CIVIL PROCEDURE RENSBERGER FALL 2010 ASHA MUNGARA

Be cau se t he g ov er n me nt c an e nsu r e du e p roc ess a nd fa ir ne ss t hro u g h red ta p e: F R CP, ft w !

Table of Contents
I. PERSONAL JURISDICTION ............................................................................................................................................................................ 2 II. NOTICE & SERVICE .................................................................................................................................................................................... 5 III. SUBJECT-MATTER JURISDICTION ....................................................................................................................................................... 6 IV. VENUE & RELATED MATTERS .............................................................................................................................................................. 7 V. ERIE: APPLICABLE LAW IN FEDERAL COURT ACTIONS.................................................................................................................. 8 VI. PLEADING .................................................................................................................................................................................................... 9 VII. JOINDER OF CLAIMS AND P ARTIES ..................................................................................................................................................10 VIII. DISCOVERY ............................................................................................................................................................................................11 IX. PRETRIAL ADJUDICATION ....................................................................................................................................................................12 X. JUDGE & JURY AT TRIAL ........................................................................................................................................................................13 XI. FORMER ADJUDICATION .......................................................................................................................................................................13

I.

Personal Jurisdiction
A. Seven Questions of Jurisdiction 1. Does the court have SMJ? Cannot be waived! Always establish this, first. 2. Does the court have personal jurisdiction over the defendant? 3. Has there been proper notice to the defendant of the action and an opportunity to be heard? 4. Was service of process made properly? 5. Does the court have venue? 6. If the action commenced in a state court, can it be removed to a federal court? 7. Have any of above been waived? do not forget this!!! B. Checklist: Power to enter a judgment against a 1. Is there a traditional base of jurisdiction? 2. Do the acts that establish jurisdiction satisfy the long-arm? 3. Is the assertion of the long-arm constitutional? (usually it is, otherwise whats the essay about?) arm 4. Is there sufficient relevant contact? 5. Is jurisdiction fair? a. Relatedness. Does the s claim arise from the contact? McGee. (General vs. Specific). C. Types of PJ 1. In Personam: forum has power over the & judgments against the creates a personal obligation on the and its entitled to FF&C. 2. In Rem: forum has power to adjudicate rights of all persons w/ respect to a particular item of property. Rule 4n. 3. Quasi-in-Rem: adjudication of person but recovery is limited to value of property w/in jurisdiction. Cannot be used to get FF&C. Must be attached at the beginning of proceedings (Pennoyer). D. Who cares and why? 1. : forum in own state of citizenship or convenient/effective relief. 2. : constitutional due process, freedom of movement, burden, etc. 3. Forum state: right to control access to its territory, protect its citizens, provide citizens a forum, tort happened in the forum, easy for jury, 10th amendment, federalism 4. Other states: right to protect its citizens, protect from distant claims, maybe the tort happened in another state, right to police 10th amendmentblah. E. Traditional Bases of Jurisdiction: PDSC people discuss silver coins 1. Presence & Territoriality a. Any that can be served with process within borders of the state, no matter how long he was present. (Burnham) i. Brennan: reasonable test, but avoids bright-line rule ii. Scalia: focus on tradition and principle (weve always had presence) iii. Exception: immunity for witnesses, parties, etc. b. States have sovereign and independent authority of its territory to the exclusion of other states (Pennoyer). c. Doing business in the state counts as presence for corporations (but also implied consent, too). 2. Domicile a. Domicile established at birth b. Only changes when you physically move and intend to remain in another jurisdiction (college, limited contract-jobs dont count). c. If a person is all over the place, find the center of gravity. d. Applies to absentees in other states (Milliken) or countries (Blackmer) 3. Status: jurisdiction for divorce when one spouse is present in the state.

4. Consent a. Expressed consent: boilerplate language in contract (Burger King, Bremen, Carnival Cruise Lines, etc.). But should still consider fairness like in those cases!! b. Implied consent: i. Bringing action to court: consents to cross-claims by bringing action in court, even if not resident of that state. (Saenger) ii. Waiver of personal jurisdiction implies consent: Rule 12(b)(2) iii. Sanction for failure to comply in determining pj Rule 37(b)(2)(A) F. Long Arm Statutes 1. Asserts jurisdiction over nonresident based on the action committed in the state. 2. Unlimited: power over any person or property over which the state can constitutionally exercise jurisdiction. 3. Limited: specific details of when jrd applies. REMEMBER: tort v. tortious act. 3 analyses. 4. On exams, it usually applies. Otherwise you wont have anything to write about in the essay. 5. REMEMBER Carnival: when its K trumps long arm statute. Policy/Rationale: cost/price litigation pushed on to the consumer if you dont let companies include CLCs. G. Jurisdiction over Property 1. Debt follows a person and still gets FF&C; quasi-in-rem (Harris) 2. Property does NOT trump minimum contacts and fair-play (Shaffer). Must relate to litigation or must be SO substantial to give general jurisdiction. H. Constitutional Limitations! Minimum Contacts and Fair Play, yo. 1. Minimum Contacts: Do sufficient contacts exist so not to offend traditional notions of fair play and substantial justice? (Intl Shoe) a. Purposeful Availment: s contacts must reach out to the forum in some way so that the defendant purposefully availed herself of the privilege of conducting activities within the forum state (Hanson) i. Burger King: MI resident entered into franchise K w/ FL corp. K required correspondence with FL home office, and gave FL CLC. ii. Intl Shoe: MO company had salesmen in WA, marketed in WA, really only shipped to WA but this was enough to say purposefully availed. iii. Kulko: NY father did not purposefully avail himself to CA when he gave up custody and let his daughter go to CA. Mother could not sue in CA. iv. Volkswagen: NY car dealer did not purposefully avail himself to OK when s sued there. Even though tort happened in OK, the took the car there themselves. v. Hanson: cant be based on unilateral action. moved. Not foreseeable. (like Volkswagen) b. Stream of Commerce: may purposefully avail himself to forum w/ products entering the stream of commerce (Asahi, Gray) i. O Connor: Placing product in stream of commerce, with additional steps to purposefully avail is required. Awareness isnt enough. a. Designed & marketed for the forum state b. Advertising in the forum state c. Channeling regular advice to customers in forum state (800 number) ii. Brennan: Injecting goods into a stream of commerce should be enough. iii. Stevens: there is JRD based on awareness, high volume, high value, and hazardous character of the components. (3Vs: volume, value, volatility) iv. But remember that Asahi didnt meet fairness by anyones standards. c. Foreseeability: must be foreseeable that the s activities make her amenable to suit in the forum. Reasonably anticipate that her activities in the forum render it foreseeable that she may be haled into court there. Foreseeable plaintiff!

i. Calder: wrote article targeted to CA resident. knew that would feel brunt of libel impact in forum; magazine had largest circulation in forum. ii. Keeton: distribution and high circulation in forum state was foreseeable. 2. Fairness a. The higher the fairness, the less minimum contacts required. The lower the fairness, the more contacts required. BUT ALWAYS ESTABLISH CONTACTS. OConnor hints that unfairness can trump contacts (Asahi) But Rens doesnt think so. b. Due Process issues (Volkswagen) i. Warren/White: fairness for , but not determinative ii. Brennan: all parties involved, litigation efficiency, forum state. c. Specific Jurisdiction: claim arises from activity in the state. i. Isolated incidents may give rise to jurisdiction. ii. McGee: the minimum minimum contact. Only contact had was one policy in CA. sues and wins in CA. FF&C in TX. Enforceable because solicited business in CA with this one guy. They called and asked if he still wanted to be in the insurance after they bought the company. d. General Jurisdiction: claim doesnt arise out of activity in the state. i. Systematic & continuous activity is needed. ii. Statutes that grant PJ on the s domicile, residence or business are usually valid if substantial enough. iii. Helicopteros: tort in Peru; sues in TX because trained pilots and bought helicopters in Texas. Checks drawn at TX bank. also had relationship with companies in TX. Court said not systematic & continuous. Brenan dissents. iv. Perkins: Philippine corp sued by non res of OH, in OH. Court upheld PJ based on systematic and continuous activities in OH v. Frummer: PJ in NY over London Hilton b/c reservation service was in NY. e. Convenience for : forum is acceptable unless it is so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent. (Burger King, Asahi). Burden on . Very difficult to prove. (BK) f. Forums Interest: protect residents! i. McGee: CA has strong interest in proecting citizens from misfeasance by insurance companies. ii. Asahi: CA has only a slight interest when both parties are non-residents, and original settled. Even if purposefully availed, unreasonable for CA to enforce. I. Jurisdictional Reach of Federal Courts (Rule 4k) 1. Use states long arm statute in diversity cases and when statute has no implied jrd 4k1A, 4k2 a. 5th amendment in fed courts (vs. 14th) b. Feds not constrained by Shoe but should meet FAIRNESS (Oxford First Corp). extent of s contacts, burden, judicial economy, probable locus of discovery, impact of s activities and interstate character. Court upheld PJ. 2. No fed long arm, but gets 100mi for R14 and 19 cases. 3. Federal statutes: 4k1c J. Challenging Courts exercise of Jurisdiction! 1. Rule 12b: must present defenses in ONE motion! You can join anything in 12b, except for 12h2 (which lets you raise it elsewhere) & 12h3(which says you can never waive smj). Whatever you dont join/assert, then 12(h) says you waive it if its in 12b2-5. 2. Special appearance solely to challenge jrd. Say nothing else! 3. Collateral attack doesnt appear, gets sumJ, tries to FF&Cbut then says no PJ! Risky. 4. Limited-Appearanceonly for quasi-in-rem. endanger in personam actions. 5. Fraud: you cannot trick someone into the jurisdiction (in state statute); (Wyman, Tickle)

II.

NOTICE & SERVICE

A. Introduction 1. Types of process: in-hand, registered/certified mail, ordinary mail, service on housemate, responsible agent (4e2), service by publication. 2. Purpose: dignity, participation, deterrence, efficiency; minimize sum of error/direct costand most importantly: DUE PROCESS! How else will know theyre being sued? B. Due Process Requirement: Reasonably calculated under the circumstances to give actual notice 1. Mullane: accounting settlement of trust funds cannot use notice by publication. Unreasonable! 2. Cost benefit fact-specific analysis: method most reasonable, but no requirement that everyone gets notice. a. Parties whose address is known: direct notice is necessary b. Parties whose address is unknown: use diligence, but if that fails publication! c. Contingents w/conjectural or future interest: no notice necessary d. If you contact substantial amount of people involved, will insure that each viewpoint will be represented, so no need for complete notice (Mullane) 3. Test by reference to feasible alternatives. a. Eviction posted on door vs. mail (Greene v. Lindsey) b. If you know the address, you have to use mail or better. (Mennonite Board of Missions, Tulsa Prof. Collection Srvc.) But s fault if they dont give updated address. (Dobkin) c. Doesnt require heroic efforts by govt; certified is okay. (Dusenberry) d. Content must be thoroughly explained (Finberg, Aguchak) C. Opportunity to be Heard 1. Introduction a. must have time to obtain counsel and develop a defense, usually about 20 days (12a) b. Allows for hearings or a full trial 2. Debtor/Creditor relationship a. Remedies for creditor against debtors: garnishment of wages, replevin of goods, attachment of property b. Goal is to protect debtors due process rights w/o obstructing creditors too much (Sniadach) i. Only judge can make the decision to repossess after a hearing on creditors right (Di-Chem) ii. Debtor has right to an immediate hearing before creditor disposes of the goods (Fuentes) a. Both parties may still have interest in property (Mitchell v. WT Grant: writ of sequestration constitutional) b. Risk of destruction of goods, existing protections against wrongful seizures, unfairness c. Balance private interest, risk of erroneous deprivation, govt efficiency. (Doehr) i. Prejudgment attachment of unrelated property must be careful of debtors property interests, high risk of erroneous deprivation, level of interest of complaining party ii. Use balancing test for other provisional remedies: eviction, car immobilization D. Service of Process 1. Court should refuse to exercise jrd if service was made improperly (Tickle v. Barton) 2. Federal Rule 4 a. 4d: waiver of service is encouraged; otherwise should pay for cost of service if he doesnt have good cause; 30 days to send the waiver back; 60 days from received

instead of 21 to answer complaint; waiver of service does not waive right to object jurisdiction or venue b. 4e1: encourages use of long-arm statute; fed court can use state provisions if in the state c. 4e2: substituted service (or agent) can be contracted for (Szukhent) 3. Parties served outside the state

III. SUBJECT-MATTER JURISDICTION

A. Introduction 1. Federal Courts are courts of limited jurisdiction. Confined by Art. III. Sec. 2 Anything NOT expressly granted to federal courts is under state jurisdiction; this is why we have WPC 2. State courts have general subject matter jurisdiction to entertain any action; some courts have designated SMJ for efficiency: probate, family, appeals, etc, etc. B. Federal Question Jurisdiction 1. Authority in 1331: arising under the Constitution, laws, or treaties of the US 2. Point: uniform adjudication of federal law, fed judges know fed issues 3. WPC: s claim must have FQ, cannot anticipate defense! (Mottley); artful pleading banned. 4. Exclusive: copyright, patent, etc, things that congress wanted uniformity on certain things a. But be careful! Claim must allege a violation of copyright, not decl. judgment (Eliscu) b. Even though about patents, possession issue is a state thing (Shoshone) 5. Concurrent: statutes like FELA; remember has right to removal 6. Implied: 4 and 5th amendments, etc (Bell), but balance with state interest (Cort v. Ash) C. Diversity Jurisdiction 1. Authority in 1332, but limited to complete diversity between opposing parties (Strawbridge) a. Benefit: avoid bias (esp to corporations), federal judges may be better b/c appointed b. Cons: congestion in fed court, state law used anyway c. Minimal diversity for class actions, mass disasters 1369, fed interpleaders 1397 2. Determining citizenship is based on domicile, on day action is filed (Mas) a. People: birth and continued unless physically moves states w/ intent to remain. Use center of gravity test too complicated to figure out intent to remain. b. Corporations: INC + PPB (nerve). TWO citizenships! Both should be diverse from opposing c. Aliens: perm res use domicile, stateless aliens are banned? d. Unincorporated associations: citizenship of all its members e. Representative actions: citizenship of representative, not represented. EXCEPTION: children, incompetents, deceased/estate, insurance companies. 3. Amount in Controversy must exceed 75k, exclusive of interests and costs. a. Dismissal only if it is legally certain that AIC cant be met (AFA Tours) b. Can include punitive damages, statutory attorneys fees, and injunctive relief c. Aggregation of claims against one party for single indivisible harm. Only one needs AIC. i. (70k) + (6k) v. AIC ii. (76k) v. (45%) + (55%) AIC iii. (76k) + (1k) v. = AIC iv. (30k + 46k + 9k) v. = AIC D. Supplemental Jurisdiction 1. Pendant (complaint) and ancillary (counterclaim, cross-claim) jurisdiction for claims that lack supplemental jurisdiction on their own, for efficiency, fairness, convenience. a. Gibbs: if CNOOF, then okay.

b. Owen: cant implead non-diverse parties. Cant let indirectly do what cant do directly. c. Finley: cant bring in state claim, even when theres an obvious CNOOF. (reversed) 2. 1367 (a) codifies Gibbs. Grants supplemental jurisdiction to CNOOF claims 3. 1367 (b) codifies Owen and rejects Finley. Limits SuppJ if original claim is based on diversity a. Additional claims by against original are allowed b. Additional claims by s joined under 24 not allowed. c. Additional claims by original against anyone are allowed. i. 13a compulsory counter claim ii. 13h additional parties to compulsory counter claims iii. 13g cross claims iv. 14 impleader d. But claims by against new parties are NOT allowed! Cant bring: i. 14 impleader ii. 19 compulsory parties iii. 20 permissive parties (R20 s are allowed though!) iv. 24 class action? e. 1367 (c) discretion w/ court. Novel claim, weight of claim, risk of jury confusion, etc. 4. No AIC for supplemental claims! Allapatah E. Removal Jurisdiction 1. Allows original to transfer from state court to federal court to even playing field. a. All must agree to remove; exception for class action/ mass disaster b. Must have a base to remove, that is could have brought it to fed in the first place 2. 1441a: remove to fed court that would have brought case (has jrd) 3. 1441b: parties cannot be a citizen of the state to remove for diversity cases 4. 1441c: one removable claim can remove the entire case for federal question cases a. Must be separate and independent claim b. Court has discretion and can send all or part of the case back to state court

IV. VENUE & RELATED MATTERS

A. Residency 1. Individuals: persons domicile usually. But residence is more lax than domicile. Can have two residencies. 2. Corporations: reside in any district in which it is subject to PJ at the time action commenced. Use most significant contacts if you cant establish residence in district. 3. Unincorporated: resides where it does business B. 1391 (a) & (b) are the same. Venue is proper when: 1. any in which any one of the s reside if all s reside in the same state, OR 2. district where substantial part of the events giving rise to the claim arose, OR a. can be minimal b. Bates: receipt of collection notice 3. (c) if all else fails (fall back) then: a. any district where can be found if FQ b. the district in which any subject to PJ at the time action commenced if solely diversity 4. (d) alien sued in any district 5. (e) if is US or agent of US, then follow same rules but fallback is any district where resides. C. 1392: s property in different districts of same state, may be brought in any district if not local D. 1404: Transfer of venue to any district where it could have been brought 1. Determined at time of filing, so potential for waiver doesnt matter (Hoffman)

2. Van Dusen Rule: Use law of transferor court, unless it had no jrd (Goldlawr) E. 1406: Cure or Wavier of Defects: transfer or dismiss if filed in wrong venue. F. Waived unless asserted under 12b3 G. Forum Non Conveniens 1. Exists when transferee court does not exist in the original system: results in dismissal

V.

ERIE: APPLICABLE LAW IN FEDERAL COURT ACTIONS

A. State Law in Federal Court 1. Erie Doctrine a. Overrules Swift which said only use statutory state law. Erie says, use common law, too! b. Federal courts in diversity action must use state substantive law (Erie) i. Attempt to discourage forum shopping (vs. Swifts goal to find universal truth) ii. Preludes federal common law outside of Article I powers c. Substantive v. Procedural i. Outcome determinative test: use state law if fed law would change the outcome (York) a. Fed courts should act as another state court in its forum: vertical uniformity b. Tolling of statute of limitation is state law (Ragan) c. Twin aim: discourage forum shopping and and promote equitable administration ii. Balancing Test: weigh state interest w/ countervailing federal interest (Byrd) a. Outcome determinative has to be clear at the outsetplays a role in balancing b. If state rule is bound w/ state created rights & obligations (primary behavior): apply c. If not, then consider twin Erie aims and think about countervailing interest d. 2072: Rules Enabling Act cannot abridge, enlarge, modify state substantive rights i. FRCP trumps automatically if theyre constitutional, valid, and applicable (Hanna) a. Tolling of statutes is SUBSTANTIVE (York, Armco Steel: tolling not in R3) b. Conflict-of-laws-rules are substantive! (Klaxon) c. You can read FRCP broadly: 1404 governs venue disputes (Ricoh, venue issue based on CLC in K, Scotus says FRCP, cites Hanna) but only to balance fed policy (Byrd) ii. May be possible to split procedural and substantive elements of a conflict (Gasperini) a. Granting new trial = substantive, so fed court applies state standard for granting trial b. Requirement for appellate court to decide whether should grant new trial = procedural c. SO! Scotus says that federal trial court would determine if new trial would be granted. 2. FLOWCHART a. Make sure theres diversity before applying Erie. b. Does state law have substantive elements? i. Yes: proceed ii. No: FRCP c. Would using FRCP encourage forum shopping? i. Yes: proceed ii. No: FRCP d. Would FRCP result in equitable administration of state law between the state courts and the federal courts? i. Yes: yes

ii. No: proceed e. Does a FRCP control the issue? i. Yes: Is the FRCP in question within the scope of 2072 (REA) a. Yes: Is the FRCP in question constitutional under due process, etc? 1. Yes: federal law applies 2. No: state law applies b. No: state ii. No: Does a congressional statute control the issue before the court? a. Yes: Does the FRCP/fed. Statute in question constitutional? 1. Yes: fed 2. No: state b. No: does application of fed change outcome (York), encourage forum shopping (Erie) or lead to inequitable administration of the laws (Hanna), countervailing STATE interest? (Byrd) 1. Yes: state 2. No: federal B. Ascertaining State Law 1. The state law applied is determined by the conflicts of law rules of the forum state (Klaxon) 2. Fed court bound to apply substantive state law that would be applied by the highest court of the state.

VI. PLEADING
A. General 1. Traditional purpose: notice giving, weed out bad claims, revelation of facts, issue formulation 2. Modern purpose: provide notice, other purposes achieved later on 3. Codes required pleading to state facts that constitute a cause of action or right to relief so the other party could respond. 4. Facts must be issuable, material, essential, & ultimate (Gillispie v. Goodyear) B. Standard for Particularity FRCP 8a, 8e, 12b, 12e 1. Only necessary to show entitlement to relief that gives notice (Dioguardi) a. 12(b)(6) mtion to dismiss only allowed if theres a legal certaintiy that ther is no basis for recovery i. other motions available to : 12e for definiteness used for unintelligible pleadings: discovery used for little detail, 12f to strike (Garcia v. Hilton) ii. Absolute privilege v. Conditional privilege: 12b6 v. 12e b. 8e: pleadings construed liberally to do substantial justice c. 8d2: alternative and inconsistent allegations ARE allowed 2. Special pleading FRCP 9 a. 9b: particularity for fraud claims are not much higher than 8a2 standard, but want to deter frivolous claims (Denny). But malice andother conditions of persons mind alleged generally b. 9a: capacity of is s burden, doesnt need allege it; c. 9c: conditions precedent performed/occurred = general. If you deny = particularity. d. 9g: special damages, or anything not reasonably foreseeable = specific C. Response and Answer 1. 12: 7 possible defenses against the valid of the complaint before the answer is given. a. Some invalid claims are allowed with others that could be valid (Am. Nurses Assoc.) b. Historical demurrers, plea of abatement; scandalous, irrelevant, prejudice to jury c. 12g: must be consolidated in one motion, otherwise waived; 12h2, h3, some motions never waived. 2. Admit: failure to deny is taken as admission 8d

3. Deny: an ineffective denial that is not specific enough is taken as admission 8b a. General denials of everything must be used carefully; can deny on info and belief b. Negative pregnant denials are not allowed (denying $ owed means admitting x??) 4. Plead insufficient information: must be done in good faith. 5. Affirmitave defenses: used to admit allegations but deny right of recovery for some other reason to ro raise reasons that concern allegations outside s prima facie case (8c) D. Amendments (15) 1. Permissive approach gives most opportunity to judge claim on merits a. Freely allowed in good faith ONCE? Beore response (Aquaslide), or when justice requires or by consent of the other party during pre-trial procedures (Moore: implied consent for failure to object) b. Allowed at trial to conform to evidence or by consent of the other party. Not allowed if other party can prove they will be prejudice against. 2. Relations Back a. Amendments allowed to relate back to original date of filing to avoid statute of limitations, if allowed by law 15c1, or arisin out of the same conduct, T/O 15c2 b. May follow Hanna or it may enlarge state substantive statute of limitations c. Also allowed for new parties for the same T/O w/in 120 days and the party has received notice, will not be prejudice against, should have known but for mistake that they were intended target of suit (CASENAME????: naming unknown parties not a result of mistake) 3. Supplemental pleadings allowed for events that happen after the filing 15d, also allowed to relate back E. Sanctions 11: 1. lawyers subject to sanctions; used for deterrence, not punishment. 2. Lawyers obligated to ensure validity of every paper submitted.

VII. JOINDER OF CLAIMS AND PARTIES

A. Point: Efficiency, economy, access to justice, abandonment of technicalities. B. Parties to claims 1. 17: party msut be real party in interest; capacity determined by law of individuals domicile 2. 20: Permissive joinder of any party whose claims stem from the same T/O or series AND if there is a common question of law or fact. a. Test should be done by balancing convenience and justice (Tanbro) b. 42a: allows for consolidation of actions w/only common question of law or fact c. 42b: but if it gets too complicated, court can order separate trials (Lasa Per Lindustria) d. Mass joiders are sometimes better than class actions: less procedural issues. 3. 19: Compulsory Joinder of parties a. General ind v. nec: necessary parties IF feasible, trial can go on; but indispensible = trial cannot go on with out them. fix this!! b. 19a: necessary parties should be joined if feasible: ones needed for complete relief to be granted or ones whose rights would be impared or ones who might put the current parties at risk for double obligations. i. Parties to a contract, property co-owners, distribute estates, limited insurance funds. ii. Not joint tortfeasors! has the choice of which offender she wants to sue J/S. c. Joined parties have to satisfy personal and subject matter jurisdiction, venue: cannot destroy diversity. d. 19b: indispensable parties are determined by amount of prejudice caused by absence, ability to shape relief to avoid prejudice, ability to have adequate judgment in absence, and ability for to have adequate remedy if dismissal is allowed.

C. Counterclaims 1. Between opposing parties 2. 13a: compulsory counter claims arise out of the T/O that is the subject-matter of the opposing partys claim and automatically get ancillary jurisdiction. a. Other tests besides T/O: same question of law, res judicata, same evidence? (ask rens) b. Failure to plead counterclaim results in waiver! But can you bring it in state court? (ask rens) 3. 13b: permissive counterclaims allow anything else. D. Cross-claims (13g) 1. between co-parties. 2. permissive for anything arising out of the same T/O, or relating to any property that is subject of original action E. Impleader (14) 1. Allowed for any parties liable to but must satisfy jurisdictional requirements 2. 1367b allows to use supplementary jurisdiction here, but not original (Owen v. Kroger) F. Interpleader (22) what cases???? 1. let parties w/ multiple exposure settle claims in one efficient proceeding. 2. Determine if procedure is proper, then contest among claimants who have independent claims 3. Statutory Interpleader (Federal Act) a. 1335(a): $500 min, minimal diversity b. 2361: nationwide service of process c. 1397: venue is where one claimant resides 4. Rule 22: jurisdictional, venue, and process limitations apply; 75 minimum; complete diversity G. Intervening Parties (24) 1. 24a: when interest are subject and disposition may lead to prejudice because the party is not adequately represented. 2. 24b: permissive if conditional in statute or common question of law or fact, but not T/O. No SuppJ under 1367!

VIII. DISCOVERY
A. General 1. Purpose: replace code pleadings, preserve info, isolate issues, determine available evidence, avoid surprises, level playing field, prepare for summary judgment. 2. Cons: cost effectiveness doubtful, abuse, privacy rights 3. 27: pre-trial discovery limited to preptuation of testimony 4. 26: scope includes anything, not privileged, that is relevant to claim, defense, or subject matter that is reasonably calculated to lead discovery of admissible evidence (Kelly) 5. Limitations a. Do not allow discovery of net worth/assets, but allow for insurance and punitive damages b. Proportionality and discretion of the court in a balancing test c. Privilege: attorney/client, priest, doctor, spousal d. 26c: protective orders to protect from embarrassment/oppression (Seattle Times) e. 37: sanctions allowed after movant makes good faith effort to get disclosure w/out court action. Winner gets costs, including attorney fees, unless loser was substantially justified. i. 37d includes death penalty sanctions under rule 37b2Ai-vi ii. 37b2A: failure to obey court order iii. death penalty sanctions require a showing of at least gross negligence.

B. Discovery Devices 1. 26a: Mandatory disclosure of witness, documents, damages, insurance, experts, exemptions 2. 26b4: can despose and get related discovery from testifying experts. No discovery from non-testifying experts unless exception circumstances make it impracticable to get same info another way. 3. 26e: duty to supplement if prior disclosure is incorrect/incomplete and other parties do not know 4. 30, 31: depositions: notice must be given, taken under oath, 7 hours/day, 10 max. 5. 33: Interrogatories to parties: limited to 25 questions, usually for cost/burden-shift a. questions must be specific and limited b. duty to respond: knowledge that can be reasonably obtained, duty to investigate 6. 34:Documents and property inspection production of inspection and copying, inspection of property, must be pled with reasonable particularity a. delivery must be in the form and order as they are kept in the usual course of business b. uncooperative parties will stonewall or dump or refuse to reveal smoking gun unless asked for c. use 45 and subpoena for non-parties but cant be objected to 45c3Aiii d. E-discovery: ???? e. Physical/Mental examinations of conditions in controversy and on showing of good cause i. Requires motion (others need notice, only): right to privacy is limited by being a party in court ii. Perhaps violates REA?? f. 36: requests to admit to shape trial, self executing, admitted as conclusive evidence unless denied/objected to. Includes statement of fact, of application of law to fact, and genuinesss of documents. C. Work Product doctrine 1. 26b3: Qualified privilege of discovery limits material prepared for litigation of lawyers (Hickman) must show substantial need and hardship of getting information elsewhere a. Protect against or legal opinions/conclusions of lawyers b. Judge can take mixed discovery and decide/redact which is work-product & which deserves equal access 2. Witness testimonies only if unavailable: dangerous to rely on lawyers to testify about witness remarks

IX. PRETRIAL ADJUDICATION

A. Timeline: 1. Cause of action decide to sue pleading service joinders motion to dismiss discovery summary judgment 2. Judge plays a large role in case management. Bulk of litigation happens at a high cost, everything sets up ability to move for summary judgment B. Summary Judgments 1. General a. Can be granted in part b. 56 is final verdict that requires appeal. 12b6 can be re-pled at that time. c. Same standard as directed verdict, but just decided pre-trial as opposed to post-trial d. Granted if s case has no legal basis, reasonable jury would agree w/all motions, ironclad defense e. Discretion to deny if evidence is not credible, mover bears burden of persuasion, gap in evidence, eyewitness based testimony instead of documentary.

f. Questionable issues drawn in favor of non-moving party 2. Standard: if there is no genuine issue of material fact and movant is entitle to judgment as a matter of law. a. Parties can use 56e, f, affidavits to show that issues of fact still exist b. Inappropriate to grant summary judgment on inferences about facts, motives, intent, and questions that turn on credibility of witness. c. Should be not be gratned if there are mixed issues of law and fact or if more discovery possible i. 56e only allows for facts that would be admissible as evidence, but doesnt take effect until after movant fulfills burden of establishing absence of genuine issue. ii. Burden of production may switch, but burden of persuasion stays on the moving party. d. If movant doesnt carry burden of proof, they can ask for summary judgment on the pleadings w/out negating s claims: ask them to prove it. Judge can decide if motive is plausible (Matsushita) ASK RENS

X.

JUDGE & JURY AT TRIAL

A. Right to Trial by Jury 1. 7th Amendment Right preserves federal jury trial for common law issues. Not stuff like equity 2. Problems: not representative, factual/legal issues too complex, unfair to jurors livileyhood if prolonged, controversial in media, etc. 3.

XI. FORMER ADJUDICATION

A. Introduction 1. Former adjudication do not have to be right but take effect for efficiency 2. Stare decisis has presumptive validity, but can be rejected 3. Preclusion requires bright line policy for it to have preclusive effect, applying only to parties in litigation. 4. Party gets ONE CHANCE to litigate claim or issue, but it must get that one chance; disfavored use of law, so preclusion is waived if not raised early in the proceeding. B. Claim Preclusion / Res Judicata 1. Generally a. Precludes identical claim: sues for all injuries in car accident. May not sue again whether or not she won the first case. b. Precludes claim that could have and should have been brought; sues for personal injury, then for property damage. sues first in contract, then in tort. should have been same case. c. Test: same t/o + applied in light of efficiency: would combining two suit significantly save judicial resources? 2. Preclusion after litigating a cause of action and a final and valid adjudication has been given on the merits. A party cannot split a claim or cause of action into parts; preclusion occurs if they could have litigated. 3. Claim/cause of action = same T/O; acts as a compulsory joinder of claims. a. Defense preclusion doesnt apply unless brings a cause of action, but cannot split a defense to protect a future offenseive cause of action: result of compulsory counter claims. b. Suing in state court does not preclude federal claims, but suing in federal precludes state claims subject to supplemental jurisdiction. 4. Parties in the subsequent action must be the same as the first or parties in privity; allows for permissive joinder C. Issue Preclusion / Collateral Estoppel

1. Generally a. Efficiency b. Integrity of judgments 2. Issue actually litigated and decided; actually litigation doesnt require joinder of claims, but could have effect in an entirely new context. a. Issues in an action that are decided might not actually be litigated if their merits point otherwise? b. Should have litigated is not included 3. Final judgment on the merits 4. Binding even as to a different cause of action 5. Issue was essential to the judgment; I a. Non-essential findings not reliable enough to warrant preclusive effect b. Ask whether the finding in question is sufficient by itself to decide the case c. Example: D found negligent; P found contributorily negligent and D wins. i. Finding of Ds negligence was not enough to decide the case ii. Finding of Ps negligence does decide the case. iii. Only the finding of Ps negligence is essential d. Less clear when two findings are each sufficient standing alone to support the judgment i. Example: p found contributoryily negligent; and jury finds no damages ii. Each alone enough to support the result e. Some say both get preclusive effect f. Some say neither is binding i. Because that finding might not have been closely scrutinized ii. Because no incentive to appeal. 6. Same parties or privies or the person bound was a party; mutuality of estoppel no longer exists, a third pary can use collateral estoppel against an original party. a. Emphasis is on every party or privy to a party to have its day in court b. Offensive Non-mutual issue preclusion allows third party plaintiff to invoke a finding from an action that a different plaintiff has won in a prior adjudiciation (Shore) i. Third party must have joined the first action if it was easy to ii. Losing party must have had full and fair opportunity to litigate the issue and actively done so iii. Losing party must have been able to foresee the third party action. c. Defensive non-mutual issue preclusion allows a defendant to invoke finding from an action that the plaintiff brought and lost. d. Offensive more problematic than defensive: ask rens! i. Fairness to defendant a. Fairness to defendant 1. Smaller claim in first action 2. Procedural advantages in second action 3. Foreseeability of second action b. Judicial efficiency c. Inconsisten judgments (d wins some, then P wins) ii. Defensive does not raise the same concern a. P gains nothing by not joining several Ds; if loses against D1, then loses against D2 b. Hard to argue lack of procedural opportunities because P gets to pick forum c. P has every incentive to litigate hard