Editing Civil Procedure

--[[User:Ezrashefer|Ezrashefer]] 15:48, 5 May 2007 (MST)Ryan S. Malc

[[Category:Outlines]]

----

 Pleadings
Rules: 7,8,9,10,15

Complaint: The plaintiff has the burden of pleading the basis for the court’s jurisdiction over the matter (SMJ only), a short and plain statement of the claim showing a right to relief and a demand for judgment (FRCP 8(a)).  The supreme court has established FRCP 8(a) as establishing a liberal notice pleading standard.  However the general pleading standard is departed from in FRCP (9); special matters must be plead with particularity.  FRCP 8(a)(3) requires a prayer for relief or ad damnum clause.  The party may receive a greater judgment, but in case a default judgment the plaintiff will be limited to the specified amount.  FRCP 8(e)(2) permits a plaintiff to plead in the alternative or inconsistent allegations.  

Policy: Notice pleadings meant to put the parties on notice, want efficiency.  Most of the information will be brought up in discovery.

Answer: FRCP 8(b) provides for the defendant’s answer to the complaint.  Per FRCP 12(b) the defendant generally has 20 days to respond to the complaint either in an answer or in a pre-trial motion.  If the defendant has waived service he will have 60 days and 90 days for foreign defendants.  All averments in the complaint must be either admitted or denied, those not denied are deemed admitted (except damages).
•	General denials: applying to the entire complaint except the paragraphs specified
•	Specific denials: applying to only part of the complaint
•	Complete denials: applying to the entire complaint
•	Qualified denials: deny only a portion of a specific allegation
The party must also raise affirmative defense (FRCP 8(c)), basically a justification or excuse that would absolve the defendant of liability even if the plaintiff’s claim is proven.  The failure to plead affirmative defenses can result in the defendant being barred from introducing evidence on those defenses or waiver of those defenses. 
Do affirmative defenses have to be pleaded in the first responsive pleading?

Policy: Don’t want unfair surprises or prejudice to result, plaintiff needs to know affirmative defenses that will be brought up.

Reply: If the defendant raises a counter-claim in his complaint, the plaintiff is entitled to respond.  It’s basically an answer to the defendants counter-claim.

Amendments:  Changes can be made to the pleadings as of right without leave of the court once before the responsive pleading is filed or 20 days from the filing of the pleading for non-responsive pleadings (FRCP 15).  Where leave of the court is required FRCP 15 indicates that it will be freely given when justice so requires.  The court is not required to grant amendments but 15(a) creates a strong presumption in favor of granting amendments.  Decision should be based on fairness and burden or prejudice to the adverse party.  Absent leave of the court, a party may obtain the written consent of the adverse party and thereby be permitted to amend its pleadings.  Amendment for variance FRCP 15(b) will be granted so that the pleadings conform to the evidence at trial unless the objecting party can show prejudice.  FRCP 15(c)(2) allows for relation back of certain amendments if (1) the state SOL permits relation back (2) the claim arose out of the same transaction or occurrence or (3) where the party seeks to change the party against whom a claim is asserted and the party must have received notice and the party will not be prejudiced in maintaining a defense on the merits.  FRCP 15 will not be granted if the adverse party is unfairly prejudiced or the failure to present the information originally was in bad faith.  Motions are not considered pleadings under the Federal Rules.  Thus, the filing of a pre-answer or motion in response to a pleading does not counts as a responsive pleading for the purpose of applying FRCP 15(a).
Are 12b motions supposed to be “pleaded” in the first response?

Policy: making it easy to amend is consistent with the Federal Rules de-emphasis no pleadings.  Or emphasis on notice pleadings followed by discovery.

Rule 11: pleadings and other papers filed with the court must be signed by counsel with the representation that: 
	(1) the filing is not being presented for an improper purpose such as to harass or to cause 	unnecessary delay or needless increase in litigation costs,
	
(2) legal contentions contained in the filings are warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law 

	(3) the factual allegation or denials are supported by evidence or are likely to have evidentiary 	support after further investigation, 

	(4) the denials of factual contentions are warranted on the evidence or if specifically so 	identified are reasonably based on lack of information.  

FRCP 11 is violated by signing, filing, submitting or later advocating a paper when the litigant knows that it is no longer well-grounded, thus imposing on litigants a continuing duty to correct or even withdraw papers in light of post-filing events.  

FRCP 11 sanctions can be imposed as a result of motion to the court of sua sponte.  Safe harbor provision gives litigants 21 days to withdraw improper filings before the motion is filed with the court.  Sanctions for violation of FRCP 11 may include non-monetary directives or monetary payments.  However, the court is to limit sanctions to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.  Monetary sanctions will not be given for filing frivolous claims 11(b)(2).

Policy: Deterrence rather than compensation or punishment. 

Garr Standard: Any papers filed with the court have to be well-grounded in fact or warranted in law.

1993 Amendment: Requires allegations and other factual contentions to have factual support or if specifically identified, likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.  Safe harbor provision is not absolute, because the motion can be made sua sponte.  However, court will usually require an order to show cause before sanction is given. 

Burdens

Burden of pleading: dictates which party is obligated to introduce a particular matter into the litigation by raising the matter in the pleadings.
•	If plaintiff doesn’t plead stuff for which he has the burden then he will be vulnerable to a motion to dismiss.
•	If a defendant doesn’t plead stuff for which he has the burden the he will not be able to assert the defenses at trial
Burden of Proof: allocates the burden of proving contested facts.
(1)	Burden of production: producing evidence
(2)	Burden of persuasion: convincing the trier of fact
When do you use these?  

Pre-Answer Motions 
Rule 12

12(g) + 12(h)(1) provide that any challenges to personal jurisdiction, venue, process or service must be asserted simultaneously and initially or they are waived.

Rule 12(e) and 12(f) are not defense, but rather objections that can be made by motions.  If you make a 12(b) motion, you lose 12(e) and 12(f) defenses unless they are in the 12(b) motion.  This is very inefficient, but in furtherance of prevailing policy of getting everything done at once. Rule 12(f) allows a plaintiff or defendant to move to strike from a pleading any insufficient defense or redundant, immaterial, impertinent or scandalous matter.  Rule 12(e) Where a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement prior to responding.

Rule 12(b)(6) All well-pleaded facts are taken as true and all reasonable inferences are drawn in favor of the pleader.  Only granted if there is no set of facts in support of claim that would entitle relief.  Based on the facts alleged in the complaint, there is no legal theory under which the plaintiff can obtain relief.  Even if all of the facts in the complaint are true, the plaintiff is still not entitled to relief.  If you go beyond the pleadings then it becomes a Rule 56 motion for summary judgment.
Is 12b6 a version of Rule 56 that is only used in pleadings?

The complaint should not be dismissed “Unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson

Rule 12(b) requires all defenses of law or fact to a claim, counter-claim or cross-claim to be asserted in the responsive pleadings except defenses made at the option of the pleader by motion for (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person (3) improper venue (4) insufficiency of process (5) insufficiency of service of process (6) failure to state a claim upon which relief can be granted (7) failure to join a party under rule 19.

A 12b(6) motion or a 12(b)(7) motion can be made at any time.  When it appears that the court lacks subject matter jurisdiction of the subject matter, the court shall dismiss the action at any time.


Dismissal of Actions
Rule 41
(a)	Voluntary Dismissal
(1)	By plaintiff: any action may be dismissed by plaintiff by filing a notice of dismissal at any time before the answer or motion for summary judgment is filed.  Unless otherwise stated the dismissal is without prejudice.  A notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has dismissed the same claim before
(2)	By order of court: Will be granted unless the defendant has filed a counter-claim that cannot remain pending for independent adjudication by the court.  Unless otherwise specified, dismissal is without prejudice.
(b)	Involuntary Dismissal: Unless the court specifies otherwise dismissal is considered an adjudication on the merits.  A dismissal for lack of jurisdiction, improper venue or for failure to join a party under Rule 19 is not on the merits.
Is involuntary dismissal with prejudice.  Is it dismissed by judge? 
Summary Judgment 
Rule 56
* if the party cannot meet the burden of production than the case should not go on.  Is there a genuine issue of material fact?

Motion for summary judgment looks at the evidence that has been adduced through discovery at the time the motion is presented.  Generally don’t look at pleadings because they are not under oath.  The question presented is whether there is a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. A genuine issue – means conflicting evidence. Material fact – refers to a fact that is essential to establishing an element of a claim.  The only reason that we go to trial is to dispute facts, if a reasonable juror could not differ than SJ should be granted.  Summary judgment is always discretionary, the court never has to grant it

Motion for Summary Judgment by Defendant: Must demonstrate the absence of evidence in the record supporting the claim.  Just have to show that the plaintiff can’t prove his case based on the evidence in the record.

Motion for Summary Judgment by Plaintiff: Must not only show evidence for the claim, but show that the evidence conclusively demonstrates the truth of the allegations.  That all of the evidence points in one direction.  Must show that there is no way that the defendant can win.  Very hard to win.  

Summary Judgment:  May be brought before or after discovery.

Celotex: Movant has the burden of showing the absence of a genuine issue of fact.  However, where the movant does not carry the burden of proof on the matter at trial, the party must simply show that the existing material on record fails to support the non-movannt’s case.  The movant does not have to show that the non-movant cant prove his case, just that he hasn’t.  The non-moving party must produce specific factual evidence that establishes the essential elements of his claim.  Basically, the movant does not have the burden of disproving the case against him by moving for summary judgment.  Supreme court encouraging lower courts to use summary judgment, but in reality summary judgment is discretionary and may be hard to obtain.  Must ensure that everyone has a full and fair day in court.

Partial Summary Judgment: The court may issue an order removing uncontroverted issue from trial as provided for by Rule 56(d).  No formal judgment is issued, but certain claims are disposed of.

Policy: Judge is the gate-keeper.  If there is no genuine issue of material fact, there is no reason to go to the jury.
Discovery
Rule: 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37

Scope of Discovery
Parties may discover any material relevant to the claim or defense of any party.  Relevant discoverable material does not have to be admissible at trial, material is discoverable so long as it appears reasonably calculated to lead to discovery of admissible evidence.  The court may broaden discovery of any matter relevant to the subject matter of the action (2000 amendment) or limit discovery if (1) the discovery sought is unreasonably cumulative or duplicative (2) the discovery sought is obtainable from other sources that are more convenient, less burdensome, or less expensive (3) the burden or expense of the proposed discovery outweighs the benefit (4) to protect privacy (4) prevent harassment or undue delay.

Discovery Devices
Originally discovery was adversarial, meaning that a party was only required to provide information in response to a request by the opposition.  The 1993 and 2000 amendments to the FRCP created an affirmative duty of unilateral disclosure.

Rule 26(a) initial disclosures must be made by each party at the beginning of discovery without waiting for a discovery request.  Initial disclosures include information regarding likely custodians of discoverable material, a description of documents likely to be used to support a party’s case, a computation of damages, and any documents on which such computations are based, and any insurance information.  The parties must confer and make a discovery plan 21 days before the pre-trial conference.  Initial disclosure must be made within 14 days of the meeting.  Beyond initial disclosures, the parties may use
(1)	Interrogatories: (only parties)
(2)	Depositions: (party or non-party)
(3)	Document requests: (parties and non-parties by subpoena)
(4)	Physical and mental exams: (by court order only; party or someone in party’s control)
(5)	Requests for admission: (parties only)
If one of the parties fails to comply with discovery, the other party may (1) seek a motion to compel (2) protective order

Pre-trial Conference
The over-arching aim of the pre-trial conference is to more efficiently manage the course of the lawsuit.  The pre-trial conference seeks to:
(1)	clarify issues
(2)	control, expedite and reduce the waste of pre-trial litigation
(3)	facilitate settlement
Rule 16(b) requires that the judge enter a scheduling order within 90 days after the appearance of a defendant or 120 days after the service of the complaint.  The pre-trial conference has a binding effect and evidence not specified in the pretrial order will generally be precluded from trial.  The pre-trial order can be modified to prevent “manifest injustice”.
Is a Pre-Trial Conference mandatory?  Can the parties waive it?  Can the judge waive it?
Privileged Material
Certain material is protected from discovery notwithstanding its relevance to one of the claims or defenses made by a party to an action.  Rule 26(b)(1) provides for discovery in any matter “not privileged” that is relevant to the claim or defense in the action.  Privileged communications lose their protection if they are disclosed to third parties that are not part of the confidential relationship.

Work Product
Refers to any material prepared in anticipation of litigation or for trial.  In Hickman v. Taylor, the court indicated that material prepared in anticipation of litigation was not discoverable absent a showing of substantial need and the inability to obtain the information elsewhere.  The court went on to indicate that under no circumstances were the mental impressions, thoughts or legal opinions of counsel discoverable.  Rule 26(b)(3) codified Hickman.  It limits protection to documents and tangible things, a limit that Hickman did not impose.  Thus, Hickman can be relied on where 26(b)(3) falls short.

Expert Testimony
A party must automatically, without being asked give the other side a list identifying each expert who will be called at trial.  The party who intends to call an expert at trial must have the expert prepare and sign a report containing, among other things (1) the experts opinions and the basis for them (2) the data considered by the expert (3) any exhibits to be used by the expert at trial (4) the experts qualifications (5) expert’s compensation (6) the names of the cases in which the expert testified in as an expert in the past 4 years.  Information pertaining to experts retained but by counsel, but not to be called at trial may only be discoverable upon a showing of exceptional circumstances making it impractical for the party seeking discovery to obtain the information by other means Rule 26(b)(4).  

Protective Orders:
A person served with a discovery request may seek a protective order against such request if it may cause “annoyance, embarrassment, oppression, or undue burden or expense.  Rule 26(c) authorizes protective orders that accomplish the following goals:
(1) restrict the time, place, method and scope of discovery   
(2) require that discovery be sealed and only opened by court order
(3) limit the disclosure of trade secrets and other business information

Sanctions
Discovery under FRCP relies heavily on the good faith of the litigants.  A party can not move for an order compelling discovery without certifying that it has tried to resolve the dispute in good faith.  Rule 37 gives 2 options.  The first, is that the party can seek an order to compel a response to discovery. Second, the court can impose sanctions directly without first issuing an order to compel.  The court is however, more likely to impose sanctions where the party has been given the opportunity to comply.  

Policy: Advantage of expansive discovery is that a party can prevail even if the evidence in support of its case is in the hands of the opposing party.  The disadvantage is cost and may invite strike suits – actions filed for the purpose of inducing settlement.

The Right to Trial by Jury
7th amendment, Rule 38

7th amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved (means that if you would have gotten a jury in 1791 you get it now), and no fact tried by jury shall be otherwise reexamined in any court of the United States (means Federal Court), than according to the common law.

Back in the day, the equity courts had jurisdiction only if there was no adequate remedy at law, and eventually developed their own system of substantive law to protect rights not recognized by the law courts.  One central limit of the law courts was that they could not issue injunctive relief.

The 7th amendment does not create a right to trial by jury, it preserves a right to trial by jury.  In determining whether a constitutional right exists for a statutory cause of action in which Congress has not expressly created a right to jury trial, the court must determine whether the issue at hand resembles something that was adjudicated in law or in equity in 1791.

Beacon Theaters:
Where a case presents both legal and equitable claims which have issues in common, the trial court must first try the legal claims so as to preserve the right to a jury trial on such issues and only later the equitable claims.

Dairy Queen:
Even where the equitable claim predominates, the trial must still be conducted in a manner that preserves the right to jury trial on legal issues.

* While it is easy to broaden the right to jury trial, it is much harder to narrow the right to jury trials.  Congress cannot take away a right to jury trial (Curtis v. Loether)

Rule 38:
(a) right of trial by jury under 7th amendment is preserved
(b) demand for trial by jury—any party can demand a jury trial by:
(1)serving a written demand on other parties
(2)filing the demand no later than 10 days from service of the last pleading directed to such issue
(c) specification of issues to be tried by jury
(1)if not specified, it is assumed that all issues want a jury trial
(2)if a party specifies only some issues, then the other party has 10 days 	to serve a demand for other issues he wishes to be tried by a jury.
(d) right to trial by jury can be waived and may not be withdrawn without consent of the parties.

Trial

Jury Selection: 
Jury selection process is Voire Dire.  The attorneys may challenge juror for cause or on peremptory challenge.

Jury Instructions:
Informs the jury of the law applicable to the case. Under Rule 51, the parties are entitled to submit proposed jury instructions and have the opportunity to review and object to the adopted instructions prior to their delivery to the jury.  In correct charge is a common ground for appeal.

Forms of Verdict:
(1)	General Verdict: the jury simply determines who wins
(2)	Special Verdict: Requires the jury to answer specific factual questions in writing
(3)	General Verdict with written Interrogatories: The juries answers are cross-checked with the verdict
* If there is a problem of inconsistency, you can always send the jury back.  However, once the jury is discharged they can’t be brought back.  If the answers to the questions are inconsistent with the verdict you go with the answer to the answers.  If the answers are inconsistent with each other than you need a new trial.

Jury Controls
Rule 50, 51, 52, 59, 60, 61

Judgment as a Matter of Law (directed verdict)
Rule 50(a)
The case is taken away from the jury for resolution by the court.  This is only done when no reasonable juror could find in favor of the party.  A motion for a JMOL can be made at any time after the movant’s adversary has completed the presentation of their case and before the case is submitted to the jury. If the facts and inferences point so overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict, then the motion should be granted.  There must be a substantial conflict n evidence to support a jury question.
Instead of using a JMOL, why not use Rule 56?
Why would a judge allow a jury to decide, ever, if the evidence is strongly on one side?  
(1)	Notions of justice perpetuated by giving a jury the opportunity to make the “right” decision.
(2)	On appeal, the judge will be subject to more criticism if he didn’t let the case go to a jury when there were material facts.

Policy: The essence of due process is (1) notice and (2) an opportunity to be heard.  You had notice and an opportunity to be heard but you suck and don’t need a jury to tell you that.

Policy: The farther along in the process you go, the less the point becomes to save time and money, and the more it becomes a matter of jury control.


Renewal of Judgment after trial (JNOV)
Rule 50(b)
Motion can only be made if the moving party has already moved for a 50(a) and been denied.  The court is limited to the original arguments that were made in the 50(a) motion.  Reasonable person could not reach the verdict that the jury found.  The jury acted irrationally and disregarded the evidence.  Must be brought within 10 days of verdict.

Policy: Not a violation of the 7th amendment because the Judge was allowed to do it at Common Law.

New Trial
* does not violate 7th amendment because it was available at common law.

The trial court has a right to grant a new trial, effectively nullifying the jury verdict, whenever it deems that justice so requires.  Discretionary power, rarely over-turned on appeal.  The court usually grants a new trial b/c the verdict was against the weight of the evidence. Rule 59 motions must be made within 10 days of the verdict.  Judge is the final juror.  The denial of a new trial can be reversed if the judge overlooked a source of serious error.  A party can only get 1 new trial.  The judge can’t just keep re-trying the case until he gets what he wants.  

Grounds for New Trial
(1)	Legal Errors
(2)	Erroneous Jury Verdict – against the wait of the evidence
(3)	Excessive verdict that shocks the conscience
(4)	New Evidence
(5)	Improper Jury Influence

Rule 61 forbids a grant of a new trial for harmless error.

Rule 60 allows relief from judgment for mistake, fraud or newly discovered evidence, but only within a year of the original verdict.

Conditional New Trial
Remittitur: Motion for a new trial granted unless plaintiff accepts smaller award.
Additur: Defendant is coerced into accepting higher liability than the jury awarded.  Additur is prohibited in Federal Court.

Preclusion

Policy: To promote finality and repose and to prevent duplicative litigation.  “One full and fair day in court” is a reasonable standard.  Why is this a good standard?  Duplicative litigation takes a lot of time and costs a lot of money, so we don’t want to do the same thing numerous times.  If parties know things are only going to be done once, they will probably prepare better (increased quality of litigation).  Non-litigation value of repose- people shouldn’t have to spend their lives worrying about being sued every day.

•	The court in the 2nd case will always apply the preclusion law of the system that decided the first case!
What is meant by preclusion law?
Collateral Attack: A second proceeding that calls into question a previous judgment.  This is barred by preclusion.

Claim Preclusion (Res Judicata): Refers to the treatment of a judgment as the full measure of relief to be accorded between the same parties on the same claim.  A judgment for a defendant extinguishes the plaintiff’s claim and bars a subsequent claim by the plaintiff.  Prohibits any claim that was or should have been brought.  As joinder became broader, allowing more stuff to be joined, preclusion became tighter.  Now that parties are permitted to join (joinder) preclusion requires them to join.
(a)	Same claim: arising out of the same transaction or occurrence; arise from the same factual circumstances; doesn’t matter if you have a new legal theory.
(b)	Parties to the original suit.  Same plaintiff against the same defendant to the original suit or in privity. 
(c)	Final judgment on the merits:
•	Rule 41(b) dismissals for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 are not considered final judgments on the merits.
•	Dismissals on other grounds are deemed to be with prejudice and are treated as final judgments on the merits.
•	12(b)(6) is a final judgment on the merits but you get to bring it again après amendment.

Rush: Both property damage and personal injury resulted from mortocycle accident caused by bumps in the road.  Personal injury litigated and city negligent.  Decision: a single tort can be the basis of but one action.

Herendeen:  Court holds that the cases are sufficiently different and the second is not barred because of the first.  The test is (1) would a different decision in the 2nd action destroy the rights or interests established in the first? (2) whether the same evidence is necessary (3) were the essential facts and issues of the second  present in the first?

Restatement view on “same transaction or occurrence”
What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.

Federated Department Stores, Inc: 7 parallel civil actions were dismissed, because the Ps had not alleged an injury to their business or property within the meaning of the Federal Statute - §4 of the Clayton Act (15 U.S.C. §15).  Ps still thought they had a claim, so 5 appealed and 2 re-filed in state ct.  In the interim between the trial and the appeal, a case was decided saying that consumers (like the Ps) did suffer the kind of injury to business or property that the Federal Statute required, so the 5 Ps who appealed got the benefit of the change in law.  The 2 Ps that did not appeal, were barred from bring the claim in state court and then they were also barred from bringing an appeal b/c that would be a collateral attack or a collateral appeal.

* Problem: you encourage parties to bring everything they can, then it turns into rule 11 drama.

Claim preclusion as a defense: Example: P brings claim against D for negligence.  D wins on contrib. and then brings another suit against P for negligence.  Not allowed, that is why we have compulsory counter-claims arising out of the same transaction or occurrence.
Is it correct to say that compulsive counterclaim cannot be brought due to precusion?
Issue Preclusion (Collateral Estoppel): Bars the relitigation of issues that were actually litigated in a prior action, provided the adjudication of those issues was essential to the judgment.
(a)	1st case ended in a valid judgment on the merits
(b)	The same issue was actually litigated and determined in case 1
•	Issue was raised in the original action; not passed on default judgments or failure to state an issue, or if the party conceded the issue
(c)	The issue was necessarily decided and essential to the judgment in case 1
(d)	Can only be used by parties to the original action
Mutuality Rule: Issue preclusion could only be asserted by someone who was party to the 1st case.  Nobody is bound by prior case unless everyone is bound.  Requires total symmetry
In order to have issue preclusion do you also need to have claim preclusion (res judicata)?
Is res judicata and collateral estoppel and affirmative defense?
Can the court preclude if the D does not bring the defense?

Eli Lily: DES cases, Lily was precluded from defending itself on certain issues of liability.  The doctrine of collateral estoppel precludes a party from relitigating an issue which had previously been decided against him in a proceeding in which he has a fair opportunity to fully litigate the point. 

General Foods: Plaintiff brought action against the defendant claiming that the date food regulation was unconstitutional.  The defendant claims res judicata because of previous lawsuit.  A person who is not a party to an action but who expressly or impliedly gives a party authority to represent him may be bound by the rule of res judicata as though he were a party.  The case is dismissed for res judicata.

Privity: Has the party been represented in an earlier proceeding?  
•	A non-party has already had the opportunity to participate in litigation or was otherwise represented by an “agent”
•	Where someone’s rights are wholly dependent upon another, the person will be bound by the other person’s litigation
Exceptions to Mutuality
(1)	Non-mutual defensive issue preclusion: A non-party to 1st suit (new defendant) can assert issue preclusion as a defense if the plaintiff had is full and fair day in court.
 
(2)	Non-mutual offensive preclusion: A non-party to 1st suit (new plaintiff) seeks to take advantage of another party’s decision and preclude the defendant from contesting liability

 
•	Court will look at non-mutual offensive issue preclusion on a case by case, discretionary basis.
•	Parklane Fairness Factors
(1)	Did the defendant have a full and fair chance to litigate in the first action?
(2)	Could the plaintiff have been joined in the first case?
(3)	Was the action foreseeable at the time of adjudication of the initial suit?
(4)	Would inconsistent judgments result?

Problem: Finality is implemented, but finality does not necessarily mean that the original adjudication was correct.

Subject Matter Jurisdiction

The authority of the Federal Courts to hear certain types of cases derives from Article III of the US Constitution.  Congress has limited this grant in USC §1331 and 1332.

Diversity
Governed by USC §1332 which provides that in disputes where the amount in controversy exceeds 75,000, Federal Courts have jurisdiction to hear cases involving suits between citizens of different states.  Courts have interpreted §1332 as requiring complete diversity, meaning that no party on one side of a case may share citizenship with any party on the other side of the case.

Federal Question
Federal Question Jurisdiction is governed by USC §1331, which provides federal jurisdiction over all cases arising under Federal law.  The provision has been interpreted to require that a claim contain an essential federal element that appears on the face of the plaintiff’s well-pleaded complaint.

Supplemental
Supplemental Jurisdiction is provided for in USC §1367.  A state claim lacking an independent basis for federal jurisdiction may be heard in Federal court on the basis of Supplemental Jurisdiction.  Available where the claim arises from the same controversy or common nucleus of operative fact.  The exception arises where the court’s sole basis for jurisdiction is diversity of citizenship.  There can be no supplemental jurisdiction over state-based claims made by plaintiffs against those made parties under Rule 14, 19, 20 or 24.  Nor can there be supplemental jurisdiction over non-federal claims by parties joined under Rules 19 or 24 that would destroy diversity.

Joinder of Claims and Parties
Rules 13,14,18,19,20,22,24

Rule18: The process or joining multiple claims against an opposing party in one action.  There is no limitation on the number or types of claims that may be brought.  Claims may be related or unrelated.  This right applies to original claims, counter-claims, cross-claims and third-party claims.
•	There must be an independent basis for subject matter jurisdiction and venue.

Rule 13: Counterclaims are made by defending parties against parties who bring claims against them.  Cross-claims are brought by one co-party against another co-party.  
(b)	compulsory counterclaims: those arising out of the same transaction or occurrence that is the subject matter of the opposing party’s claims.  Such claims must be asserted or they are waived.
•	Same transaction or occurrence = logical relationship
•	Policy: efficient use of judicial resources, minimizing the burden imposed on litigants and avoiding duplicative litigation.
•	Exceptions: at the time the action was commenced the claim was the subject of another pending action
•	Exception: the opposing party brought suit upon he claim by attachment or other process by which PJ was not acquired and the defending party is not bringing any counter-claims
(c)	Permissive counterclaims: those claims that a defending party has against an opponent that do not arise out of the same transaction or occurrence.  Such claims may, but need not be raised by the party.
•	There is no limitation to the type or number of counter-claims that may be brought.
•	There must be an independent basis for jurisdictional and venue requirements.  Compulsory counterclaims will almost always have supplemental jurisdiction.
(g) Cross-claims against Co-parties: must arise out of the same transaction and occurrence that is the subject matter of the original action or of a counter-claim that has been asserted.  Are permissive, do not have to be asserted. However if it is asserted, the party will have to assert 13(a) compulsory counterclaims against the cross-claimant or they will be waived. 
•	Require an independent basis for subject matter jurisdiction but will usually qualify for supplemental.

Rule 20: Permissive Joinder
(a) Plaintiffs may join together in one action where they assert claims arising out of the same transaction and occurrence involving a common question of law or fact.  Parties may be joined together as defendants where the claims brought against them arise out of the same transaction or occurrence and involve common questions of law and fact.
•	Requirements for personal jurisdiction, subject matter jurisdiction, and venue will have to be satisfied independently
* Rule 20 21 and 42 allow judge to take things apart if they don’t belong together

Rule 19: Compulsory Joinder
Certain parties to an action, if feasible, must be joined to the action if feasible in order for the court to be able to render a just resolution of the action before it.
Step 1: Is the person a necessary party? FRCP 19(a)
•	In the person’s absence complete relief cannot be accorded among those already parties
•	The person claims an interest relating to the subject of the action and disposition of the action in the person’s absence may impair or impede that persons ability to protect that interest
•	The person claims an interest relation to the subject matter of the action and disposition of the action in the person’s absence would leave existing parties subject to substantial risk of incurring double, multiple or otherwise inconsistent obligation by reason of the claimed interest.
•	joint-tortfeasors are not considered necessary parties
Is the addition party compelled by the court?  What if Joe is necessary to the litigation but does not want to be joined?
Step 2: When joinder is feasible FRCP 19(a)
•	If there is PJ over the party to be joined
•	SMJ over claims
•	Proper venue
Step 3: Should action be dismissed; necessary party can’t be feasibly joined? FRCP 19(b)
•	Would the decision be prejudicial to the parties or the person?
•	Can the prejudice be lessened by protective provisions?
•	Will a judgment in the person’s absence be adequate?
•	Will the plaintiffs have an adequate remedy if the action is dismissed?
* Apply factors to specific case with equity and good conscience to decide if case should be dismissed.
* Exception of class actions

Third Party Practice: Impleader: Rule 14
(a)	a defending party can assert a claim against a non-party (3rd party defendant) claiming that the third party is liable to the defending party (3rd party plaintiff) for reimbursement for all or part of the amount.  Can join all claims against the 3rd party defendant under rule 18(a).  There must be PJ and SMJ.  Service must be made within 10 days of the answer without leave of the court/ AUTOMATIC SUPPLEMENTAL
(b)	allows P to bring in 3rd party on counter-claims.
How?

Intervention: Rule 24
Allows a non-party to intervene and make themselves a party to the action.
(a)	Intervention of Right Upon timely application, anyone shall be permitted to intervene in an action if (1) statute confers unconditional right to intervene or (2) when the applicant claims an interest relating to the property which is the subject matter of the action and applicant would not be able to protect himself unless his interest is adequately represented.
(b)	Permissive Intervention: intervention may be permitted when the absentee’s claim or defense shares a question of law or fact with the main action.
	Is Intervener there for his own benefit rather than by the request of the original P and D?
Interpleader: Rule 22 or §1335
Available to a party who does not know to which of several claimants he or she is liable, if liable at all.  Interpleader (stakeholder) is forcing all claimants to proceed against him in one lawsuit.  The stakeholder deposits with the court the stake (money) which is the target of the competing claims.

Step 1: Is interpleader appropriate?
Step 2: Court adjudicates claims and decides how the money will be divided?

Class Actions
A procedure whereby a single person or small group of co-parties may represent a larger group or class of persons sharing a common interest.  It may be used where joinder is infeasible b/c of the large number of parties or because of difficulties in terms of PJ, venue or diversity.
Jurisdiction: Only the representative must satisfy the requirements of PJ, SMJ and venue.
Due Process: To ensure that the action is not re-litigated the results must be binding on absentee litigant, thus, steps have to be taken to ensure that absentees are not deprived of their day in court.

In order to proceed as a class action, the group of interested parties must be certified as a class.  FRCP 23(a) provides for a certification of a class if:
Rule 23(a): Prerequisites to a Class Action
(1)	Numerosity: the class must be so large that joiner is not feasible
(2)	Commonality: There must be questions of law or fact common to the class
(3)	Typicality: The claims or defenses of representatives must be typical of those of the class
(4)	Representation: The representatives must fairly and adequately protect the interests of the class
What are some examples of typicality and representation?
Rule 23(b): Types of Class Actions
23(b)(1): A class action is allowed if individual actions would create a risk of (1) inconsistent decisions or (2) impairment of interests
•	No opting out
•	Due process requires adequate notice
23(b)(2): Allows class actions if the party opposing the class has acted or refused to act on grounds applicable to the class
•	Not for money damages
•	No opting out
•	Due process requires adequate notice
23(b)(3): Common question predominates and class action is the superior method for resolving disputes
•	Notice must be the best notice practicable under the circumstance

Civil Procedure Generally
Proof of Policy: Fairness and Efficiency and judge can do whatever he wants
Rule 1: The rules shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
Rule 8(f):  All pleadings shall be so construed so as to do substantial justice
Rule 15(a): Leave shall be freely given when justice so requires
Rule 41(b): Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice 
Rule 60(b): Relief from Judgment