1

FRCP
Rule #3: A civil action is commenced by filing a complaint with the court.

Service of Process
Service of Process: 14
th
amendment provides for notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of
action and afford them an opportunity to present their objections.

Rule #4: Summons only served if the defendant does not waive service.
4(b) Issuance of Summons
After filing, the summons is presented to the clerk for signature and seal, and if its proper, a copy is issued to the D (or multiple Ds).
The summons must include signature of the clerk, seal of the court, identify court and parties, provide name of Ps attorney, time within which D
must respond and that DJ will be entered w/o compliance.
Timing (4c)
When D is served, D has 20 days to respond; if service is waived, D has 60 days to respond (from the date when the plaintiff mails the waiver and
complaint to the D).
(4d) Waiver of Service can be sent through mail with copy of complaint and two notices of action, whereas summons cannot be served by mail.
4 (e) Service of Summons and Complaint upon an individual:
In person
To the persons home, with a person of suitable age
To an appointed 3
rd
party, designated by that person
Under the rules of the state in which the person resides
Under the rules of the state in which the court has jurisdiction.
Summons and Complaint must be served by:
Someone over 18 and not a party to the action must serve the summons.
4(h): Service upon a Corporation:
Personal service upon the officer/ agent of the corporation or by mail.
4(f) Service upon an Individual in a Foreign Country:
Internationally agreed upon means of service (such as those authorized by the Hague convention) or as the foreign country allows, or as directed by
foreign country, or unless prohibited, by person delivery or by mail dispatch of the clerk of the court.
4(m): 120 days after the filing of the complaint, the court shall dismiss the action.
4 (l): Proof of service must be filed with the court after the service, including an affidavit of how the summons was served. If a waiver was returned, no
proof of service is required.
4(n) JX over the Ds assets found within the district by seizing the assets under the circumstances.
Always remember: Service of Process always requires a summons and a complaint.
Case Example:
Green v. Lindsey: Service of summons by posting does not satisfy due process where the evidence shows that posting results in a failure to
provide adequate service.
Peralta v. Heights Medical Center: Overturn of a default J, b/c no service within 120 days.

Rule #7: Pleadings and Motions There is a complaint, and an answer, a reply to a counter claim, an answer to a cross-claim (if necessary), a third-party
complaint (if necessary), and a third party answer (if necessary).
Pleadings are the formal allegations by the parties of their respective claims and defenses.
All motions shall be made in writing, unless made during hearing or trial.
Demurrers, Pleas, abolished
(7.1) Prompt disclosure for supplemental pleadings.
All pleadings must be signed, in accordance with Rule 11.

Rule #8: General Rules of Pleadings:
8a. Claims have to be short and plain, and show why this jurisdiction is applicable, state a claim that would entitle the claimant to relief, and the
demand for judgment the pleader seeks.
8b: types of denials: If a denial is to be made, it must be specific to the claim being denied and anything that is not denied is admitted. If a party does not
know, he shall so state, and this, in effect, is a denial.
8c: Affirmative Defenses: This rule lists all the affirmative defenses.
8d: Averments in a pleading are admitted when not denied.
8e: Averments must be simple, concise, and direct. You can state several defenses and have defenses that are inconsistent with one another. The merit of
one will not be diminished by the others.
Case Example:
Zielinski v. Philadelphia Piers, Inc.: Even though this is a poorly drafted paragraph on the part of the plaintiff, the defendant cannot issue a
general denial

Rule #10: Separate claims have to be in different paragraphs.
Each averment must be in a separate paragraph.
All documents filed with the court have to include the name of the court, the type of the document, the file (case) number, and the names of the parties.
10(c): exhibits can be attached and referencesd.
2
Rule #11: Good Faith Rule Signings of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions
(11a) only applies to things that are written, and everything written has to be signed by the counsel.
Rule 11 does not apply to discovery!! It only applies to pleadings.
By signing, you are warranting 11(b)
1. Not submitted for improper purposes (such as to harass or to cause unnecessary delay or needless increase in the cost of litigation).
2. Not frivolous (objective standard).
3. Contentions have or are likely to have evidentiary support.
4. Denials are warranted on the evidence.
Motion for Rule 11(c)(1)(A) by a Party:
If one party makes a frivolous claim, you have notify that party that you think they are violating a Rule 11, and they have 21 days to respond, and if
they dont, the court can impose sanctions.
11(c)(2)(A) If the court orders sanctions, they can only be ordered against the legal counsel.
Sanctions on the Courts Own Behalf (11c1b):
If the court issues a Rule 11 sanction, you do not get a 21 day safe harbor. Due process in sanctions gives you notice and an opportunity to be
heard. Therefore, you cannot simply be sanctioned on the spot. You will have to show cause there that your case is not frivolous, based on the time
the court gives you.
Rul1 11(c)(2b): On the courts initiative, the court may enter an order describing the specific behavior of the party that appears to violate
subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b). It gives you an opportunity to
respond before sanctions can be imposed.
Two limits on the courts ability to impose sanctions: party must be given an order to show cause. And: monetary sanctions may not be awarded
on the courts initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against
the party which is, or attorneys are, to be sanctioned. The court cannot issue you sanctions after you have dismissed the case, if they have not
already issued a show cause order.
Monetary sanctions cannot be given in any circumstance unless the party has been given an opportunity to show cause.
If you take a clients word as true, but if it is false, this could be a Rule 11 problem depending on whether or not you completed a reasonable investigation.
There must be a reasonable inquiry into the claim under the circumstances, and this duty must be continued throughout the case.
Case Examples:
Walker v. Norwest: Lawyer filed a diversity case in which there was no diversity (violation of rule 11(b)(2) or 11(b)(3)).
Christian v. Mattel: The lawyer failed to do reasonable research in checking on the dates of the two dolls, and this is sanctionable under rule
11(b)(3).

Rule #12: Defenses and Objections, When and How Presented, by pleading or motion, motion for judgment on the Pleadings
Timing:
D may avoid answering immediately by filing a motion to dismiss, then, there is no answer needed until the motion is decided.
Answer must be served within 20 days of receipt of the complaint, unless service was waived, and then within 60 days.
If the defendant makes a motion and it is denied, they have 10 days to answer.
If the defendant makes a motion and it is granted, the plaintiff has 10 days to respond.
Cross claims and counterclaims shall be responded to within 20 days
Rule 12(b) Defenses may be made by motion at the option of the pleader:
1. Lack of Subject Matter JX
2. Lack of Personal JX
3. Improper Venue
4. Insufficiency of Process
5. Insufficiency of Service of Process
6. Failure to state a claim on which relief can be granted
7. Failure to join a Party under Rule 19.
12(b)(6): failure to state a claim for which relief can be granted. Says that even if the allegations are true, there is no claim for relief. 12(b)(6) is a
dismissal without prejudice.
A P will almost always be given an opportunity to amend the complaint.
Can be given on the ground hat a party failed to allege all the necessary elements of a claim.
Only accepts factual allegations as true, not legal issues.
Rule 12(h): 12b motions: 2/3/4/5 are waived if not brought in the initial motion or answer, while 1/6/7 can be brought anytime.
12(b)(1) can never be waived.
1/2/3 are fatal if granted, while 4/5/6/7 can usually be amended by claimant
12(b) can be divided into three parts: this court cannot proceed (1, 2, 3); courts cannot go forward unless a problem is fixed (4, 5,); case is fatally defective
on the merits (6)
Rule 12(e): A motion for a more definite statement is treated like the 12(b) 2/3/4/5 motions: if not brought in an initial motion, it is waived (this makes
sense, for why would you answer the complaint if it did not make sense?)
3
Rule 12(h)(2) is the correct vehicle for filing a 12(b)(6) after the complaint has already been answered.
Case Example:
Haddle v. Garrison: Interference with at-will employment can state a claim under 1985 (2). The harm that 1985 (2) aimed to protect was the
threat to witnesses. While D filed a 12(b)(6) as an alternative to filing an answer, in saying that P did not state a claim for which relief can be
granted since he was an at-will employee, the court found that P did state a claim under 1985(2).

Rule #15: Amended and Supplemental Pleadings
15(a) You can amend a pleading as of right (w/o asking the courts permission), anytime before responsive pleadings is served ONCE, or if no responsive
pleading is required, within 20 days.
Every amendment after the responsive pleadings requires the courts permission.
If no responsive pleading is necessary, you have 20 days to amend, and if you do not amend in that time, you meet and confer with the opposing party, and
if they deny, you can seek leave of court, which will be granted if justice so requires.
Amendments are granted if justice so requires and there is not enough prejudice to the opposing party.
15(c): The relation back doctrine: Important only in statute of limitations issues. The amendment under relation back relates back as if it were filed on
the first day, and this is only important if the statute of limitations has been passed. It could be presented as a separate lawsuit unless the statute of limitations
has passed.
Relation back must go back to the same set of facts.
Prejudice: how far along in the trial are we, and what has everyone so far based their cases on?
If changing parties completely, and service had not been effected upon the correct person(s), then prejudice will result and amendment not likely to be
granted
15(d): Courts may allow a party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of
the pleading sought to be supplemented, when notice is reasonable and the terms are just.
Rule 15 Amendments (important take-aways)
1. Notice must be given to the opposing party in the original complaint that the allegation of the amendment arose out of the same conduct, transaction
or occurrence.
2. The new claim must relate back to the original.
3. The court may grant leave to amend if justice so requires.
4. The amending party must not act in bad faith.
5. The party not making the amendment must not be unduly prejudiced by it.
6. Amendments should not rest on legal theories.

13 Things to know about Discovery
Discovery:
1. Thrust is to reduce surprise and gamesmanship, encourage openness and settlement.
2. Only things which are relevant and not privileged (26b1).
3. Cant start until after 26f conference (26d) unless court permission.
4. Discovery done by parties without court involvement (unless problem) and not filed with court. Any order okay.
5. Limits on number of interogs and depos and on depo length (33a, 30(a2a), 30d2)
6. Tools to make discovery less burdensome (26b2, c, 30d)
7. Tools to enforce compliance (37)
8. Tools for sanctions noncompliance (26g, 37), signatures are warranting. The signature constitutes the certifiers confirmation that the info is valid.
9. Discovery only against party except by using the subpoena under rule 45
10. No immediate review of discovery orders (exception: contempt); this will have to move to a higher court.
11. Must always meet and confer before filing a discovery motion (37a2A)
12. Continuing duty to supplement initial disclosures and discovery responses (26e).
13. Parties can stipulate to change timing and limits unless would change schedule set by court (29).

4 Major tools of Discovery Interrogatories (Rule 33), requests for production of documents (Rule 34), Pral Depositions (Rule 30), and Automatic
Disclosure (Rule 26).

Rule #45
Subpoena: for depositions, interrogatories, requests for documents and admissions made by a party in the suit against a non-party, but the party need not
motion for it and the court need not approve it.

Rule #50: JMOL, Alternative Motions for a New Trial, Conditional Rulings
o Burden of Production: P produced enough evidence that is sufficiently persuasive that a jury, acting rationally, could find that she
proved each element of her case.
o Burden of Proof: Establish that Ps version of the events is more probably true than the Ds.

J MOL Rule 50a
ONLY APPLICABLE IN JURY TRIALS (Rule 52 for bench trials)
A party seeking to have the case take from the jury to the judge makes a motion for a Judgment as a Matter of Law (JMOL). Then,
o 1. The jury would have no implication in the decision and
4
o 2. The judge makes a legal judgment that the evidence is so lopsided that there really is no meaningful factual dispute for a jury to
consider.
JMOL is may be entered when there is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party. P
must meet the burden of production to defeat a JMOL.
The judge must consider the evidence in a light favorable to the nonmoving party.
Judges rarely grant a P a JMOL, b/c they bear the burden of proof for each element of their claim.
Timing of JMOL:
o Typically, D will move for JMOL at the close of Ps evidence in saying that the Ps burden of production has not been met. If the judge
agrees that a rational jury could not find enough evidence to support a rational verdict in her favor, the judge may withdraw the case
from the jury by entering JMOL for D.
If the judge denies Ds motion, D may move again at the close of Ds evidence.
P may also move for JMOL at the close of Ds evidence, though not at the close of Ps own evidence.
One major purpose of the JML motion raised in trial, even more important than the notion that the judge should not have the power by himself or
sua sponte to make the motion, is that the JML motion alerts the adverse party to the deficiencies of his case.
A Rule 52 motion is for a JMOL in a bench trial (a judgment on partial findings).
J NOV Rule 50b (now also called a JMOL)
Judgment Notwithstanding the Verdict (JNOV, now also called a JMOL)
o The judge has the power to displace the jurys verdict. JNOV asserts that the jury acted irrationally, in disregard of evidence in reaching
a verdict for the party opposing the motion.
o JMOL (50a) are often appealed, and then there will have to be a whole new trial, so by allowing the case to go to a jury, a judge avoids
that problem and can still change the verdict under 50b.
Timing of 50b:
o Must be filed within 10 days of the verdict.
o Must follow from a previously made 50a motion.
Rule 50c Conditional Grant of a New Trial
o The movant must file both a JNOV and a conditional motion for a new trial together in order to preserve the right to make the motions
for either at all. One motion cannot be made later than the other, although a movant could reasonably motion for a new trial without a
JML more rationally than it could motion for a JML without a new trial.
o 50(c)(2) allows a party on the losing end of a JMOL (50b) to move for a new trial within 10 days of that J.




Rule #56: Summary Judgment
SJ is entry of judgment by the court in favor of either P or D without trial. Appropriate only with no disputed issues of material fact.
SJ can be used to resolve individual claims in a multi-claim lawsuit. (56c, d)
Evidence supporting/ opposing SJ must be that which would be admissible at trial.
Timing:
Non-claimant may move for SJ at any time, Claimant may move for SJ 20 days after the commencement of the action, or after service of a motion
for SJ by Non-claimant.
A motion for summary judgment must be served at least 10 days before the hearing.
Rule 56(f) summary judgment is almost never brought until the close of discovery.
Summary judgment can be denied if a party needs more time for discovery.
Affidavits, Discovery 56(e):
If a party moves for SJ and supports it with admissible evidence, the opposing party must respond with countervailing evidence to avoid the entry
of judgment against her.
Affidavits shall show that as such facts as would be admissible, and that there is no genuine issue of disputed facts.
Supporting and opposing affidavits will be made on personal knowledge of someone who can and is willing to testify, and the evidence
must be admissible.
Anything discoverable can be used in SJ. If pleadings, depositions, written interrogatories, and affidavits show that there is not material or genuine
issue of fact, then summary judgment or judgment as a matter of law is appropriate.
Affidavits filed in bad faith can render atty. fees and expenses reimbursed to the party that incurred those expenses.
5
If a party is unable to supply the necessary affidavits, which may or may not be accompanied with discovery tools (depositions, interrogatories,
admissions, documents), then the court can either refuse the motion or allow for more discovery for the affidavits to show a material issue of fact
exists in dispute.
Burden of Proof:
The Adickes rule said SJ could not be granted for defendant unless defendant could disprove plaintiff's case. The Celotex rule liberalizes the
availability of SJ by allowing a defendant to prevail by showing that plaintiff has not proved her case..
Bias: the production of evidence to create a material or genuine issue of fact must be specific enough to at least possible defeat the movants
evidence that shows otherwise (Evidence that he didnt use on some occasions is not evidence that he never used. There is no counter evidence to
the fact that he did use at certain times.)
When filing for a motion for Summary J udgment:
Meet and Confer, then file
1. Notice of Motion and Motion
2. Memorandum of Points and Authorities in Support of the Motion
3. Proposed Order Granting Motion of Summary Judgment
4. Declarations and Exhibits (Evidence) in support of summary judgment
5. Statement of Undisputed Issues of Material Fact

Judicial Management and Summary Judgment
Given the high costs of litigation and the extremely long time delay that can result, only 2% of cases actually go to trial.
About 70% of all cases end before litigation and take about 8 months to find a resolution.
About 20% of cases are ended even without judicial intervention, meaning that in a total of 90% of cases, there is a settlement or judicial
resolution within 8 months.
47/50 state court systems have about a 90% clearance rate for all cases.
Sanders: failure to comply with pretrial discovery orders can result in complete dismissal of the case with prejudice to the party that
failed to comply with the judicial orders
Studies have shown that the increase in pretrial preparation and discovery does not lead to a decrease in trial time or more efficient
resolution of disputes.
McKey v. Fairbairn: A case cannot be brought in piecemeal because the D is entitled to some relief from the prejudice that would result.
It is not appropriate in many cases for the judge to correct counsel error, and there must be an end to the pleading, even though the
prejudice to one party might be high.

Trial and Post-Trial Motions
About 30% of cases are adjudicated (dismissed, SJ, trial), with about 10% of those cases going before a jury
Therefore, 3% of cases go to a jury.
The 6
th
and 7
th
Amendments to the US Constitution protect the right to a jury in criminal and civil trials, respectively
The jury reflects the voice of the community and it might be considered as a more democratic process than a bench trial. The collective
experiences of people might be better able to determine what is reasonable, what is fair, and what is right.
Representativeness of the jury is today highly questioned because so many people get excused from serving; voir dire might not be the best process
to eliminate juror bias; too polled by emotion; cannot weigh expert testimony; prone to sympathy; no perspective of previous cases in deciding the
one at hand; unpredictable not the best for establishing the law many times because of these reasons
equity, specific performance, and injunctive relief are all deferred to the judge historical reasons in equity courts
legal remedies many times deferred to the jury historical reasons in legal courts
The judge can limit the jury in several ways:
o Admissibility of evidence
o Instructions to the jury
o General or special verdict
o Directed verdicts and JNOV
o Conditional grant of new trial

Rule #59: Motion for New Trial
Rule 59 allows a judge to deny a party a verdict by granting a new trial.
Parties and a Judge granting a new trial on its own initiative have 10 days to do so.
Two Categories for New Trials
o Errors in the Trial Process
Every litigant is entitled to due process of law, including a fair trial procedure.
If the losing party moves for new trial (must be done within 10 days of the entry of judgment) on the basis of such errors, the
judge can vacate the verdict and order the case to be retried.
Appellate judges can review de novo issues of due process.
o Jurys Verdict is Against the Clear Weight of the Evidence
Judge cannot displace the verdict simply because he disagrees with it.
6
New trial can be ordered when the evidence is strong enough to rationally support the jury verdict, but he believes the verdict
is clearly erroneous.
Appellate judges usually review new trial grants under abuse of discretion.
A party who won the case that is being re-tried cannot immediately appeal. (Not yet a final decision).

Appeals from Final Judgments and Interlocutory Appeals
80 % of appeals are affirmed. 15% of cases ago up on appeal.
Requirements to Appeal
o Adverse Judgment
The party that is victorious cannot appeal unless that party would have gotten different or greater relief under the other claim.
If the losing party appeals, then the winning party can cross-appeal.
moot-ness exception: one may not appeal from a judgment when circumstances have changed in such a way that relief is no
longer possible. This claim is no longer adverse to you.
Exceptions
1. If other plaintiffs are likely to find themselves in the same situation.
2. Parties who settle cannot continue to appeal.
3. Members of a class action would werent named can appeal a settlement.
o No waiver
If you waived an objection (to a testimony, for example), it cannot be complained about on appeal.
o Final Judgment on the merits (see exceptions below)
Ways to get to Appeal (Interlocutory Appeals)
1. Final Judgment most court of appeal decisions are appeals of final judgments (and secondly, injunctions).
2. Injunctions 1292 a
3. Certification 1292 b (lauro lines case)
Controlling question of law
Substantial ground for different interpretation
Immediate appeal may materially advance the termination of the trial.
2 procedural both the appellate court and the district court must agree to this. If a district court certifies an appeal, the
appellate court can deny it.
o If a trial judge will not grant certification, that cannot be appealed.
Class actions are often 1292 b matters. However, congress amended rule 23 to add a provision allowing the court of appeal to
permit a class action. It need not be certified by the district court, and it is at the discretion of the appellate court. Only the
appellate judge needs to certify this (generally).
A 1292 b will not happen in the trial. Once you get to trial, it would no longer advance termination.
4. 54 b (Partial Summary Judgment) certain claims or parties can have a final judgment (only with express determination that there is no
just reason for delay and judgment be entered). An order is not a judgment; a judgment is a separate piece of paper. These cases are
very rare.
5. Writs mandamus: not an appeal, but an order from a higher court to a lower court to do something. It occurs when a trial court does
something so out of line that the appellate court steps in to correct it.
6. certain epical cases (eg: where statute provides)
7. Collateral order doctrine discussed in the Lauro Lines s.r.l. v. Chasser
a. Conclusively determine the disputed question.
b. Resolve an important issue completely separate from the merits of the action.
c. Be effectively un-reviewable on appeal from a final judgment.

Standards for Review for Appellate Courts
1. Clear error district court findings of fact; close calls are usually not overturned; difficult to do
2. De novo favorable to appellant, a new review with no deference to trial courts ruling; questions of law (easiest for movant party to win on).
3. Abuse of discretion favorable to nonmovant, a review deferent to the trial judges ruling something is not necessarily right, but it was not
necessarily wrong either so the app. ct. can rule in a light most favorable to the appellee; misapplies the correct legal standard or applies an
incorrect standard or relies on clearly erroneous standards; when discretion is the leeway given to the trial judge, the abuse of that discretion is
difficult to prove unless clearly erroneous; injunctions and trial court management are reviewable as abuse of discretion


Claim Preclusion, Res Judicata
Four prerequisites to res judicata:
o Final Judgment
o Judgment must be on the merits
o Claims must be the same in the first and second suits
o Parties in the 2
nd
action must be the same as those in the 1
st
(or represented by those in the 1
st
).
Single claim varies from one jurisdiction to the next.
o Federal Courts apply the transaction or occurrence test.
7
Under this approach, a party who has asserted a right to relief arising out of a particular transaction of occurrence must join
all claims he has arising from it, or the omitted claims will be barred by res judicata.
Preclusion turns on the right to join, not on whether the claim was actually litigated to be barred in a later action. It needs
only to have been available to the P in the 1
st
suit.
o Some courts have a claim test, that the same claim cannot be relitigated.
Same Parties
o Unless In privity is the party so tightly linked to the parties that he is essentially bound by the case (they step into the shoes of the
party)
o Different parties from claims arising out of the same transaction can litigate separate cases.
Judgment on the merits:
o Typically, this is a full and fair trial followed by a verdict and judgment.
o What kinds of judgments preclude a second action:
Directed verdict
Summary judgment
12(b)(6) you can request for judgment to be entered and then it precludes.
Jury verdict
Dismissal for failure to prosecute (b/c you had an opportunity to litigate and because otherwise these sanctions would have no
effect.
12(b) no, because there was never any litigation or opportunity to litigate.
Failure to cooperate in court orders.
Final Judgments
o Until a final judgment is entered, it remains too uncertain to support a RJ plea in another case.
o Many courts give RJ effect to judgments pending appeal.
Timing of Res Judicata
o a party must bring this defense to a claim in its initial answer under Rule 8c; if not realized at first, the court under Rule 15 will weigh
prejudice against the non-moving party with the efficiency of the granting of the motion.
There is a point in which the court must determine that a case is closed.
o If legislation changes and your case has already been decided, you CANNOT reopen your case.
o If additional damages arise that you did not know about at the time of your 1
st
action, they will probably still be barred by res judicata.
o If 1
st
action is in state court, an exclusively federal question will not later be barred in federal court, because it could not have been
raisd.

Issue Preclusion, Collateral Estopple
Precludes a litigant from re-litigating issues that were actually litigated and decided in a prior action.
Prerequisites for Collateral Estopple:
o Issue in the 1
st
case must be the same as the issue in the 2
nd
case.
o The issue must have been actually litigated.
o The issue must actually be decided in the prior litigation.
o The decision on the issue must be necessary to the courts judgment.
o Collateral estopple can apply to non-mutual parties.
The party against whom are asserting collateral estopple has to have been in the first action. In order for the party to be
estopped non-mutually, they must have been in the first action.
Essential to judgment
o It is difficult to determine when a judgment rests on more than one ground, because you do not know which one was essential. The trend
in courts is that when there is more than one ground, neither is precluded
Non-mutual collateral estopple
o Allows a party to invoke collateral estopple against a party who litigated and lost on an issue in previous litigation.
o Offensive: A P wants to preclude a D from arguing something that D already lost.
(as in Parklane Hosiery) is discretionary it takes into consideration fairness of the forum (the first case was tried fairly) and
the defendants incentives. Sometimes, courts want to make sure that additional cases arent brought once plaintiffs see that
they can win against a defendant.
o Defensive: D wants to see a P precluded from trying a claim against them that they already lost to someone else. Fosters judicial
economy, giving P an incentive to join claims under rule 20.
8
Parklane Hosiery Co. v. Shores: Offensive non-mutual collateral estopple is that Shores wants to preclude Parklane from arguing that they were not in
violation of the securities act, when it has already been determined that they were in violation against the SEC. Collateral Estopple applies, since P could not
have joined in the earlier action and it would not be unfair to D.

Difference between Issue and Claim Preclusion: issue preclusion applies if the causes of action are not the same but some of the issues raised in the second
suit were actually litigated and determined in the first suit.

Claim Issue
No re-litigation of any claim that was or should have been
litigated in an earlier action.
Only issues actually litigated
Mutuality required
Same parties/ privity
Can be used non-mutually
Opportunity to litigate Actual litigation required
Claims Facts

Personal Jurisdiction:
Cases Considerations Facts of the Case
Pennoyer v.
Neff
Consent; attachment of property for in rem or quasi in rem;
in personam (service within state), state power, proper notice
Pennoyer was sued in Oregon, and he lived in California. The court did not have
jurisdiction over him, because he did not have property to attach in Oregon at the
time of the suit.
International
Shoe
Minimum Contacts (analyzed at the time of the activity);
traditional notions of fair play and substantial justice
I.S. was an incorporated in DE, they did most of there business in St. Louis. They
had some sales reps in WA. The rep was personally served, and the court held that
the minimum contacts were sufficient so as not to disturb traditional notions of fair
play and substantial justice.
McGee Single quality contact They apply specific jurisdiction, because the insurance company put themselves
in California by mailing the plaintiff a life insurance renewal. There was one single
quality contact, and the claim arose out of that contact.
Hanson Purposeful availment, dont consider unilateral activity of the
P.
The mother moved to Florida and continued a trust relationship. This is not
sufficient to establish jx in Florida, because mothers unilateral activity cannot
establish jx. The defendant did not purposefully avail themselves of Florida.
Shaffer Eliminated quasi in rem
Asahi Notions of Fair Play and Substantial Justice only where
minimum contacts are found. When fair play and substantial
justice outweigh minimum contacts, jurisdiction might not be
granted.
D was a maker of a valve that is defective. Asahi sells the valve all over the world
that ends up in lots of cars and motorcycles. Asahi sells it to Cheng Shin, who sells
it to Honda, who sells the car. The guy who has the accident sues Honda, and a
number of defendants. Cheng Shin files an indemnity suit against Asahi. FP and SJ
outweigh the very slight minimum contacts that Asahi has with CA. They merely
entered the product into the stream of commerce. OConnor said D has to direct
activity into stream of commerce (foreseeability), concurring opinion said that
foreseeability is enough.
Burger King Very similar to Asahi, except domestic case rather than
international; fair play and substantial justice supported
minimum contacts.
Franchisor worked out of MI, but had a continuous and systematic (although slight)
contact with Miami. The court held that FP and SJ supported jx, since the minimum
contacts were systematic and continuous.
Pavlovich Easy case where all considerations come in to play; fair play
and substantial justice, purposeful availment, stream of
commerce
He posts on a website how to encrypt Ds work. No jx, because to just have the
website available in CA be sufficient, it would read purposeful availment out of the
constitution. FP and SJ say he shouldnt have to go to court in CA.
Coastal Video Continuous and systematic contacts. The product in controversy in this case has never been sold in VA, which is why
there is no specific jx in VA. This does not necessarily preclude adjudication in VA.
If there are sufficient continuous and systematic contacts (i.e. they do enough
business in VA), in VA, then the court may have general jx over the D. The court
made a leave for discovery purposes, to see how much of their profits came from
VA.
Burnham Pennoyer tag rule; service in person in the state Dad went to visit kids in CA, served while in the state. Court says that this is still a
good law, and service in person in the state is valid. (Court disagrees about why:
some say b/c it is historical and therefore just, some say it is b/c presence in the state
IS a minimum contact, b/c you get the benefits of the state).
WWV Purposefully direct, stream of commerce, foreseeability not
enough to establish jx
P bought a car in NY, and drove it to OK where they got in a car accident. No jx in
OK, because P did not purposefully avail themselves of OK, and did not direct
purposefully direct themselves at OK.
Mullane Constructive notice, though not reaching everyone, is
inadequate to known persons whose whereabouts are known
and could be reached by more effective means. Constructive
notice to unknown persons will suffice the due process
requirements.
Not all of the beneficiaries were known by the bank. Moreover, they were not all
personally notified b/c NY law says notice through publication in a newspaper was
proper. Therefore, the bank did not HAVE TO notify each person that they knew
where they were.
However, the court overruled this statute, in saying that the court was required to
notify the beneficiaries that they knew where they were, b/c they are likely to speak
on behalf of those who cannot be notified, and those who are unknown, can be
notified through publication.
Gibbons Long-arm statute restricted FL jurisdictional reach over the
person where the only specific contact was a prior suit that
P sues in Mr. Brown in FL two years earlier, and the court ruled that this is not
enough to fall under the long arm statute when Ms. Brown sues P later on under the
9
had already terminated, despite that the current suit arose out
of the same general transaction as original suit (claim for
general jx denied; a specific claim to that previous lawsuit
would have been constitutional.
same transaction.

Personal Jurisdiction:
Personal jurisdiction issues revolve around the rights and duties of the court to hear a claim against a specific person.
In evaluating Personal JX, look at:
1. Is assertion of Personal JX supported by statute?
2. Is there consent, domicile (based on residence and intent to stay indefinitely) , or tag (corporations cannot be tagged)?
3. Minimum Contacts: The test for when the Defendant is in not in the state.
o Int. Shoe held that the courts of a state may exercise personal JX over a D when she has such minimum contacts as would be fair to
require her to return and defend a lawsuit in that state.
o Jurisdictions permissibility depends on the quality and nature of the contacts.
o General Rule for Minimum Contacts: When contacts are systematic and continuous, arising out of those contacts, there is enough for
jurisdiction. Casual is not enough (unless there is specific jurisdiction).
o With Minimum Contacts, Discuss:
Single Quality Contact (McGee)
Purposeful Availment (Hanson, Pavlovich)
Unilateral Activity (WWV, Hanson a unilateral activity by the D is sufficient, but not by P)
Casual and Isolated Contact
Foreseeability (WWV)
Stream of Commerce (WWV, Asahi)
Fair Play and Substantial Justice (Int. Shoe, Burger King, Asahi)
Burden on the D (Asahi), Efficiency, etc.
Continuous and Systematic Contact (Burger King)
Specific JX (Coastal Video)
Tag (Burnham)
4. Evaluate Fair Play and Substantial Justice (Ps interest, Ds interest, Forum State interest)

I f no general J X look to specific J X.

Notice must also be proper. See Rule 4 and Mullane.

Statelong-arm statute analysis (used only where potential D is absent from forum state):

1. Determine if the conduct of D falls within statute.
2. Determine if the statute falls within the 14
th
Amendment due process outer bounds of the Constitution; there should be no bulge.

CA model of long arm statute is very broad and is identical to the fullest extent of the Constitution. Other states have a more restrictive view of personal jx
and are smaller in scope than those allowed under the Constitution. If a claim for personal jx is not allowed under the state long arm statute, it is not
enforceable, even if allowed under the broad scope of the Constitution. Statutes that appear in violation of the Constitution are not unconstitutional per se.
The fact of each case must be used to determine the constitutionality of the long arm statute.

Appropriate federal long-arm statute analysis (Rule 4k):

3. Determine if the D falls within statute:
Would have fallen under state jx of court of general jx anyway
Within 100 miles of federal court (the bulge)
Qualifies as a third party under Rule 14/19 for interpleader, where basic jx exists
Qualifies as a foreigner and has contacts with the US in general, not any specific state(s) 5
th
Amendment

4. Determine if the federal claim for personal jx falls within the 5th Amendment due process outer bounds of the Constitution; there should be no
bulge of personal jx beyond constitutional scope

Glannon Notes For personal jurisdiction, when the minimum contacts test is passed, there is constitutional PJX. This places the outer constitutional
bounds on state courts. Each state court must then have a statute authorizing JX.

Venue
28 USC 1391(a) Governs Venue in Diversity Cases
1. where any D resides, if all Ds in same state
2. where substantial part of events/property giving rise to claim occurred
10
3. where any D is subject to personal jx at the time the action is commenced (last chance if other tests fail to create proper venue)

28 USC 1391(b) Governs Venue in All civil actions where jurisdiction is not founded solely on diversity of citizenship
1. where any D resides, if all D in same state
2. where substantial part of events/property giving rise to claim occurred
3. where any D may be found (last chance if other tests fail to create proper venue)

28 USC 1391(c) For finding corporations (fill back into (a) and (b) 1&2 analysis above)
1. applies only to D, not P
2. used to determine where a corporate D resides
Deemed to reside where it is subject to personal jx at the time the action is commenced
Resides within a district using the same minimum contacts test within that district to determine personal jx
If no minimum contacts, look for most significant contacts
State of incorporation and state of place of biz suffice as personal jx and thus venue as well
1391(c) just defines corporate residence. Still proper venue for a corporation where the accident occurred.

28 USC 1391 (d)An Alien may be sued in any district.

28 USC 1391 (f)Action against a foreign state
A foreign state may be sued in any district in which a substantial amount of the events took place
Where they do business/ are licensed to do business.
If against a foreign state/ political subdivision, to be brought in the District Court of DC.

General notes:
Venue is entirely determined by statutes.
Venue almost always lies in the district in which the D resides or where a substantial amount of the action occurred.
If two Ds are sued in different venues but both live in the same state, venue is proper in either district (even if one D doesnt like it).
If no other venue is proper (ex.: both Ds live in different states and the action occurred in another country), venue is proper where personal JX
exists (for diversity cases).
Venue can be waived either through K or through failure to bring a defense.
1. Venue can objected to according to 12(b)(3). If it is not objected to in the answer, it is waived.
Venue is determined at the time the lawsuit is brought.
Court can transfer venue according to change of venue statute 12 USC 1404.
Other statutes can govern the appropriate venue for a claim (e.g.: 28 USC 1400(b) governs patent infringement actions).
Local actions concerning specific local land (28 USC 1392) are not subject to the general venue provisions of 28 USC 1391.
Defendants reside in the state of their domicile. A person could reside, for venue purposes, in several districts if she maintains more than one
domicile, but she can only have one domicile for diversity purposes.
Certain actions to do with land will be local actions, and must be tried in the district in which the land lies.
For Removal purposes, federal venue rules do not apply, state venue rules apply.

Venue issues only arise when the action is originally brought in federal court. State actions that are removed to federal court are subject to state venue
statutes.

Glannon Notes Venue can be waived, Court cannot dismiss sua sponte for improper venue.


Subject Matter Jurisdiction

SMJX determines whether a case should be heard in federal or state court.
States are courts of general JX (can hear state and federal law cases), whereas Federal courts are courts of limited JX.
Federal Government limitations: Federal courts are authorized to hear:
1. Cases between states
2. Cases between citizens and aliens
3. Cases arising under federal law and the Constitution.
4. Cases where the US is a party.
Parties cannot consent to SM JX
11
1. Personal JX is a personal right and can be consented to, whereas consent to SM JX would allow a party to reallocate powers.
The court can move to dismiss for lack of SM JX sua sponte. This can be done at anytime.
1. The court must give a party an opportunity to be heard on this matter.
Parties can also raise an objection to SM JX at any time.
If a case is dismissed for SM JX from federal court, the state court will have SM JX.
Federal Question
Ask: Is SM JX Constitutional: Article III, Section 2 of the United States Constitution lists those types of cases that are important to the
national interest or would be vulnerable to unauthorized state discretion. The federal courts can hear those cases arising under this Constitution,
the Laws of the United States, and Treaties made, or which shall be made, under their authority. This is the expansive view of the federal subject
matter jx.
Then Ask: has Congress conveyed federal jx over the case according to some statute (28 USC 1331)?

Well pleaded complaint rule: The court, in deciding whether the cases arises under federal law for purposes of 1331, asks whether P would have
to raise the federal issue in a complaint which includes the elements she needs to prove to establish her claim, and only those elements. (See
Mottley)
1. The SM JX rests on Ps case, not on Ds anticipated defense.
2. Congress wrote 1331 so that the federal question must arise on the face of the complaint.
When a state law claim is available in replace of the federal law claim, the federal subject matter jx of the case is destroyed. Mottley.
Holmes Test: A suit arises under the law that creates the cause of action. (In Mottley, state law created the cause of action)
Counter Claims: Do NOT create arising under JX. If P asserts a state question, and D asserts a federal question counter claim, this is not sufficient
to create a federal jurisdiction.
Diversity
28 USC 1332 Grants Diversity between (assuming they meet the amount in controversy req.)
1. Citizens of Different States
2. A citizen of a state and a citizen of a foreign state
3. A plaintiff as a foreign state and a citizen of a US state
1. Diversity exists between citizens of a US state and a citizen or subject of a foreign state.
2. Diversity does not exist when one alien sues another alien.
3. An alien that is a permanent resident, you treat a legal permanent resident as a citizen of the state in which they reside. This is
intended to restrict diversity JX if the parties live in the same state.
There must only be complete diversity across the v.
State Citizenship for individuals: equated with domicile: the state in which he has taken up residence and subjective intent to stay indefinitely.
1. Subjective intent is not alone enough, but must be coupled with physical presence.
2. There can be only one citizenship for a person.
If you are moving, you have no new residence unless and until you are physically there. Date for citizenship for diversity purposes is the date of filing.
Corporate Citizenship:
1. Citizens of the state where there principle place of business is and
1. Measured sometimes by the muscle test where the bulk of the corporate activity is or
2. Measured by the nerve center, where the corporate headquarters or home office from which activities are coordinated.
2. Citizens of the state where they are incorporated.
3. Diversity can be destroyed if an opposing party has citizenship in either of these places.
Diversity is measured at the time the suit is filed.
Amount in Controversy Requirement:
o In a federal diversity case, there is an addl requirement that there be over 75K in controversy.
o A plaintiffs good faith claim for more than the amount required controls, unless it appears to a legal certainty that the claim is really for
less.
o A D can remove and bump up Ps amount in controversy.
o Aggregation of damages:
P may aggregate any claims he has against a single D to reach 75K (even for unrelated suits).
P cannot add claims against multiple Ds together to reach 75K. (even if there is another D who is in the case and the claim
with that D is for >75K).
P may not add his claim to another Ps against one or multiple Ds to reach 75K. (It is possible, with related claims, if one P has
75K in controversy, 1367 will allow another P to add on a related claim for <75K.
For supplemental JX, so long as one P meets the amount in controversy, other Ps may add their claims under supplemental JX.
A counter claim can be brought against a P whose calculated damages are over 75K, regardless of the amount in controversy
of the counter claim.
Redner rule: a person must be a citizen of the US to be a citizen of the state where he is domiciled.
12
Glannon Notes Article III 2 authorizes congress to create lower courts and confer JX on them pursuant to Article III. SMJX must be within Article III
and a federal Statute. 28 USC 1332 is narrower than Article III, in that it requires the amount in controversy and complete diversity across the v.

Erie Doctrine
4 points to know.
(ONLY APPLICABLE IN DIVERSITY CASES)

1. No general federal common law (except on federal statutes). Federal courts sitting in diversity apply state substantive law. Federal courts do not
make their own substantive law.
2. Erie is only applied in diversity cases. By definition, a federal court sitting in diversity is going to apply state substantive law of the forum
state.
3. What is substantive? Federal courts always follow the FRCP, because this is not a substantive law, but rather a point of procedural law.
Substantive rules come from state law.
a. What have/ would highest court decide?
b. What have the lower courts decide?
c. Certification asking highest court what they would decide?
4. Why is Erie so important?
Jurisprudentially, it stopped cold a trend that federal courts will create general law.
Federal courts now look to state law and see the way in which that court would determine the case.
Some states allow for certification, which will have a state court determine how they would rule, and then the federal court will apply
that way.
Erie shrank the difference b/w federal and state law. Now, courts will apply the same law in federal or state court on state court claims.
This was a big shift in power back to the states.
This was also one of the first times that the Supreme Court overruled itself.
This was a big change in legal philosophy.
The idea that the federal court would find the best rule out there was eliminated.
Erie overruled Swift v. Tyson, which held that the federal court should examine all common law authorities, including cases from the state in which it sat,
from other states, from federal courts, etc., and the view of respected commentators to ascertain the common rule. The federal judge was to choose the right
rule of consideration rather than to follow what another judge decided. This was declared unconstitutional, because it authorized federal judges to make law
in areas which the federal law has no delegated powers.

Removal (28 USC 1441)
Removal is an exception to the rule that the plaintiff is the master of his claim. D can remove certain cases to federal court.
Where the federal court has jurisdiction (i.e. the Plaintiff could have brought suit in a federal court), the defendant can remove to
federal court.
o 1441 (B) Exception A defendant sued in his home state cannot remove to federal court on the basis of diversity.
1441 (a) A party can only remove to the federal district court for the district and division embracing the place where such action is pending in
the state court, if there is concurrent JX.
Usual federal venue rules do not apply.
When the case comes out of arising under jurisdiction, if there are non-removable claims as a part of the larger removable claim, the court
may hear the entire case or remand the non-removable claims to state courts.
1441(e) federal court is not precluded from hearing the case b/c federal court lacked JX over it.
A D may allege in a notice that Ps claim might meet 75K when Ps complaint doesnt say anything about damages.
Once removal happens, anything the state court does/ has done is vacated. They will have a status conference to determine what happens next.
Timing (1446)
D must remove with 30 days of notice from P.
o Notice of removal in court, with the pleadings, process, and other state court papers within 30 days of receiving Ps pleadings.
o You can remove within 30 days of learning of removability. I.E. If, after amendment by P or a settlement of the non-diverse party,
the case becomes removable, you must remove within 30 days.
o Notice of removal must be served to each party, state court stays the action while it is being decided in federal court.
o No matter what, you cant remove after 1 year of commencement of suit on basis of diversity.
o In a multi-D case, all Ds must agree to removal.
o A Ps motion to remand must be made within 30 days of notice of removal (except for smjx).
(1447) After-Removal
Appealability: not appealable if federal court remands back to state court.
If court refuses to remand and hears the issue, that is appealable. (CaterpillarD removed one day before a year had passed based on
diversity; Fed. Court made a mistake, P appealed and during the appeal diversity was established, harmless error)
If additional parties are joined after removal and if SMJX is destroyed by joinder, court can deny joinder or permit it and remand back to state
court.
(e) if after
Supplemental JX
Three part Analysis for Supplemental JX
o Is there constitutional grant? (Arising out of the same core facts)
o Is there statutory grant? (1367)
13
o Court discretion
Comes into play because of the goals of efficiency and consistency.
Pendant Jurisdiction
o (1367A) If a plaintiff asserts a federal claim against a D, she can add on a related state law claim that arises out of the same
common nucleus of operative facts.
o
o A federal court is not required to hear the related claims. The federal court will consider:
If it raises a novel or complex issue of state law (federal court would not want to speak first on what state law requires)
The state claim substantially predominates over the claim having original jurisdiction.
District Court dismissed all claims over which it has jurisdiction.
Exceptional circumstances.
o Major Exceptions:
A P cannot bring a state claim against a separate party in federal court under supplemental JX.
A P cannot bring a state claim against a 3
rd
party impleaded by Ps opposing party, over which there is no independent JX.
Even if suing an additional D, after properly bringing a federal claim against a D, there must be an independent basis for JX.
Remember If you are properly in court under diversity, you do not need supplemental JX to join additional claims.
1367(b) Supplemental JX does not allow for impleaded Ds, indispensable Ds, or permissive joinder of parties, when diversity is the basis
of JX and there is no jurisdictional basis for the claim.
Diversity is not destroyed by the addition of non-diverse impleaded 3rd party Ds (non diverse from either P or D), though it can be
destroyed by the addition of claims against non-diverse new parties BY PLAINTIFF.
Ancillary Jurisdiction
o If a P asserts a federal law question against the D, and D has a compulsory counterclaim against P that arises out of state law, the federal
court will have jurisdiction over the counterclaim, given that it will arise out of the same transaction as the main claim.
Case example Jin: federal question (RICO), and the state claim (defamation) arose out of the same core facts.

Joinder
Rule 13 Counter Claim and Cross Claim
o Compulsory Counter Claims, Rule 13(a)
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against an
opposing party, if it arises out of the same transaction or occurrence that is the subject matter of the opposing partys claim.
He must assert the claim in this action, or it will be lost.
o Permissive Counter Claims, Rule 13(b)
A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction that is the subject
matter of the opposing partys claim.
o 13(e) Additional Counter Claims: A claim that matured after the pleading may, with permission of the court, serve the counter claim
as a supplemental pleading.
o 13(g) Cross Claims Against a Co-Party must arise out of the same transaction or occurrence. If after a proper cross claim is made,
an unrelated claim may be added to that cross claim (as per Rule 18a). (These claims are permissive, not compulsory).
o 13(i) The court can order separate trials if it so chooses.
Joinder of Claims
o Rule 18 Joinder of Claims and Remedies
18(a): A party asserting a claim to relief as an original claim, counterclaim, cross claim, or 3
rd
party claim may join as many
claims as the party has against an opposing party.
Permissive Joinder of Parties
o 20(a) authorizes Plaintiffs to sue together if:
They assert claims arising out of the same transaction or occurrence and
Their claims against the defendant will involve a common question of law or fact.
o 20(a) authorizes Plaintiffs to join multiple Defendants in one action if
There is asserted against them any right to relief arising out of the same transaction and
If any question of law or fact will be in common.
o 20(a) allows P to sue 2 Ds in the alternative (if one is liable, the other is not)
o Rule 20 does not require that these parties be joined.
14
o Rule 20(b): The court may prevent a party from being put to expense or delayed by inclusion of an additional party against whom the
party asserts no claims or the additional party asserts no claims against him, and may order separate trials to prevent delay/ injustice.
3
rd
Party Practice
o 14(a): A D may bring in a 3
rd
party who may be liable to him for all or party of the plaintiffs claim against him.
There is no need to seek leave of court when the defendant does so within 10 days of serving the original answer.
Grant or denial is discretionary (and reviewable on appeal). The court will consider judicial economy, prejudice to P,
etc.
o 14(a): Any party may make a motion to strike the 3
rd
party claim for severance or separate trial.
o 3
rd
Party Defendants Abilities: Rule 14(a)
o Court always has discretion to hear impleader claims
Court should Consider:
Efficiency, avoided additional suits, inconsistent Js, delay, complication, potential prejudice to P.
3
rd
Party Defendant can
Make defenses to Ds claims (such as Rule 12 defenses)
Make defenses to Ps claims
Make claims against P arising out of the same transaction or occurrence.
Implead a party that is or may be liable to him.
Some jurisdictions allow for removal by 3
rd
party defendants.
o 14b: P may bring in a 3
rd
party P when she has been served with a counterclaim.
Case Example: Price nail manufacturer was allowed to be impleaded, because he may have been liable to the D for all or party of Ps claims against D.
Rule 19: Indispensable Joinder of Parties
o Rule 19(a): At the courts order, a party must be joined (if court will still have SMJX) if:
Complete relief cannot be given to those already parties without this party or
The party has an interest relating to the subject matter of the action and is so situated that the action without this partys
presence may:
Impede that persons ability to protect that interest or
Leave any of the persons already parties subject to a substantial risk of incurring inconsistent obligations.
o The joined party will be dismissed if venue is improper.
o Rule 19(b): Joinder not Feasible
If an indispensable party cannot be made a party, the court will determine if the action should proceed. Courts will consider:
How this partys absence will prejudice to those already parties
The extent to which prejudice can be lessened
Whether a judgment w/o this person will be adequate
Whether P will have adequate relief if case is dismissed for non-joinder.
o Joinder is often not feasible if you cannot get personal jurisdiction.
o Usually, you will need to ask are these parties co-owners, or is there joint K liability? Is there some other way in which the
other parties are so entangled that not including them would lead to incomplete relief or severely impair the rights of that non-
party?
Joint tortfeasors are not enough for indispensable joinder.
Case Example: Helzberg Diamonds HD says that the other jewelry store is indispensable and that HD might be subject to inconsistent obligations if they
are not joined, but the court says that if they are, it is HDs own fault, and the other jewelry store is not indispensable.
Misjoinder: Rule 21
o Misjoinder is not grounds for dismissal of an action. Parties may be added or dropped by order of the court on motion of any party or
sua sponte at any time and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
Consolidation and Separate Trials: Rule 42
o 42(a) Consolidation: When actions are pending that involve a common questions of law, the court may order a joint hearing of any or all
matters in issue in the actions. It may order all actions consolidated as to avoid unnecessary costs or delays.
o 42(b) Separate Trials: The court may order separate trials of any claim or of any separate issue.