CIV PRO OUTLINE Reinert Fall 2014

Personal Jurisdiction Tests

Start with long-arm statute
Did they consent to jurisdiction?
Is there general jurisdiction?
Continuous & Systematic but Unrelated contacts so substantial and of such
nature as to justify suit against it on causes of action arising from dealings entirely
distinct from those activities
Contacts (Intl Shoe)
continuous and systematic + related or unrelated
Purposeful Availment/Direction (WWVW, Asahi, J McIntyre)
Calder Effects Test: action where the intent of harm is directed at a specific
state
Defendant intentionally caused effects in the state through activity
conducted elsewhere
A foreign act that is both aimed at and the brunt of the harm is felt in
the forum; satisfies the requirement of purposeful availment. It was
foreseeable that they would be haled into court there
Contractual Contact (Burger King, McGee, Hanson)
Stream-of-Commerce Cases (Asahi, J. McIntyre)
OConnor: purposeful direction; Brennan: purposeful availment; Kennedy:
foreseeability + intent to serve forum state (purposeful availment +)
Property Cases: Quasi in Rem Cases (Shaffer: cannot assert pj based on
property)
Internet Cases (Zippo or Calder effects)

Reasonableness
1.
2.
3.
4.
5.

s burden
s interest
Forum state interest
Interest of judicial efficiency
Shared substantive policy issue

RULE 4
Rule 4(k): Territorial Limits of Effective Service (not a formal statute, but has the force of
one) Does 4(k)(1)(a) apply or an alternate applicable provision?
a. Rule 4(k)(1)(a) If none apply, then analyze according to Part B When federal
statute does not determine jurisdiction, Piggy-Back on state's long arm statutes.
this is the default
i.

Treating a federal court like a state court

b. Rule 4(k)(1)(b), if a party joined under Rules 14 or 19 are within 100 miles from
where the summons was issued, jurisdiction is proper. (dont really worry about
this one)
c.

Rule 4(k)(1)(c). Is jurisdiction authorized by federal statute?

i.

If not authorized, back to 4(k)(1)(a)

d. Rule 4(k)(2). Is this a claim arising under federal law against a person not subject
to personal jurisdiction in any state? If so, service establishes jurisdiction if it has
minimum contacts with the United States, and analyze according to Part C, but
with reference to the United States as a whole. Proper under the Calder Effects
test.
In rem: jurisdiction to adjudicate claims concerning rights in property against the whole world.
Quasi in rem: refers to jurisdiction to adjudicate rights in property of a particular person or
persons.
QIR-I: property claim is only against a certain person or persons. I own this property and you
dont
QIR-II: Property as a hook for jurisdiction. Resulting judgment ONLY as good as extent of
seized property
Only exists where state doesnt go to the limits of the Constitution
If statute only goes to limit of property value
Still must satisfy minimum contacts

Subject Matter Jurisdiction

3 types:
1. Diversity ( 1332)
a. MUST HAVE:
i.
Citizenship
ii.
Complete diversity
iii. AIC (more than $75K)
1. Based on first filing of s claim
2. Legal certainty test when challenged
3. Can include injunctions, punitive damages (but no legal fees)
4. Value of injunctions can be based relative to , , or both (depends
on courts individual approach)

2. Federal Question/Arising Under ( 1331)

a. Express or implied federal law cause of action? (Holmes Creation Test: Who
created the claim for relief?)
i.
Yes FQJ
ii.
No state law cause of action w/ fed ingredient?
1. No NO FQJ
2. Yes Analyze Grable factors:
a. (1) Does it necessarily raise a federal issue?
i.
The well-pleaded complaint rule under Lousiville
& Nashville R. Co. v. Mottley (U.S. 1908) you
cannot allege a defense and anticipate a federal
answer without giving defendant the opportunity to
plead or prove own their defense.
b. (2) Actually in dispute as a matter of law?
i.
Moore v. Chesapeake & Ohio Railway Co. (U.S.
1934) A less substantial violation of federal statute.
Might upset the balance.
c. (3) Substantial?
i.
The Merrell Dow Pharmaceuticals Inc. v.
Thompson (U.S. 1986) Rule Claim created by
state law that requires interpretation of federal law
is generally not enough. Complies with Grable
because it is not substantial enough.
d. (4) No interruption of balance of Federal/State Power?
i.
Yes to all 4 factors FQJ
ii.
No to any of the factors NO FQJ
3. Supplemental Jurisdiction ( 1367)
a. If no independent basis for jurisdiction Supplemental Jdn (see chart)

4. Removal 1441
a. Would the federal DC have original jurisdiction over Ps claims if they were
filed in federal court?
1. Limitation in Diversity cases, removal is proper only if no
defendant is a citizen of the state in which the action was
brought.
ii.

If Yes, then removal is proper by Defendant (Plaintiff cannot remove even

when a counterclaim is made. Shamrock) for diversity purposes unless the
remover is a citizen of the state removing to. Removal proper under
Federal Question so long as there is defendant unanimity and within
30 day window.
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iii.

Removal of multiple claims, one of which could not be removed if sued

upon alone 1441(c). BUT not for diversity, so a Plaintiffs Tactic to
stay out of Federal Court is to join a non-diverse party to the case.

iv.

Judges may also remand a state claim back to state court while
keeping the Federal Claim.

v.

Amending Complaint cannot amend complaint to destroy AIC amount

as a tactic to get removal.

b. Why remove?
i.

Removal decisions based on tactical reasons: jury verdicts, trial rules &
procedure, availability, caseload, personality of federal judges in making
decision of whether to remove a case to fed court

Joinder
1. RULE 18 Joinder of Claims
a. No limitation on joinder claims
b. As long as theres jurisdiction
c. You CAN bring the claims together
d. Not compulsory
e. Res Judicata motivates bringing them together
f. Prevailing notion that is the master of their complaint
2. RULE 42(b)
a. Court can separate claims
b. Discretionary
3. RULE 13 Counterclaim and Crossclaims
a. Counterclaims
i.
Counterclaims added by
ii.
13(b) Permissive counterclaims
1. Anything thats not compulsory
iii. 13(a) Compulsory counterclaims
1. 13(a)(1)(A)
a. Same transaction or occurrence
b. Second Circuit Test: logical relationship
c. Dont raise it, youve lost it
d. Exceptions:
i.
Lack of jurisdiction
ii.
Part of pending action
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b. Crossclaims
c.

Against coparties
i. same transaction or occurrence
ii. 13(h)-allows joining additional parties
iii. NOT compulsory
iv. But if you have compulsory counterclaims due to a
crossclaim, you still must bring them
v. Because of Rule 18 crossclaims can be anything you want
vi. After you have one valid crossclaim
vii. Then you can bring anything

4. RULE 19-Required Joinder of Parties

a. Meant to correct potential unfairness of 20
b. Usually a move
c. 19(a)
i.
1) Are they required/ necessary by 19(a)?
ii.
2) Is it feasible to join them 19(b)?
1. Is there jurisdiction?
2. If yes to both- JOIN
3. Not feasible-then ask
iii. 3) Are they indispensable?
1. Yes- dismiss case without them
2. 19(a)(1)(A)
a. Complete relief cannot be accorded in partys absence
b. Hollow/meaningless relief without them
c. Not about additional damages
d. Typically regards injunctive cases
e. About prejudice to s
3. 19(a)(1)(B)
a. About prejudice to absent parties
b. So prejudiced that its worth dismissing the case?
4. 19(a)(1)(B)(ii)
a. Prejudice to existing party
b. 19 (b) When Joinder is not Feasible
i.
in equity and good conscience
ii.
Connotes flexibility
iii. can try to bring in indispensable people to destroy
the case
5. 19(a) required vs. 19(b) indispensable?
5. RULE 20-Permissive Joinder of Parties

a. or may be joined
b. Arising out of the same transaction/occurrence
c. Or Common question of law or fact
d. Very permissive
e. Meant for convenience and expedience
6. RULE 14 Third Party Practice
a. Applies to the defending party ( or in counterclaim)
b. 2 ways to come in
i.
Contribution claim
1. Contributed to the wrong
2. Ex: Jeub v B/G Foods Inc. (MN District Court 1942)
3. Ex: Too, Inc. v Kohls Department Stores, Inc. (SDNY 2003)
ii.
Indemnification claim
1. Usually requires agreement to indemnify/ be responsible
2. Havent done anything wrong themselves
c. Less intrusive than rule 19
d. Helps avoid inconsistent judgments and inefficiency
7. RULE 24- Intervention
a. Outsiders joining in
b. Not required, but allowed (unlike 19)
c. 24(a)(1)
i.
US may always intervene in US issues
d. 24 (a)(2) Intervention of right
1. Possess an interest
2. Could impede rights of those absent
3. Not already represented
e. Written similar to 19 but read more broadly
f. 24 (b) Permissive Intervention
i.
very rare

PLEADING
A. Adequacy of the Complaint:
1. Must satisfy Rule 8(a), or be subject to Rule 12(b) dismissal:
a. Rule 8(a) Claim for Relief: A pleading that states a claim for relief must
contain:
i.

(1) a short and plain statement of the grounds for the court's
jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support;
a. Diversity;
i.

Must satisfy showing of diversity of citizenship and

AIC

b. Federal Question Jurisdiction; or

c. Supplemental
ii. (2) a short and plain statement of the claim showing that the
pleader is entitled to relief; &
iii. (3) a demand for the relief sought, which may include relief in the
alternative or different types of relief
b. Rule 12(b) How to Present Defenses: Every defense to a claim for relief in
any pleading must be asserted in the responsive pleading if one is
required. But a party may assert the following defenses by motion:
i.

lack of subject-matter jurisdiction;

ii. lack of personal jurisdiction;

iii. improper venue;
iv. insufficient process;
v. insufficient service of process;
vi. failure to state a claim upon which relief can be granted; and
vii. failure to join a party under Rule 19
B. Rule 9 Special pleadings
1. Certain claims must be pled in a special manner special thing about fraud:
complaint must point out the specific statements that constitute fraud
2. Must be pled with "particularity," must compel a strong inference to a reasonable
juror

C. Two working principles underlie our decision in Twombly :

1. Plausibility standard
a. Context-specific task that requires the reviewing court to draw on its
judicial experience and common sense
2. Accept only facts to be true, not what is conclusory
a. Conclusory: mirrors elements of the cause of action.
i.

The more it looks like a legal conclusion, the more conclusory it is

D. Plausible on its Face?:

1. A claim has facial plausibility when the P pleads factual content that allows the
court to draw the reasonable inference that the D is liable for the misconduct
alleged
2. Not akin to probability, but more required than mere possibility
3. Must cross line from conceivable to plausible. Twombly.
a. Reinert Plausible is somewhere between conceivable and probable.
b. Iqbal Judicial Experience and Common Sense is the new plausibility
standard.
4. May involve comparing plausibility of plaintiffs theory to alternative
explanations (Iqbal)
5. Note: Being merely consistent w/ unlawful conduct is not enough for plausibility
E. Cannot state Conclusory Allegations (Iqbal)
1. An allegation is conclusory when it simply mirrors the elements of a cause of
action (e.g. duty, breach, causation, damages).
a. Reinert The less is looks like you are pleading the ultimate facts that
you are trying to prove, the more likely it is factual.
b. ALSO The more it looks like you are pleading the elements of the prima
facie case, the more likely it is conclusory.
2. Court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.
3. While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.
4. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to
relief.

F. Application in Iqbal
1. What allegations are discarded/rejected as conclusory?
a. Allegations going to purpose of policy
2. What allegations were treated as factual and thus entitled to presumption of
truth?
a. Fact that thousands of Arab Muslim men were arrested & detained
b. Fact that defendants approved policy of holding them in highly restrictive
conditions of confinement until cleared
3. Court says these facts are consistent with allegations of discriminatory purpose,
but do not plausibly establish such purpose: discrimination is not a plausible
conclusion due to obvious alternate explanation
4. No allegations sufficient to plausibly suggest that Ds had discriminatory state of
mind
5. Note: civil rights cases generally require proving a state of mind driving the
discrimination which is problematic b/c court here is clearly taking state of mind
as conclusory
G. Leatherman (2002) still good law
1. No heightened pleading standard required in civil rights cases.
a. BUT note the tension that it is hard to factually plead state of mind,
which is required in civil rights COAs.
H. Swierkiewicz (2002) still good law
1. No heightened requirement for Employment Discrimination, just conform to Rule
8(a)(2).
a. Subject to an adverse employment action because of my age Sounds
conclusory, but is not overruled, so must not be. Note the corresponding
levelness in success of MTDs.
b. You do not need to plead a prima facie case, which is simply an
evidentiary standard.
I. Quick and Dirty Pleading Test:
1. Which allegations are factual and conclusory?
a. Eliminate conclusory allegations
b. Determine if remaining allegations are factual
2. Do factual claims allegations support plausible claim for relief?
a. Use Judicial Experience and Common Sense plausibility standard.
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J. Amendments to Pleadings
1. Rule 15(a) freely given
a. Rule 15(a)(1): as a matter of course
i.

Given leave to amend once within:

a. 21 days after service; or
b. If there is a responsive pleading, 21 days after service of
responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f)
i.

12(b) How to present defenses

ii.

12(e) Motion for a more definite statement

iii. 12(f) Motion to strike

b. In all other cases, only with consent of opposing party or by leave of the
court
i.

When justice so requires, amendments should be freely given in

the absence of any apparent or declared reason:
a. undue delay
b. bad faith
c. dilatory motive
d. repeated failure to cure deficiencies by amendments
previously allowed
e. undue prejudice to opposing party by virtue of the
allowance of the amendment
f.

futility of the amendment

c. In Beeck, it was determined first that they were the manufacturer and
admitted to it, but later discovered they were not. There is no prejudice to
Plaintiff; it was not bad faith; if anything it would prejudice the Defendant
heavily.
2. Rule 15(b): Amendments during and after trial must relate to original claim
a. Amendment to conform to the evidence (Moore v. Moore) if the
amendment seeks to conform a pleading to evidence presented or sought
to be presented at trial, should it be permitted under 15(b)?
i.

Consent express or implied?

a. Express obviously OK
b. Implied Consent Was any objection raised?
10

i.

No evidence of implied consent

ii. Yes no implied consent

ii. Leave of the Court would the objecting party be unfairly
prejudiced?
a. Yes. Do not allow.
b. No. Allow.
b. Only reason to amend under 15(b) after trial is if matter is being relitigated
in another case, so you can point to it later res judicata matter of
efficiency
3. Rule 15(c): Relation back of amendments: Only relevant when SOL has run: An
amendment to a pleading relates back to the date of the original pleading when:
a. 15(c)(1)(A) refers to state law umbrella does state SOL allow?
b. 15(c)(1)(B) if amendment asserts a claim or defense, it must arise out of
same conduct, transaction or occurrence set out in orig. pleading, and
satisfy 15(c)(1)(A)
c. 15(c)(1)(C) amendment changing the party or the naming of the party
against whom a claim is asserted
i.

Must satisfy 15(c)(1)(B) same conduct, transaction or occurrence

ii. Must satisfy 15(c)(1)(A) allowed by state law

iii. Must be within period (120 days) provided for in Rule 4(m)
iv. 15(c)(1)(C) Party to be added (i) received such notice that it
will not be prejudiced in defending on the merits; and (ii) knew
or should have that the action wouldve been brought against them
but for a mistake concerning the proper partys identity
a. These two in practice are difficult to distinguish
d. Relation back in 15(c) may be treated as applying equally to supp.
pleadings
i.

ex/aquaslide-fraud preventing from suing appropriate party

e. Amending a complaint to change the names of the parties, even when

falling within the 120 days after the SOL passes [as allowed under rule
15(c) rule 4m] may not be permitted where a partys name is added
where unknown was before.
4. Rule 15(d) Supplemental amendments

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a. Used to set out any transaction, occurrence or event that happened after
date of pleading being supplemented
i.

Can be used to cure defects in orig., add new claims, or provide

additional facts

ii. Lower fed cts have allowed supp. complaint to bring new claims
because it promotes economical and speedy disposition of the
controversy
b. May be done despite original pleading being defective
5. Amendments as a matter of course Does it meet Rule 15(a)? (amendments
before trial) Amend once as a matter of course within:
a. 21 days after serving it; or
b. f there is a responsive pleading, 21 days after service of responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f).
6.

Rule 11 Sanctions improper purpose, frivolous legal arguments

a. Under Rule 11 act in good faith to avoid.
i. Hadges must give the 21 day window to allow challenged
statement to be corrected.
ii. Can bring novel legal theories, even if they are going to dismissed
if you want to bring appeal. But you must advance something else.
iii. Attorney Sanctions regarding factual claims, the initial focus of
the district court should be on whether an objectively reasonable
evidentiary basis for the claim was demonstrated in pretrial
proceedings or at trial. Where such a basis was shown, no inquiry
into the adequacy of the attorneys pre-filing investigation is
necessary.
a. Attorneys CAN rely on their clients statements.

NOTICE AND OPPORTUNITY TO BE HEARD

Notice Test (Is it Reasonably Calculated?):
1. Either (1) reasonably certain to inform; OR, if no such method exists, (2) not
substantially less likely to work than some other feasible method.
2. Due Process
a. doesnt require perfection, just avoids serious unfairness

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3. When is publication OK? (Mullane)

a. When it is not reasonably possible or practicable to give more adequate
warning.
b. Or possibly if supplemented with other measures
i.
Mennonite Board of Missions v. Adams personal service or mailed
notice reqd in mortgage proceeding
ii.

4.

Tulsa Professional Collection Services, Inc. v. Pope the test: what would
a reasonable person do if they actually wanted to notify? If not available,
then use the next best method thats not substantially worse.

When is it not ok? (Also Mullane)

a. When the is known or reasonably ascertainable
b. Certified mail preferable, but if not picked up --> regular mail (Jones v Flowers)
i.
Some effort is required
ii.
Actual notice is not required (Dusenbury)

Opportunity to Be Heard
1) Seizures
a) Property Seizure: Connecticut v Doehr: Matthew v Eldridge Factors - General
approach to appease due process
2) 3 Factors Analyzed to Determine if Seizure Satisfies Due Process
a) Private interest
b) Risk of erroneous deprivation OR value of possible procedural safeguards
i)
Posting of bond by individual seeking attachment/seizure tends to
discourage frivolous suits (Doehr)
ii)
Judge or magistrate overseeing seizure discourages error (as opposed to
other bureaucrat/agent)
iii) Availability of pre-seizure hearing prevents erroneous seizure
c) Government, or s interest
i)
Does have actual interest in property, or is it a means of securing other
interest (e.g. attachment to house for purposes of securing judgement in
separate case in Doehr) HOWEVER see Fuentes: even though has
possession of goods, has ownership (goods are leased); seizure allowed
3) Property Seizure w/o Hearing (limited exceptions to Connecticut v. Doehr)
i)
Necessary for governmental or general public interest
1) I.e. towing a car
ii)
Special need for prompt action
iii) Government official deems it necessary and justified
1) State monopoly, supposed to lower the risk of error

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SUMMARY JUDGMENT/DISMISSAL & DEFAULT JUDGMENT

Summary Judgment- Rule 56
1. The standard
a. The moving party is entitled to judgment AMOL when there is no genuine dispute
as to material facts
i.
Material?
1. might affect the outcome of the suit under governing law
2. Always need to look at substantive law to decide if facts are
material
b. Genuine dispute?
i.

Not if the evidence is such that no reasonable jury could decide

otherwise

ii.

drawing all inferences in favor of the nonmoving party

2. 2 ways to move for Sum. Judge.

a. Traditional
i.

Movant produces evidence to show that the non-movant cannot succeed

ii.

Movant affirmatively negates non-movants claim so that no jury

reasonable could find otherwise

iii.

or can bring this

1. Moving party (usually ) takes on burden of production

iv.

Also Scott v. Harris (crazy car chase) says there was no

real dispute, even though the two parties disagreed, because
the video evidence was quite clear. Even if he had violated
the constitution, he could be immune (reasonable in being
unreasonable)

b. Prove it (Celotex)
i.

Essentially stating that party bringing claim has no evidence

ii.

Only open to defending party who does not bear the burden of persuasion
at trial on that issue (not always necessarily , can be against a counterclaim)

iii.

Non-moving party bears burden of production to leave the claim open

1. Reverse of foreclose the possibility burden on
2. Adickes is dead, long live Matsushita!

iv.

Useful for making that party bring forth evidence that they would at trial
14

3. Evaluate summary judgment according to burden of proof that will have at trial
(Anderson v. Liberty Lobby)

TRIALS
Summary:
Right to trial exists in federal court due to 7th Amendment. (This amendment does not apply to
states!) Either side can demand a jury trial. If neither does, then this right is waived.
Legal Claims Jury Trial
Equity Claims Judge Trial
Mixed Claims Jury Trial, EXCEPT:
Where irreparable harm would occur (Beacon)
If overly complex, but Special Masters used to overcome this (DQ)
Where all claims sound in equity, but entitlement to that claim would have been characterized as
legal (Ross)
Where statute did not exist as of 1791, look to the language of the statute (Curtis)
1. Demand for Jury Trial: Rule 38 Demand has to be w/in 14 days after the last pleading
directed to the issue, and either side can ask for a jury trial.
i.

Legal Claim: Jury Trial

ii.

Equity Claim: Judge Trial

iii.

Mixed Cases (The Beacon Theatres v. Westover (U.S. 1959) Rule): Where
there are both legal and equitable claims in the same case, the trial judge
must ordinarily try the legal claims first.

b. Trying the equity claims first would mean that the judge has decided the issue of
competition, so the jury would be estopped from deciding this issue later. We
must bend over backwards to preserve jury trials.
c.

Hypothetical Situation in Beacon: If the party asserting the equitable claims

would be irreparably harmed by having these claims delayed until after the legal
claims are heard, then the court would have to use its discretion in deciding which
to hear first.
i.

Beacon could have just denied and demanded jury trial, but later would
lose compulsory counterclaim.
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2. Expansion of Legal Relief

a. Dairy Queen (U.S. 1962) artful pleading does not deny jury trial
i.

The nature of the claim is not determined by the Pleadings. Artful pleading
(an accounting) cannot hide that they are seeking Damages.
1. Even where legal relief is minor, right to a jury trial is sustained.

ii.

Where complex accounting is involved, this would have been the province
of a judge because legal relief inadequate. Note anymore, however, the
appointment of special masters under Rule 53(c) alleviates this.
1. This procedural innovation constricts equitable relief

b. Ross v. Bernhard (U.S. 1970) Legal claim embedded in typically equitable one
i.

Rare that you will have a shareholders derivative suit with legal claim
embedded.

ii.

Here, the company forewent an action (suing) that would have been a
legal claim.
1. So the shareholders, to get the right to sue, must show that the
corporation should have brought a legal claim
2.

If the jury finds for the Plaintiffs, then it is for the judge to decide
if they have a right to sue.

3. Even if, beforehand the judge would have determined no right to

sue, the judge still must allow the jury to decide because the
Plaintiffs reserve their right to appeal
4. It is no longer whether or not it would have gone to a jury in 1791,
we must also think what they are trying to adjudicate.
c. Curtis v. Loether (US 1974) newly created right
i.

If equitable in 1791, then equitable now. BUT:

ii.

Where legal rights and remedies are created by statutes, look to the
language:
1. Where the remedy is placed
2. How it is defined by Congress (e.g. backpay is equitable)
3. Is there discretion to award damages?
a. i.e. if you find a violation, must you award damages?
i.

Yes = Legal

ii.

No = Equity
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Quick and Dirty Summation: First look to historical test (1791); if that does not apply, look
at the type of damages that would be awarded: legal or equitable? Legal are typically
damages, everything else is typically equitable. (However just because it involves money does
not mean its legal; awarding of back pay can be considered equitable. See Curtis)
1. Rule 50: Judgment AMOL in a Jury Trial; Related Motion for a New Trial
a. Could a reasonable jury find for the nonmoving side?
b. Procedurally:
i.

50(a) Judgment as A Matter of Law

1. Before it goes to the jury
2. Usually denied at this point
3. Only there to preserve 50(b) motion

ii.

50(b) Judgemen Notwithstandingng Verdict (JNOV)

1. Renewal of 50(a) motion
2. If not 50(a), then you cant move for 50(b) (Not bringing 50a
motion is grounds for malpractice!)
3. After the jury enters the verdict
4. New trial, Directed Judgment, or Motion is Denied

iii.

Why is 50(a) required for 50(b)? Why deny the first then grant the second?
1. Its disrespectful to the jury
2. Gotta be really sure the jury is gonna go the wrong way
3. 7th Amendment
a. You cannot reexamine the facts BUT
b. You can renew a motion from before the jury examined the
facts
4. 50(a) is a FICTION!!!

c. Fed Standard for Taking the Case away from the Jury
i.

More friendly

ii.

Looks for some evidence that the jury might draw the inference from
1. The Scintilla Rule

2.

Rule 59- Granting a New Trial

17

a. If weve allowed a new trial in the past, its permitted

b.

Reasons for Motions for a New Trial:

i.

Incoherent Jury Verdicts

1. Worried about
a. Coercion
b. Confusion
c. Compromise
d. Jury Nullification
2. Verdicts against the weight of the evidence
3. Judge Error (Legal Error)
a. Only if it effects the outcome of the trial
i.

Otherwise Rule 61 Harmless Error

4. Damages Shock the Conscience

3. Judgement as a Matter of Law (JAMOL) v New Trial Standards
a. New Trial
i.

Weigh evidence and assess credibility

1. District Court
a. clear weight of the evidence
2. Appellate Court
a. Shows deference to the trial court
b. abuse of discretion standard of review

b. JAMOL/JNOV
i.

Cannot weigh evidence or credibility

1. District Court
a. could a reasonable jury find for the nonmoving party
2. Appellate Court
a. No deference to the trial court
3. De novo standard of review from the record

4. Rule 60 Relief from a Judgment or Order

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a. 60b1
i.

Excusable neglect

ii.

4 factors to decide
1. Danger of prejudice to the opposing party
2. Length and impact of the delay
3. Reason for the delay
4. Good faith

b. 60a
i.

Clerical mistakes cannot be negligence

c. 60b2
i.

Newly discovered evidence

1. 5 factors to decide
a. Would probably change trial result
b. Discovered since the trial
c. Due diligence would not have discovered it before trial
d. Must be material
e. Must not be merely cumulative or impeaching

PRECLUSION
Claim and Issue Preclusion
1. Claim- res judicata
a. Bar on litigating claims already litigated
2. Issue- collateral estoppel
a. Bar on relitigating certain issues
Quick and Dirty Claim Preclusion
1. Claim Preclusion
a. Elements of Defense
i.
Judgment is final, valid and on the merits
1. Valid correct
2. We may sacrifice correctness for finality
ii.
Same parties similarly situated
iii. Matters properly considered to have been included in the first action
2. Reasons for Claim Preclusion

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a. Judicial economy
b. Fairness to parties
c. Efficiency
3. Doesnt apply when
a. Voluntary dismissal
b. Dismissal for subject matter jurisdiction
i.
ex/12(b)(6) motions are valid
c. Dismissal for personal jurisdiction
4. 2 theories of claim preclusion from s perspective
a. Shield sword
b. Undermining C1 with C2
A. Three Requirements for claim preclusion:
1. Must be fairly considered part of the same claim in the prior action.
a. This includes claims that arise from the same transaction or
occurrence as the prior action.
i.

In Federal Court, this sounds like Rule 13 compulsory

counterclaim (Rule 13 overrides claim preclusion rules)

b. If it could have been litigated, it is also precluded

c. Does not preclude claims you did not have at the time, e.g. latent medical
claims not barred by this.
2. Must be the same parties as in C1 similarly situated (i.e. same and )
a. Unless in privity, e.g., co-owners, vicarious liability, etc.
i.

Matthews v. NY Racing Assn (SDNY 1961) The facts

surrounding the occurrence make up the claim, not the legal theory
upon which a Plaintiff relies. In C1, Plaintiff sued employees. In
C2, Plaintiff is now precluded from suing employer because they
would have been vicariously liable had Plaintiff prevailed in C1.

3. Claims must be valid, final, and on the merits

B. Examples:
1. Rush v. City of Maple Heights (Ohio 1958): plaintiff brings claim for property
damage in small claims court, defendant found negligent, plaintiff wins $100.
Plaintiff brings another claim against the same defendant in a bigger court for
personal injury.
a. The negligent action of the P constituted one tort, even if its two COAs.
C2 is precluded.

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i.

First claim is smaller; city expends fewer resources litigating it.

Since liability might be established in C1, would then be liable in
C2.

2. Moitie (US 1981) p.1261: no exception to claim preclusion even when dismissal
rested on a case that had been effectively overruled.
3. Jones v. Morris Plan Bank of Portsmouth (Vir. 1937): When P sued for only two
car payments, because of acceleration he could have sued for the whole amount.
He wins in C1, but is now precluded from bringing C2 to collect more.
A. Defense Preclusion
1. Mitchell v. Federal Intermediate Credit Bank (S. Car. 1932):
Bank (wins)

v.

Mitchell

Mitchell

v.

Bank

Mitchell tries to use his affirmative defense in C1 as his claim in C2. Not allowed. you cannot
use the same defense, first as a shield, and then as a sword.

Should have brought it as an counterclaim

Not as narrow as Rule 13. If facts were different, even if same T/O, then could have been
brought in C2.

ISSUE PRECLUSION
Quick and Dirty Issue Preclusion
1.

4 requirements
a. Actually litigated
i.
Not enough if in pleading but never brought up in ct
ii.
Not enough if settles
b. Necessarily decided
c. Essential to the judgment
i.
Counterfactual Test
d. Valid, final, and on the merits of the issue
2. 2 big differences with claim and issue preclusion
a. Claim- coulda, shoulda, Issue-actually litigated
b. Claim- same parties, Issue-parties may be different or differently situated
3. Purpose/value of Issue preclusion
a. Time and resources, efficiency
b. Inconsistency, finality
c. Excessive litigation worries

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Four Requirements of Issue Preclusion: (Defensive & Offensive)

1. Judgement in C1 must be valid
2. Same issue in C2 as in C1
a. Does not have to be same parties in C2 as in C1 (However one party from
previous suit almost always must be present.)
3. Issue must have been actually litigated and decided
a. To determine if actually litigated and decided look at:
i.

Judgment

ii. Jury Decision

iii. Trial Transcript
iv. Decision on Summary Judgment
b. You can amend the pleadings after judgment to avoid or enforce issue
preclusion in later proceedings.
c. Just raising it in the pleadings is not enough.
d. In the case of summary judgment, the Judge speaks for the jury, so
preclusion applies.
e. If a judge dismisses for failure to state a claim, we generally allow an
amendment. If a second time, we generally treat it as preclusory.
4. The decision on the issue has to have been essential to the judgment on C1.
1. Counterfactual test. We pretend that the issue was decided the other way and
hold everything else the same. If the outcome is not changed, then it was not
necessary or essential to the judgment.
EXAMPLE 1: Rios v. Davis p. 1281
Popular (found negligent)

v.

Davis (negligent)
Joins and Cross-Claims:
Rios (negligent)

Rios

v.

Davis

Rios claims that because of contributory negligence regime, his negligence in C1 was not
material, i.e. that because Davis was negligent, there is no recovery (if we change Davis to not
negligent, it changes the outcome (he would have recovered against Rios))

Rios had no chance to appeal his negligence because he won. Right of appeal is from a
judgment and not a finding.

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Rios can use the negligence of Davis

Davis cannot use the negligence of Rios

EXAMPLE 2: Cromwell v. County of Sac

Different bonds, so not actually litigated. Difference between issues being related v.
being the same issue (e.g. practice exam w/Fieri: looks like fish v. tastes like fish) (1
fish, 2 fish, red fish, marshmallow fish?)

EXAMPLE 3: Russel v. Place p.1279

Patent infringement case. Two patent claims, it was unclear which was actually litigated.
Therefore no preclusion. Certainty is essential, and is lacking here. Not necessarily
decided.

EXAMPLE 3: Hypothetical (Certainty and Essential to the Judgment)

Bus Co.

v.

Driver (wins on
general verdict)

Driver

v.

Bus Co.

Bus Co. (negligent)

v.

Driver (not negligent)

Driver

v.

Bus Co.

Contributory negligence regime: so either driver was

not negligent or bus driver was. Same issue, actually
litigated, but not preclusive because no certainty.

Special Verdict: But still no preclusion, because

neither claim was essential. To avoid this, put a stop
instruction into the special verdict form.
A. Mutuality
1. Nonmutual Defensive Issue Preclusion (incentive for Ps to join Ds)
i.

Mutual: In Defensive: Same parties (where theyre situated does not

matter)
Jane (wins)

v.

Contractor (found
negligent)

Jane

v.

City

v.

Contractor (found not

negligent)

It is a violation of due process to bind the City to the

Contractors negligence.
Jane

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Jane

v.

City

v.

B (wins, it was a gift)

v.

C (bank)

Nonmutual Defensive Issue Preclusion: City can

bind Jane to C1.

Jane has had her day in court.

If we dont preclude, then Jane can force

Contractor to pay because of indemnification
agreements even though they already won.

2. Bernhard (1942)

Bank can preclude A from re-litigating whether the

money was a gift. This allows a windfall for the
bank, they did no work in C1, but would not be
bound if B had lost and it was found not be a gift.
Bank would then be allowed to litigate.

A. Offensive Issue Preclusion

Generally not allowed when could have joined prior suit, or prejudice
would be suffered by . (i.e. Did have motivation to actually litigate issue?)

a. Offensive issue preclusion is generally not allowed against non-parties (nonmutual offensive issue prelusion), EXCEPT when applying factors in Taylor v
Sturgell:
a. Non-party may agree to be bound
b. Certain substantive relationships (i.e. privity)
c. If interests were adequately represented
d. Nonparty who has assumed control over a lawsuit (e.g. financing
suit in Montana)
e. Nonparty who has colluded to avoid preclusive effect by litigating
through a proxy
f.

Special statutory schemes

ii. Note offensive issue preclusion never applies against the government.

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b. Parklane Hosiery Co. v. Shore p.1313 (US) - Shareholders allowed to use

preclusion against Parklane because they were unable to join prior suit brought by
SEC
a. Montana govt paid for the litigation in C1. They were the laboring oar, had an
opportunity to be heard. Not treated differently now.
b. Martin v Wilkes just because you could have joined in C1 does not mean you
had to have joined, and are not bound in C2.
2. Issue Preclusion Summary:
a. For it to be used against you, you must have been a party in C1
b. For you to use it, you do not have to have been a party in C1.
c. Cannot use offensively against a non-party
d. Can use defensively only in certain circumstances

B. Intersystem Preclusion- What to do in C2

4 Situations for Preclusion
1. state -> state
a. state x -> state y. Use state x preclusion laws (Art. IV FF&C clause)
2. state -> fed.
a. state -> fed. Use state preclusion laws (FF&C statute 28 USC 1738)
b. Fed. court sitting in diversity is acting like state court, therefore dodges Eerie
problem. Bottom line: Fed courts always use preclusive rule of state in
previous suit
3. fed. -> state
a. Use federal common law preclusion rule; standard rule or preclusion if court is
sitting in 1331, rule of the state that it the court is in if it is sitting 1332
4. fed.-> fed.
a. same as fed. -> state
C1
C2
State Ct. X
State Ct. Y -> Art. IV
State Ct. X
Fed Ct. Y (1331) -> 1738 FF&C
State Ct. X
Fed Ct. Y (1332) -> 1738 FF&C

Issue in Semtek was definition of on the merits (i.e. whose preclusion law to apply):
Eerie concern compels Scalia to read Rule 41 narrowly
Source of preclusive rule in Semtek is federal common law which in turn uses the
preclusive rule of the state in which the court in diversity is located

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Issue of uniformity of federal law is subsumed by state substantive law concerns

For 1331 arising under claim use federal rules of preclusion (uniformity of rules; lack of
diversity jurisdiction means no state substantive law issues)
Preclusion rules between federal courts is based on jurisdiction:
1332 (diversity): Rules of state that fed. court sits in
1331 (arising under): Federal preclusion rules
C1
C2
Fed Ct. X (1331)
Fed. Ct. Y -> Fed. rules of preclusion
Fed. Ct. X (1332)
Fed. Ct. Y -> State X (fed. common law)

Whether fed. ct. in C2 is sitting in 1331 or 1332 does not matter

Preclusive rule of C1 is based on where the court is and what branch of
federal jurisdiction it is sitting under (arising under or diversity)

Erie
Erie: State Law v. Federal Judge Made Rule
1.

Is it outcome determinative in light of the twin aims of Erie? (Hana)

a. Determined at the outset of litigation:
b. The twin aims of Erie:
i.

discouragement of forum-shopping; and

ii.

avoidance of inequitable administration of the laws.

2. Byrd Balancing if Yes:

a. Why is the state adopting this rule?
i.

If there is a good reason maybe substantive

1. Substantive law: bound up with definition of the rights and
obligations of the parties (Byrd)

b. State rule integrally connected to the substantive claim?

c. If we look at the policies of Erie, how does that shape out?
d. If there any overriding federal policy thats separate from this that deserves some
respect? (e.g. 7th Amend. right to jury in Gasperini)
i.

Note: In rare instances where there are substantial interests for both the
state and fed. govt, it is possible to bifurcate the statute to satisfy both
interests (Gasperini)
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FRCP/STATUTE SIDE
1. Is it sufficiently broad (Walker)?
i.

sidenote Rule 3 does govern the tolling of the statute in arising under
jurisdiction

b. Rule 3 commences the case. Rule 4(m) refers to filing

c. They are avoiding the conflict.
i.

Court in Walker says they are not narrowly construing Rule 3, Reinert says
this is absurd!

d. They are saying if we can find a way to apply the Federal Rule and the State
Law, then we will.
e. Rule 3 doesnt control here because Rule 3 doesnt tell us when the SOL is tolled.
This outcome seems wrong, but we have to accept it. It is a question of statutory
interpretation.
f.

So a May v. Must (Walker) and May v. May Not (Stewart) are both sufficiently
broad to directly conflict.

2. If so, does it really regulate the procedure?

a. If Not, then the rule is invalid and state law should be applied. (However Supreme
Court has never found a rule to be invalid!)

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