Pleading

Complaint:
Each claim of relief should contain A short statement of the grounds for the courts jrx A short statement of the claim showing that the pleader is entitled to relief; and A demand for judgment for relief, which may be in the alternative. Federal pleading rules generally require only that a pleader put the other side on notice of the claim being asserted; detailed assertion of facts underlying the claim generally are not required however The Supreme Court in recent years has required that the plaintiff state facts supporting a plausible (not just possible claim) Bell Atlantic v. Twonbly Ashcroft v. Iqbal

The Lawyers Responsibility RULE 11

Certification upon Presenting Paper to the Court The attorney by presenting to the court a pleading, written motion, or other paper, certifies that to the best of her knowledge, information, and belief formed after an inquiry reasonable under the circumstances: Case: Bridges v. Diesel Service Rule 11 (A) Signature Requirement Signature satisfies that the pleading is supported by a reasonable factual investigation and a normally competent level of legal research. (B) Representations in Court Stop, think, investigate, & Research Good faith purpose (Not improper) Legal Research Factual Investigation Factual basis for the pleading

Denials of factual contentions that are warranted on evidence (C) Safe Harbor; sanctions Court on its own initiative may enter an order describing the matter that appears to violate Rule 11 and direct the proponent to show cause why sanctions should not be imposed. Safe harbor allows parties to handle situations without court mediation. (D) Rule Inapplicable to Discovery Rule 11 should be reserved for exceptional circumstances where the claim is patently unmeritorious or frivolous.

Stating a Claim: General Principals

Generally Pleadings Allowed Rule 7(a) Types of Pleading Systems: Stating the Claim for Relief Rule 8(a) Notice Pleading Requirements Complaints need to be factually and legally sufficient. Traditional Pleading Code Pleading CA Adopted Requires more specificity in factual allegations presented Facts must describe in adequate detail the circumstances the plaintiff believed the circumstances that entitle him to a remedy. Case: Bell v. Novick Transfer Motions to Dismiss (Failure to State a Claim on which Relief can be Granted) Terms Rule 12(b)(6) Demurrer Dismissal Without Prejudice (with leave to amend Dismissal with Prejudice Motion to Dismiss Evaluating the sufficiency of the factual allegations

Case: Bell v. Novick Transfer Case: Twombly/Iqbal Plausibility Standard The determination of whether a pleading is factually plausible and able to survive a motion to dismiss: The trial court judge must separate legal conclusions from factual allegations Determine the plausibility of factual allegations This discretionary standard is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Evaluating the Sufficiency of the Legal Theory Case: Haddle v. Garrison Consistency in Pleading

Responding to the Complaint or Claim

Timing/Filing/Serving Responses Rule 12(a), Rule 5(a),(b),(d) (1) Pre-Answer Motion Formal request that the judge takes some kind of action/makes some kind of order. Motion is made before the answer The 12(b) motions: (e) Motion for more definite statement A party may move for a more definite statement before responding (answer or reply) to a pleading that is so vague or ambiguous that a responsive pleading cannot be reasonably framed. (14 days) (f) Motion to Strike Before responding to a pleading or, if not responsive pleading is permitted, a party may move to have stricken any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter (21 days) (g) Consolidation of Defenses in Motion (h) Waiver or Preservation of Certain Defenses Distinctions between and among 12(b)(6) and 12(c) (motion for judgment on the pleadings), Rule 56 (summary jmt) motions Mechanics of Motion Rule 7(b) (2) Answer

(a) Admissions and Denials Three options admit, deny, counterclaim Rule 8(b) Types of Denials Most common response General Denial CA has a general denial (deny everything) Limited general denial is a denial of an entire paragraph of allegations or a series of paragraphs about the complaint. (D denies paragraphs 5-10 of the complaint) Specific Denial Defendant admits to part of the allegation in the paragraph but specifically denies the rest. (paragraph in the complaint where you have more than one allegation) (Zielinski owned, operated, and controlled) Without Knowledge or Information Failure to deny constitutes an admission. 21 days after service Case: Zielinski v. PPI (B) Affirmative Defenses Rule 8(C)(1) You must plead them or they are waived Case: Layman v. Southwestern Bell When may Rule 12 Defenses be properly asserted in Answer? See 12(b),(g),(h) Reply Rule 7(a)(7) rarely Granted Amendments Timing Rule 15(A) Amendments as a Matter of course Amendments without leave of court The Basic Problem: Prejudice

Rule 15(A) Case: Beeck v. Aquaslide Statutes of Limitation and Relation back Rule 15(c) Adding Claim Changing Party (Misidentification) or partys name (misnomer) Case: Moore v. Baker Case: Bonerb v. Caron Found Does justice require amendment? Rule 15(a) Foman Factors
Blameworthiness (Party seeking Amendment) The court searches for evidence of bad faith, prejudice, and undue delay which might be sufficient to overbalance the mandate of Rule 15(A) that leave should be Freely given as justice requires Dilatory purpose (P waited until discovery scheduled to close) (Aquaslide)

Joinder
Joinder of parties:
Impleader (Third party practice) Rule 14 Basic Rule D may implead any nonparty who may be liable to D for any or all of Ps claim against D (Brings a sideline player into the game) Secondary or Derivative Liability (e.g. Indemnity; contribution) Him, not me inadequate basis for impleader Third party claim falls within supplemental jurisdiction Chicken House Case Price v. CTB, Inc. Compulsory Joinder (Persons Needed for Just Adjudication) Cases: Temple v. Synthes (US SUP. CT)

Helzbergs Diamond Shops Rule 19 Party should be joined if: Complete relief cannot be given to existing parties in her absence Disposition in her absence may impair her ability to protect her interest in the controversy; or Her absence would expose existing parties to a substantial risk of double or inconsistent obligations Must be joined if Feasible When a compulsory party is amenable to process and her joinder will not destroy diversity or venue she must be joined. There is no supplemental jrx over claims by or against persons under Rule 19. Three Types of Parties: Necessary (Must join if feasible 19(a)) Complete relief cannot be accorded w/out absentee; or Absentees interest harmed if shes not joined; OR Absentee has an interest that subjects a party to multiple or inconsistent obligations Indispensable (19(b)) See factors below. Court has two choices Proceed without absentee; OR Dismiss entire case Factors Would actual prejudice result (to absentee or parties) if case went on without absentee? How much is prejudice? Can court shape relief to avoid prejudice? Whether judgment rendered in persons absence will be adequate Can action be brought in another forum where everybody can be joined? (Helzberg joined in the state court where the mall was that all parties could be joined there) Neither of the Above

When joinder is not feasible No personal jrx Jrx based on diversity and joinder of absentee would destroy diversity When joinder is not feasible the court must decide whether the action can proceed in the partys absence or must be dismissed. Whether the judgment in the partys absence would prejudice her or the existing parties Whether the prejudice can be reduced in shaping the judgment Whether a judgment in the partys absence would be adequate and Whether the plaintiff will be deprived of an adequate remedy if the action is dismissed Permissive joinder Rule 20(a) MAY not must join Types: Joinder of plaintiffs (1) Assert joint or several right to relief; OR Joinder of defendants (1) Claim asserted against Ds alleges joint or several liability; OR (2) Parties may join as plaintiffs or be joined as defendants whenever: Some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and There is a question of fact or law common to the parties Jurisdiction Subject Matter Jurisdiction Diversity JRX Complete diversity required AIC
Each claim must satisfy AIC requirement; or

Ps must have common undivided interest exceeding requirement SUPP JRX Supreme Ct. Decision in Ortega v. Star-Kist Tuna

Federal Q JRX Personal Jrx over each D

Joinder of Claims
The Federal Rules permit the adjudication of all claims between the parties and all claims arising out of a single transaction. A plaintiff can join any number and type of claims against a defendant; when multiple plaintiffs or defendants are involved it is essential only that at least one of the claims arise out of a transaction in which all were involved Focuses: Joinder of Ps Claims FRCP 18 One P can join any and all claims against one D Limitation: Subject Matter jrx (also need Personal Jrx over D) Jrx based on Diversity Amount in controversy one P can aggregate all claims against one D Jrx based on Federal Q Nonfederal claim (if no independent basis of jrx) has to arise out of the same case or controversy as federal claim (CNOF i.e. Supp Jrx.) If a claim is not joined beware of claim preclusion (covered below) Counterclaim Plant v. Blazer Fin. Services Compulsory Counterclaim Rule 13(a) Claim arises out of the same transaction or occurrence as Ps claim Different Tests Logical Relation Test (Majority Rule) 13(a) only applies when the defendant has answered the complaint and the answer must contain a counterclaim

Martino v. McDonalds Martino never answered the complaint, he instead entered into negotiation to resolve the complaint. Must be filed in pending case OR cant bring it in later lawsuit Permissive Counterclaim Rule 13(b) Any counterclaim that is not compulsory Does not have to be filed in pending case Supplemental Jrx. Compulsory counterclaim Yes Permissive Counterclaim NO (Need independent basis for SM JRX) Cross claims Rule 13(g) Co-party may bring claim against another co-party Cross-claim must Arise out of the same trans. or occur. As original action or counterclaim therein; or Relate to any property that is the subject matter of the original action Cross claims are never compulsory.

Class Action Certification Requirements for Certification

Implicit Requirements
Membership Class representatives must be members of the class Identifiability Rule Description of class must be sufficiently unambiguous so that class members may be ascertained with reasonable effort or so that it may be reasonably determined who is in class and who is not. (Members may be identified with reasonable effort)

Explicit Requirements (RULE 23(a))

Numerosity

Rule Class is so numerous that joinder of all members is impracticable Analysis of the numbers of the lawsuit to make sure that they are justified in a class action versus a suit of joinder between the individual parties. Presumptively 40 + individuals satisfy while 21 or under do not. Consider Yes Impractical to join all because of amount of people Geographical Diversity can be a factor the spread of the class Ability of the class members to bring separate lawsuits If small money is at stake, then it is better to join a class action Ask the Q: Is what is at stake in the lawsuit, something that an individual might prefer to bring his/her own separate lawsuit rather than being apart of a class action. No - All potential class members could be joined since all own homes in the same jrx. Damages are significant versus trivial Commonality Rule There are questions of law or fact common to the class How are the members similarly situated? Common issues that homogenize the class State Yes No Difference in amount of damages Typicality Rule The class representative be typical of absent class members The class Rep. named as party to the lawsuit have greater control over the litigation because they are named parties. The class Rep.s stake in the lawsuit is comparable to other class members of the lawsuit. Adequacy (THE REPRESENTATIVE)

Rule Class members and their counsel should be prepared to provide fair and adequate representation to their class. The class representative must have some stake in the litigation and zealously be advocating on behalf of the class The class representatives relation to the lawyer should be straight forward no conflict of interest between the parties. E.G. the lawyer of the class cannot be the rep. brother. Senter v. GM Criteria The representative must have common interests with the unnamed members of the class It must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel Question of compromise Adequacy/Appointment of Class Counsel (23(g)(1)) Determined by the court to be adequate Elements: Fair Can the lawyer fairly and adequately represent the class? Investigation Experience Knowledge of Law Resources (Assets to cover the cost of litigation) (g)(4) the resources the attorney has to commit to representing the class (lawyer has to give notice to members of the class this is taken out of expense by the lawyer Other factors State Yes (elements above) No (cite little experience), (resources to fund litigation), (potential conflict of interests)

Classification of the Class (23(b)(1-3)

23(B)(1) Prejudice (money can be involve)(insurance pools of limited money for major claims everyone who has a claim to the fund should be joined to members of the class)
(Individual plaintiff who dont file quickly may have lesser claim available to them)

Risk of inconsistent results if separate actions brought; or impairment of interests

23 (B)(2) Injunction/Equitable - Injunctive or declaratory relief is appropriate 23(b)(3) (MORE LIKELY THAN NOT) Damages
Rules: Any suit that is not covered in 1 or 2 Involves the seeking of damages as the primary remedy or exclusive remedy of the action Small claims to large claims Controversial Individuals may have particular claims to bring lawsuits individually because of the great stake of their claim Requirements: Predominance of Common Questions? The common issues of law and fact have to predominate over all other issues Yes No Superior Method of Adjudication? Class Action treatment is superior form of litigation compared to other factors (A-D) Individual class members in controlling litigation Is there other current litigation involving the claims The undesireability of concentrating litigation in this forum (think is this the best court for me?) Number of class members does not appear to be unwieldy Forum consideration Any other difficulties in managing this class action? Yes No

Jurisdiction of Class Action

Based on Diversity
Traditional Diversity Jrx Check citizenship of named representative (s) Amount in Controversy Check AIC of named representative (s) Exxon Mobil v. Allapattah Rationale based on Supp. Jrx. Statute Expanding Federal Jrx under Class Action Fairness Act of 2005 (CAFA)

Based on Federal Question

No AIC requirement No diversity citizenship requirement

Procedures of Class Action

Class certification
Motion to certify Court holds hearing Appealability 23(f) Certification of Subclasses 23(C)(5) Case: Michigan High School Case

Notice to Class See 23(c)(2)

Not explicitly required for absent class members in Prejudice or Injunction Class actions Up to Court to decide whether to require notice EXPLICITLY required for Damages class actions See 23(c)(2)(B) Class reps must give notice to all members who may be reasonably reached Noticed paid by class reps/counsel

Notice should summarize nature of claim Definition of Class Certified Inform Members They can Opt out of class Legal effects of staying in or opting out

Binding
Adjudication binding on all class members Binding on Absent class members, except those who opt out of damages class action Binding Nature of Class actions may raise constitutional issues Representative Adequacy & Collateral Attack (CASE: Hansberry v. Lee) Jurisdiction (Phillips Petrolum v. Shutts)

Settlement 23(e)
Court order required for settlement or dismissal Notice Requirement The Special Situation of the Settlement Class Case: Amchem Case The purpose is the plaintiffs counsel and the defendants counsel agree that the case should be bound as a class action. On the day of the filing they filed the complaint, answer, class certification paperwork, etc. on the same day. Court inevitably certifies the class.

Attorney Fees
Attorneys fees are reasonable. They come off the top of the total award given to the parties. Has to be an issue about dealing with attorneys fees Loadstar % of class action -

Discovery Motion

26(b)(1) FRCP Rule Summary

Material Issue Probative Value Issues in Ps lawsuit relating to

Relevance (26(b)(1) Rule Summary

Any nonprivileged matter that is relevant to any partys claim or defense Any matter: Documentary evidence Individuals with knowledge of any discoverable matter As long as the information sought is reasonably calculated to lead to the discovery of admissible evidence, it is not required that the information itself be admissible at trial.

Work Product Doctrine Rule 26(b)(3)

Ordinary v. Opinion Work Product Ordinary Work Product Qualified immunity May be discoverable with substantial need party shows substantial need for materials and no other means of obtaining the product. Cannot obtain without undue hardship Work product immunity is overcome Opinion Work Product Almost never discoverable near absolute immunity Def: Conveys mental impressions, conclusions, legal theories, opinions of the attorneys own work. Document or Tangible Thing? Is it a document or tangible thing? Prepared in Anticipation of Litigation Was it taken or performed in anticipation of the lawsuit against the opposing party? By or for Client or Clients Agent Was it done by Agent (Lawyer of client)? Substantial Need? Important to the case, more than just relevant Cannot Obtain the Same or Substantial Equivalent w/out Undue Hardship?

Attorney-Client Privilege

Effect of Failure to Answer a Claim Default and Default Judgment

Default Judgments
A defendant against whom a default is entered loses the right to contest liability. However the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. (1) Rule 12(a)(1) 21 days to respond to a complaint plaintiff may take out default against the defendant for failure to respond Ask clerk at court to enter default entry of default Cuts of Ds right to appear Make a motion to court Rule 55(c) to set aside default Default judgment Rule 55(B)(1) when damages for summary certain (K damages) Easy computation of damages (installment loans, etc.) Not applicable to damages by personal injury Rule 55(B)(2) Court enters default judgment Personal injury requires hearing of evidence to determine damages prove up hearing Courts prefer to resolve on merits rather than technicalities Rule 55(C) Quicker motion made, more likely to be accepted good cause Mistake, excusable neglect, reasonable excuse good reason why D failed to respond Set aside a default judgment Rule 60(B) Requires higher standard Quicker motion stronger argument

Involuntary Dismissal Against Claimants

Rule 41(b) Plaintiff unreasonably delays prosecution of lawsuit procrastinating plaintiff

No set time period but pattern of unreasonable delay bad faith Legitimate Reasons

Voluntary Dismissal
Rule 41(a) Plaintiff seeks to dismiss own lawsuit Always dismiss before answer or MSJ matter of right (versus seeking courts permission) All other times require defendants permission or motion to the court Court has wide discretion here as long as def. not substantially prejudiced by dismissal If 1st dismissal, plaintiff is free to re-file (including diff. forum) If 2nd dismissal, dismissal with prejudice and not allowed to refile.

Curtailed Adjudication - Summary Judgment

You must present extrinsic evidence to show that there is grounds of the MSJ.

Rules (Paragraph 1)
Purpose Look beyond the face of the pleadings and determine whether case should proceed to trial Rule: 56(c) Moving party must show No genuine Issue of Material Fact (NO GIMF) Moving party is entitled to judgment as a matter of law. TO SHOW: Pleadings may be used to show material contention but pleadings, by themselves cannot be used to show GIMF Evaluate proof by: Products of discovery Affidavits, if any Rule 56(e) Affidavits or declarations must Be made on personal knowledge Set forth such facts as would be admissible in evidence Show that the affiant is competent to testify Court does not weigh evidence nor does court ordinarily assess credibility Reasonable inference made in favor of nonmoving party

GIMF? (Paragraph 2)
D as moving party for Summary judgment has an initial burden to show lack of GIMF and entitlement to judgment as a matter of law. Even though P has burden of production and persuasion at trial to prove issue Rule 56(e) Affidavits Rule Summary Personal Knowledge Competent Alternatives for the defendants making the motion for summary judgment

Proactive (affirmative) Presentation of evidence showing that defendant was not apart of the claim (E.G. I was out of state, I wasnt there and here is where I was.) Offering evidence is the proactive approach. Reactive There is an absence of proof that the act could have been committed by the defendant

Ps opposition to motion (Paragraph 3)

P cannot rely only on pleadings to show GIMF. P has burden of production and persuasion at trial as to whether D was (insert issue)

Other Rules:
Time must be filed usually within 30 days after close of all discovery Rule 56(b) Partial Summary judgment may be partial (as well as complete) May be rendered on particular issues or complete Nonappealability Denial of MFSJ is generally not appealable Relationship to Motion to Dismiss A motion pursuant to Rule 12(b)(6) to dismiss a complaint with any attachments for failure to state a claim upon which relief can be granted differs from a motion for summary judgment in that the former is addressed only to the legal sufficiency of the complaint. Require both factual sufficiency and legal sufficiency Pre-pleadings motion After pleadings have closed 12(c) motion

Judgment as a Matter of Law (JNOV)

Rule 50 (a) The plaintiff must present the case in chief then the defendant may bring a motion for the judgment as a matter of law.
If nothing is done then the defendant brings their case however when both parties are finished as a matter of law then either party can bring the claim for JNOV if the defendant brings nothing that disproves the elements of the plaintiffs claim.

Judge could direct a particular verdict whenever the evidence viewed in the light most favorable to the party against whom the verdict was directed (including legitimate inferences in the partys favor) and without considering the credibility of witnesses was such that reasonable persons could come to only one conclusion
Must be made by any party any time before submission of the case to the jury The moving party must specify The judgment sought Law and facts on which it is entitled to judgment The motion may be granted only after the nonmoving party has been fully heard on the matter To grant the motion the court must find a reasonable jury would not have a legally sufficient basis to find for the party on that issue.

RENEWED Judgment as a Matter of Law (JNOV)

Rule 50(b) D must show that no reasonable juror could have found in Ps favor Court evaluates all admissible evidence produced at trial. Must evaluate evidence in light most favorable to the nonmoving party. Court does not weigh evidence nor does court ordinarily assess credibility of witnesses. The judgment was based upon a verdict that a reasonable person could not have reached and if the moving party had sought a directed verdict at the close of all the evidence; Must be filed no later than 28 days after the entry of judgment and the party making the renewed motion must have moved for judgment as a matter of law at some time during the trial. In theory, a party may raise only those issues raised in the motion for a JMOL. The standard is the same as for motion for judgment as a matter of law

New Trial

Case: Lind v. Schenley Industries Offered in accordance with JNOV (alternative) Rule 59 Motion for New trial must be filed no later than 28 days after judgment is entered. Within that period the court may order a new trial on its own motion. (Timing Requirement) State Rule for New Trial based on a flawed verdict: is verdict against the great weight of the evidence The COURT MUST WEIGHT EVIDENCE AND JUDGE CREDIBILITY (UNLIKE JMOL)
Application: Credibility (1) Is the case complicated, complex one involving difficult concepts? If not then greater weight should be given to the verdict (2) Does verdict go against the great weight of evidence? (boil down case to elements look at evidence presented in hypo) Yes No (Use Weight and Balance)

Reasons for Granting New Trial

Error during the trial (usually going to the admissibility of evidence or the propriety of the instructions), Because the verdict is against the weight of the evidence (limited to cases where the judge finds the verdict seriously erroneous) FLAWED VERDICT NOT THE 13th JUROR STANDARD Because of juror misconduct, Because the verdict is excessive or inadequate Remittitur Judge believes that the jurys compensatory damage award is so excessive as to shock the conscience (or in a diversity case if the award meets the state standard for excessiveness) Judge may order a new trial or may offer the alternative of remittitur

Plaintiff is given the choice between accepting an award less than the jury amount or submitting to a new trial (It must offer this choice) Additur Trial judge believes that the jurys compensatory damages are inadequate, she may not offer the defendant the choice of accepting a higher award or submitting to a new trial. Additur has been held to violate the seventh amendment (which is not applicable in state court) Additur can only be used in state court In federal court inadequate damages may be the bases for a new trial.

Claim Preclusion
Cases:
Martino v. McDonalds No relative clause breached/Antitrust violation because of no-relative clause (Consistency The Logical Implications of the Former Judgment) Searle Brothers v. Searle (Between the Same Parties)

Bar the same claim from being litigated twice. Preclusion issues procedurally occur through motions of summary judgment. Remember 13(a) will apply when the defendant answers the claims (Martino case he did not reply to the claim in issue #1 and instead entered into settlement negotiation with them) Rules
28 U.S.C. 1738 Full faith and credit for State and Territorial Statutes and Judicial Proceedings. FRCP 41 (B) Involuntary Dismissal; Effect If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise a dismissal under this subdivision (b) and any dismissal not under this rule except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 operates as an adjudication on the merits

60(b)(5) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (B)(5) The judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable

Rule Summary Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by res judicata (claim preclusion) from asserting the same cause of action in a latter lawsuit Terminology
IF the claimant wins the earlier suit: merged into judgment IF the defendant wins the claimant is barred by the earlier adverse judgment.

Elements
Valid Final judgment As long as the judgment is not void (because of jurisdictional issues or other reasons) Issue that comes up with whether or not there is an appeal on the first action (appeal pending) Majority rule: Its a final judgment even when an appeal is pending. Reason: Based on the reality that very few cases are overturned on appeal. Most appeals end on affirment. Even though its a final judgment when the appeal is pending (The reality is) the court in the second action will postpone (Stay) the proceedings until that first claim is resolved. Minority Rule No final judgment while the appeal is pending. On the Merits If the first case ends: Because there is a verdict Because there is summary judgment Because there is a dismissal for failure to state a claim Rule 41(B) Parties Dismissal for dragging your feet (Involuntary dismissal) (Dilatory pleas) Failure to prosecute on the merits

Exceptions: Improper JRX Improper venue Failure to join a party These are not based on the action or merits of the case they are based on technicalities Make sure you distinguish valid final judgment on the merits Valid (court had the jurisdictional authority to dictate a judgment on this particular claim) Final judgment Between the Same Parties/Privies They must be the same parties in the same configuration of one asserting a claim against the other. Searle Brothers Case Privity See page 687: Substantive Legal Relationships: Instances of procedural representation Same Claim Same transaction or series of connected transactions out of which claim arose. Modern approach is to require assertion of all claims arising out of the same transaction or occurrence that is the subject matter of a claim asserted by the claimant Facts related in: Time (Look for separate transaction dates, but same object?) Space Origin Motivation? Convenient Litigation Unit? Look for splits on Federal Claims and State Claims Can they be joined together for policy reasons of efficiency?

Policies of: Convenience Efficiency Lets deal with all the claims involved with the lawsuit Finality Lets end litigation regarding the issue. Consistency Consistency on the final judgments. Fear of having separate lawsuits with conflicting judgments. Repose Parties are entitled to rely on the judgment of the first court without worry that the second claim will erode it. (McDonalds entitled to rely on the outcome of the first lawsuit versus Martino.) EXAMPLES: LOOK FOR ACCIDENTS or INSTALLMENT ORGANIZATIONS Look for Two lawsuits Accident Separate damages from the same accident (one for the neck damage and one for the leg damage) IO -

Issue Preclusion
REMEMBER TWO LAWSUITS Definition: A judgment binds the plaintiff or defendant or their privies in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to judgment in the first action. It focuses on the relatively narrow issue that was litigated and determined in the first case, and that is relevant in a second case.
The issue is deemed established in the second case without need to proffer evidence on it. This must relate to the same litigated issue Hypo: D chops a tree down on Ps property. P sues for trespass. D cites an easement defense. D wins. This was litigated and determine that he has a valid easement. Go through the elements below. Later D chops another tree down on Ps property. P sues for trespass. D cites issue preclusion (easement).

Issue preclusion would apply to give the defendant his defense. So long as the elements are fulfilled and the issue has been litigated and determined the defendant is safe from his defenses.

Elements:
(1) Same Issue of Law or Fact (2) Actually litigated and determined The issue must actually have been litigated and determined in the previous case Thus if a default or consent judgment is entered there is generally no collateral estoppel as to the fact issues that would have been tried had the case gone forward. (3) Essential to Judgment (Determination of the issue essential to the judgment) Restatement (Second) of Judgments 27 It must be clear exactly how the issue was decided by the trier of fact The judgment must depend on the issue of fact decided Note that essential fact rule tends to reduce the number of cases in which the collateral estoppel can be applied, thus eliminating the burden from the first suit. (4) Valid Final Judgment Not void because of jrx technicalities In the prior lawsuits

Notes: Between Which Parties (or privies)? SPLIT! (MUTUALITY BETWEEN THE PARTIES) MUTUAL JURISDICTION Some jurisdictions are mutuality jurisdictions and require mutuality between the parties. (and in privity) (A to B) NON-MUTUAL JURISDICTIONS Non-mutual issue preclusion 3rd parties (the C in an A to B action) are allowed to use issue preclusion. Offensive Non-Mutual Issue Preclusion (WHEN THE PLAINTIFF USES ISSUE PRECLUSION) LOOK TO SEE IF THE ISSUE CAN BE REASONABLY RESOLVED CANNOT BE RUN AGAINST THE UNITED STATES

Case: Parklane Hosiery v. Shore Factors to consider:

Joinder Could Shore have joined the SEC case? No. Could not have joined. Incentive How strong was Parklanes incentive to defend itself in the SEC action? Great great incentive to the SEC action WHY? Because Parklane knew there was a large suit filed against it by SHORE. Parklane knew that if it lost they would open up the class to lawsuits they foresaw the possibility of additional lawsuits. Procedure Any differences of procedure between #1 and #2? Federal court filed for both cases. No difference. Prior inconsistent judgments? Look to see if other PIJ were found. IMPORTANT FACTOR!!!1 Suppose if there were other shareholders who sued Parklane Shareholder Parklane wins SEC Parklane loses.

ONMIP Against How certain now are we that the issue is reasonably resolved?

Policy Allows for a plaintiff to wait to see if the first suit gets a favorable verdict by which they may now swoop in and get the verdict they need. HYPO:
#1 - Bertha v. RR (Negligence) P wins #2 Jessie v. RR (Negligence) IP? Joinder? Jessie was aware that Bertha had filed a lawsuit against the railroad. POLICY Whats this encouraging? Wait-and-see approach. What if P loses? Jessie can still file (he still receives his day in court)

They will allow C to use issue preclusion under certain circumstances: (Parklane case) Easy joinder Could the plaintiff have easily joined the lawsuit? Was she aware that the lawsuit had been filed?
Rule 20 (CO-plaintiff) Both claims arising out of the same transaction

Incentive to litigate Incentive the defendant had to defend itself in the prior lawsuit The greater the incentive to litigate the stronger that factor is for allowing ONMIP
What reason or reasons did the defendant have to defend itself in the prior action? Policy How certain can we be that the judgment of the previous suit was correct? Litigating strongly helps ensure that.

Procedural Differences What procedural differences are there between action one and action two?
LOOK AT THE DEFENDANT IN PROCEDURE! Same court? Jrx? EX: Against ONMIP If the defendant has fewer significant legal options in #1 versus #2 One arm behind the back Is this fair? NO. Not fair to run ONMIP when the defendant had fewer options in #1 to defend itself.

Prior Inconsistent Judgments??? Any other reason that is fair or unfair to invoke IP Defensive Non-Mutual Issue Preclusion Same issue different defendant (plaintiff already had his day in court and could have joined subsequent lawsuits) Case: Bernhard v. Bank of America Natl. (CA CASE allowing for Non-mutual issue preclusion) HYPO: #1 P v. D
Breach of duty to estate

#2 - P v. Bank
Improper release of funds Bank argues issue preclusion (you are precluded from relitigating the issue as to whether those funds should have been released by the bank)

When Defendants want to use issue preclusion they are using it defensively It is non-mutual because the bank is not a party to action #1. If it was a jrx that required the same party or privys to be involved they couldnt run IP. Against whom is the collateral estoppel used? It may be asserted only against someone who was a party or in privity with a party to the previous case (the case in which the issue was actually litigated and determined). This is determined by due process. By whom is collateral estoppel used?

Under the traditional mutuality rule, only someone who was a party (or in privity with a party) in the previous case can use collateral estoppel. This requirement is not imposed by due process however and has been subject to modification in certain circumstances to allow nonparties to take advantage of prior judgment.