(c): corporate defendants reside in any district where it is subject to personal jurisdiction
(1): If state has multiple districts, treat district as separate state and to see if jurisdiction exists
(2): If no districtcorporation resides in district where it has the most significant contacts.
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(d): An alien may be sued in any district. (Personal jurisdiction must still be met though).
28 USC 1392
Any local civil action, involving property located in different districts in the same state, may be
brought in any of such districts.
TRANSFER
Transferring the case from one federal court to another.
28 USC 1404(a): for the convenience of parties and witnesses, in the interest of justice, a district court
can transfer case to another district where it might have been brought.
Venue is proper but want to move it somewhere else.
28 USC 1406(a): when venue is improper, dismiss or transfer to proper venue (if interest of justice)
1406(b): if D waives venue objection, don't have to dismiss or transfer
28 USC 1631: when a civil action is filed in a court w/no jurisdiction, court shall transfer (if interest of
justice) to any court where it could have been brought.
The action proceeds as if it had been filed in correct court on the date it was filed in wrong court.
Venue is proper, but no personal jurisdiction.
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Forum non conveniens: common law, available to Defendant only, less discretion, original court
has personal jurisdiction and venue
Transfer: statutory, available to Plaintiff and Defendant, more discretion, orginal court need not
have personal jurisdiction and proper venue
III. PLEADING
The legal submissions that set forth the parties claims to relief and their defenses. It sifts out the facts
and legal issues of the incident and gets things started. Two things are designed to do this:
Complaint & Answer
FRCP 7: PLEADINGS ALLOWED; FORM OF MOTIONS
(a) Pleadings Allowed: a complaint; an answer; a reply to a counterclaim; an answer to any crossclaim; a third-party complaint; and a third-party answer.
(b) Establishes the procedure for motions: an application to the court shall be made in writing, shall
state with particularity the grounds therefore, and shall set forth the relief or order sought.
(c) Got rid of the old Common law pleadings
COMPLAINT
A. COMMENCES ACTION: Filing commences action and is what accounts for the statute of
limitations
B. FRCP 8(a): Elements and Specificity of a Complaint: A short and plain statement:
1. of the grounds upon which the courts jurisdiction depends
2. of the claim showing that the pleader is entitled to relief, and
3. and a demand for judgment for the relief the pleader seeks
Form 11 is an example of a short and plain statement
SPECIFICITY OF A COMPLAINT: FRCP 8(a)(2)
Plaintiff must make a short and plain statement of the claim showing that she is entitled to relief.
May need to be more specific to avoid a demurrer (see Pre-Answer Motions)
ELEMENTS OF A CAUSE OF ACTION: a complaint must identify all the elements of the claim
(the cause of action) at issue
1. Some elements refer to conduct, others to mental states, and other to conditions.
2. Plaintiff must prove all elements to win: they have the burden of proof
3. If no cause of action is stated, defendant can file a demurrer:
Haddle v. GarrisonSurvived a 12(b)(6) motion
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Defendant filed for a demurrer under rule 12(b)(6) stating that Plaintiff was not injured in his
property because his at-will job was not his property. HELD: just because at-will employment is
not property for purposes of the Due Process Clause does not mean that the loss of at-will
employment may not injure petitioner in his person or property for 1985(2) (can count as
injury). The complaint is sufficient to infer a cause of action.
Gillispie v. GoodyearDidnt survive a 12(b)(6) motion
HELD: demurrers are affirmed b/c the complaint did not state facts to support a cause of action.
Not enough to allege an injury and call it negligence; negligence is not a fact, but is the legal
result of certain facts.
The problem with Gillispies complaint is that it pleaded legal conclusions rather
than the elements of each legal claim.
This is in code pleading regime; under FRCP this would have been sufficient
Previous Case law does not permit the inference in the complaint
What constitutes being on the premises?
o on premises means the definition of premises under Illinois law comes into play, and
the jury shouldnt be able to decide on the definition since its defined under case law.
o A Plaintiff does not have to specify that their complaint asks for an extension of existing
law, they have to take their chances that their case is reasonable
Another theory on which we could regard the complaint as legally sufficient.
o If you affirmatively send someone into a dangerous area, then under the law of Illinois,
there should be another duty that doesnt require you to be on the premises.
The dissent cited the Restatement of Torts which stated this.
PLAUSIBILITY IN PLEADING
Strength of Inference
Rule: Pleading not only has to be factually presented but also plausible.
Bell Atlantic Corp. v. Twombly (2007)
Parallel business conduct is insufficient to prove a violation of federal antitrust laws; cause of
action requires an agreement not to compete.
The claim was dismissed for failure to state a claim 12(b)(6), as the complaint only alleged
parallel business conduct and then inferred an agreement.
Introduced a PLAUSABILITY requirement. PLAUSIBLE- seems to mean higher than
reasonable
SCOTUS distinguished the requirement from heightened pleading under Rule 9.
Must introduce some facts that nudge the complaint from merely conceivable to plausible.
(good reason for thinking its more likely than the alternative)
RULE: An antitrust claim cannot survive a motion to dismiss when it only alleges that the
monopolists engaged in certain parallel conduct unfavorable to competition, if there is no
factual context suggesting conspiracy or agreement to do so.
Ashcroft v. Iqbal (2009)
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Repercussions: harder for P to move a case into discovery. Seems to be more likely in complex
cases where the plaintiffs dont have the best evidence at the beginning. 8(a)(2) is being
subjected to a higher standard
18
Natural assumption that if P has the burden of pleading, they will have the burden of proving.
o If he fails on even one of the burdens, he could have a verdict directed against him.
Rule 8(d): A party may state as many claims and defenses as it has, regardless on inconsistency. The
pleading is sufficient if any one of them is sufficient.
While separate inconsistent claims and defenses are permitted, the factual allegations within
each claim or defense cannot be inconsistent with the alleged right of recovery, or else it
would defeat itself.
The ruling does not include cases where the plaintiff pleads contradictorily while knowing the
truth
The pleading is sufficient as long as any one of the claims is sufficient
On motion a judge can decide to sever the cases
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DISFAVORED CLAIMS:
FRAUD FRCP 9(b) HEIGHTENED PLEADING REQUIREMENTS
Requires a Certain Particularity in Allegations
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated
with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred
generally.
Scienter= intent or knowledge of wrongdoing
Why do we have a special rule for alleging fraud specifically?
Fraud is uniquely bad for Defendants reputation; so Plaintiff has to be more specific.
Protect Defendant against strike suits: a lawsuit that doesnt have much merit to it but the
Defendant wants to settle quickly because they dont want to deal with it.
o This is the kind of situation and claim that supposedly gives rise to such suits.
Stradford v. Zurich: Stradford stopped paying for his insurance, it cancelled. He started paying for it
again, and tried to make a claim 10 days later. Zurich counterclaims saying that Stradford was acting
fraudulent and Stradford tries to dismiss it for a 9(b) claim under 12(b)(6). Court let Zurich amend its
claim to further state what occurred.
PSLRA: Plaintiff must plead, in great detail, facts that constitute strong circumstantial evidence of
the required state of mind. Both requirements, securities fraud and the required state of mind, must
be pleaded with particularity.
Tellabs v. Makor- Based on PSLRA. Supreme Court trying to resolve Circuit Court differences
Comparative evaluation- must consider not only inferences urged by the P but also competing
inferences rationally drawn from the facts alleged.
What is strong inference of the required state of mind?
it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent
(higher standard than pre-Twombly)
Question of how it interplays with Twombley and Iqbal, since it sets a lower pleading
standard even though the court was trying to set a higher standard
CIVIL RIGHTSNO HEIGHTENED PLEADING STANDARD
42 U.S.C. 1983: Requirements:
1. Deprivation of a constitutional (federal) right
2. Under color of state
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HONESTY IN PLEADINGFRCP 11
This chills creative advocacy because it sanctions lawyers.
FRCP 11(a): SIGNATURE
Signature constitutes endorsement of pleadings
FRCP 11(b): REPRESENTATIONS TO COURT
Requires four things: that a pleading, written motion, or other paper, is formed under the best of the
persons knowledge. The party is certifying that:
1. Certifies that what lawyer files is not for improper purpose
2. Certifies that what the lawyer files is legally non-frivolous
an argument for extension of law will not violate this: you DO NOT have to specify
this with legal arguments. If you were making factual assertions that are not based on
law, you DO have to specify an extension. (See Golden Eagles and Mitchell).
3. Certifies that allegations are well-grounded in fact
4. Certifies that denials are warranted on evidence or are reasonably based on a lack of
information
Golden Eagle v. Burroughs: 11 (b)(2)-Sanctions not allowed for not claiming extension of
existing law
Argument: not substantiated by existing law and not specified as an extension. District judge
imposed Rule 11 sanctions against Defendant for not stating good faith extension and not citing
contrary authority. HELD: Rule does not require counsel to differentiate between supported by
and extension of law. District Ct. makes the Rule more complex and creates costly obstacles for
lawyers. Rule 11 does not require a lawyer to find all contrary authority and decide whether it is
indeed contrary or distinguishable as long as the argument is objectively reasonable. Doesn't
sanction frivolous arguments, only frivolous pleadings.
Walker v. Northwest: 11(b)(2) Legal Frivolousness. Sanctions for failing to plead complete
diversity.
If he had alleged that party on other side were all citizens of SD, it would have been untrue=
11(b)(3), but his contention that federal court has jurisdiction is just to plead own and state some
of defendants are different. This fails to do what the law requires so his complaint is deemed
frivolous.
Claudene Christian v. Mattel, Inc.: 11(b)(3)
Lawyer didnt adequately research because the back of the Mattel doll clearly says 1991, which
implies that it came first. But the other misconduct cant be included, dont know if Rule 11
sanctions should be used.
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RESPONDING TO A COMPLAINT
DEFAULT
FRCP 55DEFUALT
(a) Entry: when a party has failed to plead or defend, the clerk shall enter the partys default.
A defaulting party is deemed to have admitted all well-pleaded allegations of the
complaint.
(b) Judgment: Judgment by default may be entered as follows:
1. By the clerk: Can only be made if three prerequisites are met:
a. Defendant was defaulted because of a failure to appear and
b. Defendant is not an infant or incompetent person and
c. The moving party submits an affidavit establishing that the amount due is
either a sum certain or a sum that can be made certain by computation
2. By the court: in all other cases the party entitled to a default shall apply to the court
(c) For good cause, the court may set aside an entry of default
(d) A default judgment may be entered against US govt only if claimant establishes a claim or
right to relief by evidence that satisfies the court
o
o
It is still incumbent on the plaintiff to prove the damages, just because default judgment
is against D, doesnt mean that plaintiff is entitled to all the relief he is requesting
The entry of default deprives a defendant of the right to contest the factual allegations of
the complaint but does not prevent Defendant from appearing to challenge the amount of
damage
PRE-ANSWER MOTIONS
FRCP 12
FRCP 12(a)(1): (A) A defendant must serve an answer (i) within 21 days after being served with
the summons and complaint, or (ii) if service of the summons has been timely waived on request
under Rule 4(d), within 60 days. Government has 60 days regardless.
FRCP 12(b): defenses by motion that may be made at the discretion of the pleader:
A motion asserting any of these defenses must be made before pleading if a responsive
pleading is allowed.
(1) lack of jurisdiction over the subject matter
(2) lack of jurisdiction over the person
(3) improper venue
(4) insufficiency of process
(5) insufficiency of service of process
(6) failure to state a claim upon which relief can be granted: can be made sua sponte if
patently meritless
o Can be raised at anytime before trial but only once
(7) failure to join a party under Rule 19
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Filing a pre-answer motion under Rule 12(b) is an alternative to answering the complaint
When a federal court grants a 12(b)(6) motion, it is almost always done with a leave for the
Plaintiff to amend the complaint.
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THE ANSWER
Plain English
So What
Common Law
Demurrer
I didnt do it
Yes But
Technical Objections
Traverse
Confession and Avoidance
Dilatory Plea
FRCP
Motion to Dismiss for failure to state a claim upon
which relief can be granted, 12(b)(6)
Factual Denial 8(b)
Affirmative Defense 8(c)
Motion to dismiss for lack of jurisdiction, Motion
for more definite statement, etc. 12(b)(1)-(b)(7)
o
o
o
o
o
Clock begins to run when claim accrues (important point). Court is implicitly saying
that you should reasonably know that you have a cause of action when you know the
cause
Accruement: date on which Plaintiff could have commenced suit.
Requires reasonable inquiry on the part of the Plaintiff
Dont want stale claims
Fraudulent concealment can toll the case
25
Unlike other affirmative defenses (easement, cont. neg.), all of which require the setting out of
additional facts, the statute of limitations is built into Plaintiffs claim itself.
o Courts allow you to file it in a pre-answer motion b/c no new facts are alleged, just dates
COUNTERCLAIMS
The goal of Rule 13 is judicial economy furthered by a single presentation of facts
2 implications:
1. Must be asserted or forever waived (BARRED by res judicata if not asserted in the
first lawsuit)
2. The only kind of counterclaim that can be heard by a federal court even if it doesnt
have its own independent basis of jurisdiction, as long as its arises from same transaction
or occurrence.
Supplemental Jurisdiction (28 USC 1367): jurisdiction over all other claims that are
related in the action
Plant v. Blazer Financial ServicesCompulsory Counterclaim
P sued under TILA for failure to make disclosures required by the Act. D counterclaimed for money.
HELD: debt counterclaim is compulsory. Reasoning: relationship of the claims and rights of the
parties and the common factual basis (the loan) of the claims shows a relationship between the claim
and counterclaim.
Counterclaim
Federal Jurisdiction
Requirement
Consequences of Failure to
Raise Claim
26
or occurrence as the
Plaintiffs claim.
Source: 28 USC 1367 and
case law
CROSS-CLAIMS:
FRCP 13(g): a party may bring a cross-claim against a co-party arising out of the same transaction or
occurrence. Permissive and must have SMJ. Since they always arise from STO, they have supp. Jur.
REPLY
Usually pleadings end with answer.
FRCP 7(a): requires the plaintiff to file a responsive pleading to a counterclaim.
- Answer to another partys answer. Only when the court orders it.
- Plaintiff can use all the same 12(b) motions as Defendant had available
- Counterclaims can be confused for affirmative defenses:
o E.g. Fraud: can be affirmative defense to breach of contract or can constitute a
cause of action
AMENDMENTS
FRCP 15(a)
A party may amend once before a responsive pleading is served as long as no prejudice, undue
delay or bad faith. (Done because a party may want to change story or discovery may reveal
facts).
a. If no responsive pleading required, may amend within 21 days after it is served
b. If D serves motion, P still has a right to amend (motion is not pleading)
PREJUDICE: at some point, a party ought to be able to pin down the other side.
The court can freely give leave when justice so when requires.
Beeck v. Aquaslide N Dive Corp.
Investigations by 3 ins. co. found it made by D and D answered that he did manufacture it. Upon
inspection, he concluded that he didnt and amended. HELD: justice requires amendment. P must
show prejudice to oppose but it was not the shown here. D did not act in bad faith when amended.
They relied on Plaintiffs insurance and other insurance companies reports.
The tension in this case: Defendant has questionable excuse for having mispleaded in the first
place, and Plaintiff will suffer crushing prejudice if amendment is allowed.
Is there prejudice?
o If Defendant wins on the issue of manufacture, then Plaintiff will not be able to sue
because of the statute of limitations;
But the real wrongdoers deceptively similar slide might be the basis of fraud
and might toll the statute of limitations.
o What is the prejudice then?
If he will be able to proceed against the proper wrongdoer, the prejudice
seems less obvious.
Is Plaintiff being deprived of his remedy if it werent for Defendant?
No: hard to find the real wrongdoer
Why does the court decide the way they did?
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If it went to trial, what would happen at trial? The trial would be a farce: a false
contention: They wouldnt be able to bring up the issue that they werent the
manufacturer
o Even if Beeck finds MR.X, the real defendant, Beeks isnt really going to get much
so maybe its better for Aquaslide to not be forced to go through it (Lesser of two
evils)
FRCP 15(c): RELATION BACK
FRCP 15(c)(1): if Statute of Limitations has run:
(a) Relation back is permitted by law that provides the statute of limitations applicable to the
action, or
(b) The claim asserted in the amended pleading arose out of the same transaction or occurrence,
or
Moore v. BakerNot Same T/O, No Relation Back
P alleged pre-surgery issue, amendment tried to include surgery and post-surgery.
HELD: the new claim does not arise out of the same T/O. The complaint did not put D
on notice that new claims of negligence might be asserted. P would have to prove
completely different facts.
Bonerb v. Richard J. Caron FoundationSame T/O Yes Relation Back
P alleges court was negligently maintained and wants to add counseling malpractice.
HELD: P can amend to include counseling malpractice. The allegations in both
complaints derive from the same nucleus of operative facts. Plus, the complaint gave
adequate notice of a new cause of action. Discovery has not yet expired allowing
Defendant to do the remaining discovery.
NOTE: Rule doesnt have anything to do about notice but the courts add it in there to
resolve these grey area cases. Also in Moore, there was discovery but not in Bonerb.
(c) Changes the party or the naming of the party; the party to be brought in by amendment, given
that the party:
a. Has received such notice of the action that the party will not be prejudiced in
maintaining a defense on the merits, and
b. Knew or should have known that, but for a mistake about the identity of the proper
party, the action would have been brought against him.
Worthington v. WilsonDefinition of Mistake, NO Relation Back
P filed complaint naming unknown police officers and amended naming the real Ds.
HELD: The amendment does not relate back under FRCP 15(c) because the amendment
did not correct a mistake, rather corrected a lack of knowledge at the time of the
original complaint
AMENDMENT ANALYSIS
Has statute of limitations run on new claim?
1. Nodo Rule 15(a) analysisblameworthiness of D + prejudice to P
2. Yesdo Rule 15(c) relation back analysis
a. Does claim relate back?
i) Rule 15(c)(2): The claim asserted in the amended pleading arose out of the
same transaction or occurrence, OR
ii) Rule 15(c)(3): D received notice?
i. Then do 15(a) analysis
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PRIVILEGE
FRCP 26(b)(1): Parties may obtain discovery of any matter, not privileged, that is relevant to the claim
or defense of any party
Drawn from the laws of evidence.
Protects information from certain sources:
o It does not block the underlying facts: the information could be discovered from a
different source.
All privileges can be waived (explicitly by party or implicitly by action)
Traditional privileges:
o Attorney-client, doctor-patient, priest-penitent, spouses, self-incrimination
Privileges have nothing to do with relevance.
DISCOVERY DEVICES
REQUIRED DISCLOSURES
FRCP 26(a): a party must provide basic information without awaiting a discovery request.
(1) Basic info on parties, documents used to support, computation of damages, insurance.
Must be made at or within 14 days after the 26(f) conference
(A)(i): must disclose information (name, address, telephone number) of each individual
that is :
Likely to have discoverable information
May support claims/defenses
Not for impeachment (to question the credibility of the particular witness)
(2) Disclosure of expert testimony that may be used at trial, accompanied by a report
(3) Disclose witnesses and evidence/documents that may be offered.
Must disclose all witnesses that you might want to use later. Cant hoard them and surprise the other side, must give
notice. (so if it comes up in discovery, then you can use)
DEPOSITIONSFRCP 30
(a): no more than 10 depositions without court order (must subpoena nonparties)
(b)(6): Corporation has to designate someone but its unresolved if the person they designate has
to really know (check textbook)
(c)(2): Objections
(d): attorney may instruct not to answer only to assert privilege or limitation placed
by court
(d)(2): court may impose sanctions on party for delay or frustration
INTERROGATORIESFRCP 33
Broad requests are usually allowed because they dont know what the other side has
o No presumptive maximum: this is where discovery gets out of control
For non-party you dont make a 34 request, you serve a sub-poena
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A written report and a list of information about the expert must follow.
Expert reports will often be the last significant discovery event.
Distinction between experts that testify at trial and those that are only employed for trial
preparation.
Must be identified 90 days before trial
Occasionally included in work product rule to include experts
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34
SUMMARY JUDGMENTFRCP 56
56(a): prosecuting party may move for summary judgment any time after 20 days from
commencement of action or from when adverse party moves for summary judgment
56(b): defending party may move for summary judgment at anytime with or without affidavits
STANDARD:
56(c): The judgment sought shall be rendered if there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. Look at pleadings,
depositions, interrogatories, admissions, and affidavits to determine (need not be
admissible at trial itself).
GENUINE ISSUE
Evidence is of such a nature that a reasonable jury could return a verdict for the NMP
Scintilla Rule: scintilla of evidence for NMP is enough to defeat sum. judg.
The evidence is taken in the light most favorable to the NMPthat party gets the
benefit of all legitimate inferences
o This depends on the standard of proof because it affects the burden of
production: beyond a reasonable doubt, the one with the burden of
production
56(d): partial summary judgment: a court can rule on an issue if there is no genuine issue of
material fact
56(e): NMP may not challenge summary judgment thru allegations in its pleadings, but thru
affidavits or other means "must set forth specific facts showing that there is a genuine
issue for trial"
WITNESS CREDIBILITY
In deciding a summary judgment motion, the judge cannot take into account the
credibility of the witnesses.
SUMMARY JUDGMENT INQUIRY: 2 QUESTIONS
1. Has the moving party done enough in its supporting papers to get them to the second question?
(e.g. scrutinizing the material submitted by the NMP)
Adickes v. KressQuestion 1 AnalysisMust show the absence of a genuine issueHARD
to show
P sued D claiming a conspiracy between D and the police. HELD: D failed to fulfill his initial
burden of showing that there were no police in the store. If there were, it would be open to a jury
whether they conspired. Therefore, a genuine issue still exists and summary judgment must be
denied even if no opposing evidentiary matter is presented. MP has burden of showing absence
of a genuine issue. MP has burden of showing facts to support each element of claim/defense.
o The court is requiring Defendant to prove the negative of Plaintiffs case.
With Directed Verdict, MP doesnt have to show anything, just motion.
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Something
Negate
Celotex Standard
Adickes Standard
What is the standard if P is MP? Jury would have to find for them. Why?
The burden of proof: If we answered yes to question 1 and P didnt have
enough evidence for a jury to find for her; and in question 2, D has nothing; we
would grant summary judgment to P even though she has nothing.
2. If so, has the NMP done enough in its supporting papers to avoid summary judgment?
Bias- Dont want to use because it seems very odd that the NMP didnt do enough, not a
mainstream down the middle case
Addresses the second question, by saying that you look at plaintiff- NMP evidence in light of DMP. Bad because youre not supposed to be weighing that and theres not a huge disparity.
Visser v. Packer Engineering AssociatesCant infer intent from knowledge
P sued D for age discrimination; D moved for summary judgment. HELD: for the defendant in
the motion. Reasoning: Plaintiff did not offer even an iota of evidence that his age was a factor
in the decision. He offered Packers knowledge of Vissers age and pension rights but the court
found them insufficient. A reasonable jury could not have found for Plaintiff.
o Spillenger disagrees- says the P did have the evidence (which would make the whole
burden shifting happen)
The higher Plaintiff's standard of proof, the harder it is to say that Plaintiff has provided enough
evidence.
Burden Shifting: if the standard were "but for," everyone would lose. But for SJ, the burden
shifts down to substantial factor. Once that is met, the burden is shifted to the defendant to
show that the age was not "but for" cause. He becomes like the plaintiff in the summary
judgment context. So you run through the two question test again.
P=MP (has burden of production)
D=MP (does not have
burden)
Question
Would a reasonable jury have to find for MP in the
1
absence of any opposing evidence?
Celotex
Question
Could a reasonable jury find for NMP?
Could a reasonable jury
2
find for NMP?
Unlike 12(b)(6), the evidence is not automatically assumed truejudge has to judge the evidence and
draw all reasonable inferences in favor of the NMP.
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VI. TRIAL
A verdict is not an announcement about truth, but which side was more credible
When the evidence could go either way, the court must enter verdict for the party without the burden
of proof
o Taxi Cab Hypo: If 75% of cabs are White Co. and 25% Yellow Co.: P is hit by a cabcan
this case go to a jury to decide which one is liable?
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If MP has burden of proof, then grant only if evidence favoring party is of such compelling
strength that a reasonable jury couldn't find for the NMP.
If MP does not have burden, JMOL granted if NMP has no substantial evidence to permit
jury to find in its favor.
o The Defendant does not have to provide anything in support of their motion
D.V. v. S.J.: What accounts for the difference?
o Summary judgment comes earlier in the case: based on paper
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J.N.O.V.FRCP 50(b)
(d) If court does not grant JMOL, the case goes to the jury. The party may file a motion to renew
JMOL and a new trial in the alternative 10 days after judgment
(1) If verdict was returned, court can (A) allow the judgment to stand, (B) order a new
trial, or (C) direct entry of JMOL; or
(2) If no verdict was returned, court can, (A) order a new trial, or (B) direct entry of
JMOL
(c) If renewed motion is granted, court can conditionally grant a new trial. If judgment is
reversed on appeal, new trial shall proceed unless appellate court otherwise orders. If new trial is
conditionally denied, party may appeal
To make a j.n.o.v. motion, you must have motioned for directed verdict at close of evidence.
o This is because directed verdict is constitutional and j.n.o.v. is seen as delayed D.V.
If verdict is unsupportable b/c no rational jury could have found for NMP (winning)
Less harsh than j.n.o.v. (merely begins contest over again), so the standard is lower
When the evidence is strong on one side and weak on the other, but the wrong
side won, the judge cant properly grant j.n.o.v. grant a new trial instead
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turns on credibility of witnessno j.n.o.v. The judges duty is essentially to see that there is no miscarriage
of justice (not that he would have voted the other way). Appellate court will grant new trial if it's an
advanced subject matter for a lay jury. Appellate courts rarely grants new trial.
Abuse of discretion standard (appellate review). 3rd Circuit: should almost never grant a new trial on
flawed verdict (exception: long, complex cases). Dont reverse easily deferential standard.
DIFFERENCES
In J.M.O.L. and J.N.O.V., the ct is saying that the winner of the verdict had no evidentiary
support for at least one claim.
With new trials: You can take witness credibility into account.
Trial court has 4 options: creates problem for appellate courtFrom FRCP 50(c): which is
immediately appealable?
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VII. APPEAL
FINAL JUDGMENT RULE
Subject to exceptions, in the federal courts one cannot appeal a non-final order or ruling
(interlocutory)
USC 28 1291
Courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of
the United States
FINAL DECISION:
One which ends the litigation on its merits and leaves nothing for the court to do but execute the
judgment (Caitlin v. US)
o
o
An order denying summary judgment or granting a new trial are not appealable because there
are still things to decide on the merits of the case
But an order granting summary judgment would be appealable
EXCEPTIONS
FRCP 54(b):
Deals only with multiple claims or parties: If theres a judgment for one or less than all of the claims
or parties, the judge can enter final judgment on that issue and you can appeal it. Entering judgment
for some claims earlier than others allows these to be appealable
Exception to the final judgment rule that requires all claims to be resolved
1. Appellate court may clarify issues that persist during trial; or
2. Issues involved for loser won't complicate case for remaining parties
3 PREREQUISITES for obtaining an immediately appealable judgment:
1. Multiple claims or parties fully resolved (cannot be all)
2. No just cause for delay
3. Entry of judgment
Liberty Mutual Insurance Co. v. Wetzel54(b) doesn't apply
District Court: summary judgment for Plaintiff for Title VII action but left unresolved the request for
injunction or damages. Defendant appealed and it was affirmed. HELD: For a decision to be appealable, it
must be a final decision. P's complaint advanced a single legal theory. 54(b) only deals with multiple
claims: a single claim plus damages are not multiple claims. Because the District Court did not grant
any relief, the judgment is not final and therefore, not appealable.
If the dist. Ct. had said that no reasonable jury could find for Plaintiff on damages and Defendant
was liable: that is appealable.
If the dist. Ct. had issued injunctive relief, that interlocutory order would have been appealable
under 1292.
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An immediate appeal from the order may materially advance the ultimate termination
of the litigation and,
The order involves a controlling question of law as to which there is a substantial
ground for difference of opinion
The appellate court must agree. They are not widely used because the dist. Ct. doesn't want give up
power and the app. Ct. doesn't want to rule on every little thing.
WRIT OF MANDAMUS
Send the whole case up to the appellate court. The higher court can order the lower court to send up the
case since theyre acting ridiculously. Kind of the last resort.
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STANDARDS OF REVIEW
FACTUAL FINDINGS
"CLEARLY ERRONEOUS" STANDARD: Very deferential standard. Appellate court must have
a definite and firm conviction that a mistake has been made.
E.g. Finding of negligence (Stout)
Bench Trial:
FRCP 52: Scope of Review
a. (1) Court shall state conclusions of law and fact separately.
(6) Findings of fact, whether based on oral or documentary evidence, shall not be set
aside unless "clearly erroneous"
b. On a partys motion filed no later than 28 days after the entry of judgment, the court
may amend its findings or make additional findings and may amend the judgment
accordingly.
c. If a party has been fully heard on an issue during a nonjury trial and the court finds
against the party on that issue, the court may enter judgment against the party on a
claim or defense that, under controlling law, can be maintained or defeated only with
a favorable finding on that issue.
"ABUSE OF DISCRETION" STANDARD: very deferential standard: "if justice so requires."
Appellate court asks: was it so outlandish that it was an abuse of discretion?
Jury Trial:
i. General Verdict: appellate court must affirm that verdict if there is any evidence
in the record to support it.
NOTE: the usual way an app ct reviews a jury verdict is through a trial court's denial of a
motion for a new trial: the "abuse of discretion" standard will effectively be the standard
of review.
When the appellate court finds that district court failed to make a finding b/c of erroneous
view of law: remand. The trial court alone is the finder of facts.
ii. Instead the app. Ct. in Pullman found the facts. They didn't remand.
"DE NOVO" STANDARD: review the case anew
"Actual Malice" findings in libel cases regarding public figures
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44
o
o
The second court must apply the law of the first state (for consistency). Transactional or
traditional.
When deciding if a claim is precluded in federal court, the district court uses state law.
3 ELEMENTS
Must satisfy 3 elements:
1. Valid: (jurisdiction)
2. Final Judgment:
3. On the merits
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1. VALID:
US CONSTITUTION ARTICLE IV 1:
"Full faith and credit shall be given in each state to the judicial proceedings of every other state."
28 U.S.C. 1738
"Judicial proceedingsshall have the same full faith and credit in every court within the United
States"
If res judicata would preclude a different court in the same state from hearing a claim,
full faith and credit will generally require courts of other states to give it the same effect.
2 THEORIES OF CLAIM PRECLUSION:
1. Transactional: claim is broadly defined to include matters related in space, origin, and
motivation (same transaction).
a. Many states and the federal system uses this definition
2. Traditional: if the parties and the cause of action are identical, the claim is barred. (See
Counterclaims, Amendments: relation back, and also supplemental jurisdiction).
Frier v. City of VandaliaTraditional Definition
Case 1: state court replevin action, Plaintiff lost
Replevin- plaintiff owns property, defendant has wrongfully detained it
Case 2: (federal court) 1983 violation of due process for seized cars.
HELD: Plaintiff is barred from bringing 1983 action. One suit precludes a second
where the parties and the cause of action are identical. The City was a Defendant in
each replevin action; Frier could have urged constitutional grounds as reasons for
replevin.
Concurring: Claim preclusion doesnt apply because there were two separate causes of
action, each requiring separate facts. Replevin: must show seizure. Due process: must
show inadequacy of procedures w/seizures, not the seizure itself. Plaintiff loses b/c he
could have recovered his car by paying $10 and the other without paying any fee. This
constituted adequate post-deprivation process.
EXCEPTION TO SAME PARTY RULE: "IN PRIVITY"
It is possible for someone not formally named in a party to be so closely connected to the suit that
it is appropriate to treat her as if she were named. The party bound is described as "in privity"
with the party to the first suit. (E.g. Succession of interest in property)
In General, there is no duty to intervene if you know of litigation. (See Searle)
If the parties wanted to be sure to end the matters forever, they have the duty to bring others
in.
Searle Brothers v. SearlePrivity of Parties: Representation
Case 1: divorce and W gets property. Case 2: H's sons sue W for property. HELD: Sons
were not a party or privy to case 1: claim preclusion doesn't apply even though they testified
in the case. H was acting as individual and it was impossible for them to intervene. 4 tests:
Was the issue decided in the prior adjudication identical with the one presented
in this action?
Was there a final judgment on the merits?
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Was the party against whom the plea is asserted a party or in privity with a party
to the prior adjudication?
Was the issue in the first case competently, fully, and fairly litigated
2. FINAL JUDGMENT:
(See Appeals)
What constitutes a final judgment?
- YES Final: final even though appeal is pending; full jury trial; directed verdict;
summary judgment; 12(b)(6) dismissal; dismissal for failure to prosecute; Rule 11
Sanction
- NOT Final: FRCP 41(b): lack of jurisdiction, improper venue, failure to join party
3. ON THE MERITS:
"On the merits:" Something more than nothing: pleading, trial, or something else.
o
E.g. if Plaintiff brings suit then disappears. Defendant gets a judgment on the grounds of
involuntary dismissal. Plaintiff can't bring suit again.
What's the point of having the "involuntary dismissal" device if Plaintiff can just
sue again afterwards?
Same with Rule 37 dismissal sanctions.
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Whether the issue requires the party to prove the same evidence as in another claim.
o E.g. See Illinois Central v. Parks
Loss of consortium claim: wife's broken bones
Damages claim: his own broken bones
Claim preclusion can preclude claims that were never brought up.
**Issue preclusion applies only to actually litigated issues.**
o E.g. If RR never raised J's contributory negligence in case 1, then could J preclude
RR from raising it in case 2 because they had the opportunity of raising it before?
No
EXCEPTION
The determination is conclusive in a subsequent action between the parties, whether on the same or a
different claim. The 2 issues must be identical. (Can be from a different claim though).
-
To understand issue preclusion, you have to look at not only its substantive contours but the
procedural conditions under which it was determined (e.g. resolving an issue civilly doesn't
necessarily resolve it criminally: burden of proof is much higher in a criminal case)
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The issue in case 1 must be consistent w/the judgment for issue preclusion to apply to case 2
o 1st Restatement: when alternative grounds for judgment exist, both should be
precluded
o 2nd Restatement: when alternative grounds for judgment exist, neither should be
precluded.
MUTUALITY:
Case 1 and 2 involve the same parties.
This continues to be a requirement for claim preclusion but recently, courts have abandoned
this requirement for issue preclusion.
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DEFENSIVE USE:
multiple D's and one P
A party who has never had the opportunity to litigate an issue cannot be precluded from
doing so.
o Plaintiff cannot preclude a second Defendant from litigating an issue on the basis of a
judgment in case 1.
Asymmetry: if Defendant loses, it will be saddled by that loss in future cases, but if it wins, it
still has to litigate the issue.
Incentives created are in the direction of efficiency.
The party against whom issue preclusion is being applied must have been a party (or privy) to
case 1
o E.g. Case 1: W v. RR; Case 2: H v. RR. H can use findings of case 1 against RR in
case 2 but RR cannot use findings of case 1 against H. (asymmetrical)
Issue preclusion is not permitted against the US government
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