Table of Contents

I. Jurisdiction: The Power of the Courts.................................................................................................... 3

A. Personal Jurisdiction (power over people)....................................................................................... 3
1. Generally.......................................................................................................................................3
a. Scope of "Minimum Contacts" - Specific vs. General Jurisdiction......................................... 5
2. Notice............................................................................................................................................6
a. Generally.................................................................................................................................. 6
b. Relationship with jurisdiction.................................................................................................. 8
3. Federal Courts...............................................................................................................................8
a. Generally.................................................................................................................................. 8
b. Personal Jurisdiction vs. Venue................................................................................................8
c. Venue........................................................................................................................................9
d. Changing Venue....................................................................................................................... 9
B. Subject Matter Jurisdiction (power over subjects)......................................................................... 10
1. Federal Question.........................................................................................................................10
2. Diversity..................................................................................................................................... 10
a. Generally................................................................................................................................ 10
b. Corporations...........................................................................................................................11
3. Supplemental/Pendant/Ancillary................................................................................................ 11
4. Removal......................................................................................................................................12
C. The Erie Doctrine............................................................................................................................13
a. Generally................................................................................................................................ 13
b Application to Res Judicata.....................................................................................................14
II. Pleading: Framing the Issues for Adjudication................................................................................... 14
A. The Complaint................................................................................................................................ 14
a. Generally................................................................................................................................ 14
b. When the complaint isn't good enough.................................................................................. 15
B. Responding to the Complaint......................................................................................................... 15
1. Motions to Dismiss..................................................................................................................... 15
2. Answer........................................................................................................................................ 16
C. Amending the Complaint................................................................................................................17
a. Amendments before trial........................................................................................................ 17
b. Amendments at trial............................................................................................................... 17
D. Discovery........................................................................................................................................17
1. Generally.....................................................................................................................................17
2. Spoliation....................................................................................................................................18
a. Generally................................................................................................................................ 18
b. Imposing sanctions.................................................................................................................19
3. Privilege/Experts.........................................................................................................................20
a. Privilege................................................................................................................................. 20
b. Experts................................................................................................................................... 21
4. Privacy/Sanctions....................................................................................................................... 22
a. Privacy....................................................................................................................................22
b. Sanctions................................................................................................................................ 22
E. Summary Judgment........................................................................................................................ 23
III. Trial.................................................................................................................................................... 24
1

A. Judge vs. Jury................................................................................................................................. 24

B. Selecting a Jury...............................................................................................................................24
C. Controlling the Jury........................................................................................................................ 25
1. Instructions................................................................................................................................. 25
2. Judgments as a Matter of Law/New Trials................................................................................. 25
3. Random.......................................................................................................................................27
a. How the jury should rule........................................................................................................27
b. Remitter vs. Additur...............................................................................................................27
IV. Appeal.................................................................................................................................................27
A. When can you appeal?....................................................................................................................27
a. Generally................................................................................................................................ 27
b. Finality................................................................................................................................... 28
c. Interlocutory........................................................................................................................... 29
d. Collateral Order Doctrine...................................................................................................... 29
B. Scope of Review............................................................................................................................. 30
V. Complex Litigation..............................................................................................................................30
A. Prior Judgments.............................................................................................................................. 30
1. Res Judicata (claim preclusion).................................................................................................. 31
a. Generally................................................................................................................................ 31
b. Who does it apply to?.............................................................................................................32
2. Collateral Estoppel (issue preclusion)........................................................................................ 32
a. Generally................................................................................................................................ 32
b. Offensive v. Defensive........................................................................................................... 33
c. Who does it apply to?.............................................................................................................34
3. Collateral Attack and Reopening Judgments..............................................................................34
B. Additional Parties and Claims........................................................................................................ 35
1. Joinder of Claims........................................................................................................................35
a. Generally................................................................................................................................ 35
2. Joinder of Parties........................................................................................................................ 36
a. Permissive.............................................................................................................................. 36
b. Compulsory............................................................................................................................37
3. Intervention.................................................................................................................................38
C. Class Actions.................................................................................................................................. 39
1. What is a Class?..........................................................................................................................39
2. When are absent class members bound by a class action?......................................................... 40
3. When are out-of-state absent class members bound by a class action?......................................41
4. Settlement (of) Class Actions..................................................................................................... 41

I. Jurisdiction: The Power of the Courts

A.

Personal Jurisdiction (power over people)

1.

Generally

FRCP 12b2 - motion to dismiss for lack of personal jurisdiction: a party may assert the
following defenses by motion . . . (2) lack of personal jurisdiction. . . .
By making this motion, party doesn't inherently consent to jurisdiction
FRCP 12h: "A party waives [a claim for lack of personal jurisdiction] by: (A) omitting it from a
motion... or (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a
responsive pleading or in an amendment..."
FRCP 4n - jurisdiction over property
Federal law: can assert jurisdiction over property if authorized by federal statute; notice
must be given as provided in the statute or by serving a summons
State law: if can't reasonably serve via summons, court can assert jurisdiction over assets
found in the district; jurisdiction is acquired by seizing the assets
State court doesn't have jurisdiction unless the person:
Appears in the court (consent) (Pennoyer)
A defendant's prior decision to bring a suit in a state doesn't establish personal
jurisdiction over the defendant in future suits, even if the suits arise from the same
subject matter (Gibbons)
Is present in the state (residency in state/is found within state) (in personam) (Pennoyer)
People:
State where person is a resident can compel that person to transfer the title of land in
another state to another person without interfering with the authority of the state
where the land is located (Pennoyer)
If a defendant isn't present in the state, the defendant just has to have certain
minimum contacts with the state such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice (International Shoe)
Minimum contacts: the defendant purposefully availed itself of the privilege of
conducting activities within the forum state, thus invoking the benefits and
protections of its laws (Goodyear)
Minimum Contacts v. Fair Play/Substantial Justice
If no minimum contacts, no need to inquire into fairness (World-Wide
Volkswagen)
If questionable minimum contacts, jurisdiction is appropriate if consistent
with fair play and substantial justice (Burnham)
Benefits a defendant received while on a short trip to a state =
insufficient to establish that it is fair for the state to decree the ownership
of all of the defendant's worldly goods acquired during the 10 years of his
marriage, and the custody over his children (Burnham)
If strong minimum contacts, jurisdiction is almost always appropriate
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(Burger King)
Only inappropriate when there is a compelling case that the presence of
some other considerations would render jurisdiction unreasonable (ex:
burden on defendant, forum state's interest in the case)
Corporations:
Must look to activities carried on in its behalf by those who are authorized to act for
it to determine presence (International Shoe)
Presence: when the activities of the corporation have not only been continuous
and systematic (rather than irregular/casual) but also give rise to the liabilities
sued on, even though no consent to be sued or authorization to an agent to accept
service of process has been given (International Shoe)
Some cases exist where activities were so substantial as to justify causes of
action arising from situations unrelated to those activities (International
Shoe)
Excludes: casual presence of corporate agent or his conduct of single/isolated
activities upon the corporation's behalf (International Shoe)
Though some cases because of their nature and the circumstances are
sufficient (International Shoe)
Examples that help show presence:
If a corporation exercises the privilege of conducting activities within a
state, the corporation puts itself under the laws of that state (it benefits
from the state's business-related benefits/protections), which may lead to
the corporation having obligations and if they don't fulfill obligations,
suit can be brought (International Shoe)
Has property within the state, and the claims to the property itself are the source of the
underlying controversy (in rem) (Pennoyer)
In rem v. quasi in rem
In rem:
Judicial jurisdiction over a thing = jurisdiction over the interests of persons in a
thing (Shaffer)
In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction
must be sufficient to justify exercising jurisdiction over the interests of
persons in a thing (Shaffer)
Standard for determining whether this is consistent with Due Process
Clause = minimum contacts standard in International Shoe (Shaffer)
If property is the source of a conflict, it would be unusual for the state where
that property is located to not have jurisdiction same if the conflict is over
an injury sustained on land of absentee owner (Shaffer)
Quasi in rem (does not satisfy):
All assertions of state court jurisdiction must follow International Shoe standard
of minimum contacts (Shaffer)
Presence of property in a state, where the property is completely unrelated to
the underlying cause of action, does not establish sufficient minimum
contacts with the state to support personal jurisdiction (Shaffer)
Property must belong to the party at the onset of the case (Pennoyer)
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a.

State where land is located can subject the land to payment of its own citizens without
interfering with the authority of the state where the person is a resident (Pennoyer)
Would be okay for a state to influence (but not exercise direct authority over) people resident or
with property in another state (Pennoyer)
Scope of "Minimum Contacts" - Specific vs. General Jurisdiction

General jurisdiction
If a defendant has continuous and substantial contacts with a state - so much as to render
them essentially at home in the forum state - the state can have personal jurisdiction over the
defendant in any cause of action in that state (Goodyear)
Examples:
Corporations
State of incorporation (Goodyear)
Primary place of business (Goodyear)
Any state where contacts are systemic and continuous (Goodyear)
Individuals
State of residence (Goodyear)
Any state where individual is physically present and served (Goodyear)
State where contacts are systemic and continuous (Goodyear)
Mere purchases made in the forum state, even if occurring at regular intervals, are not
enough to warrant a state's assertion of general jurisdiction over the defendant in a cause
of action unrelated to those purchases (Goodyear)
Stream of commerce test insufficient - that's for specific jurisdiction (Goodyear)
Foreseeability test: if the defendant's conduct and connection with the state are such that the
defendant should reasonably anticipate being haled into court there, there's jurisdiction
(World-Wide Volkswagen)
When defendant should reasonably anticipate: when defendant purposefully avails
himself of the privilege of conducting activities within the forum state, thus invoking the
benefits and protections of its laws (Burger King)
Examples:
Individuals:
Citizenship
Physical presence
Corporations:
State of incorporation
Primary place of business
Continuous and systematic contacts
Specific jurisdiction
In short, applies when contact with a forum gives rise to the cause of action
If a defendant has specific contacts with a state, the state can have personal jurisdiction
over the defendant in a case related to those specific contacts (even if those specific
contacts are isolated and sporadic) (Goodyear)
Foreseeability test: if the defendant's conduct and connection with the state are such that the
defendant should reasonably anticipate being haled into court there, there's jurisdiction
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(World-Wide Volkswagen)
When defendant should reasonably anticipate: when defendant purposefully avails
himself of the privilege of conducting activities within the forum state, thus invoking the
benefits and protections of its laws (Burger King)
Just because a corporation might profit from goods used in a certain state doesn't give
that state the right to jurisdiction over a case involving those goods (World-Wide
Volkswagen)
If corporation delivers its products into the stream of commerce with the expectation
that they will be purchased by consumers in a given state, then it's not a violation of the
Due Process Clause for that state to have personal jurisdiction over the corporation in
cases involving those products (World-Wide Volkswagen)
Individuals must have fair warning that a particular activity may subject them to the
jurisdiction of a foreign sovereign (Burger King)
If a forum wants to assert specific jurisdiction over an out-of-state defendant who hasn't
consented to suit there, this fair warning requirement is satisfied if the defendant has
purposefully directed his activities at residents of the forum and the litigation results
from alleged injuries that arise out of or relate to those activities (Burger King)

2.

Notice

a.

Generally

FRCP 4a - summons contents

Must name the court and parties, be directed to D, state the name and address of P's
attorney/P himself, state the time within which D must appear, notify D that failure to
appear may result in default judgment, be signed by the clerk, and bear the court's seal; can
be amended
FRCP 4c - service generally
Summons must be served with a copy of the complaint
By anyone over 18 and not a party or by a US marshal
FRCP 4d - waiver of service
P can send request for waiver of service through first-class mail. If D accepts, D waives
being personally served... but doesn't necessarily consent to personal jurisdiction.
Notice and request must be in writing and be addressed to the D or one of D's officers,
name the court where the complaint was filed, include a copy of the complaint and two
copies of a waiver form and a prepaid means of returning the form, inform the D of the
consequences of waiving and not waiving, state the date when the request is sent, give D
a reasonable time of at least 30 days (or 60 if out of US) to return the waiver, and be sent
by first-class mail or other reliable means
Proof of service for P not required under this
Carrot: D who grants waiver gets 60 days (or 90 if outside US) to answer complaint
(instead of 20)
Stick: Failure to grant means D pays expenses of service (like traveling to D's home to
serve D) regardless of whoever wins the case
FRCP 4e - serving someone inside the US
Methods:
6

Deliver personally
Leave a copy at dwelling with someone of suitable age and discretion who resides
there
Serve authorized agent
Any method consistent with state law
FRCP 4f - serving someone outside the US
Methods:
Internationally agreed upon means
If above doesn't exist, can be any means reasonably calculated to give notice consistent
with international/that country's laws
FRCP 4h - serving a corporation
May be served in US or not in US
If in US, by 4e1 or by delivering summons & complaint to an officer of the corp
If not in US, by 4f (except not by f2Ci)
FRCP 4n - jurisdiction over property
Federal law: can assert jurisdiction over property if authorized by federal statute; notice
must be given as provided in the statute or by serving a summons
State law: if can't reasonably serve via summons, court can assert jurisdiction over assets
found in the district; jurisdiction is acquired by seizing the assets
Notice:
Due Process Clause at minimum requires that deprivation of life, liberty, or property by
adjudication be preceded by notice and opportunity for hearing appropriate to the nature of
the case (Mullane)
Notice must...
Be reasonably calculated, under all circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections
(Mullane)
Be of such a nature as reasonably to convey the required information (Mullane)
Afford a reasonable time for those interested to make their appearance (Mullane)
Means employed must be such as one desirous of actually informing the absentee might
reasonably adopt to accomplish it (Mullane)
Reasonableness (and constitutional validity) of a method can be defended on ground
that it is itself reasonably certain to inform those affected or at least not substantially
less likely to bring home notice than other feasible and customary substitutes
(Mullane)
In general, lesser form of service = appropriate for parties who don't have a lot at
stake & have common enough interests that those who did get notified can
adequately represent them
Personal service always satisfies, but can be overkill (Mullane)
Notice by mail is a good option for large amounts of people (Mullane)
Reasonable risks that notice might not actually reach the beneficiary are
justifiable (Mullane)
Sometimes, publication is okay where it's not reasonably possible or
practicable to give more adequate warning (ex: missing persons, persons
7

unknown, future-interested or tangentially-interested parties) (Mullane)

b.

Relationship with jurisdiction

FRCP 4k - implications of service

Serving summons or filing a waiver establishes personal jurisdiction over D who (A) is
subject to the jurisdiction of a court of general jurisdiction in the state where the district
court is located; (B) who is a party joined under Rule 14 or 19 and is served within a
judicial district of the US and not more than 100 miles from where the summons was issued,
(C) when authorized by federal statute.
Federal law: serving summons or filing waiver establishes personal jurisdiction over D if
(A) D isn't subject to jurisdiction in any state's courts of general jurisdiction, and (B)
exercising jurisdiction is consistent with the Constitution

What type of jurisdiction you can get:

If non-citizen and served in state (in personam/often called tagged jurisdiction): personal
jurisdiction (Milliken)
If citizen and served in state (in personam): personal jurisdiction
If non-citizen and served out of state: no personal jurisdiction unless the non-citizen has
property within the state, and the claims to the property itself are the source of the
underlying controversy (in rem) (Pennoyer)
What kind of notice is needed for absent non-residents:
For in personam jurisdiction, personal service needed (Pennoyer)
For in rem jurisdiction, service by publication suffices (long-arm statutes) (Pennoyer)

3.

Federal Courts

a.

Generally

b.

Federal courts must determine whether there is personal jurisdiction over a defendant:
FRCP 4k: Serving a summons... establishes personal jurisdiction over a defendant: (A)
who is subject to the jurisdiction of a court of general jurisdiction in the state where the
district court is located
FRCP 4k2: A defendant not subject to the jurisdiction of any state court that is served with
process (valid under Due Process Clause) is subject to personal jurisdiction in the federal
courts as long as the assertion of jurisdiction:
(i) is consistent with federal law, and
(ii) does not offend the Constitution
Test = fair play and substantial justice
Personal Jurisdiction vs. Venue

Personal jurisdiction versus venue:

Personal Jurisdiction (mostly = at state level):
What states can I be sued in?
Venue (= at federal level):
Of the states that can assert personal jurisdiction over me, which state is the best place
8

for the case to take place?

What district within a state should the case take place?
c.

Venue

FRCP 12b3: rule for raising issue of venue (defendant's duty to raise issue)
28 U.S.C. 1406: If venue is improper, the case is immediately over and must be transferred

28 U.S.C. 1391: Venue

Venue is proper in:
A judicial district where any defendant resides, if all defendants reside in the same state,
or (Dee-K)
A judicial district in which a substantial part of the events or omissions giving rise to the
claim occurred, or (Dee-K)
What does substantial mean? Depends...
A judicial district in which any defendant may be found, if there is no district in which
the action may otherwise be broughtWhere substantial part of events giving rise to the
claim occurred (Dee-K)
If no other district where case can be brought, venue is appropriate any judicial district in
which any defendant is subject to the court's personal jurisdiction 1391(b)(3)
If District A and District B are in same State A, and Defendant A does $100 million of
business/year in District A (personal jurisdiction), and $0 of business in District B, the
venue appropriate is in District A (if also does $100 million in District B, both districts
are appropriate)
Corporations:
Corporate defendant resides in any judicial district in which it is subject to personal
jurisdiction at the time the action was commenced
Aliens (foreign defendants):
1391d: aliens may be sued in any district, overriding any special venue statute (Dee-K)

d.

Changing Venue

28 U.S.C. 1404: Change of venue

For the convenience of the parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been
brought.

Forum non conveniens

Doctrine:
Plaintiff's choice of forum should rarely be disturbed, but when: (Piper)
An alternative forum has jurisdiction to hear the case, and (Piper)
Trial in the chosen forum would establish oppressiveness and vexation to a
defendant out of all proportion to plaintiff's convenience, or (Piper)
The chosen forum [is] inappropriate because of considerations affecting the court's
own administrative and legal problems (Piper)
The court may, in the exercise of its sound discretion, dismiss the case (Piper)
9

 Exception to the doctrine: foreign plaintiffs, since the forum they choose (often their home
forum outside of the US) is not the most convenient choice (Piper)
Considerations:
The possibility of a change in substantive law should ordinarily not be given conclusive
or even substantial weight in the forum non conveniens inquiry (Piper)
In some cases, it's okay to weigh whether the alt forum would result in an extremely
unfavorable or if no remedy would be given at all (Piper)
Public interest (Piper)
Court's familiarity with the matter (Piper)
Jury's ability to apply the law to the case (Piper)
Forum's interest in the case (Piper)
There's a local interest in having localized controversies decided at home (Piper)
Evidentiary problems (Piper)
Where the majority of evidence lies (Piper)
Where potential third-party defendants are located (Piper)

B.

Subject Matter Jurisdiction (power over subjects)

FRCP 12b1: a party may assert the following defenses by motion: (1) lack of subject-matter
jurisdiction (Hawkins)

1.

Federal Question

28 U.S.C. 1331: "The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States."
Well-pleaded complaint rule: in order for there to be federal question jurisdiction, plaintiff
must plead a federal cause of action in the complaint
Plaintiff alleging some anticipated defense (which can be invalidated by some provision
of the Constitution) to his cause of action is not enough (Louisville)
The plaintiff's original cause of action must arise under the Constitution, laws, or treaties
of the United States (Louisville)

2.

Diversity

a.

Generally

US Constitution, Article III, Section II : The judicial power shall extend to... Controversies...
between Citizens of different States... between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.

FRCP 12b1: a party may assert the following defenses by motion: (1) lack of subject-matter
jurisdiction (Hawkins)

Diversity jurisdiction
28 U.S.C. 1332a1-2: The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum value of $75,000 and is between (1)
citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state
10

(Redner)
How to establish/determine...
Citizenship
A person is a citizen of a state of the United States if he is a citizen of the United
States and is domiciled within the state in question (Redner)
Domicile (for adults): established by physical presence in a place in connection
with a certain state of mind concerning one's intent to remain there (Hawkins)
Can establish domicile where party has moved clothes and other personal
items to the state, contributed to household costs in the state, and purchased a
new bedroom set to stay in the state (Hawkins)
Potential plans to leave the state are not sufficient to overcome evidence of
domicile in that state (Hawkins)
Determined at time of commencement of lawsuit
$$$
That the matter of controversy "exceeds the sum value of $75,000" is presumed to
be satisfied unless from the face of the pleadings, it is apparent, to a legal certainty,
that the plaintiff cannot recover the amount claimed (Redner)
Generally, must have complete diversity
No plaintiff can be a citizen of the same state as any defendant (28 U.S.C. 1441b2 diversity: A civil action otherwise removable solely on the basis of [diversity
jurisdiction] may not be removed if any of the defendants is a citizen of the State
in which such action is brought.)
plaintiffs can be from same state as other plaintiffs
defendants can be from same state as other defendants
Class actions
Class Action Fairness Act allows removal of class action to federal court if
Any member of the class is from a different state than the defendant (called
minimal diversity)
The amount in controversy is in excess of $5 million
b.

Corporations

3.

28 U.S.C. 1332c1: A corporation shall be deemed to be a citizen of any State by which it has
been incorporated and of the State where it has its principal place of business (Hertz)
Nerve center test: principal place of business = place where corporation's officers direct,
control, and coordinate the corporation's activities (nerve center) (normally where its
headquarters are, provided the headquarters is the actual center of direction, control, and
coordination and not just an office where the corporation holds its board meetings) (Hertz)

Supplemental/Pendant/Ancillary

28 U.S.C. 1367a: the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States Constitution (Ameriquest)
(exceptions = 28 U.S.C. 1367b)
11

 Same case or controversy: the state and federal claims must derive from a common nucleus
of operative fact
Common and operative test: compare the facts necessary to prove the elements of the
federal claim with those necessary to the success of the state claim, and ask whether the
state claims can be resolved or dismissed without affecting the federal claims
(Ameriquest)
Loose factual connection can suffice if those facts are both common and operative
(Ameriquest)
28 U.S.C. 1367c - 4 cases where court can choose not to exercise supplemental
jurisdiction:
The claim raises a novel or complex issue of state law (Ameriquest)
Ex: lack of precedent on the issue (Ameriquest)
Ex: foreign country's laws (Szendrey)
The claim substantially predominates over the claim or claims over which the district
court has original jurisdiction (Ameriquest)
The district court has dismissed all claims over which it has original jurisdiction
(Ameriquest)
In exceptional circumstances, there are other compelling reasons for declining
jurisdiction (Ameriquest)

4.

Removal

28 U.S.C. 1441(a): Any civil action brought in State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or the defendants to
the district court of the United States for the district and division embracing the place where
such action is pending.
Limitations
28 U.S.C. 1441b2 - diversity: A civil action otherwise removable solely on the basis
of [diversity jurisdiction] may not be removed if any of the defendants is a citizen of
the State in which such action is brought.
28 U.S.C. 1441c - unrelated state law claims: (c)(1) If a civil action includes (A) a
claim arising under the constitution, laws, or treaties of the United States and (B) a
claim not within the original or supplemental jurisdiction of the district court the
entire action may be removed (2) Upon removal the district court shall sever from
the action all claims described in paragraph (1)(B) and shall remand the severed claims
to the state court from which the action was removed.
Procedure
28 U.S.C. 1446a: A defendant or defendants desiring to remove any civil action
from a state court shall file in the district court of the United States for the district and
division within which such action is pending a notice of removal...
28 U.S.C. 1446b1: Within 30 days after receipt of complaint, or (Caterpillar)
28 U.S.C. 1446b3: Within 30 days after amendment that gives basis for removal
(Caterpillar)
But, a case may not be removed on the basis of [diversity jurisdiction] more
than 1 year after commencement of the action, unless the district court finds the
12

plaintiff has acted in bad faith in order to prevent a defendant from removing the
action. 28 U.S.C. 1446(c)(1)
After removal:
If federal court has no jurisdiction after removal, must remand back down to state court
28 U.S.C. 1447c: If at any time before final judgement it appears the district court
lacks subject matter jurisdiction, the case shall be remanded. (Caterpillar)
Orders remanding generally are not reviewable on appeal or otherwise," but not
necessarily the case for refusals to remand (Caterpillar)
28 U.S.C. 1447e: If after removal the plaintiff seeks to join additional defendants
whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or
permit joinder and remand the action to the state court.

C.

The Erie Doctrine

a.

Generally

Rules of Decision Act (28 U.S.C. 1652): The laws of the several states, except where the
Constitution or treaties of the United States or Acts of Congress otherwise require or provide,
shall be regarded as rules of decision in civil actions in the courts of the United States, in cases
where they apply.

Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be
applied in any case is the law of the State (whether declared by statute or courts) (Erie)
How to determine whether to apply state or federal laws (where there is a relevant federal
rule of civil procedure or federal statute):
Apply state law to substantive matters, not procedural matters (Guaranty Trust)
Outcome-Determinative Test: in all cases where a federal court is exercising
jurisdiction solely because of the diversity of citizenship of the parties, the outcome
of the litigation in the federal court should be substantially the same, so far as legal
rules determine the outcome of a litigation, as it would be if tried in a State court
(Guaranty Trust)
Test applies to substantive matters, not procedural matters, b/c for the most part,
procedure does not substantially affect outcome (as substance does) (Guaranty
Trust)
BUT, where the variation between the state and federal rule is substantial
(Hanna), federal courts should conform as near as may be to state rules even
of form and mode where the state rules may bear substantially on the
question whether the litigation would come out one way in the federal court
and another way in the state court if the federal court failed to apply a
particular local rule (Byrd)
Thus, procedure = generally a federal power (Hanna)
Rules Enabling Act (28 U.S.C. 2072): "(a) The Supreme Court shall have the
power to prescribe general rules of practice and procedure and rules of evidence
for cases in the United States district courts (including proceedings before
magistrates thereof) and courts of appeals. (b) Such rules shall not abridge,
enlarge, or modify any substantive right." (Hanna)
13

 Apply federal law if there is a strong federal interest that outweighs the state interest
(Byrd)
the inquiry here is whether a federal policy favoring jury decisions of disputed fact
questions should yield to a state rule in the interest of furthering the objective that
the litigation should not come out one way in the federal court and another way in
the state court" (Byrd)
Which state's law, though?
Formalistic approach
Based on location of the facts of the case
Modern approach
Based on which state has the greatest interest in the controversy
b

Application to Res Judicata

For a judgement entered by a federal court sitting in diversity, does the law of the state in which
that federal court sits govern the issue of whether the case can be re-filed in another state?
(Semtek)
If there is no relevant federal rule, and... (Semtek)
If the difference between the laws is outcome determinative, and... (Semtek)
If there is no strong federal interest at stake, then... (Semtek)
The law of the state in which that federal court sits governs (Semtek)

II. Pleading: Framing the Issues for Adjudication

A.

The Complaint

a.

Generally

FRCP 8a: pleading that states a claim for relief must contain...
(1) A short and plain statement of the grounds for the court's jurisdiction...
(2) A short and plain statement of the claim showing that the pleader is entitled to relief;
and (Bell, Ashcroft)
(3) a demand for the relief sought...
FRCP 8d: pleading must be concise and direct; alternative statements; inconsistencies
FRCP 11:
Specifics on the complaint:
Signature: every pleading, written motion, and other paper must be signed by at least
one attorney of record in the attorney's name... FRCP 11a
Proper purpose: pleading can't be filed for improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; FRCP 11b1
Legal basis: the claims, defenses, and other legal contentions [must be] warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law FRCP 11b2
Evidentiary support: the factual contentions [must] have evidentiary support after a
reasonable opportunity for further investigation or discovery FRCP 11b3
14

 Sanctions: if, after notice and a reasonable opportunity to respond, the court determines
that Rule 11(b) has been violated, the court may impose an appropriate sanction on any
attorney, law firm, or party that violated the rule or is responsible for the violation
FRCP11c1 (Walker)
Sanctions are limited to pleading[s], written motion[s], and other paper[s] signed
and filed in a given case in violation of the rule (Christian)
Excludes conduct in depositions, discovery meetings of counsel, oral
representations at hearings, and behavior in prior proceedings (Christian)
To impose sanctions under its inherent authority, the court must make an explicit
finding... that counsel's conduct constituted or was tantamount to bad faith
(Christian)
Scope: does not apply to discovery disputes (FRCP 11d)
Initiation:
Separate motion describing specific misconduct must be filed
Party has 21 days after the motion is filed to withdraw the pleading
b.

When the complaint isn't good enough

B.

FRCP 12(e): defendant is entitled to a more definite statement (Bell)

Unless the information the defendant wants is really necessary to enable the party to frame
his responsive pleading, the information should be obtained by interrogatories under Rule
33 or other discovery procedure (Bell)

Responding to the Complaint

1.

Motions to Dismiss

FRCP 12 - motions to dismiss

Jurisdictional
FRCP 12b1 lack of subject matter jurisdiction
FRCP 12b2 lack of personal jurisdiction
Failure to state a claim
A complaint can be dismissed for failure to state a claim upon which relief can be
granted (FRCP 12b6) if "it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief (Conley v. Gibson)
Standard for deciding a 12(b)(6) motion:
A court must:
Assume all allegations made by the complaint are true
Not consider material other than the complaint
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. (Ashcroft)
Does not require detailed factual allegations (Ashcroft)
FRCP 9b:
Requires special particularity when pleading fraud or mistake (Ashcroft)
Allows malice, intent, knowledge, and other conditions of a person's
mind to be alleged generally (Ashcroft)
15

 Generally = just in comparison to the particularity requirement

applicable to fraud or mistake (Ashcroft)
Not akin to a probability requirement
What is facially plausible?
The plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged
(Ashcroft)
Need more than a sheer possibility that a defendant has acted unlawfully
(Ashcroft)
What kind of complaint is deficient?
When a complaint pleads facts that are merely consistent with defendant's
liability, it stops short of the line between possibility and plausibility of
entitlement to relief. (Ashcroft)
Complaint must do more than allege:
unadorned, the-defendant-unlawfully-harmed-me accusations
(Ashcroft)
labels of conclusions or a formulaic recitation of the elements of a cause
of action (Ashcroft)
naked assertions devoid of further factual enhancement (Ashcroft)

2.

Answer

FRCP 8b: three possible answers = admit, deny, insufficient knowledge or information
A party shall state in short and plain terms his defenses to each claim asserted and shall
admit or deny the averments upon which the adverse party relies (Zielinski)
When a pleader intends in good faith to deny only a part or a qualification of an
averment, he shall specify so much of it as is true and material and shall deny only the
remainder (Zielinski)

FRCP 8c: affirmative defenses

Time to respond to the complaint

FRCP 12a1: answer must be filed within 21 days after being served
60 days if defendant waives service
If defendant files a motion to dismiss...
FRCP 12a4: answer must be filed within 14 days of denial of motion

Failure to answer = default judgment

FRCP 55a: When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party's default.

16

C.

Amending the Complaint

a.

Amendments before trial

FRCP 15a1: No need for permission from other side...

Within 21 days after serving
Within 21 days after responsive pleading or Rule 12b motion
FRCP 15a2: Otherwise, need permission from other side or from court
"a party may amend its pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice so requires"
Amendments are barred after the statute of limitations expires unless the amendment relates
back to the date of the original complaint (Moore)
FRCP 15c1: amendment "relates back" to original date when pleading was filed when
"the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out ... in the original pleading" (Moore)
Example:
Complaint filed - March 1, 2013
Statute of limitations expires - March 4, 2013
Amendment - May 1, 2013
If the amendment relates back, it's treated as if it was filed on March 1, 2013
Test: did the original complaint give notice to the defendant of the claim now being
asserted? (Moore)
Meaning, was the defendant advised at the outset of the general facts from which
the belatedly asserted claim arises? (Bonerb)
An amendment which changes the legal theory of the case is appropriate if
the factual situation upon which the action depends remains the same (aka:
derived from the same nucleus of operative facts) and has been brought to
the defendant's attention by the original pleading (Bonerb)
If the motion to amend is done with bad faith, prejudice, or undue delay, the opposing party
must show that and the trial court must inquire into it (Beeck)
b.

Amendments at trial

FRCP 15b1: The Court should freely permit an amendment when doing so will aid in
presenting the merits and the objecting party fails to satisfy the court that the evidence would
prejudice that partys action or defense on the merits"
If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the
court may permit the pleadings to be amended.

D.

Discovery

1.

Generally

FRCP 26b1: Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense (Davis)
FRCP 26b1: "Relevant information need not be admissible at the trial if the discovery
17

appears reasonably calculated to lead to the discovery of admissible evidence" (Davis)

Item must be in "responding party's possession, custody, or control" (Davis)
FRCP 26b2C: Court can limit discovery if it's unreasonably cumulative or duplicative,
obtainable from another source that is more convenient, less burdensome, or less expensive,
or the burden or expense of the proposed discovery outweighs its likely benefit (Davis)
Certifications relating to discovery:
FRCP 26g1: Disclosures and discovery requests, response, or objections must be signed by
attorney
Certification
with respect to a disclosure, it is complete and correct as of the time it is made
consistent with law
not interposed for any improper purpose
neither unreasonable nor unduly burdensome or expensive
Major discovery tools (least to most complex):
Interrogatories
Generally:
Fact-related questions
Ex: "What is the principal place of business of the defendant?"
Contention interrogatories:
FRCP 33a2: "An interrogatory is not objectionable merely because it asks an opinion
or contention that relates to fact or the application of law to fact, but the court may
order that the interrogatory need not be answered until designated discovery is
complete"
Ex: "Are you liable for this tort?"
Document requests
FRCP 34: Can request "any designated documents or electronically stored information"
Examples: "writings, drawings, graphs, charts, photographs, sound recordings,
images, and other data or data compilations"
Depositions
FRCP 30a: "A party may, by oral questions, depose any person, including a party"
Impeaching the witness: reducing/undermining credibility of a witness by showing
they're contradicting what they said in depositions
Objections to discovery requests:
Relevance
Privilege
Undue burden
Vagueness

2.

Spoliation

a.

Generally

Spoliation: the destruction or material alteration of evidence or the failure to preserve property
for another's use as evidence in pending or reasonably foreseeable litigation (Silvestri)
Duty to preserve material evidence arises not only during litigation but also extends to that
18

period before the litigation when a party reasonably should have known that the evidence
may be relevant to anticipated litigation (Silvestri, Zubulake)
If a party cannot fulfill this duty to preserve because he does not own or control the
evidence, he still has an obligation to give the opposing party notice of access to the
evidence or of the possible destruction of the evidence if the party anticipates litigation
involving that evidence (Silvestri)
Spoliation of evidence germane to proof of an issue at trial can support an inference that the
evidence would have been unfavorable to the party responsible for its destruction
(Zubulake)
What evidence must be preserved?
A party must not destroy unique evidence relevant to the claims or defenses of any party,
or which is relevant to the subject matter involved in the action (Zubulake)
It is under a duty to preserve what it knows, or reasonably should know, is relevant
in the action, is reasonably calculated to lead to the discovery of admissible
evidence, is reasonably likely to be requested during discovery and/or is the subject
of a pending discovery request (Zubulake)
Generally doesn't apply to inaccessible evidence, but accessible evidence (Zubulake)
Exception: if a company can identify where particular evidence is, where that
info isn't otherwise available (Zubulake)
Whose documents must be retained?
Duty should extend to documents or tangible things made by individuals likely
to have discoverable information - along with the subjects of that information that the disclosing party may use to support its claims or defenses (Zubulake)
Also should include documents prepared for those individuals, to the extent
those documents can be readily identified (Zubulake)
A party's or anticipated party's relevant documents (but not identical copies) in
existence at the time the duty to preserve attaches and those created thereafter
(Zubulake)
b.

Imposing sanctions

Imposing sanctions:
Court's right to impose sanctions is limited to that necessary to redress conduct which
abuses the judicial process (Silvestri), is confined to the sound discretion of the trial judge,
and is assessed on a case-by-case basis (Zubulake)
Sanctions should serve the prophylactic, punitive, and remedial rationales underlying the
spoliation doctrine (Silvestri)
District court must
Find some degree of fault in order to impose sanctions (Silvestri)
Avoid imposing sanction of dismissal if a lesser sanction will perform the necessary
function (Silvestri)
Dismissal is usually justified only:
In circumstances of bad faith or other like action (Silvestri)
When prejudice to the defendant is extraordinary, denying it the ability to
adequately defend its case (Silvestri)
Possible sanctions:
19

 Reconsideration of a cost-shifting order (Zubulake)

Adverse inference instruction (that it can be inferred from the fact that Party B destroyed
evidence that it would have been favorable to Party A) (Zubulake)
Party seeking an adverse inference instruction based on the spoliation of evidence
must establish:
that the party having control over the evidence had an obligation to preserve it at
the time it was destroyed (Zubulake)
that the records were destroyed with a culpable state of mind (Zubulake)
Culpable state of mind: includes ordinary negligence
Once the duty to preserve attaches, any destruction of documents (within
their control - so, for example, a fire in their office doesn't count) is, at a
minimum, negligent (Zubulake)
If the spoliation is willful (bad faith destruction), the next element
(relevance) is presumed to be established, b/c in the case of willful
spoliation, the spoliator's mental culpability is itself evidence of the
relevance of the documents destroyed (Zubulake)
that the destroyed evidence was relevant to the party's claim or defense such that
a reasonable trier of fact could find that it would support that claim or defense
(Zubulake)
Can look to available evidence to infer what was in destroyed evidence
(Zubulake)
Party must pay the costs of additional depositions (Zubulake)

3.

Privilege/Experts

a.

Privilege

FRCP 26b1: Discovery only extends to any "nonprivileged matter that is relevant" (Hickman)
Also: limitations inevitably arise when it can be shown that the examination is being
conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person
subject to the inquiry (Hickman)
FRCP 26b3: what materials are and aren't privileged
FRCP 26b5: How to claim that materials are privileged
Privilege:
Types:
Attorney-client
Doctor-patient
Marital
Clergy
Protects:
Generally:
A communication;
Made between privileged persons (attorney, client, agents);
In confidence;
For the purposes of obtaining or providing legal assistance for the client.
20

 Work product doctrine: written statements, private memoranda, and personal

recollections prepared or formed by an adverse party's counsel in the course of his legal
duties which one attempts to secure without purported necessity or justification
(Hickman)
Necessity/justification:
Exists where: "the party [seeking the materials] shows that it has substantial need
for the materials to prepare its case and cannot, without undue hardship, obtain
their substantial equivalent by other means." FRCP 26b3
Not necessary if the information is publicly-available (Hickman)
Justified if it would unduly prejudice the preparation of a party's case or cause a
party any hardship or injustice (Hickman)
Does not protect:
information which an attorney secures from a witness while acting for his client in
anticipation of litigation which one attempts to secure with purported necessity or
justification (Hickman)
the memoranda, briefs, communications and other writings prepared by counsel for his
own use in prosecuting his client's case which one attempts to secure with purported
necessity or justification (Hickman)
writings which reflect an attorney's mental impressions, conclusions, opinions or legal
theories which one attempts to secure with purported necessity or justification
(Hickman)
non-privileged facts hidden in an attorney's file, where production of those facts is
essential to the preparation of one's case (Hickman)
Belongs to the client
Can be waived - deliberately or accidentally
b.

Experts

FRCP 26a2:
Generally:
Experts are permitted to speculate/give opinion
Testifying experts must be disclosed at least 90 days before trial
Disclosure must include signed expert report, including:
Opinions of expert
Basis for opinion
Qualifications
List of past cases
Compensation
FRCP 26b4: Discovery and experts
Other side has right to take deposition of testifying expert after report is provided
Drafts of expert report and communications with expert are protected under work
product doctrine (see above)
Non-testifying experts:
Generally not subject to discovery
FRCP 26b4Dii: Except "on showing exceptional circumstances under which it is
21

impracticable for the party to obtain facts or opinion on the same subject by other
means" (Thompson)
Thus, they can be hired to investigate and make an evaluation in connection with
expected litigation rather than simply offering an opinion based on the observation of
others/information they obtained through the normal course of business (Chiquita)
Exceptional circumstance: where the plaintiff allowed its own expert to examine the
item at issue while barring the defendant's experts until the item was no longer
accessible (Chiquita)
Information does not become exempt from discovery merely because it is conveyed to a
non-testifying expert (Chiquita)

4.

Privacy/Sanctions

a.

Privacy

b.

Protective orders:
FRCP 26c1: "a party or any person from whom discovery is sought may move for a
protective order ... the court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense" (Stalnaker)
May do so by:
precluding any inquiry into areas that are clearly outside the scope of appropriate
discovery (Stalnaker)
use the discovery only for the purposes of that litigation so that the information shall
not be disclosed to anyone outside of the litigation (Stalnaker)
Party seeking the protective order has the burden to show good cause for it (Stalnaker)
To establish good cause, that party must submit a particular and specific demonstration
of fact, as distinguished from stereotyped and conclusory statements (Stalnaker)
As related to parties' sexual histories:
FRE 412a: evidence offered to prove that any alleged victim engaged in other sexual
behavior or to prove any alleged victim's sexual predisposition is not admissible in any
civil or criminal proceeding involving alleged sexual misconduct except as provided in
subdivisions b and c (Stalnaker)
Rule does not apply unless the person against whom the evidence is offered can
reasonably be characterized as a victim of alleged sexual misconduct (Stalnaker)
FRCP 26g: everything must be signed
Sanctions

FRCP 37a: "a party may move for an order compelling disclosure or discovery"
FRCP 37b: Sanctions for failure to comply:
Dismissal
Prohibit use of defenses
Treating issues of fact as established
Contempt

22

E.

Summary Judgment

Difference between summary judgment & 12b6

12b6: "If all of the facts are true, do they even have a legal issue?"
Before discovery
Assume all facts are true
Look only at the complaint
Summary judgment: "Do they have evidence to prove their claim?"
After discovery
Look outside of the complaint - affidavits, documents, deposition transcript
Plaintiff's burden is higher

Standard:
FRCP 56a: "The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a matter
of law."
How much evidence is enough to create a disputed fact?
Courts generally are not supposed to weigh the strength of the evidence
However, extremely weak evidence might not create a genuine issue of factual
dispute

Procedure:
Burden: a party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
particular part of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations, admissions, and interrogatory
answers, which it believes demonstrate the absence of a genuine dispute (Celotex, Bias)
No express/implied requirement that the moving party support its motions with
affidavits or other similar materials negating the opponent's claim (Celotex)
Must only make a showing supporting its claims insofar as those claims involve
issues on which it will bear the burden at trial (Bias)
Motion can be opposed by using any of the kinds of evidentiary materials listed in 56c
(depositions, answers to interrogatories and admissions on file, affidavits, etc.) except
the mere pleadings themselves (Celotex)
How to win:
Generally:
Motion is appropriate, no matter which party is the moving party, where a party fails
to make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial (Bias)
Nonmoving party must do more than simply show that there is some
metaphysical doubt as to the material facts, but come forward with specific facts
showing that there is a genuine issue for trial (Bias)
In evaluating this, court must draw from the evidence all justifiable
inferences in favor of the nonmovant (Bias)
For the defendant to win on summary judgment:
23

Test #1: defendant must affirmatively produce evidence showing that plaintiff cannot
establish an essential element (Adickes)
Test #2 (overturning Adickes): Defendant only needs to show the plaintiff does not
have evidence to establish one element of the claim (Celotex)
For plaintiff to win on summary judgment:
Must show that undisputed evidence establishes every element of claim

FRCP 56d: premature motion

What if the moving party moves for summary judgment before the nonmoving party has had
an opportunity to make full discovery? (Celotex)
"If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order" (Celotex)

III. Trial
A.

Judge vs. Jury

B.

US Constitution Amendment VII: In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury
shall be otherwise reexamined in any court of the US, than according to the rules of the
common law
FRCP 38: right to a jury trial

Selecting a Jury

FRCP 38 - demand requirement: "a party waives a jury trial unless its demand is properly
served and filed"
FRCP 48a-b: "A jury must initially have at least 6 and no more than 12 members ... unless
the parties stipulate otherwise, the verdict mus be unanimous and be returned by a jury of at
least 6 members"
FRCP 47 - voir dire: "the court may permit the parties or their attorneys to examine
prospective jurors or may itself do so. If the court examines the jurors, it must permit the
parties or their attorneys to make any further inquiry it considers proper, or must itself ask
any of their additional questions it considers proper"
FRCP 47b - peremptory challenges (excuse for no reason): "the court must allow the
number of peremptory challenges provided by 28 U.S.C. 1870"
Batson challenge: arguing for the invalidity of a trial on the basis that peremptory
challenges are based on discrimination of juror's race/sex
Burden then on party exercising peremptory challenge to give nondiscriminatory reason for selection
FRCP 47c - good cause challenges (excuse for reason): "During trial or deliberation, the
court may excuse a juror for good cause"
When there is good cause:
24

C.

If a juror says they cannot be fair, the judge would of course have had to strike
them for cause (Altheimer)
If a plaintiff can show that juror should have been struck for cause, the plaintiff
doesn't have to show that the juror's presence on the jury caused the jury to side
with the defendant (Altheimer)
When there is not good cause:
Juror's holding and expressing rational beliefs/preconceptions does not mean the
juror is biased (Altheimer)
If a juror doesn't say that they cannot be fair but has beliefs, the judge should
follow up by asking whether the juror will follow instructions on the law and
suspend judgment until having heard all of the evidence (Altheimer)

Controlling the Jury

1.

Instructions

2.

FRCP 51a1: "At the close of evidence or at any earlier reasonable time that the court orders, a
party must file and furnish to every other party written requests for the jury instructions it wants
the court to give"

Judgments as a Matter of Law/New Trials

Judgment as matter of law vs. summary judgment

Summary judgment:
After discovery/before trial
Paper evidence
Judge must favor the nonmoving party
Granted when "no genuine issue" as to any "material fact"
Judgment as a matter of law:
After other side presents its case/after a jury verdict
Both paper and live evidence (some summary judgment evidence may not have been
admitted into evidence)
Judge must favor the nonmoving party
Granted when "a reasonable jury would not have a legally sufficient basis to find for the
[nonmoving] party"

Judgment as matter of law

Motion for directed verdict (before verdict/during trial):
FRCP 50a: "if a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may ... (A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party"
Judgment notwithstanding the verdict (after verdict):
FRCP 50b: after the verdict, "the movant may file a renewed motion for judgment as a
matter of law and may include an alternative or joint request for a new trial under Rule
25

59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict;
(2) order a new trial; or (3) direct the entry of judgment as a matter of law."
Judge must view evidence in light most favorable to non-moving party (Norton)
Judge should grant the judgement only where the evidence so strongly and so
favorably points in the favor of the moving party that reasonable people could not
arrive at a contrary verdict (Norton)

When to move for judgment as a matter of law:

Plaintiff's case
Opening statement
Plaintiff calls witnesses; introduces evidence
Direct examination
Cross-examination
Re-direct
Defendant moves for directed verdict
Defendant's case
Defendant calls witnesses; introduces evidence
Direct examination
Cross-examination
Re-direct
Plaintiff moves for directed verdict
Closing arguments
Judge instructs jury
Verdict
Losing party moves for judgment notwithstanding the verdict

FRCP 59a1 - new trial: "the court may, on motion, grant a new trial on all or some of the
issues... (A) after a jury trial, for any reason for which a new trial has heretofore been granted in
an action at law in federal court"
Grounds for new trial:
Procedural (circumstances which the jury has no control over)
Reasons:
Prejudicial remarks/evidence (Lind)
Incorrect instructions (Lind)
Misbehavior
Not a usurpation by the court of the prime function of the jury as the trier of the
facts, so the judge must be allowed wide discretion here (Lind)
Substantive
Reasons:
Verdict is "contrary to the weight of the evidence" (Lind)
Judge should not set the verdict aside as contrary to the weight of the
evidence and order a new trial simply because he would have come to a
different conclusion if he were the trier of the facts (Lind)
The judge, exercising a mature judicial discretion, should view the
26

3.

verdict in the overall setting of the trial; consider the character of the
evidence and the complexity or simplicity of the legal principles which
the jury was bound to apply to the facts; and abstain from interfering with
the verdict unless it is quite clear that the jury has reached a seriously
erroneous result (Lind)
More controversial than granting new trial on procedural grounds
Judge should scrutinize verdict more in complex cases as opposed to simple cases
(Lind)
Requires closer scrutiny by appellate courts than when new trials are granted for
other reasons (Lind)

Random

a.

How the jury should rule

b.

How the jury should rule:

Plaintiffs are not entitled to a verdict based on speculation and conjecture (Norton)
When the evidence tends equally to sustain either of two inconsistent propositions,
neither of them can be said to have been established by legitimate proof. A verdict in
favor of the party bound to maintain one of those propositions against the other is
necessarily wrong (Pennsylvania Railroad)
The jury is permitted to reconstruct the series of events by drawing an inference upon an
inference (Norton)
But, when positive and otherwise uncontradicted testimony of unimpeached
witnesses exists that is consistent with the facts actually proven and from which
testimony it affirmatively appears that the fact sought to be inferred did not exist, the
desired inference is precluded (Pennsylvania Railroad)
Remitter vs. Additur

Remitter vs. Additur

Remitter: decreasing damages granted by jury
Additur: increasing damages granted by jury

IV. Appeal
A.

When can you appeal?

a.

Generally

The laws:
28 U.S.C. 1291: "The courts of appeals ... shall have jurisdiction of appeals from all final
decisions of the district courts of the United States ... except where a direct review may be
had in the Supreme Court." (Lauro Lines)
28 U.S.C. 1292a: ...the courts of appeals shall have jurisdiction of appeals from:
(Liberty Mutual)
27

(1) Interlocutory orders of the district courts of the United States ... or of the judges
thereof, granting, continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions, except where a direct review may be had
in the Supreme Court; (Liberty Mutual)
(2) Interlocutory orders appointing receivers, or refusing orders to wind up
receiverships or to take steps to accomplish the purposes thereof, such as directing
sales or other disposals of property; (Liberty Mutual)
(3) Interlocutory decrees of such district courts or the judges thereof determining the
rights and liabilities of the parties to admiralty cases in which appeals from final
decrees are allowed. (Liberty Mutual)
28 U.S.C. 1292b: When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that such order involves
a controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in such order. The Court
of Appeals which would have jurisdiction of an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken from such order, if application is made to it
within ten days after the entry of the order: Provided, however, That application for an
appeal hereunder shall not stay proceedings in the district court unless the district judge
or the Court of Appeals or a judge thereof shall so order. (Liberty Mutual)
b.

Finality

When are decisions final?

Final judgment = generally regarded as a decision by the District Court that ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment
(Lauro Lines)
where assessment of damages or awarding of other relief remains to be resolved, the
judgment has never been considered to be "final" (Liberty Mutual)
FRCP 54b: when an action presents more than one claim for relief... the court may direct
entry of a final judgment as to one or more, but fewer than all, claims or parties only if the
court expressly determines that there is no just reason for delay. Otherwise, any order or
other decision, however designated, that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not end the action as to any of the claims or
parties and may be revised at any time by that court before the entry of a judgment
adjudicating all the claims and all the parties' rights and liabilities (Liberty Mutual)
Single claim with different kinds of relief prayed for where not all forms of the relief
have been ruled upon is not final (Liberty Mutual)

What can and can't be immediately appealed before finality of decision:

Motion to dismiss:
If granted, appealable
If denied, not appealable
Except in re: collateral order doctrine (see subsection d below) (Lauro Lines)
Summary judgment:
If granted, appealable
28

 If denied, not appealable

Motion for directed verdict:
If granted, appealable
If denied, not appealable
Motion for judgment notwithstanding the verdict:
If granted, appealable
If denied, appealable
c.

Interlocutory

d.

What is interlocutory?
Intermediate stage between commencement and final decision on a cause of action
28 U.S.C. 1292a1: interlocutory orders granting, modifying, refusing or otherwise
affecting injunctions may receive immediate review prior to final judgment in the case
Failure to grant an injunction =/= denial of an injunction (Liberty Mutual)
Partial summary judgment = also interlocutory (Liberty Mutual)
28 U.S.C. 1292b allows for interlocutory appeals when three requirements are met:
Trial court must have issued an order from which appeal is taken;
Trial court must exercise its discretion to certify that the order
involves a controlling question of law as to which there is substantial ground for
difference of opinion; and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation; and
Court of appeals must also agree in its discretion to allow the appeal
Collateral Order Doctrine

1291 permits an immediate appeal of an order denying a motion to dismiss (before

finality of decision) only if it falls within the collateral order doctrine (Lauro Lines)
Collateral order doctrine: exception for a small class of prejudgment orders that
finally determines claims of right separable from, and collateral to, rights asserted in
the action, and that are too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the whole case is
adjudicated (Lauro Lines)
To fall within this category, order must meet 3 conditions:
It must conclusively determine the disputed question (Lauro Lines)
It must resolve an important issue completely separate from the merits of the
action (Lauro Lines)
It must be effectively unreviewable on appeal from a final judgment (Lauro
Lines)
Effectively unreviewable on appeal from a final judgment: where the
order at issue involves an asserted right, the legal and practical value of
which would be destroyed if it were not vindicated before trial (Lauro
Lines)
Satisfies this:
Deprivation of a right not to be tried in criminal prosecutions
29

(Lauro Lines)
Denial of a motion to dismiss based upon a claim of absolute
immunity from suit (entitlement to avoid suit) (Lauro Lines)
Doesn't satisfy this:
Costs associated with unnecessary litigation (Lauro Lines)
Suit lacking jurisdiction in the court it's in/entitlement to be sued
only in a particular forum (forum-selection clause) (Lauro Lines)

B.

Scope of Review

Appellate review of...

Facts:
FRCP 52a: findings of fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility of the
witnesses (Anderson)
Clearly erroneous = when although there is evidence to support the finding, the
reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed (Anderson)
Where there are two permissible views of the evidence, the fact-finder's choice
between them cannot be clearly erroneous (Anderson)
This is so even when the district court's findings do not rest on credibility
determinations, but are based instead on physical or documentary evidence or
inferences from other facts (Anderson)
Law:
de novo (can try the case again)
Procedural decisions:
Was there an abuse of discretion?
Forum non conveniens
New trials
Amendments

V. Complex Litigation
A.

Prior Judgments

Claims vs. Issues

Claims
Causes of action - multiple elements must be satisfied
Issues
A single element of a cause of action
Res judicata vs. collateral estoppel
Res judicata (claims) - bars bringing the same claim twice
Collateral estoppel (issues) - bars re-litigating the same issue twice
There are circumstances where the policies underlying claim and issue preclusion may be
overcome, including where there has been manifest error in the record of a prior proceeding or
30

if manifest injustice would result (Kovach)

1.

Res Judicata (claim preclusion)

a.

Generally

Res Judicata
Final judgment on the merits in Suit A precludes filing Suit B when:
Parties in Suit A and Suit B (or their privies) are identical (Frier, Searle, Kovach)
If the subsequent suit involves different parties, those parties cannot be bound by the
prior judgment (Searle)
Exception:
Adequate representation IS an exception: (Taylor)
Party's representation of a nonparty is adequate for preclusion purposes
only if, at minimum: (Taylor)
The interests of the nonparty and her representative are aligned
(Taylor)
Either the party understood herself to be acting in a representative
capacity or the original court took care to protect the interests of the
nonparty (Taylor)
Sometimes necessary: there was notice of the original suit to the
persons alleged to have been represented (Taylor)
Examples:
Agreement by the parties to be bound by a prior action (Taylor)
Preexisting substantive legal relationships (such as preceding and
succeeding owners of property) (Taylor)
Adequate representation by someone with the same interests who was
a party (such as trustees, guardians, and other fiduciaries) (Taylor)
A party assuming control over prior litigation (Taylor)
Party who loses an individual suit then suing again, this time as the
representative of a class (Taylor)
Special statutory schemes such as bankruptcy and probate
proceedings, provided those proceedings comport with due process
(Taylor)
Virtual representation is NOT an exception: (Taylor)
Virtual representation: appropriate when "the relationship between a
party and a non-party is 'close enough' to bring the second litigant within
the judgment" (Taylor)
Close enough = determined by heavily fact-driven and equitable
inquiry (Taylor)
Cause of action in Suit A and Suit B are identical (Frier, Searle)
Cause of action is identical where the evidence necessary to sustain a second verdict
would sustain the first, i.e. where the causes of action are based upon a common core
of operative facts (Frier)
Two suits may entail the same cause of action even though they present different
31

legal theories (Frier)

There's a final judgment on the merits rendered without fraud or collusion by a court of
competent jurisdiction (Gargallo)
Dismissal with prejudice = final judgment rendered upon the merits (Gargallo)
First suit operates as an absolute bar to a subsequent action not only as to every matter
which was offered and received to sustain or defeat the claim or demand, but as to any other
admissible matter which might have been offered for that purpose (Frier, Searle, Kovach)
b.

Who does it apply to?

2.

Administrative courts:
Applies in administrative cases when the agency is acting in a judicial capacity, resolving
disputed issues of fact properly before it which the parties have an adequate opportunity to
litigate (Kovach)
The threshold inquiry is whether the earlier proceeding is the essential equivalent of a
judicial proceeding (Kovach)
Ex: can party appeal up to a judicial court? (Kovach)
Federal courts:
28 U.S.C. 1738: (Gargallo)
Full faith and credit statute requires a federal court to give a state court judgment the
same preclusive effect such judgment would have in a state court (Gargallo, Dupasseur,
Semtek)
Even as to claims within the exclusive jurisdiction of the federal courts (Gargallo)
Other states:
Full faith & credit clause (28 U.S.C. 1738): requires that judicial proceedings shall have
the same full faith and credit in every court within the United States as they have by law or
usage in the courts of such state from which they are taken (Durfee)
A judgment is entitled to full faith and credit - even when the original court didn't have
jurisdiction - when the second court's inquiry disclosed that those questions have been
fully and fairly litigated and finally decided without fraud in the court which rendered
the original judgment (Durfee)
Thus, generally requires every state to give to a judgment at least the res judicata
effect which the judgment would be accorded in the state which rendered it (Durfee)

Collateral Estoppel (issue preclusion)

a.

Generally

Collateral Estoppel:
If an issue of fact or law was decided in Case A, that identical issue can not be relitigated in
Case B (Kovach) if the issue was:
actually litigated and determined
by valid and final judgment on the merits (Searle)
and the determination was essential to judgment
How to determine if issue was previously decided:
Where a judgment may have been based upon either or any of two or more distinct facts,
32

a party desiring to plead collateral estoppel upon a particular fact involved in a

subsequent suit must show that the previous verdict went upon that fact, or else the
question will be open to a new contention (Illinois Central)
Collateral estoppel of a fact is only presumptively conclusive when it appears that
the judgment could not have been rendered without deciding that particular fact
(Illinois Central)
Can be different parties
Parties:
Mutuality - Case A & Case B involve the same parties or those in privity* with the
parties (uncontroversial)
Non-mutual - Case A & Case B involve different parties or those in privity* with the
parties (controversial)
Can only be asserted AGAINST a party in the subsequent suit who was also a
party or in privity* with a party in the prior suit... (Searle)
Plaintiff A sues Defendant B, Defendant B loses; Plaintiff C can assert
collateral estoppel against Defendant B
...not BY the party in the subsequent suit who was also a party or in privity* with
a party in the prior suit
Plaintiff A sues Defendant B, Defendant B wins; Defendant B can not assert
collateral estoppel against Plaintiff C
What if there are inconsistencies in judgments on the same issue?
If the prior determination was manifestly erroneous the judgment should not be given
preclusive effect (State Farm)
4 tests to applying collateral estoppel:
Was the issue decided in the prior adjudication identical with the one presented in the
action in question? (Searle)
Was the issue in the first case competently, fully, and fairly litigated? (Searle)
Was there a final judgment on the merits? (Searle)
Was the party against whom the plea is asserted a party or in privity with a party to the
prior adjudication? (Searle)
*In privity = person so identified in interest with another that he represents the same
legal right; one whose interest has been legally represented at the time - includes
mutual or successive relationships to rights in property (Searle)
Agents and principals don't have any mutual or successive relationship to rights
of property and are not, as a consequence thereof, in privity with each other
(Searle)
b.

Offensive v. Defensive

2 different types of collateral estoppel:

Defensive - less controversial (Parklane Hosiery)
Used to defeat a cause of action (Parklane Hosiery)
Defendants B & C allegedly commit a tort that harms Plaintiff A
Case 1: Plaintiff A sues Defendant B, Plaintiff A loses because court finds
Plaintiff A was not injured
Case 2: Plaintiff A sues Defendant C, Defendant C can assert collateral estoppel
33

defensively against Plaintiff A to establish Plaintiff A was not injured

Offensive - more controversial (Parklane Hosiery)
Used to establish a cause of action (Parklane Hosiery)
Defendant B commits tort that harms Plaintiff A and Plaintiff C
Case 1: Plaintiff A sues Defendant B, Plaintiff A wins - Defendant B was found
to have acted negligently
Case 2: Plaintiff C sues Defendant B, Plaintiff C can use collateral estoppel
offensively against Defendant B to establish he acted negligently
Problems:
What if original plaintiff loses?
Could defendant assert collateral estoppel against second plaintiff?
No - second plaintiff never had a chance to litigate the issue
Second plaintiff is not bound by first plaintiff's loss
Fairness test: in cases where a plaintiff could easily have joined in the earlier action (had
opportunity/incentive to join) or where the application of offensive estoppel would be
unfair to a defendant (inconsistent judgments), a trial judge should not allow the use of
offensive collateral estoppel (Parklane Hosiery)
c.

Who does it apply to?

3.

Applies not only to judicial adjudications, but also to determinations made by agencies other
than courts, when such agencies are acting in a judicial capacity (Kovach)

Collateral Attack and Reopening Judgments

Collateral Attack
Preventing it:
28 U.S.C. 1738: [J]udicial proceedings [of the States] shall have the same full faith
and credit in every court within the United States and its Territories and Possessions as
they have by law or usage in the courts of such State, Territory or Possession from
which they are taken.

Reopening judgments
FRCP 60b: 1 year period to reopen judgment on grounds of mistake, newly discovered
evidence, fraud, or void judgment should be available only to prevent a grave miscarriage of
justice (Beggerly)
Not being careful/thorough =/= grave miscarriage of justice (Beggerly)
Must be reserved for those cases of injustices which, in certain instances, are deemed
sufficiently gross to demand a departure from rigid adherence to the doctrine of res
judicata (Beggerly)
FRCP 60c: timing & effect of the motion
FRCP 60d: If the right to make a motion is lost by the expiration of the time limits fixed in
these rules, the only other procedural remedy is by a new or independent action to set side a
judgment upon those principles which have heretofore been applied in such an action
(Beggerly)

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B.

Additional Parties and Claims

1.

Joinder of Claims

a.

Generally

FRCP 18a: A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as
independent or alternative claims, as many claims as it has against an opposing party
Types of claims
Counterclaim
2 types:
FRCP 13a: compulsory
A pleading must state as a counterclaim any claim that - at the time of its service
- the pleader has against an opposing party if the claim: (A) arises out of the
transaction or occurrence that is the subject matter of the opposing party's claims
Tests for when a claim and counterclaim arise out of the same transaction
(affirmative answer to any means it's compulsory): (Plant)
Are the issues of fact and law raised by the claim and counterclaim
largely the same? (Plant)
Would res judicata bar a subsequent suit on defendant's claim absent the
compulsory counterclaim rule? (Plant)
Will substantially the same evidence support or refute plaintiff's claim as
well as defendant's counterclaim? (Plant)
Is there any logical relation between the claim and the counterclaim?
(Plant)
A loose standard which permits a broad realistic interpretation
(Plant)
Exists when the counterclaim arises from the same aggregate of
operative facts in that the same operative facts serve as the basis of
both claims or the aggregate core of facts upon which the claim rests
activates additional legal rights, otherwise dormant, in the defendant
(Plant)
Negates logical relation: if claim & counter are too abstract/tenuous
to regard as logically related (Plant)
If original claim is brought in federal court, compulsory counterclaim falls
within the supplemental jurisdiction of the federal courts, even if it would
ordinarily be a matter for state court consideration (Plant)
FRCP 13b: permissive
A pleading may state as a counterclaim against an opposing party any claim that
is not compulsory
If original claim is brought in federal court, permissive counterclaim must have
independent jurisdictional basis (federal question/diversity) to also be taken up in
federal court (Plant)
FRCP 13c: a counterclaim need not diminish or defeat the recovery sought by the
opposing party. It may request relief that exceeds in amount or differs in kind from
35

the relief sought by the opposing party.

Cross-claim
FRCP 13g: A pleading may state as a crossclaim any claim by one party against a
coparty if the claim arises out of the transaction or occurrence that is the subject
matter of the original action or of a counterclaim, or if the claim relates to any
property that is the subject matter of the original action. The crossclaim may include
a claim that the coparty is or may be liable to the crossclaimant for all or part of a
claim asserted in the action against the crossclaimant.
If original claim is brought in federal court, cross-claim falls within the
supplemental jurisdiction of the federal courts (Owen)

2.

Joinder of Parties

a.

Permissive

FRCP 20a1: Persons may join in one action as plaintiffs if: (Mosley)
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(Larson, Mosley)
FRCP 13a: transaction is a word of flexible meaning. It may comprehend a series of
many occurrences, depending not so much upon the immediateness of their connection
as upon their logical relationship (Mosley)
All logically related events entitling a person to institute a legal action against
another generally are regarded as comprising a transaction or occurrence (Mosley)
Basically, all reasonably related claims for relief by or against different parties can
be tried in a single proceeding (Mosley)
(B) any question of law or fact common to all plaintiffs will arise in the action (Mosley)
Doesn't require that all questions of law and fact raised by the dispute be common
(Mosley)
But also doesn't establish qualitative/quantitative test of commonality (Mosley)
FRCP 23a:
With specific regard to employment discrimination, courts have found that the
discriminatory character of a defendant's conduct is basic to the class, and the fact
that the individual class members may have suffered different effects from the
alleged discrimination is immaterial for the purposes of the prerequisite (Mosley)
Although the actual effect of a discriminatory policy may thus vary throughout
the class, the existence of the discriminatory policy threatens the entire class.
And whether the Damoclean threat of a racially discriminatory policy hangs over
the racial class is a question of fact common to all the members of the class.
(Mosley)

Bringing in third parties (impleader)

Rule:
FRCP 14a1: a defending party may, as a third-party plaintiff, serve a summons and
complaint on a nonparty who is or may be liable to it for all or part of the claim against
it
36

 FRCP 14b: Plaintiff can bring in third party defendant whenever defendant can
FRCP 14a3: the plaintiff may assert against the third-party defendant any claim arising
out of the transaction or occurrence that is the subject matter of the plaintiffs claim
against the third-party plaintiff.
Limitations:
Defendant...
Can only sue a third party who is or may be liable to it for all or part of the claim
against it - in other words, the third party's liability must be in some way derivative
of the original claim (Price)
Even though it may arise out of the same general set of facts as the main claim, a
third party claim will not be permitted when it is based upon a separate and
independent claim (Price)
Must be trying to pass all or part of the liability onto that third party (Price)
Depends upon the existence of a right to indemnity (security or protection against a loss
or other financial burden) under the substantive law (Price)
Implied contractual indemnity:
Manufacturer of a product has impliedly agreed to indemnify the seller when:
(Price)
The seller is without fault (Price)
The manufacturer is responsible (Price)
The seller has been required to pay a monetary judgment (Price)
Relation to federal jurisdiction:
If action is in federal court under diversity jurisdiction, third party claim (which adds
a nondiverse party) cannot be joined via supplemental jurisdiction b/c it violates
complete diversity (Owens)
28 U.S.C. 1367(b): In any civil action of which the district courts have
original jurisdiction founded solely on section 1332 of this title (diversity), the
district courts shall not have supplemental jurisdiction under subsection (a) over
claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 . . .
when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332.

b.

FRCP 20b & 42b: vest in the district court the discretion to order separate trials or make such
other orders as will prevent delay or jurisprudence (Mosley)
Compulsory

Compulsory Joinder
FRCP 19a: A person who is subject to service of process and whose joinder will not deprive
the court of subject-matter jurisdiction must be joined as a party (Martin) if:
(A) in that persons absence, the court cannot accord complete relief among existing
parties; or
(B) that person claims an interest relating to the subject of the action and is so situated
that disposing of the action in the persons absence may:
(i) as a practical matter impair or impede the persons ability to protect the interest;
or
37

(ii) leave an existing party subject to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of the interest
FRCP 19b: If a person who is required to be joined if feasible cannot be joined, the court
must determine whether, in equity and good conscience, the action should proceed among
the existing parties or should be dismissed. (Martin) The factors for the court to consider
include:
(1) the extent to which a judgment rendered in the persons absence might prejudice that
person or the existing parties; (Helzbergs)
Look to whether absent party's rights/obligations will be determined in this suit to
which they are not a party (Helzbergs)
Look to whether it would lead to inconsistent obligations on the part of an existing
party (which are not existing party's fault) (Helzbergs)
(2) the extent to which any prejudice could be lessened or avoided by; (Helzbergs)
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the persons absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for
nonjoinder
It is generally recognized that a person does not become indispensable to an action to
determine rights under a contract simply because that person's rights or obligations under an
entirely separate contract will be affected by the result of the action (Helzbergs)

3.

Intervention

Intervention:
Intervention of right (court must permit an applicant to intervene):
"claims an interest relating to the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a practical matter impair or impede
the movant's ability to protect its interest, unless existing parties adequately represent
that interest"
Test:
Whether the applicant claims an interest relating to the property or transaction which
is the subject of the action (NRDC)
Example of claiming an interest = if the ruling could impact the applicant
(NRDC)
Whether the claimants are so situated that the disposition of the action may as a
practical matter impair or impede their ability to protect the applicant's interest
(NRDC)
Not limited to applicant being bound res judicata - includes if the action would
have a stare decisis effect on the applicant (NRDC)
Whether the applicant's interest is not adequately represented by existing parties
(NRDC)
Unless it is clear that the party will provide adequate representation for the
applicant, the applicant ordinarily should be allowed to intervene (NRDC)
If an applicant's interest is similar to, but not identical with, that of one of the
38

parties, a discriminating judgment is required on the circumstances of the

particular case (NRDC)
Permissive intervention (court can permit an applicant to intervene):
FRCP 24b1B: when an applicant "has a claim or defense that shares with the main
action a common question of law or fact"
FRCP 24b3: "in exercising its discretion, the court must consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties'
rights"
The law does not impose upon any person absolutely entitled to a hearing the burden of
voluntary intervention in a suit to which he is a stranger (Martin)
Intervention (both as of right and permissive) are both inherently permissive in that
the court either must or can PERMIT an applicant to intervene - court cannot force a
party to intervene (only to join) (Martin)

C.

Class Actions

1.

What is a Class?

FRCP 23: governs class certification; party must affirmatively demonstrate compliance with it
to become certified as a class (Wal-Mart)
FRCP 23a requirements:
Numerosity:
Commonality:
Requires there be questions of law or fact common to all of the class members
(Wal-Mart)
Requires the plaintiff to demonstrate that the class members have suffered the same
injury (not merely that they have all suffered a violation of the same provision of
law) (Wal-Mart)
Claims must depend on a common contention which is of such a nature that it is
capable of classwide resolution (Wal-Mart)
Determination of its truth or falsity must resolve an issue that is central to the
validity of each one of the claims in one stroke (Wal-Mart)
Capacity of classwide proceeding to generate common answers apt to drive the
resolution of the litigation (Wal-Mart)
Might establish this in employment discrimination cases where: (1) the employer
used a biased testing procedure for employment/promotions; or (2) there is
significant proof that an employer operated under a general policy of discrimination
(Wal-Mart)
Typicality:
Class representative must be part of the class and possess the same interest and
suffer the same injury as the class members (Wal-Mart)
Adequate representation:
FRCP 23g: appointing class counsel
FRCP 23b - proposed class must satisfy at least one of the three requirements:
FRCP 23(b)(1):
39

Justification for a group to be treated as a class under this requirement: individual

adjudications would be unworkable (Wal-Mart)
Mandatory class - no opportunity for class members to opt out & doesn't oblige
district court to afford them notice of the action (Wal-Mart)
FRCP 23(b)(2):
applies when the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole (Wal-Mart)
Applies only when a single injunction or declaratory judgment would provide relief
to each member of the class (Wal-Mart)
Claims for individualized monetary relief can't be certified under this (WalMart)
Key to the FRCP 23b2 class is the indivisible nature of the injunctive or
declaratory remedy warranted - the notion that the conduct is such that it can
be enjoined or declared unlawful only as to all of the class members or as to
none of them (Wal-Mart)
Mandatory class - no opportunity for class members to opt out & doesn't oblige
district court to afford them notice of the action (Wal-Mart)
FRCP 23(b)(3):
Framed for situations in which class-action treatment is not as clearly called for
(Wal-Mart)
Allows class certification in a much wider set of circumstances but with greater
procedural protections (Wal-Mart)
Prerequisites:
Questions of law or fact common to class members predominate over any
questions affecting only individual members (Wal-Mart)
Class action is superior to other available methods for fairly and efficiently
adjudicating the controversy (Wal-Mart)
Individualized monetary claims belong here (Wal-Mart)
Not mandatory - class members are entitled to receive the best notice that is
practicable under the circumstances and to withdraw from the class at their option
(Wal-Mart)
FRCP 23c: certification order, notice to class members, judgment, issues classes, subclasses

2.

When are absent class members bound by a class action?

One is not bound by a judgment in personam in a litigation in which he is not designated as a

party or to which he has not been made a party by service of process (Hansberry)
Consequences:
A judgment rendered in such circumstances is not entitled to the full faith and credit
which the Constitution and statutes of the US prescribe (Hansberry)
Judicial action enforcing it against the person or property of the absent party is not that
due process which the Fifth and Fourteenth Amendments require (Hansberry)
However...
To an extent not precisely defined by judicial opinion, the judgment in a "class" or
"representative" suit, to which some members of the class are parties, may bind
40

members of the class or those represented who were not made parties to it (Hansberry)
There has been a failure in due process only in those cases where it cannot be said
that the procedure adopted fairly insures the protection of the interests of absent
parties who are to be bound by it (Hansberry)
Members of a class not present as parties to the litigation may be bound by the
judgment... (Hansberry)
Where they are in fact adequately represented by parties who are present, or
(Hansberry)
Where they actually participate in the conduct of the litigation in which members of
the class are present as parties, or (Hansberry)
Where the interest of the members of the class, some of whom are present as parties,
is joint, or (Hansberry)
Where for any other reason the relationship between the parties present and those
who are absent is such as legally to entitle the former to stand in judgment for the
latter (Hansberry)
This satisfies the requirements of due process and full faith and credit (Hansberry)
To select representatives for the purposes of litigation whose substantial interests are not
necessarily or even probably the same as those whom they are deemed to represent
doesn't afford the protection to absent parties which due process requires (Hansberry)
Having class members on both sides of the issue at stake means the above is
happening (Hansberry)

3.

When are out-of-state absent class members bound by a class

action?

4.

A forum state may exercise jurisdiction over the claim of an absent class-action member, even
though that member may not possess the minimum contacts with the forum which would
support personal jurisdiction, if the forum provides minimal procedural due process protection:
(Phillips)
Member must receive notice plus an opportunity to be heard and participate in the litigation
(whether in person or through counsel) (Phillips)
Notice must be the best practicable, reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections (Phillips)
Notice should describe the action and the members' rights in it (Phillips)
Member must at minimum be provided with an opportunity to remove himself from the
class by executing and returning an "opt out" or "request for exclusion" form to the court
(Phillips)
Members must at all times have their interests adequately represented by the named plaintiff
(Phillips)
Fully descriptive notice sent by first-class mail to each class member with an explanation of
the right to "opt out" satisfies (Phillips)

Settlement (of) Class Actions

Settlement of class actions:

41

FRCP 23e: a class action shall not be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise shall be given to all members of
the class in such a manner as the court directs (Amchem)
FRCP 23h: attorney's fees & nontaxable costs
Settlement class actions:
Courts can't certify a settlement class just because the settlement is fair if the other FRCP 23
standards are not met (Amchem)
Settlement-only classes fall under FRCP 23(b)(3) (requires that common questions of law or
fact predominate over any questions affecting only individual members) (Amchem)
Common experience of asbestos exposure & desire for compensation doesn't satisfy, b/c
some class members wanting immediate comp. while others want future comp.
(Amchem)

42