Joinder of Claims

1. Under Rule 18 (a)

a. If a plaintiff wants to sue a defendant, which claims may she assert?
i. FRCP 18(a) a party asserting a claim, counterclaim, crossclaim,
or third-party claim may join, as independent or alternative
claims, as many claims as it has against an opposing party.
a) Claims do not have to be related!
b) But one claim against that party must be established.
2. Under Rule 20(a)
a. If the plaintiff wants to sue more than one defendant in the action, or
wants to add other plaintiffs as coplaintiffs she may do so under Rule
20(a)
i. FRCP 20(a)
a) Plaintiffs. Persons may join in one action as plaintiffs if:
1) They assert any right to relief jointly, severally,
or in the alternative with respect to or arising
out of the same transaction, occurrence, or series
of transactions or occurrences.
2) Any question of law or fact common to all
plaintiffs will arise in the action.
i. This is about efficient litigation. It is more
efficient to dispose of all the witnesses,
produce records, try the common issue of
the cause once, than to do it multiple
times.
b) Same as for (a)(1)
1) If some complication arises (suchas different
legal standard for recovery, or defenses unique
to the claim against one of the defendants), the
court can always order separate trials under
42(b).
3. CounterclaimsRule 13
a. If a defending party wishes to assert claims against parties who bring
claims against them, it is permitted under rule 13. Counterclaims are
either compulsory or permissive
i. FCRP Rule 13:
a) A compulsory counterclaim
1) In General. A pleading must state as a
counterclaim any claim thatat the time of its
servicethe pleader has against an opposing
party if the claim
i. Arises out of the transaction or
occurrence that is the subject matter of
the opposing partys claim; and
ii. Does not require adding another party
over whom the court cannot acquire
jurisdiction.
b) Permissive Counterclaim Allows a defending party to
assert any claims he has against the opposing party that
do not arise out of the same events.
1) Some compulsory counter claims must be
included
c) In 13(h) A defendant may add a counterclaim defendant
if rule 20(a) reqs. are met.
d) In 13(g) a party may seek indemnification from a
crossclaimee to pass on all of a claim asserted in the
action against the crossclaimant.
4. Crossclaims
a. A claim against a coparty by one defendant against a codefendant, or a
plaintiff against a coplaintiff.
i. FCRP 13(g)
a) A pleading may state as a crossclaim any claim by one
party against a coparty if the claim arises out of the
transaction or occurrence that is the subject matter of
the original action or of a counterclaim, or if the claim
relates to any property that is subject matter of the
original action. The crossclaim may include a claim that
the coparty is or may be liable to the crossclaimant for
all or part of a claim asserted in the action against the
crossclaimant.
1) If youre sued along with another defendant, and
you have a claim against the other defendant
that arises from the same underlying dispute,
you may assert it as a crossclaim in the same
transaction.
5. Rule 14Third Party Practice
a. When a defending party may bring in a third party
i. As a third-party plaintiff, a defending party may serve a
summons and complaint on a nonparty who is or may be liable
to it for all or part of the claim.
a) This is only to reimburse.
1) The D may not bring in someone whom the P
may sue, nor may the D bring in someone for
some related damage which shes suffered.
i. Usually occurs where a party is liable ofr
an injury but has a right of
reimbursement for the damages from
another party.
1. D Defective product sold to P
a. D indemnify Manufacturer
for reimbursenment
ii. Applies where one D has a right to forece
another party to share in a judgment the
P recovers.
1. 3 car wreck. P sues D, D wants
reimbursement from X because X
was also negligent.
6. Class Actions Under Rule 19
a. General rule: If you were not a party, then you are not bound by the
judgment in the ruling.
i. You may challenge and file your own lawsuit
a) Exception: Class or representative suits.
1) When you have a class action, and at least some
of the class are parties, it is possible that you can
bind all of the homeowners even if just one of the
parties represented them all
i. The court says that it is an invention of
equity
7. Class actions with Rule 23: (a) PrerequisitesOne of more members of a
class may sue if and only if:
a. 1. So numerous is impracticable under rule 20Numerocity
b. 2. Questions of law and fact common to the class.
c. 3. Typical of the claims or defenses of the classTypicality
d. 4. Representative parties will fairly and adequately protect the
interests of the class.
8. (b) Types of class actions: Only if 23 (a) is satisfied.
a. 1. Creating a risk of:
i. a) inconsitstent/varying adjudications with repsect to
individual class members
ii. b) a practical matter would be dispositive
b. 2. final injunctive relief or correpspnding declaratory relief is
appropriate
c. 3. Questions of law or fact common to class members predominate
over any questions affecting only individual members
i. (Damages class actions)
Pleading

1. Complaint
a. Rule 8 says the complaint must contain: 1. the courts jurisdiction, 2
relief being sought, 3 short and plain statement that the pleader is
entitled to relief
i. The purpose is to give notice to defending parties.
ii. Short and plain is probably met even if not specifically alleging
each element.
1. May change depending on the judges discretion.
b. In Bell v. Twombly, the Court held that the plaintiffs must allege
enough to show that their claim is plausible, not just conceivable.
c. In Iqbal v. Ashcroft, the Court reaffirmed the stricter pleading
standards, holding a plaintiff cannot state a sufficient claim under
Rule 8 if the language in their complaint is conclusory.
i. 3 Step Test
1. Identify the elements of the pleaders substantive claim
2. Identify and disregard conclusory factual allegations in
the complaint; and
3. Analyze the remaining (well-pleaded) factual
allegations to determine whether they constitute a
plausible claim for reliefin light of the elements of the
pleaders claim; i.e. whether the complaints allegations
contain either direct or inferential allegations
respecting all material elements necessary to sustain
recovery under some viable legal theory.
2. Answer
a. 8(b) requires that the D admit or deny each of the allegations.
i. (b)(2) a denial must fairly respond to the substance of the
allegation. (b)(6) Failing to deny constitutes an admission. If
you deny part, make it clearly known.
ii. (b)(5) allows D to respond that she lacks knowledge or
information sufficient to form a belief about the truth of the
allegationHas the effect of denial.
b. D can claim anything. Under Rule 11, she must have evidentiary
support for the defenses she asserts, but isnt required to stake her
case on one of them.
i. If you have evidence indicating that your client both did and
did not do something, deny it firstly.
3. Rule 11ethical parameters of pleadings
a. (b) certifies that the P made an inquiry, before taking her current
position.
b. (b)(2) position is warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or
establishing new law.
c. (b)(3) after the inquiry, the allegations have evidentiary support, or
are likely to have evidentiary support upon further investigation.
i. Establishes two standards
1. For regular factual allegations, the pleader must have
evidentiary support.
2. Specifically pleaded allegations may be allowed upon
more opportunity to investigate.
d. (b)(3) is limited if the part has had plenty of time to investigate and
does not have enough proof to continue to advocate for the position.

Amending

1. Amending the Complaint
a. 21 days after receiving the answer or motion, a complainant may
amend his complaint (supplementing or superseding). FRCP
15(a)(1)(B)
b. Also, the complainant may file an amendment any time before the
Defendant serves the answer.
c. Additionally, these are as a matter of course, which means they are
done without filing a leave of court.
i. Technically, speaking, with the judges assent, an amendment
may be filed even years after the answer has been served.
d. New theories of recovery are also amendable.
2. Amending the Answer
a. As a defendant, within 21 days of serving your answer, you may
amend it. FRCP 15(a)(1)(A).
3. Amending with Leave of Court
a. When the time of amendment as of right has past, the party will have
to amend her complaint with the judges permission or consent of the
other party. FRCP 15(a)(2)
i. This is when justice so requires.
4. Discretionary Judgments
a. If a fact arises that one party conceded in its complaint/answer, rule
15 does not distinguish between law and fact. Therefore, though it
was conceded before, as long as it is within an appropriate time frame
of discovery, the Court will likely allow the party to amend with leave.
i. This is especially true if the fact is crucial to a defense.
5. Relation Back of Amendments
a. Relation back means that the amended complaint, containing the new
claim, will be treated as though it had been filed when the original
complaint was filed.
i. This is to show that a statute of limitations is not a defense to
the amended complaint any more than it was to the original
complaint.
1. Ex. A sues B for Tort. 3 years later he wants to add a
Fraud claim. However, Fraud had a 2 year statute of
limitations. The amendment will still be allowed,
because a suit commenced before the statute of frauds
applied. The amendment is viewed just as it would had
the Fraud claim been a part of the original complaint.
FRCP 15(c)(1)(B).
2. Even if the new theory is a part of the same transaction,
a judge does not have to allow it. It is up to her
discretion.
b. Relation back for an amendment to change the defendant.
i. Three things must happen:
1. The amended pleading must arise out of the same
events as the original pleading.
2. The D being added must have received such notice of
the action that it will not be prejudiced in defending on
the merits. FRCP 15(c)(1)(C)(i). Must have been
received within the period of time it would have been
received had the new defendant been sued originaly.
3. The P must show that the new D broiugh in by the
amendment knew or should have known that the
action would have been brought against it, but for a
mistake concerning the proper partys identity. (ii).


Pre-Answer Motions
1. Rule 12(b) describes the Defendants options in responding to a complaint
before filing an answer.
a. By filing a 12(b) motion, the defendant suspends the time frame in
which he must answer the complaint. Additionally, by answering the
complaint, the Defendant forfeits his right to file a 12(b) motion.
i. The Defendant may assert the 12(b) objections in the answer.
ii. The defendant must assert the 12(b) motions at the same time.
12(g)(2) bars her ability to refile motions after failing to file
them initially.
iii. 12(h)(1)(A) says that if the D leaves out pj, venue, service, and
sufficiency of service, then they are considered to be waved.
iv. Failure to Join, subject matter, and failure to state a claim may
be asserted later in trial, though not in another motion.
b. 12(b) motions

1) lack of subject matter
2) lack of PJ over D
3) improper venue
4) insufficient process (defect in summons)
5) insufficient service of process (wrong method)
6) failure to state a claim upon which relief can be
granted
7) failure to join a party under Rule 19 (person who
must be made a party to the action to fairly
adjudicate the case.
2. Rule 12(e)
a. The motion for a more definite statement
i. When the claim is so incomprehensible that the responding
party cannot meaningfully respond to it.
3. 12(h)1
a. applies where defendant left out one of the 4 unfavored defenses. It
constitutes a waver of that neglected defense.
b. Applies where the D did not file a pre-answer motion. The omitted
defenses in the answer are effectively waved.
i. If the D raises some of the Defenses and leaves others out, the
neglected ones are barred.
ii. This cannot be circumvented by a Rule 15(a) amendment if it is
past the matter of course stage.



Discovery

1. Rules 2637
a. Six devices of Discovery:
i. Automatic disclosure
ii. Requests for production of documents
iii. Interrogatories
iv. Depositions
v. Requests for admissions
vi. Physical or mental examinations

2. Rule 26(b)(1)
a. Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any partys claim or defenseincluding
the existence, description, nature, custody, condition and location of
any documents or other tangible things the identity and location of
persons who know of any discoverable matter.
i. Information that may not be admitted at trial is still
discoverable.
1. Privilege refers to info that is protected from disclosure
under the Rules of Evidence.
a. Such as Attorney-client.
b. Privilege does not protect factual information
simply because the conversation itself was
privileged.
ii. The party who is given a discovery request must
independently determine if that request is within the scope of
discovery
iii. Rule allows discovery of the existence, description, nature,
custody, condition, and location of any books, documents or
other tangible things.
iv. Must be relevant to the claims or defenses the parties HAVE
pleaded.
b. If a party orders production of intrusive information, the other party
may impose conditions to protect confidentiality of information, to
avoid intimidation, or to limit the burden of responding.
Silent objection or
self-help by
nonproduction is
never proper. Object
and use 26(b)(5) if
necessary.
3. 26(b)(2)(C)
a. A court may limit discovery because it is cumulative, of marginal
relevance, obtainable in anbother way, or if the burden of production
outweighs the likely value of the information, in light of the various
practical realities about the case.
i. The discovery may be unduly intrusive on the privacy of a
party.
4. 26(c)
a. Movement for a protective order, barring production of the disputed
information.
i. If a party is suing because she contracted a STD, the defendant
may seek discovery on Ps other partners, which will probably
be allowed because she has made her sexual experiences an
issue.
ii. Seeking intrusive info to decide whether to pursue a claim may
not be allowed.
5. Controlling discovery under Rule 37
a. A is the motion
i. (a)(1) Moving party must certify that she has conferred with
the objecting party, in an effort to resolve the discovery dispute
without involving the court.
b. B is the sanctions
i. (b)(2)(A)(v); (vi) provides the heaviest sanctions for both
parties.

c. Responses to Improper discovery request
i. Negotiate limitation 29(b)
ii. Object in writing 30-36
1. 30compelled by subpoena
2. 33Interrogatories
a. No more than 25
i. In the scope of anything in 26(b)
b. Answered by the directed party; one who has the
authority to give that info.
c. Failure to object is a waiver
d. If answer, must be signed.
e. Long records may be responded by
i. Asking for specificity
ii. Asking for time to compile.
3. 34electronic info
a. done within 30 days of receipt
4. 35Mental exam
a. must show good cause



5. 37Failure to cooperate with discovery
a. enforcing the provisions of discovery,
i. (a) 2 step process
1. obtain an order compelling
discovery
2. move for sanctions under 37(b)
iii. Move to Limit 26(b)(2)
iv. Move for a protective order (26(c)
1. Limits who can see the information.
2. Can do it even if there is not any improper discovery
requests.
v. Sanctions under 26(g)
d. Enforcing Discovery
i. Confer with opposing counsel 37(a)(1), (d)(1)(B)
ii. Move to Compel 37(a)
iii. Wait for Order compelling discover 37(a)
iv. Move for Sanctions if order disobeyed 37(b), (c), (d)
v. Complete failure to respond to depositions, interrogatories,
RFPs
1. Skips steps 2,3 37(d)
vi. Failure to disclose supplement admit: skip steps 1-3 and go
straight to sanctions. 37(c)
6. Privilege
a. 26(b)(5)(A)
i. parties claiming privilege must:
1. expressly make the claim
2. describe the nature of the document, communications,
or tangible things not produced or disclosedand do so
in a manner that, without revealing information itself
privileged or protected, will enable other parties to
assess the claim.
7. Work Product
a. Trial Preparation materials.
b. Three Criteria under 26(b)(3):
i. The materials must be documents or tangible things.
ii. Prepared in anticipation of litigation or for trial.
iii. by or for another party or its representative.
c. Analyzing a work product claim:
i. Whether the materials are presumptively protected
1. Done by the 3 criteria
ii. Whether the presumption is overcome in the circumstances
FRCP 26(b)(3)(A)(ii):
1. If the party seeking them shows a substantial need for
the materials to prepare its case and cannot be
obtained by substantial equivalent by other means.


Pretrial
1. Rule 16--
a. (c)(2)(C) admissions and stipulations about facts and
documents
b. If failure to stipulate, write an admission under rule 36
i. Pressure them with attorneys fees under rule 37(d)
2. Final Pretrial Order
a. 16(c)
i. Every thing that you intend to prove. This controls the
trial.
ii. In considering a denial of a pretrial motion for
1. Prejudice/surprise to the party
2. Ability to cure
3. Disruption by inclusion
4. Bad faith by modifying party
5. Timeliness
b. (e) must be attended by at least one attorney
3. Rule 41: Voluntary Dismissal
a. Section (a) is the voluntary dismissal section
i. (1)(A)A plaintiff may dismiss without a court order by
filing a notice of dismissal
Step 1: Is the material a document or tangible thing?
Was it prepared by or for another party?
Was it prepared in anticipation of litigation?
If the answer to these questions is yes, the document enjoys presumptive
protection. Go on to step 2.

Step 2: Does the requesting party have a substantial need for the material?
Is it unable to obtain the equivalent by other means?
If yes, it will have to be produced despite presumptive work product
protection.

Step 3: Would the material reveal the mental impressions, conclusions, opinions, or legal
theories of counsel?
If yes, it will be protected from discovery in almost all cases, despite surving 1
and 2.
1. (B) says it is without prejudice
2. This is a notice, not a motion.
b. (b) is involuntary
4. Rule 56
a. It is the motion at the end of discovery
b. (4) Affidavits
i. must be made on personal knowledge, set out fats that
would be admissible in evidence, compentent to testify
c. (d) Facts Unavailable to Nonmovant
i. affidavit cannot present facts essential to justify
1. Defer motion, or deny
2. Time to obtain affidavits or declarations or to
take discovery
3. Any other appropriate order
d. (f) Judment Independent of Motion
i. gives notice and reasonable time to respond
1. grant sum.
e. (g) any material fact that is not in dispute may be listed by the
court to avoid having to fight over undisputed cases.
f. Is it reasonable to






Dispositive Motions: Failure to State a Claim and Summary Judgment

Motion Seeking Decision as a Matter of Law

12(b)(6) 12(c) 56 50(a)(1) 50(a)(1) after P and Ds
case
facts in the facts in Facts undisputed facts facts in full
complaint complaint not movants and non trial record
answer supported movants materials


1. Summary Judgment
a. Rule 56
i. (a) A 56(a) motion may be filed by defense before the jury
receives the case.
ii. There is no genuine dispute of material fact.
1. Plaintiff would respond with there is a genuine dispute
of material fact and would bolster the claim by
demonstration.
a. Additionally, the Plaintiff may move for a 56(a)
by saying that the defense has failed to make an
affirmative defense.
i. Usually rejected at half-time b/c Defense
has not been able to call witnesses.
1. Defense will respond by
demonstrating that she has
witnesses who will give evidence
of an affirmative defense. 56(c)(1)

2. Judgment as a matter of Law FRCP 50
a. Motion made on the grounds that the evidence is insufficient to
support a verdict.
b. Plaintiffs two burdens
i. To convince the judge that her evidence is strong enough on
each element of her claim to support a rational verdict in her
favor.
ii. To convince the jury by a preponderance of the evidence.
c. 50(b)
i. a 50(a) motion must be made in order for a renewed (50(b))
motion to be made.
1. Can be renewed no later than 28 days
d. Neither (a) nor (b) applies in a judge-tried case.



Jury Trial

1. Rule 38
a. Always include your jury demand at the end of your
complaint/answer
i. If you forget, it constitutes a waiver.
2. Rule 39
a. Must be demanded unless
i. Stipulation by attorneys
ii. Court sees that, in the issues, there is no need
iii. Court can appoint an advisory jury
iv. If parties consent, may be a jury verdict.
3. Rule 2
a. Eliminates the division of law and equity in federal court.
i. There is one form of actionthe civil action.

Controlling the Jury
1. Rule 49 (do-over)goes beyond the questions of fact that take you into this
rule.
a. Special verdict
i.
b. Answers to interrogatories
c. Turyna v. Martan Construction
2. Rule 59:
a. 1. Grounds for a new trial
i. (A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court; or
ii. (B) after a nonjury trial, for any reason for which a rehearing
has heretofore been granted in equity in federal court
b. Timing: No later than 28 days.
c. 3 ways
i. Jurys verdict was against the great weight of the evidence
1. Phrases:
a. a serious miscarriage of justice
b. A definite and firm conviction
ii. Procedural error that impacted or may have impacted the
jurys verdict
iii. Discovery of new evidence
1. Rare, because courts insist that evidence was not
available at the time of trial.
d. Trivedi v. Cooper
i. 3 claims
1. Harassment (hostile work environment)
2. Failure to promoted
3. Retaliation
ii. Defendants procedure
1. Judgment as a matter of law on retaliation and failure to
promote. 50(a)
2. Then, after jury verdict, seek renewed JAMOL. 50(b)
3. Remittitur 59(e)renewed
a. Shocks the judicial conscience
i. based on the research that has indicated
the range that other cases have revealed.
b. Clearly unsupported by the evidence.
c. Take the judges lowered amount or suffer a new
trial.
4. New trial under 59(a)
3. General Verdict
a. Who won?
b. How much?
c.
4. Series of special verdicts under 49(a)
5. Verdict for interrogatories under 49(b)

Relief from Judgment
1. Rule 60: Narrow
a. We have found new evidence
b. Couldnt have found it if we had been doing our job.
i. Doesnt qualify under 60(b)
1. If you dont make it under the first 5 of (b), you
probable wont succeed.
2. No longer available after a year for the first 3.
3. 60(b)(4) is one of the most common use.
a. When judgment was brought up at trial
i. Failure to serve. P gets what it wanted,
because the defendant was a no show.
ii. A 60(b)(4) is filed by the D.
4. 60(b)(5), a lot of these are not taken place within a year.


Appeals
Do not think of an appeal as a do-over.
o Not normally an opportunity to to retry the case.
Alabama small claims court cases may be retried de
novo.
There is no de novo review in Federal Court

1. Rule 4 of Federal Appeals
a. Must be filed in District Court
i. Whose appealing, what theyre appealing, to whom are they
appealing.
b. (a)(1)(A)Must be filed within 30 days after entry of the judgment
or order appealed from.
c. (4)(a)(4)if there is a motion pending under 50(b), 52(b), 54, 59, 60,
Then the time for appeal runs from the entry of the order disposing of
the last such remaining motion.
2. 3 Ps of appeals Rule 61:
a. Prejudice from the error below, persevered below, and presented
above.
i. Judges mistake prejudiced the jury and that is why you lost.
ii. Preservation is by objection
1. At the time that the judge denies your jury instruction.
a. Why the court is making a mistake.
iii. Presented
1. Identified the issue
2. Argued about it in your appellate brief.
b. The court must disregard all errors that are not substantial.
3. Macarthur v. University of Texas Health Center at Tyler
a. Appeals because the court did not give her the title 7 instruction.
i. Court says that she did not argue title 7 in any way.
b. Also appeals sex discrimination.
i. Properly preserved them through objection.
ii. Didnt talk about them in her brief.
1. Court says that you cannot argue them, because you did
not raise them in your brief.
a. No grounds for reversing on any other basis.
iii. Its like sandbagging, because they intentionally waited until
the reply brief.
4. Appealability:
a. Final Judgment Rule--1291, 1292
i. 1291: Final Decisions of District Courts
1. Jurisdiction of appeals from all final decisions of the
District Courts of the United States
ii. 1292Interlocutory Appeals
1. Appeal while the case is still going on.
a. (a) Deals with injunctions
i. Anything done to an injunction is
immediately appealable.
1. An injunction is an immediate
action demanded by the court.
a. Among the most powerful
remedies that a court has.
iii. 1651
1. Writ of Mandamus
a. Writ of last result.
i. If appeal grants you remedy, then the
court will not grant Mandamus.
b. In Re Recticel Foam Corp.
i. 1291Have to convince the court of appeals that it has
jurisdiction over the appeal.
1. From final decisions
a. Becomes final when it resolves the contested
matter.
2. This case is not final.
a. If they paid money in, and they didnt have to,
thus this case is not final.
ii. Collateral Order Doctrine
1. Often called the Cohen Collateral Doctrine
2. Four Requirements
a. Unrelated to the merits of dispute
b. A complete resolution of the issue
c. A right incapable of vindication on appeal for
final judgment
d. Unsettled law
3. The main reason for the final order doctrine is for speed
and efficiency.
a. If every order was appealable immediately, the
timeline for cases would extend over and over
and over.
i. Every overrule objection would be
appealable taking years and years to
resolve a dispute.
5. 54(b) possibility
a. If you have a case on multiple defendants and one squeaks out on a
summary judgment, the court may make that final.
b. However, courts may not want to break up those cases.
6. Mandamus
a. In Re Recticel Foam Corp. part 2
i. What is a petition for mandamus?
1. Will be directed toward the district judge
a. In this case they are getting the appellate court
to undo the mandate from the court.
2. It is a drastic measure to be taken in extraordinary
situations.
a. Must be made in the most necessary situation.
ii. It is not allowed if the case can be sufficed by some other
preceding appeal.
1. Irreparable damage.
2. Clear entitlement of relief
3. Also no other remedy will work.
iii. Key words:
1. Right to writ must be clear and undisputable
2. Exceeded discretion
a. Usurpation of power
3. Rarely will the court be usurping the power.
7. Chart:






Claim and Issue Preclusion

1. Res JudicataClaim Preclusion
a. RST 17a final valid judgment is complete from review except
i. 1if it is against the plaintiff, the claim is extinguished and
merged in the judgment and a new claim may arise on the
judgment.
ii. 2if the judgment is in favor of the defendant, the claim is
extinguished and the judgment bars a subsequent action on
that claim.
1. The Defendant would affirmatively claim res judicata:
the claim has already been tried in another court.
b. RST 24Dimensions of Claim for purposes of Merger or Bar
General Rule Concerning Splitting
i. When extinguished claim is pursusant to the rules of merger or
bar, the claim extinguished includes all rights of the plaintiff to
remedies against the defendant with respect to all or any part
of the transaction, or series of connected transactions, out of
which the action arose.
ii. Whether factual grouping constitutes a transaction and
constitute a series are pragmatically determined, in times,
space, origin, or motivation, whether they form a convenient
trial unit, as it conforms to the parties expectations or
business understanding or usage.
1. Transactional test
c. Primary rights definition
i. 1194oldest way of looking at a claim
1. Views each theory as a separate claim and therefore
trial.
ii. RST says it doesnt care how many labels are given to the
various rights, there is just ONE accident.
No
Deference
Complete
deference
De Novo
Questions of law
Clearly
erroneous
Facts found by judge
Abuse of discretion



Discretionary
orders
Reasonable
Jury




Jury verdicts
1. Just treats the accident as one claim, litigating individual
issues at once.
2. By 1982, the transaction test is used.
a. Seen by most Federal Courts.
3. There is symmetry between how broad a joinder of
claims and parties with how you bring your equitable
and law claim will be.
a. Once you allow broad joinder and parties, it
incentivizes parties to sue at once.
i. Efficiency drives the thoughts.
d. Elements of Claim Preclusion: (TIP: if you see two cases and one was
final, start thinking claim preclusion.)
i. Same Claim
ii. Case 1 resulted in a valid, final judgment on the merits (incl.
disciplinary dismissals and default judgments, but not lack of
PJ SMJ or improper venue)
iii. Same partiesand their privities.
1. Sometimes used in a strict, narrow sense.

iv. River Park v. City of Highland ParkFederal Court
1. Developer says they got screwed by the city and are
suing because of it.
a. Case 1: River Park v. City
i. Defendant is liable b/c he was deprived of
property rights w/o Due Process.
1983Violation of property rights.
1. No state law claims. Dismissal in
district and appeals. Case dies.
b. Case 2: River Park v. City
i. Sues for tortious interference, breach of
implied contract, abuse of governmental
power. These are all state law claims.
2. Illinois had used the same evidence rule.
a. If the evidence of the first suit must be used in
the second, then it is the same claim.
b. Elements of Res Judicata
i. Final Judgment on Merits, by a Court of
competent jurisdiction
ii. Same cause of action
iii. Same parties or privies.
3. Transaction Rule
a. It doesnt matter about the relief, but if it comes
out of the same transaction, then it must be
litigated at once.
b. Court calls it more modern, more pragmatic.
i. When applied to this case, evidence is
barred.
c. Principle: USE IT OR LOSE IT
i. Its all about efficiency.
e. RST 26 Exceptions to Claim PreclusionPg. 1210
i. (a) Parties have agreed in terms that plaintiff may split the
claim.
ii. (b) court in first action expressly reserved the right to
maintain
iii. (c) P was unable to rely on a certain theory because of subject
matter jurisdiction and P seeks relief under that theory.
1. Usually seen in courts of limited jurisdiction. (Small
claims courtseeking injunction)
2. Campbell calls this the most important one.
iv. (d) Judgment in first action was plainly inconsistent with
implementation of a statutory or cons. Scheme
v. (e) Substantive policy
vi. (f) Apparent inabilityextraordinary reasons.
2. Issue Preclusion
a. Taylor v. Sturgell
i. Theory of virtual representation is dead.
b. RST 27(1) same issue of fact or law, (2) actually litigated,
determined by (3) a valid and final judgment on the merits, and
that determination is (4) essential to the judgment (cant be
collateral issue that wasnt important. Court had to find in favor of
that party in order for that party to win.), conclusive in a subsequent
action between the (5) same parties on same or different
i. Have to be able to say (1) it happened once,
ii. Is arbitration considered litigation? (ASK THIS QUESTION)
c. RST 28exceptions to 27 when 27 is satisfied:
i. Party against whom preclusion is sought cannot obtain review
of the initial action
ii. Issue of law
iii. Difference of extensiveness of procedure
iv. Heavier burden of persuasion
v. 5. Clear and convincing need for new determination of the
issue (a) b/c potential adverse impact of the determination
on the public interest, interests of persons not themselves
parties in the initial action (b) b/c it was not sufficiently
foreseeable at the time of the initial action that the issue (c)
party sought to be precluded as a result of the conduct of the
adversary.
1. 5(a) other party who automatically loses the
subsequent case.
d. Nichols v. Felger
i. Case 1
1. Unpaid legal fees suit.
2. Lawyer wins the suit. No malpractice
ii. Case 2
1. Client sues lawyer
a. D answers with a motion for summary judgment.
i. Instead of motion for judgment on the
pleadings, the D here has to give the court
the case file.
ii. When you go outside of the pleadings, the
court must treat it as ONE pleading for
summary judgment. FRCP 12(d).

e. Panniel v. Diaz
i. P, hospital, and Diaz all have the same insurer.
ii. P files 2 cases.
1. Case 1: Panniel v. NJM (insurance)
a. Is a Personal Injury Protection (PIP)
2. Case 2L Panniel v. Diaz/RWJ Hospital
a. Tort claim
f. Cambria v. JeffreyEssential to the Judgment
i. There is a collision
1. Case 1: JeffreyCambria
2. Case 2: CambriaJeffrey
a. The finding that Cambria was negligent in case 1
was not essential to the ruling.
i. Because it is not essential, it is not issue
preclusive.
ii. Additionally, there was no compulsory
counter-claim rule.
g. Blonder-tongue labs (1971)
i. University of Illinois foundation was suing a man named Able
for a patent violation.
1. Case 1: went to jury; jury found that the patent was
invalid.
2. Case 2: same plaintiff Unv. Of Illinois sues Blonder-
Tongue
a. Non-mutual. Blonder-tongue was not a party or
in privity.
i. BT raises a defense that because the
patent was found to be invalid, the issue
should be precluded.
h. Parklane Hosiery v. Shore
i. Case 1: SEC v. Parklane
1. Judge found that the statement was false and misleading
and issued his judgment
ii. Case 2: Shore v. Parklane
1. People bought stock in PLH, so because PLH lost the
previous case, the people are suing PLH.
a. Wanting damages, rescission,
2. Shore moves for partial summary judgment on the
proxy statement issue.
3. Court says that the ruling might promote a wait and see
attitude.
4. It might not promote judicial economy
5.
iii. Remember, issue preclusion is like an estoppel.
1. Can be for either party
i. Trial court has broad discretion and may apply factors such as
i. The plaintiff could have joined in the litigation earlier (wait
and see)
ii. It would be unfair to the defendant.
j. Under Issue preclusion ask the following questions:
i. Who is the victim of the preclusion?
ii. Did the victim have a full and fair opportunity to raise the issue
in the first case?
iii.

























Additional knowledge on Rules

1. Rule 2The Civil Action
a. One form
i. Shows the merging of law and equity. Reliefs may be obtained
in the same action.
2. Rule 8Rules of Pleading
a. Short and Plain Statement; elements:
i. Grounds for jurisdiction
ii. Entitlement to relief
iii. Demand for relief
3. Rule 9(b) Fraud or Mistake
a. Must be stated with particularity
i. Many courts require time, place, context.
ii. The facts must give strong inference of fraud.
iii. Can sound like fraud.
4. Rule 11Signing pleadings
Purpose: Streamline the administration and procedure of the federal
courts.
a. Signature
i. Must be signed by one of the attorneys
b. Representation
i. Found when significant carelessness is identified.
ii. Claims evaluated individuallyonly portions, not whole docs
iii. Improper Rule 11 Motionssubject, themselves, to review
iv. Shows reasonable inquiry.
v. Standard of culpabilitysubmitting doc purports that doc has
no improper purpose
c. Sanctions
i. Regulates who may be sanctioned under Rule 11(b)
1. Attorneys, law firms, parties
ii. safe harbor
1. No sanctions motions until 21 days after service of the
motion.
2. Changes if the motion is changed or withdrawn.
iii. 3(B) Courts initiative
1. If 11(b) violation, an order must be issued to show
cause
iv. (4) issue nonmonetary order to deter repetition of the 11(b)
violation.
v. (5) No monetary sanctions for (A) 11(b)(2) violations, or (B)
unless a show-cause under (c)(3).
d. Does not apply to discovery.
5. Rule 12
a. Time and procedure for serving responsive pleadings, factual and
legal assertions, objections, defenses, and for making preliminary
motions and motions for judgment on the pleadings.
b. Failure to include all 12(b) motions with one 12(b) motion constitutes
a waiver of the unincluded.
c. Judgment on the pleadingsif no material facts remain at issue and
dispute can be resolved on both the pleadings and those facts of which
the court can take judicial notice.
d. Matters outside of the pleadings
i. Motion must be treated as one for summary judgment under
rule 56.
ii. Court must give notice of a conversion of the materials that are
outside of the pleadings.
e. Motion for a more definite statement.
i. If a pleading is so vague or ambiguous, the receiving party need
not serve a response.
ii. Generally disfavored because of Rule 8s liberal construction.
iii. Burden is on moving party.
iv. Bars the waivable rule 12 motions.
v. May be used by claimants when the defense is unintelligible
vi. Sua Sponte Motions
1. The court in its discretion may strike a deficient
pleading and direct the pleader to file a more definite
statement. for Shotgun Pleading Deficiencies.
f. Motion to strike
i. Gives the court ability to strike any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.
1. Matter of expediency: time, money, effort.
2. Disfavored.
ii. Test:
1. Deem as admitted all nin0moving partys well-pleaded
facts
2. Draw all reasonable inferences in the pleaders favor
3. Resolve all doubts in favor of denying the motion
4. If there is ANY DOUBT, the motion will be denied.
iii. Moving party must show:
1. The challenged allegations are clearly unrelated to the
pleaders claims
2. The moving party must be prejudiced by permitting
those allegations to remain in the pleading.
iv. Striking defense
1. If defense fails to meet rule 8 and 9 pleading standards
2. Fails to give fair notice to the opponent
3. Is so deficient that no evidence would be admissible
towards that defense.
v. Moving Party must show:
1. No question of fact or law that might allow the
challenged defense to succeed.
2. It appears to a certainty that the challenged defense will
fail regardless
3. Prejudice if the defense remains in the case.
g. Joining Motions
i. If a party makes a 12 motion it must include all rule 12
defenses and objections then available in a single, omnibus
motion.
ii. This is to avoid piece-meal litigation tactics, where the
defendants seek dismissal on one ground, lose there, and then
seek dismissal anew on a different ground.
iii. The party may only make the omnibus motions with those that
are then available to that party.
1. If another becomes available, it may be allowed.
h. Waiving and preserving certain defenses.
i. 12(b)(1-5) are waived if a party fails to include them in any
other Rule 12 motion.
ii. Prevents delaying effect.
iii. If the court finds that it lacks subject matter at any time it must
dismiss.
1. This is Rule 12(h)(1)(C)(3).
6. 13
a. authorizes persons who are already parties to an action to assert
counter claims against an opposing party
7. 14
a. Permits additional parties whose rights may be affected by the
decision in the original action to be joined so as to expedite the final
determination of the rights and liabilities of all the interested parties
8. 15
a. governs the circumstances in which parties who have already pleaded
in a case will be permitted to amend such pleadings. The rule also
provides the circumstances in which the parties will be allowed to file
the new pleadings describing events that have occurred since the
original pleadings were filed.
9. 16
a. authorizes the district court to convene pretrial conferences with the
purpose of processing a case efficiently. While the court has discretion
to hold such pretrial conferences, rule 16 requires the court to issue a
scheduling order setting procedures for discovery and trial, unless the
case falls into a category which the court by local rule has exempted
from the requirement for a scheduling order. Further, if a pretrial
conference is held, 16 also requires the court to issue a pretrial order
after such a pretrial conference detailing the action at the conference
and establishing the course of action to be followed. The order is
binding unless subseaquently modified by the court.

10. 18(a)
11. 19
12. 29
13. 23
14. 26
15. 30
16. 33
17. 34
18. 35
19. 37
20. 38
21. 39
22. 41
23. 55
a. Default Judgment
b. Procedure for defaults and default judgments in federal courts. B/c
default judgments are not favored by the courts, Rule 55 also defines
the procedure for setting aside defaults and default judgments.
c.
24. 56
25. 60




Forms
1. Form 52Report of the Parties Planning Meeting
a. (3) includes the discovery plan