INCENTIVES TO LITIGATE

A. Litigation Facts
1. 98% of cases are held in state court
a. 3/5 of which are traffic violations
b. Out of remaining 2/5, 41% civil suits and 39% criminal suits
i. Contracts suits are the most popular of the 41% of civil suits
c. Amount of civil litigation has risen faster than GDP but slower than population
B. Trial Facts
1. Torts are 2/3 of all civil trials (even though less than of the filings)
a. Most torts cases are jury trials (average duration is 22 months)
b. 49% of the time the P wins (median recovery is $31K)
c. P recovers +1mil. in less than 5% of cases
2. Most contract cases are bench trials (average duration is 18 months)
a. 62% of the time the P wins
C. End of the Suit
1. Most civil suits will end before trial
2. BUT many have a judicial decision: sufficiency of the pleadings, discovery issues, summary
judgment
a. Final judgment in about 1/3 of those cases
b. Contemporary litigation is focused on pre-trial process
3. Most cases end without final judicial ruling: either settlement or abandonment
D. Relationship determines outcome
1. Incentive to litigate
2. Cost of litigation
3. Merits of the Claim
E. Remedies provided by Litigation
1. Specific remedies: can directly replace what P lost
a. Make the D perform an obligation (replevin, ejectment, injunction)
b. Sigma Chemical: employee signed non-compete agreement then violated it. Granted
injunction preventing him from working for competitor (to protect trade secrets) since
injunction was most effective means of preventing conduct, and not too severe an
obstacle for employee to find other work.
2. Substitutionary remedies: reasonable substitute for what P lost (generally monetary award)
a. Problem: difficult to value non-economic damages (usually 3x economic for pain and
suffering awards)
b. Solution to calculating: contract before litigation via liquidated damages (money
awarded in the event of a breach of contract)
c. Solution to calculating: law creates a max./min. for damages (medical malpractice)
3. Punitive Damages: goal to punish D for behavior (very rare)
a. Only 6% of cases with a median award of $50K
b. Punitive damages can always be reviewed (Due Process) State Farm
i. SCOTUS suggest a single-digit ratio, but has approved higher
ii. Allowed to consider Ds wealth when determine punitive damages
F. Paying for Litigation
1. In US system, parties pay their own costs (unless as determined by law)
a. In English system, loser pays winners costs
b. Allows less than certain suits to be brought

c. Every suit has some form of public funding (judges salaries, courthouse fees)
2. Type of payment strategies
a. Contingent fees-only make sense when there are damages and/or fee shifting
i. Cost spreading winning cases pay for losing cases
b. Special interest groups funding-popular for civil rights cases
c. Pro Bono
i. Some private, no restrictions on type of case
ii. Legal Aid - Publically funded, restrictions (cannot sue government, etc.)
d. Insurance companies type of cost spreading
e. Hourly
3. Leaves some without representation
a. Parties with small claims
b. Parties with non-monetary relief claims/non-fee shifting claims
c. Parties that is does no good to sue
i. Insolvent Ds
ii. Uninsured people
G. Fee Shifting: allowed by rules
1. FR 54- attorneys fees should not be shifted unless specified by federal statute (civil rights cases)
2. 28 USC 1920 costs that a court can tax (generally administrative)
3. Common fund pool of damage award used to pay attorney fees in class actions
a. FR 23(h) court may award attorneys fees in class action suits and no-taxable costs
4. By Contract
5. By Statute (usually civil rights/public interest)
a. 42 USC 1988(b): court may allow a prevailing P to recover (not Ds) costs
b. Can settle suit and waive attorneys fees (Jeff D)
c. No recovery for fees if D voluntarily changes behavior (must have judgment on the
merits) (Buchannon Board)
H. Implication of Litigation Funding
1. Financing effects what gets litigated (and what attorneys, if any, will take case)
2. Impacts what damages are sought
I.

Provisional Remedies: relief before the final judgment of the dispute

1. 14th Amendment Due Process: must have notice of seizure, injunction or damage award
2. Provisional: granted when the Ps loss cannot be restored by later remedy > Ds loss of rights
that cannot be restored
3. Types of Remedies
c. Seizure - FR 64 seizure of property is allowed to satisfy a potential judgment
a. Injunctive relief - FR 65(a) court can only issue a preliminary injunction after opposing
party has been notified
i. Preliminary (AFTER a HEARING (due process) but before end of case)

William Inglis & Sons Baking: antitrust suit against baking competitors. Granted temporary injunction
against low-cost pricing until investigation ends because of harm that would result if not granted.
Fuentes v. Shevin: strikes down replevin statute that allowed for seizure of unpaid goods without due
process (14th Amendment), but goods can be seized after final judgment (eliminates provisional relief for
creditors).
ii. Final (after trial)

iii. If no time for notice FR 65(d): injunction without notice only there is a serious
threat of injury and no time to schedule hearing (hearing must come quickly
afterwards)
iv. Both preliminary and final injunctions are appealable (exception to final
judgment rule.
1. 28 USC 1292(a)(1) says that you can only appeal final judgments
b. Temporary Restraining Order (pending upon a hearing on preliminary injunction)
i. FR 65(b) court may issue a temporary restraining order without prior notice
only if injury or damage is immediate and irreparable
ii. Ex parte TRO (w/out notice): where there is a serious threat of injury if notice is
given or no time to schedule hearing
iii. Like a seizure without a hearing
c. FR 65(b) - temporary restraining order may be granted WITHOUT NOTICE (written or
oral to adverse party) only if:
i. Specific facts show applicant will suffer immediate and irreparable injury
before adverse party can be heard.
ii. Applicant certifies in writing the reasons why notice should not be required.
iii. Once granted, hearing is set for earliest possible time and given priority.
iv. At hearing the applicant will proceed with request for prelim injunction or TRO
is dissolved.
v. Informal notice, which may be given to the attorney rather than the adverse
party is preferred to no notice at all.
d. Implications decisions about preliminary injunctions oftentimes end a case
i. Tension b/w protecting due process rights of D and Ps need for urgent action
PERSONAL JURISDICTION
1. In what state can P sue D?
a. In personam: power over the D itself
i. General: D can be sued for any claim, regardless where it occurred in that forum
1. D must have continuous, systematic or substantial ties to the forum
a. Domiciled in the forum,
b. Place of incorporation, OR
c. Where principal business takes place (management works)
ii. Specific: D can be sued in the forum state in which the transaction/occurrence
took place
1. BUT only for a claim arising out of the transaction/occurrence
2. Historical Development of PJ
a. Traditional bases of PJ:
i. Presence of D in the forum if D is served with process in the state
ii. Agent of D in the forum- service of process to agent of D in the state
iii. Domiciled in the forum gives rise to general jurisdiction
iv. Consent to jurisdiction in the forum consent to specific jurisdiction
Pennoyer v. Neff (SCOTUS 1877)
Unpaid legal fee, judgment against a person not a resident of the state after publication in a newspaper
(constructive notice). In personam jurisdiction not satisfied by publication. Constitutionalized the
requirement of PJ.
- Personal jurisdiction by:

o
o
o

Personal service of process

Physical presence within the forum state, OR
By attachment of property in the state for in rem actions.

Carnival Cruise Line v. Shute (SCOTUS 1991)

Adhesion contract required passengers to consent to suit in FL; court held that you can waive your
constitutional PJ protections and that minimum contacts are not necessary when there is consent;
efficiency argument to prevent cruise line from defending in whatever state passengers are from (cost
passed on to consumer)
3. Minimum Contacts and Traditional Notions of Fair Play (International Shoe Test)
a. Established by the two part test:
i. Presence in the state
ii. Systematic and continuous activities in the state
iii. Enjoys the benefits and protects of the forum states laws
iv. Whether it is reasonable to expect that D would have to defend in the forum
b. Implications: clear that you can serve process when D is out of state if satisfies minimum
contacts requirement
i. If D has consented to jurisdiction, do not need to do test (Carnival)
ii. More flexible than Pennoyer, but did not overrule
1. Pennoyer still holds that presence in forum state when served is enough
iii. Question then becomes, what contacts are sufficient:
4. Sufficiency of Contacts Relatedness and Purposeful Availment
a. Ps claim is related to the conduct in the forum state that gave rise to the claim (specific
jurisdiction) (McGee)
b. Ds conduct with the forum must be purposeful availment of the forum (Hanson)
i. D has purposefully availed himself of the forum when it is foreseeable that he
could be required to defend a suit as a result of the contact (Worldwide
Volkswagen)
ii. Foreseeability DOES NOT mean just that product would enter the state through
the stream of commerce
1. D may satisfy foreseeability if Ds conduct has an effect in the forum
(Pavlovich)
iii. Foreseeability does not trump purposeful availment: any stream of commerce
consequence is not sufficient. (Nicastro) and (Goodyear) suggest does degree of
consent in purposeful availment.
c. Must still satisfy fairness test because of Due Process implications
i. Burden on D to show forum is unfair gravely inconvenient that you are at a
severe disadvantage in the litigation (Burger King)
d. Pennoyer still holds for in forum service of process (Burnham)
International Shoe Co. v.Washington (SCOTUS 1945)
Recovering payment to state unemployment compensation fund, mailed to companys home office in
MO. Salesman employed by company in WA, but no office in state. Court looks to amount of contacts
in state and fairness in asserting jurisdiction to decide whether personal jurisdiction applies, finds
business in WA neither irregular or casual so must pay to compensation fund.

McGee v. International Life (SCOTUS 1957)

TX insurance co. sued in CA; only had one contract in CA but the court said that was enough because (1)
D solicited that business (2) the Ps claim arose from the Ds contact with the forum, call relatedness
(3) states interest in protecting its citizens from out of state companies
Hanson v. Denckel (SCOTUS 1958)
PA woman has a trust fund with a DE bank before she moves to FL; she dies and the question is, does FL
have jurisdiction over that DE bank? NObecause that bank had no relevant contact with FL; contact
must result from Ds purposeful availment of that forum and not based on unilateral action of P
Worldwide Volkswagen v. Woodson (SCOTUS 1980)
Car accident in OK on move from NY to AZ. Car bought in NY, sued dealer, regional wholesaler and
manufacturer. While foreseeable a P could drive car beyond state, there arent sufficient contacts in OK
to warrant jurisdiction (for wholesaler and dealer). Must purposely avail itself of benefits/protections of
forum state, deliver into stream of commerce with expectation that will be bought in forum state,
reasonably anticipate being hailed into forum state court.X
Pavlovich v. Superior Court (SCOTUS 2002)
D posted DVD decoders on internet site from IN, affects business in CA. Suit in CA for damages
challenged (no contacts in CA). Knowledge that harm will occur in CA may be enough to establish
personal jurisdiction, but here no evidence of knowledge (so no personal jurisdiction). Also, (limiting
Calder) jurisdiction is determined by examining the level of interactivity and commercial nature of the
exchange of information. Ds website was passive, not for commercial gain in CA.
Burger King v. Rudzewicz (SCOTUS 1985)
Termination of franchise, after bought equipment and supplies (suit to recover damages). BK sued in FL
(defensive measure), defendants challenged PJ. D claim it was too burdensome to defend in FL and it
violates due process. Jurisdiction in FL because the D should have anticipated when D entered into the
franchise agreement that D would have to defend in FL. Factors: (1) convenience to D (2) effective relief
for P (3) forum state interest (4) efficiency
J. McIntyre Machinery, Ltd. V. Nicastro (SCOTUS 1990)
English manufacturer is not subject to personal jurisdiction because it did not purposefully avail itself of
the benefits of the forum. There was no evidence the English company was trying to sell to New Jersey,
and general intent to sell to the U.S. is not enough. *Not a majority decision, dissent: test was too strict.
Goodyear Dunlop Tires Operations, S.A. v. Brown
Because the episode-in-suit, the US accident, occurred in France, and the tire alleged to have caused the
accident was manufactured and sold abroad, the NC courts lacked specific jurisdiction. Very rarely can
you have general jurisdiction if there is not specific jurisdiction. Even though thousands of tires are sold
in NC, it is not enough to create jurisdiction over a claim unrelated to the selling of those tires.
Burnham v. Superior Court (SCOTUS 1990)
NJ D sued in CA on a divorce claim that arose in NJ (general jurisdiction); D served while in the state of
CA briefly; CA did have general jurisdiction (affirming Pennoyer). No majority reasoning (for historical
reasoning, Pennoyer, or because while briefly in state, minimum contacts

5. In Rem Jurisdiction: power of Ds property (specific jurisdiction)

a. Historical - Attachment of property can satisfy PJ
i. Must be attached at the beginning of litigation (Pennoyer)
b. Constitutionality Questioned (Shaffer v. Heitner)
i. Property that is unrelated to the claim is not a sufficient basis for PJ
ii. There must be minimum contacts with the D to support jurisdiction
1. Property in forum state may still suffice to create in personam
jurisdiction under minimum contact test
2. Many state stipulate that a director of a company is subject to PJ in the
state the company is incorporated in
Shaffer v. Heitner (SCOTUS 1977)
Suit for accounting against trustees whose stock was held in DE. P attempted to attach Ds stock to
obtain PJ in DE (in rem case.) Assets in DE were not enough to establish personal jurisdiction (there
were no other substantial contacts with the state). International Shoe test applies to quasi in rem
assertions of jurisdiction as well, and here doesnt satisfy minimum contacts
6. Does the state have the authority to hear the case?
a. A state must have statutory jurisdictional authority (every state has statutes defining PJ)
i. Cannot have greater than constitutional authority allows (but some restrict to
smaller than constitutional powers would allow)
ii. Long Arm Statutes 2 approaches
1. Full constitutional authority (California)
2. Laundry list statute list of Ds conduct that subject D to forums
jurisdiction
a. Language will vary from state to state
b. Can be interpreted in different ways
NOTICE
1. Service of Process: FR 4
a. Summons and a copy of the complaint
b. Can be made by any non-party of the age of 18
c. Process:
i. For individuals:
1. FR 4(e)(1): federal court applies the state in which it sits notice rules or
the state where the service actually takes place
2. FR 4(e)(2): Personal service hand the notice to D or Ds agent
anywhere within the state
ii. For corporations: FR 4(h) can serve an officer or appointed representative
d. Waiver of Process: FR 4(d) - Service by Mail
i. D can waive right to be personally served
1. If D does waive: extended time to return ANSWER from 20 to 60 days
2. If D does not waive or does not answer: must be personally served,
must answer within 20 days, and must pay for higher cost of notice
e. Geographic Limitations of Notice
i. Federal Courts can serve anywhere within the state the federal court sits in

1. Exception: and within 100 mile bulge radius for adding parties under FR
14 and FR 19
2. Constructive Notice (notice by way of publication)
a. Giving notice by way of publication in a newspaper. Generally not accepted as
reasonably calculated to give notice. (Mullane)
b. However, when Ds cannot be identified or located (e.g. -large class actions), publication
is allowed
Mullane v. Central Hanover Bank (SCOTUS 1950)
Group of pooled trust funds owned by dozens of potential Ps. D gave notice of terminated right to suit
for mismanagement by publishing in newspaper. Held, due process requires notice must be reasonably
calculated under the circumstances to inform the Ps of the suit and provide an opportunity to be heard;
it would not have burdened the trust to mail individual notices because they knew of the location of the
beneficiaries.
SUBJECT MATTER JURISDICTION
1. Subject-Matter Jurisdiction: should a claim be brought in state or federal court?
a. Concurrent Jurisdiction when a claim can be brought in either state or federal court
i. Claims arising under federal law can be brought in either state or federal court
1. EXCEPTION: unless federal court has exclusive jurisdiction (securities
fraud)
b. Exclusive Jurisdiction Congress has created statutes requiring that certain laws be
brought in the exclusive forum of the federal courts/state courts
i. Exclusive to Federal: Bankruptcy, antitrust cases
ii. Exclusive to State Court: Divorces, custody suits
2. Diversity of Citizenship: If not by statute requiring federal jurisdiction, can get to federal court
by having parties for differing states
a. 28 USC 1332(a)(1) creates federal court jurisdiction over controversies between
citizens of different states and citizens of a state and foreign citizens
i. Codifies Article III 2
b. Citizens of Different States: complete diversity required.
i. Complete = there is no diversity if any of the Ps are a citizen of the same state as
any of the Ds (Strawbridge v. Curtiss)
ii. Determining Citizenship: Domicile of the party
1. Every US citizen has one domicile, thus subject to SMJ in at least one
state
a. Intent to remain/make permanent home
b. Presence in the state
Hawkins v. Masters Farms (Kan. 2003)
Terrible car crash. P lived in KS. D had MO license, paycheck was sent to MO, title and license in MO.
However, lived with wife in KS, belongs were in KS. Tentative plans to move to MO, but nothing
concrete. Court determined domicile was stronger in KS than MO, no diversity of citizenship. Diversity
for subject-matter jurisdiction of a party may established by intent to remain indefinitely.
2. Foreign citizens: 28 USC 1332(a) - an alien admitted to the US for
permanent residence is deemed a citizen of the state in which he is
domiciled.

Render v. Sanders (SCOTUS 2000)

US citizen may not claim diversity jurisdiction as a resident of a foreign state. Residents does not equal
citizenship for purposes of diversity.
3. Corporations: state when business is incorporated AND
a. 1332(c)(1) principle place of business (when management
meet and conduct business)
Hertz Corp. v. Friend (SCOTUS 2010)
A corporations citizenship is the forum where the highest level of officers direct, control and coordinate
the corporations activities (i.e., the nerve Center test). Not where you make the most money.
3. Must meet Amount in Controversy requirement (and Diversity Requirement)
a. Amount claimed for damaged must be > $75K, does not include punitive costs
b. Courts are generally flexible, but must have some reasonable computation to satisfy
damage claim. Must be wholly unlikely that damages are <$75K to dismiss.
4. Federal Question - 1331
a. Claim (not defense) must arise under federal law (federal statute or Constitutional
claim)
i. Well Pleaded Complaint only look at complaint for federal question, not
defense
Louisville Nashville RR v. Motley (1908)
Couple settled a suit for lifetime passes on the RR; Congress passes a statute that says RR cannot give
lifetime passes (federal law); they said the fed rule the RR will assert does not apply to them or is a
violation of due process violation. Ds claim is a breach of contract, the federal issue is an anticipated
defense; A defense based on federal law is not sufficient to raise a federal question.
b. Supplemental Jurisdiction - 1367: when a federal court has proper original jurisdiction
over a claim, it may hear all other claims that form part of the same case or
controversy
i. Applies to original Ds counterclaims and cross-claims, FR 18 - Joinders and FR
21 - Interpleaders
ii. Claim must have original federal question jurisdiction or complete diversity
jurisdiction
1. All other state claims must then arise out of the same nucleus of
operative facts (that they can be tried fairly in one proceeding)
a. Same facts would prove both claims
b. Resolution of one would impact the other claim
2. Promotes judicial efficiency and consistency
iii. LIMIT: in cases where diversity jurisdiction is the sole reason for original federal
court jurisdiction,
1. No supplemental jurisdiction for claims made by P against parties who
are joined under:
a. FR 14 - Impleaders

b. FR 19 Compulsory Joinders
c. FR 20 Permissive Joinders
d. FR 24 Intervention Joinders
iv. Court can decline Supplemental Jurisdiction when:
1. State law predominates
2. Novel issue to the state
3. More impact on state than federal
4. Judicial economy and fairness to litigants
(In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (N.D. Ill. 2007)
Supplemental jurisdiction is proper where there is a sufficient nexus between state and federal claims,
and statutory discretionary factors do not weigh in favor of a decision to decline. Supplemental
jurisdiction over state claims must be factually connected to the federal claim. The factual connection is
sufficient as long as the facts are common and operative. The same facts used to prove both federal and
state claims and cannot decide one claim without impacting the other claim.
Szendrey-Ramos v. Bancorp (D.P.R. 2007)
A court may decline to exercise supplemental jurisdiction where (1) the state law claims raise complex
or novel issues, or (2) the state law claims substantially predominate over the federal claim. Here,
Puerto Rico had never addressed the issue, and the state should have first impression of the law.
v. Must TEST when we see a non-federal claim attached to a federal claim:
1. Does 1367(a) give claim supplemental jurisdiction?
a. If yes is it part of the same case or controversy?
2. Does 1367(b) take away claims supplemental jurisdiction?
a. If federal question no problem
b. If diversity jurisdiction no supplemental claims over FR 14, FR
19, FR 20 and FR 24
5. Removal a D in state court can have to case transferred to federal court.
a. Must have had initial federal jurisdiction before removing
b. 1441 : When D can Remove
i. If federal question, any D can remove to the federal court
ii. If it is a diversity basis for removal, an in-state D may not remove (no reason to
think unfair advantage when D is already in home state)
iii. Federal court has discretion to hear or refuse to hear removal claims brought
under supplemental jurisdiction
c. 1446 : Procedure for Removal
i. motion to remove must be filed within 30 days
1. EXCEPT if its because of lack of SMJ which can be removed any time
ii. If diversity is the only basis for removal, must be within 1 year of complaint
d. 1447 :
i. Removal order is not appealable (not a final judgment)
ii. If after removal P seek to join Ds that would destroy SMJ, the court can deny
joinder or permit and remove back to state court
iii. If after removal, federal question claim is thrown out, case is removed to state
court
Caterpillar, Inc. v. Lewis (SCOTUS 1996)

If the federal court fails to remand a case where removal was improper (no complete diversity of the
parties), the judgment will be upheld if the federal jurisdiction requirements are met by the time
judgment is entered (defects are cured); considerations of finality, efficiency and judicial economy.
e. Rules of Removal:
i. One way street can only move from state to federal court. Cannot move from
federal court to state court.
1. If removal was improper, the case is remanded back to state court.
ii. Straight up remove to the federal court that the state court is situated in (not
to a different federal jurisdiction
iii. Only Ds (and any D) can remove; P gets no say in the matter
iv. Timely must be within 30 days of the document that made the issue
removable (joinder or complaint, usually). Must be within one year of filing of
complaint.
v. Original suit could have been brought in federal court; only then can you
remove. Two exceptions:
1. 1441(b): a D cannot remove if he is already in-state
2. 1446(b): no removal more than one year after the case was filed in
state court
a. Encourages Ps to abuse by adding joinder (that would make the
case federal jurisdiction more than a year after complaint)
vi. Supplemental: federal court has discretion to hear non-federal claims after
removal
1. But can decline authority for policy concerns
6. VENUE: determining the district in which the suit should be heard
a. Basic Guidelines: 1391(a) for diversity and 1391(b) for FQ cases:
i. Venue is proper in a district, if all the Ds reside (domicile) in the same district
1. A citizen or corporation resides anywhere where they would be subject
to PJ
ii. Venue is proper in a district that any D lives, if all the Ds live in the same state,
but different districts
iii. Venue is proper in a district, if a substantial part of the claim arose
iv. If no other venue is appropriate:
1. 1391(a)(3): for diversity cases, venue is proper in a district where any D
is subject to PJ
2. 1391(b)(3): for federal question cases, venue is proper in a district
where any D is found (lower threshold than diversity)
7. Transfer of Venue: moving from one district to another district only within the federal system
a. Statutes: 1404(a) and 1406(a-b) and 1407 and 1631
b. D or P can only transfer to a district that 1) is a proper venue and 2) has PJ over Ds
i. 1404(a)the original court is a proper venue
1. In the interest of convenience of the parties and witnesses
2. And/or in the interest of justice
3. The transferee court follows the law of the transferor court
ii. 1406(a)the original court is an improper venue
1. Transfer in the interest of justice to a proper court

2. Or dismiss for improper venue (usually transfer)

iii. 1406(b)failure to raise the matter of venue does not invalidate a district
courts
iv. 1631Where venue is proper but jurisdiction is lacking, the court can transfer
to a venue with proper jurisdiction (avoids statute of limitations issues, allows
for the complaint to relate back to the date of originally filing.
v. 1407 Allows federal courts to transfer similar cases for consolidation for the
pre-trial proceedings. Used for efficiency.
8. Forum Non Conveniens a court declines jurisdiction (even though it has jurisdiction) because
there is a different court that is more appropriate (convenient)
a. Only applies if original venue was proper (there just is a better venue)
b. Only Ds can file for Forum Non Conveniens
c. Helpful when:
i. Cannot transfer state court to a different state court, so forum is helpful
ii. When better forum is a foreign country
iii. Moving from federal back to state (removal under 1404 is only a one way
street)
1. Must consider policy impact and impact on parties when ruling
d. If motion is granted, burden on P to refile
Piper Aircraft v. Reyno (SCOTUS 1981)
Plane crashed in Scotland and all the people killed were Scottish; plane was manufactured in the US.
Step 1) suit was brought in CA state court. 2) Removed to federal court and 3) transferred to PA; s
would much rather recover in the US because you get much more money; D moved for dismissal under
forum non conveniens. Court ruled that a forum non conveniens motion the court should not give
dispositive weight to the fact that the alternative forum is less favorable to Ps unless the alternative is
clearly inadequate such that it would provide no remedy; Scotland was a better venue (witnesses,
evidence, knowledge of Scottish law).
9. Challenging Ps Forum Selection
a. FR 12 motion: within 20 days of personal service, can bring either in pre-answer motion
or answer:
i. FR 12(b)(1) SMJ challenge
ii. FR 12(b)(2) PJ challenge
iii. FR 12(b)(3) Venue challenge
iv. FR 12(b)(4) Insufficient process (summons/complaint)
v. FR 12(b)(5) Insufficient service challenge
vi. FR 12(b)(6) Failure to State a Claim challenge
vii. FR 12(b)(7) Failure to Join an Indispensable Party
b. FR 12(g) and (h)
i. defenses under FR 12(b)(2)-(5) must be put in your first Rule 12 response
(answer or motion) or else they are waived
ii. defenses under FR 12(b)(6) and (7) can be raised at any time
iii. 12(b)(1) can be raised any timeyou cannot waive lack of SMJ and court can
bring it up on its own
c. Motion to Dismiss for lack of jurisdictionFR 12(b)(1)-(2)

i. Making a FR 12(b)(2) motion does not subject the D to the PJ he is protesting

(special appearance rulenot used in fed court)
ii. Can never waive SMJ jurisdiction but can waive PJ if not raised with other
motions or answer
d. Collateral Attack
1. Art IV 1: Full Faith and Credit Clause requires one state to recognize
and enforce judgments of another state
a. Ds property or wages in State 2 may be seized to satisfy a
judgment in State 1
2. Default: if D defaults (just does not respond to complaint) in an action
in State 1 he may collaterally attack default judgment by claiming in
State 2 (when D is sued to recover for judgment from State 1) on the
grounds that State 1 lacked PJ or SMJ.
a. If the court finds jurisdiction in State 1 was proper, D has waived
right to defend on the merits.
b. If court finds jurisdiction in State 1 was improper, judgment is
rescinded.
c. If Ds argues PJ or SMJ in State 1 and loses (there is a judgment
on the issue), then barred from collateral attacking in State 2.

PLEADINGS
FR 7(a) only pleadings allowed:
1. Complaint
2. Answer to a complaint
3. Answer to a counterclaim (must be designated a counterclaim)
4. Answer to a cross-claim
5. A third-party complaint (and answer to third-party complaint)
6. If the court orders, a reply to the answer
FR 7(b) a request for a court order is a motion and must be made in writing and state relief sought
A COMPLAINT: Rule 8(a)
Simple notice pleading in the complaint is possible because of liberal discovery and other pre-trial
procedures that will sort the weak from strong cases. Con: the cost of discovery is burdensome,
especially if it turns out to be unnecessary.
FR 8(a) complaint must contain statement for
1. Grounds for courts subject-matter jurisdiction,
2. Short and plain statement asking for relief (all claims or risk claim preclusion)
a. Notice Pleading: generally have to put the D on notice by including enough relevant
information to give D a chance to respond
b. Rule 9(b): if alleging fraud, a party must state with particularity (give specific details the
circumstances amounting to the fraud)
c. Rule 9(g): must plead with specificity if you seek relief for special damages
d. Twombly: P must provide grounds for his entitlement for relief. Pleading standard
of plausibility, not just possibility of Ds liability.
e. Iqbal: (extension of Twombly) pleading must allow the court to draw the reasonable
inference that D is liable (must be factually plausible)

3. Demand for Judgment (asking for relief)

4. Damages (monetary or equitable)
LIMIT: If Complaint is inadequate, then D can file a pre-answer motion:
1. FR 12(b)(6)- failure to state a claim
2. FR 12(e) motion for a more definite statement
Haddle v. Garrison (SCOTUS 1998)
Ps case was dismissed by district court for failure to state a claim on the grounds that discharge from atwill employment did not create legally cognizable injury; SC reversed and said the law will allow
recovery, so 12(b)(6) was not appropriate. Rule: A complaint may be dismissed only if there is no set of
facts in support of the Ps claim that would entitle him to relief.
Bell v. Novick Transfer Co. (DC of Md.1955)
A short and plain statement is the standard; complaint does not break Rule 11 as long as Ps statements
are true. Plaintiff does not need to provide evidence, yet. Later refined standard by Iqbal/Twombly.
Conley v. Gibson (1957)
FR requires a 'short and plain statement of the claim' that will give the defendant fair notice" AND "the
accepted rule is that a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief."
Bell Atlantic Corp. v. Twomby (SCOTUS)redefining standards of a complaint (Rule 8(a))
P is obligated to provide the grounds of his entitlement to relief. Raises standard from possibility to
plausibility requirement; more than labels and conclusions, or a formulaic recitation of the elements of
a cause of action are required. Factual allegations must rise above the speculative level, on the
assumption that all the allegations in the complaint are true
- Anti-trust/collusion suit was going to be very difficult and expensive to try. Court is setting a
higher standard for cases with a high risk of abuse for the D.
Ashcroft v. Iqbal (SCOTUS 2009)- extension of Twombly
Twombly called for a flexible plausibility standard - factual plausibility is when the P pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.
New standard is for all suits, not just complex anti-trust actions. Broad meaning of Twombly.
FR 9(b) Pleading of Fraud: if alleging fraud, a party must state with particularity the circumstances
Stradford v. Zurich Insurance (SDNY 2002)Where a party is accused of fraud, FR 9(b) requires the time, place, and nature of the alleged
misrepresentations to be disclosed with particularity to the party accused of fraud.
- The reasoning behind FR 9(b) is to afford a D accused of fraud fair notice of the claim and the
ground upon which it is based. Special pleading requirement determined by Congress.
Ds RESPONSE: ANSWERS TO THE COMPLAINT
1. NO ANSWER FR 55(a): Default Judgment: a court may rule for moving-party for non-moving
partys failure to plead or defend claims

2. PRE-ANSWER MOTIONS FR 12 motions

a. FR 12 (b)(1): Jurisdiction - subject-matter (can always raise)
b. FR 12 (b)(2): Jurisdiction - personal
c. FR 12 (b)(3): Improper venue
d. FR 12 (b)(4): Insufficient process
e. FR 12 (b)(5): Insufficient service of process
f. FR 12 (b)(6): Failure to state a claim upon which relief can be granted (can always raise)
g. FR 12 (b)(7): Failure to join a party under FR 19 (can always raise)
h. FR 12 (e): Motion for a More Definite Statement make the party file a pleading that is
more definite and certain.
i. It is rarely used, and we rely on discovery instead.
i. FR 12(f): Motion to Strike: allows a party to challenge a part of a pleading that fails
under the substantive law
i. Allows a party to force the removal of irrelevant, repetitive, and prejudicial
allegations in a pleading
ii. Decision may depend on if the pleadings will be read by a jury and if it might
prejudice the jury
- Must raise any and all motions for FR 12(b) (2-5) together and before/with the answer, or waive
- If FR 12(b)(6) is granted, P can appeal because it effectively ends case.
- Motions: do not have to address substantive claims, stops procedural clock and buys time, do
not have to put forth defenses
3. ANSWER: must answer within 21 days (if waived personal service, 60 days)
a. Accept/admit specific admit or deny to each claim and must respond to the
substantial allegations of the claim
b. Challenge/deny shifts burden back to P, do not lie, fail to deny, then you are admitting
c. Affirmative defenses burden on D to prove, not a denial but shifts the legal
consequences and context
i. FR 8(c) affirmative defenses (examples, not a complete list):
1. Accord and satisfaction/release previously settled
2. Contributory negligence, duress, fraud, illegality
3. Res judicata - issue and claim preclusion
4. Statute of limitations
d. Counterclaims must still respond to Ps claims and must clearly mark counterclaims
i. FR 13(a)- Counterclaims: a pleadings must state its counterclaims specifically
FR 8(b) answer must contain all defenses for each asserted claim, 2) and admit or deny the allegations
asserted to each claim. Denials must respond to substance (cannot just say we deny but may
say we lack knowledge) and may be general denials or specific denials. If asserted claim is not
denied, it is admitted.
Zielinski v. Philadelphia Piers, Inc
When inaccurate statements are made in an answer and where there is foreseeable danger that another
will rely on them to his prejudice, and he does in fact rely, such incorrect statements are sufficient to
invoke doctrine of equitable estoppel- where you are not allowed to change answer.
- a general denial is not valid if any of the allegations being denied have been admitted by the
parties as true (because of prejudice to D). Specificity is important in order to get to the merits.

Whichever party brings the pleading must also produce the evidence to demonstrate that
allegation (or lose the case)

Jones v. Bock (SC 2007)- burden of proof in a pleading on P v. burden on D as an affirmative defense
A plaintiff need not demonstrate exhaustion of administrative remedies in the complaint. FR do not say
exhaustion need be pleaded and FR 8(c) is not a complete list of affirmative defenses, so exhaustion of
remedies is an affirmative defense.
- Court shouldnt go around manipulating the pleading rules to deal with the particular set of
troublesome claims, should be left to Rule amendment process (at odds with Iqbal)
4. AMENDMENTS: Rule 15
a. Rule 15(a):
i. P is allowed to amend once before D files Answer
ii. D is allowed to amend once within 20 days of filing Answer
iii. Otherwise, P and D can only amend when justice so requires
b. Does justice so require?
i. Generally allowed unless it unduly burdens D
c. Statute of Limitations problem? Rule 15(c)
i. If the new claim relates back to the transaction/occurrence in the original
complaint, then treated as if it was filed originally
FR 15(a) - liberal pleading standard: freedom to amend complaint unless it burdens D
FR 15 attempts to balance statute of limitations and liberal pleading standard/justice
Beeck v. Aquaslide N Dive Corp.
A court may grant leave to amend an answer, without abusing its discretion, in the absence of any
apparent or declared reason, such as undue delay, bad faith, or undue prejudice to the opposing party,
on the part of the party seeking leave (when justice so requires).
- Very late into discovery, D determined it had not if fact made the defective product that injured
P. D would be prejudiced to proceed because it would be defending a product it didnt make
(sham of a trial). P not overly prejudiced because it can still file against correct party.
Moore v. Baker
A proposed amendment must arise out of the same conduct, transaction, or occurrence set forth in the
original pleading in order to relate back to the time that the original complaint was filed (and avoid
statute of limitations)
- P was changing her story of negligence from during surgery to pre-surgery procedures, which
are different occurrences. Seems like P is just trying to change strategies after the first does not
go so well.
Bonerb v. Richard J. Caron Foundation
The allegations in the original and amended complaints derive from the same nucleus of operative facts
involving P's injury. Because the original complaint warned D of the same occurrence giving rise to the
different theories of negligence, and there has been no showing of undue delay, bad faith, or undue
prejudice, the requirements for relation back under Rule 15(c) have been met.
- Original complaint alerted D to the possibility of the claim that P would try to amend later

FR 12(c) After the pleadings, a party may move for a judgment on the pleadings. Like a summary
judgment under FR 56 but only based on complaint, motions and answer (no evidence).
LIMITS ON PLEADING
FR 11 - limits on liberal pleadings (must have evidentiary basis for claim/defense or risk sanctions)
a. Must be signed and attested to by party (via attorney)
b. Certifying to truth after a reasonable inquiry (improper purpose of suit, frivolous suit, lack of
evidentiary support, denial of facts)
a. Requires some investigation before discovery
c. Sanctions if FR 11(b) is violated on attorney, firm or party. Motion for sanction must be made
independently (under Rule 5) and can provide for opposing sides attorneys fees, nonmonetary
directives, or anything to deter conduct.
Purpose is to ensure integrity of process and conduct of parties, attorneys, and firms.
Applies to written pleadings (oral pleadings are excluded).
Lawyer does not have to amend a pleading if it is later discovered client was wrong/lying - but you
cannot advocate that position any longer. If the other side claims that it is a lie or incorrect and asks
you to change it, you must amend it. No sanctions for original position.
Walker v. Norwest Corp.(8th Cir. 1996)
Ps lawyer failed to adequately research the correct diversity of the defendants, which is the burden of
the Ps. Sanctions were appropriate, especially when P had chance to amend to correct and did not.
Christian v. Mattel, Inc. (9th Cir. 2003)
FR 11 permits the court to sanction an attorney for conduct regarding pleadings, written motions, and
other papers that have been signed and filed in a given case, but it does not authorize sanctions for
discovery abuses or misstatements made to the court during an oral presentation.
- Sanctions were used, even if party could not afford to pay them to deter frivolous lawsuits,
especially considering Mattel is sued a lot. But courts should use power sparingly.
Stradford v. Zurich Insurance (SDNY 2002)
The complaint must state the time, place and nature of the [alleged] misrepresentations to be
disclosed to the party charged with fraud, not just the malicious intent. The counterclaim fails to
identify the statement in the claim made by the plaintiff they believe to be false (he lied but did not
identify the lie). The reasoning behind Rule 9(b) is to afford a litigant accused of fraud fair notice of the
claim and the ground upon which it is based.
JOINDERS (every joinders claim in federal court must have SMJ)
Steps:
1. Can I add this claim?
a. Rule that governs, and then terms of that rule?
2. Do I have SMJ over new claim?
a. Federal jurisdiction over claim or party?
b. Original jurisdiction
c. Supplemental
3. Do I have PJ over added party?

1. CLAIM JOINDER: FR 18(a) P can join any and all claims against the same D even if they are not
transactionally related
a. never compulsory, but claim preclusion may apply depending on state definition of clam
preclusion
b. SMJ:
1. Supplemental Jurisdiction: if claim 1) has a federal issue in the complaint and
claim 2) arises out of the same transaction or occurrence
2. Diversity will not be affected (if first claim was in diversity)
c. Ds Counterclaim: Compulsory and Permissive
i. Compulsory: FR 13(a) -arising out of the same transaction/occurrence as Ps
claim
1. Logical relation test to determine if same transaction (Blazer Financial)
a. Satisfied if the same aggregate of facts go to both the claim and
the counterclaim. Should consider:
i. The level of interrelatedness of the claim and
counterclaim
ii. Common factual basis
2. It must be asserted in the pending case or else it is waived; must be
asserted in your Answer
a. Exception: if the court lacks jurisdiction over a third party who is
necessary to the action then the counterclaim is not waived
3. Supplemental SMJ always extended to compulsory counterclaims
ii. Permissive: FR 13(b) does not arise from the same transaction/occurrence as
Ps claim
1. May be asserted, but if not, can still sue separately
2. No supplemental jurisdiction, must have independent SMJ
3. Courts may separate suits for efficiency FR 42(b)
d. Ps Crossclaim: FR 13(g) -asserted by either party against a co-party (P v. P) or (D v. D)
1. Must arise from same transaction/occurrence
2. Never compulsory
3. If claim 1) had a Federal Question, then supplemental jurisdiction exists if
cross-claim does not have federal question
Plant v. Blazer Financial Services (5th Cir. 1979)
Court uses the logical relation test to determine when a claim and a counterclaim arise from the same
transaction. This test asks whether there is any logical relation between the claim and the counterclaim.
A logical relationship exists when the same aggregate of operative fact serves as the basis of both the
claim and the counterclaim. The obvious interrelationship of the claims and rights of the parties,
coupled with the common factual basis of the claims, demonstrates a logical relationship between the
claim and counterclaim. Thus it is compulsory.
2. Joinder of Parties
a. Permissive Joinders: FR 20 gives P the right to add multiple Ps or multiple Ds
1. Joining of Ps: Voluntary if:
i.
Arise out of same transaction/occurrence
ii.
Raise a common question or law or fact
2. Joining of Ds (at Ps option):
i.
Claims against the Ds arises out of same transaction/occurrence

ii.
Raise a common question or law or fact
3. PJ for Joining Parties: each D must have individual PJ
i.
Service: each personally served
ii.
Contacts: each D must meet minimum contacts threshold
iii.
Long Arm Limits: states statutory jurisdictional authority must reach
each D
4. SMJ for Joining Parties
i.
If Claim 1) was Federal Question
a. Supplemental jurisdiction may apply
ii.
If Claim 1) was Diversity
a. No supplemental jurisdiction under 1367(b)
b. Must maintain complete diversity
c. Must satisfy amount in controversy with each D
b. Necessary Parties: FR 19 parties that must be joined
1. A party is necessary if: (general rule, connected by contractual rights or property
ownership)
i.
19(a)(1): without X the court there is no complete relief for the parties
ii.
19(a)(2)(i): Xs interest may be harmed if she is not joined
iii.
19 (a)(2)(ii): Xs interest may subject D to multiple or inconsistent
obligations/judgments (joint tortfeasors are not necessary)
2. Is joining of party possible?
i.
Court must have PJ over X
ii.
Does bringing in X destroy SMJ?
Mosley v. General Motors Corp. (8th Cir. 1974)
FRCP 20(a) provides that all persons may join in one action as Ps. The purpose of Rule 20 is to promote
trial convenience, and therefore, the joinder of claims, parties and remedies is strongly encouraged, but
Rule 20(a) imposes two specific requisites to the joinder of parties: (1) a right to relief must be asserted
by or against each P or D, relating to or arising out of the same transaction or occurrence; and (2) some
question of law or fact common to all the parties must arise in the action.
- Implication: by defining discrimination of employees so broadly, issue preclusion for any future
claims by Ps who are represented by class action in Mosley
3. CLAIM JOINDER: Impleader D brings in another who may be liable to D
a. Derivative Liability: FR 14(a) a D may bring in another party (third party defendant)
who is or may be liable for some or all of the claim (must be same transaction)
1. Types: indemnity in strict liability, joint tortfeasor contribution, subrogation
2. LIMIT: D cannot claim that third party defendant is the only liable party (cannot
say, Its him, not me). Impleading says, if Im responsible, so is he.
b. Impleading with the P: FR 14(b) if D files a counterclaim against P, P can bring a suit
against third party defendant IF it arises from the same transaction or occurrence
1. Any claim by P against TPD must have independent SMJ (no supplemental)
2. P can also implead a third-party after a counterclaim
c. Impleader Jurisdiction
1. 100-mile bulge: service may be made with 100 mile range surrounding the
courthouse even of outside state or long arm. FR 4(k)
2. Automatic Supplementary Jurisdiction no need to satisfy diversity

3. Third party defendant has no impact on venue (as long as it was valid between
the original P and D)
d. Possible claims by Third Party Defendant:
1. Counterclaims against TPD
2. Cross-claims against TPD (arising out of same transaction/occurrence)
3. Claim against original P (arising out of same transaction/occurrence)
4. If P files against TPD, then TPD can bring counterclaim to P
i.
No supplemental jurisdiction over Ps suit against TPD
5. TPD can implead (or later sue) another party that may be liable to TPD
i.
All covered under supplemental jurisdiction
ii.
TPD can bring any defense that original D could have raised
Price v. CTB, Inc. (M.D. Ala. 2001)
Under Rule 14(a), a defendant may assert a claim against anyone not a party to the original action if that
third party's liability is in some way dependent upon the outcome of the original action. A third party
may be impleaded only when the original defendant is trying to pass at least part of the liability onto the
third party, and the third party liability must in some way be derivative of the original claim.
- Must check that the law has the substantive power to allow
Owen Equipment & Erection Co. v. Kroger
In an action where federal jurisdiction is based on diversity of citizenship, a plaintiff may not circumvent
the requirement of complete diversity by using the doctrine of supplemental jurisdiction to implead
(join) a claim against a defendant who is a citizen of the same state as the plaintiff.
- Improper impleading just to avoid diversity requirements is not allowed. Supplement jurisdiction
does not extend that far.
Natural Resources Defense Council v. US Nuclear Regulatory Commission (10th Cir. 1978)
A party can intervene as a right under FR 14(a) when 1) their interests are not sufficiently represented,
2) the partys interests would be impacted by the litigation and at risk of being harmed and after the
suit, and the party ability to protect its interests would be impaired or impeded if not let in (preclusive
effect).
Martin v. Wilks (SCOTUS 1989)
Because the parties to a lawsuit have better knowledge of the matters and implications of the litigation
that outside potential parties, FR 19 places the burden upon them to determine which additional parties
should be brought into the action, not on outside parties. Outside parties are not precluded from
bringing a suit even though they had knowledge of suit and opportunity to intervene (but didn't).
- The impermissible collateral attack doctrinewhich would effectively require mandatory
interventionis inconsistent with FR 19 and 24.

4. CLAIM JOINDER: INTERVENTION FR 24: when a party (X) inserts herself as a P or D

a. Intervention by Right: FR 24 - only if
1. Xs interests may be harmed if not joined
2. Xs interests are not already adequately represented
b. Permissive Intervention: FR 24(b)(2) - must show that Xs claim or defense has a
common question of fact with existing suit

c. Must always have independent SMJ for an intervention-ist

5. CLAIM JOINDER: INTERPLEADER FR 22 : provides a procedure by which a stakeholderoften a
bank or insurercan require the competing claimants to litigate their rights to the asset in
question
a. Federal Interpleader Act, codified at 28 U.S.C. 1335, 1397, and 2361
b. Allows interpleader even if the stakeholder, usually the D, is asserting some claim on the
assets also.
c. Interpleader is used in two situations:
1. The asset is one of yours, now you guys fight it out over who owns it, and were
all bound by this
2. OR the asset is mine, and you all think its yours, but I want to only litigate this
once and so now were all bound by the decision
d. 28 USC 1335 - original federal SMJ if:
1. Property in dispute is valued over $500
2. Bare diversity of the parties
e. 28 USC 1397 - Venue where any(one or more) of the claimants reside
f. 28 USC 2361 - a district court may issue its process for all claimants
1. Established nationwide PJ: Federal court can hear, determine, discharge, make
injunction, enforce judgment
Paragon Molding, Ltd. v. Safeco Insurance Company
Safeco agreed to an amount with Paragon, but deposited it with the court, so that Paragon and
every possible creditor could fight it out of who was going to get what share of the proceeds. Those
parties with a specific claims regarding the issue, the fire insurance proceeds will get priority of the
insurance money, whereas general creditors, who needs to join because their interests are at stake
or risk losing any change of fighting due to preclusion, will be considered secondary.
6. CLASS ACTIONS: FR 23: when representatives sue on behalf of people similarly situated
a. Threshold Requirements: FR 23(a) all class actions must satisfy all elements
1. Numerosity: too many for practicable joinder
2. Commonality: some common question of fact or law
i.
Judgment for relief can satisfy all claimants at once
3. Typicality: representatives claim must be typical of the class claims
4. Adequacy: Representative and lawyer will adequately represent the class
i.
Lawyers funding and experience
Hansberry v. Lee (SCOTUS 1940)
A judgment in a class action in which members of the class may bind those who were not made parties
(but represented by the class) to the action, only if the procedure is set up to afford all non-parties
adequate and fair representation (their interests represented), otherwise due process violation. The Ps
in the Burke case were not representing the P in this case whose interests were in resisting
performance. Therefore, the petitioners are not bound by the earlier judgment.
b. Types of Class Actions: FR 23(b)
1. FR 23(b)(1) allowed if individual suits would create risk of
i.
Inconsistent Judgments, OR

ii.

Impairment of the interests of the members of the class who are not
parties to the individual actions (if they brought the action individually
they would move for FR 12(b)(7) for failure to join indispensable parties
under FR 19)
a. Mass tort claims, where the risk is D might be insolvent before
claims are adjudicated, issue preclusion or inconsistent verdicts
2. FR 23(b)(2) class seeks only injunctive relief (allows nominal monetary awards)
i.
Many civil rights cases (that allow fee-shifting of attorneys fees)
3. FR 23(b)(3) common question of law or fact among Ps that predominates over
individual issues and class actions are superior way to resolve
i.
Most common type of class action (e.g. c lass product liability)
c. Must have SMJ Jurisdiction
1. Most class actions will be certified as a federal question
2. Bare diversity as long a diversity and venue are satisfied, no issues
3. Must meet $3 in controversy in aggregate of claims
d. Personal Jurisdiction: in class actions, there is no requirement that the every member of
the class satisfies minimum contacts with the forum state
1. Due process is not violated because of notice and burdens are less on P than D
Phillips Petroleum v. Shutts (SCOTUS 1985)
D claimed that the class cannot be certified because KS does not have PJ over the out-of-state Ds (who
are a majority of the Ps) because it is a denial of due process. Ps, in class actions, are not treated the
same as Ds to satisfy personal jurisdiction because their burden is not the same. The Ps were notified
and could have opt-ed out (Mullane) and so PJ is adequate.
e. Notice to Class Actions: Classes certified as FR 23(b)(3) must receive adequate notice
1. Notice should be reasonably calculated to give notice all class members
i.
Usually mail is sufficient
ii.
Publication notice for those who mail does not reach/no address
2. Must give notice of suit, chance to opt-out (preclusion does not apply if opt-out)
i.
For settlement purposes, must notify of terms of settlement, chance to
opt-out or object to the settlement
3. Court must approve all class action settlements after a hearing to review
objections and terms of agreement (and any fee-shifting)
Amchec Products, Inc. v. Windsor (SCOTUS 1997)
Because there was no assurance that the class representatives properly understood their
representational responsibilities, the adequacy requirement of Rule 23(a)(4), which demands that
the named parties will fairly and adequately protect the interests of the class, is not satisfied
(lawyers had conflict of interest when settling claim of class with asbestos and class with future
asbestos suits).
f.

Class Actions get special treatment

1. 1453 - one year limit to remove (by the D) does not apply to class actions
i.
And any D can remove, even if an in-state D
2. 1332(d) - Amount in controversy - 5 million
3. Looser diversity requirement for SMJ: bare diversity

4. Remand provisions when state interests outweigh: 28 USC 1332

i.
d(3) discretionary:
a. Factors include relative size of the in-state and out-of state class
membership
b. If claims asserted involve matters of national or state
importance/interest
c. What state law will apply
d. Connection of the forum to the class members, harm and Ds
e. Do not weigh on certification, but on federal diversity
jurisdiction
ii.
d(4)are mandatory:
a. If more than 2/3 of the class members are in-state
b. AND at least one significant D is also in state
c. AND the injuries giving rise to the claim occurred in state
Wal-Mart v. Dukes (SCOTUS 2011)
Having the same claim, discrimination under Title VII, does not mean that all claims can be productively
litigated at once. The case must be capable of class-wide resolution which means a determination of
truth or falsity that will resolve this issue that is central to the validity of each claim at once.
DISCOVERY: relevance to claim or defense and links discovery to the pleadings and laws of evidence.
Relevant means it tends to prove or disprove something the substantive law says matters.
Required Disclosures: FR 26
1. FR 26(a) parties have a duty to disclose information without courts order or request at
beginning of discovery
i. Parties names, document locations, general computation of damages, etc.
a. Initial Disclosures: FR 26(a)(1) Requires exchange categories of information that the
disclosing party may use to support its claim or defenses. Must exchange without
having been requested by other side.
i. Names, addresses of witnesses, basic damages calculation, insurance agreement
b. Experts: FR 26(a)(2) List of any expert witnesses
i. All opinions/basis for experts conclusions, experts qualifications, facts relied on
c. Evidence to be used a trial: FR 26(a)(3) List of witnesses and documents that will be
used as exhibits
i. Due 90 days before trial (complete statement made by witness), list of facts
used to support claim, exhibits, witnesss qualifications, other cases and
statement of compensation
d. Supplements - FR 26(e) for additional (new) information later discovered
i. Sanctions if not admitted or amended in a timely manner under FR 26(g)
2. Scope of Discovery: FR 26(b) scope of discovery is any non-privileged matter that is relevant to
a partys claim or defense.
a. Standard of discoverability: FR 26(b)(1) Relevant to a claim or defense means it tends
to prove or disprove something the substantive law says matters.
i. Information need not be admissible at trial if calculated to lead to discovery of
admissible evidence.

ii. Need not disclosed information that will impeach your claim or defense, unless
specific requested later on by opposing party
b. Privilege information is non-discoverable.
i. Based on relationship: attorney-client, doctor-patient, spousal, priest
ii. Limits discovery to protect privacy of parties and right to confidential
communication
iii. Privileges must be asserted or they are waived
1. Intentionally waived, OR
2. Unintentionally waived: by disclosing information or acting inconsistent
with the privilege (telling a 3rd party)
iv. LIMITS: if information is unreasonably duplicative, can be obtained elsewhere
more easily, or if the other party had ample opportunity to discover and did not
or the burden and expense < likely benefit
v. EXCEPTION: If a party shows good cause, the court can grant broader
discovery of subject matter in controversy
c. Work-Product: FR 26(b)(3) material prepared in anticipation of litigation; created by
party or its representatives.
i. LIMIT: if the other party shows substantial need and cannot without undue
hardship obtain equivalent information, judge can order disclosure
ii. BUT: mental impressions, conclusions, opinions and theories regarding the case
are always protected
e. Trial Prep Experts: FR 26(b)(4)
i. Experts may be deposed after submitting report
ii. Communications and drafts are protected
iii. Non-Testify Experts: The facts or opinions of non-testifying experts developed in
preparation for litigation may only be discovered with a showing of exceptional
circumstances
f. Unintentionally disclosed: FR 26(b)(5)(B) party must ask receiving party to
immediately return, sequester or destroy the privileged document and they may not use
the document until the claim is resolved
A party is allowed to discover a statement previously written by themselves; all others are
privileged
3. LIMITS: FR 26(c)- Court may protect (make non-discoverable) evidence that:
a. Might embarrass, oppress, annoyance, or unduly burden or expense a party AND
b. It outweighs its potential value
i. If a party wants to object, must do so in a timely matter or objection is waived
ii. Gives judge power to prevent abuse by parties
c. Sanctions: FR 26(g) general provision to ensure compliance: signed to assert the truth
of the discovery material or risk appropriate sanctions (tougher than FR 11)
4. Tools of Discovery:
a. Depositions: (FR 28-32) oral questions of parties to the suit. No judge but recorded by
transcript.
i. Critical but expensive
ii. Limits: No more than 10 allowed by a party, cannot last longer than 7 hours,
only allowed a second deposition with courts permission
iii. When answering:

b.

c.

d.
e.

f.

1. Allowed to object if outside the scope of knowledge (must then be

answered later)
2. Must answer if information was readily available to all in the
organization
a. If not well known, need to ask person designated as company
officer
3. May ask for additional time if party was uncooperative or disposition
impeded
iv. FR 32 Specific provision to ensure compliance: depositions may be used a trial
to impeach testimony
Interrogatories: FR 33 - 25 written Questions used for disclosure of routine information
i. Questions written by lawyers, cannot follow up evasive answers, cheap but of
limited use
ii. Can only ask parties of suit to respond to interrogatories
FR 34 -Request for documents, tangible evidence and electronic evidence
i. If metadata is relevant, it should be produced (presumption is to limit it)
ii. Parties should determine the type of document production that is best in the
pretrial conferences or initial disclosures
FR 35- Request for mental or physical exam. Courts only allow with a showing of good
cause, because of special protection because of invasiveness (limits discovery).
Admissions : FR 36 confirms evidence to make determine if it is irrelevant or noncontroversial
i. Cheap, limits scope of discovery and can only ask parties of suit to respond
ii. If admitted to first, some courts will not allow you to amend because of
prejudice to other party
iii. FR 36(b) - Cannot be used against a party in another proceeding
Information from non-parties: Rule 45(a)(1)(C) subpoena for deposition

5. LIMITS IMPOSED BY COURT:

a. FR 37(a)(3)(b)(iii) Compel Disclosure of Discoverable Information. Parties must show
good faith effort to find information. Otherwise, will be treated as contempt of court.
i. Rule 37(b)(2)- Court has the power to dismiss a complaint if a party will not
comply with discovery order
b. Spoliation - parties have a duty to not destroy or materially alter evidence or fail to
preserve property for anothers use as evidence in pending litigation or foreseeable
litigation. The power to sanction for spoliation derived from the power of the court and
not from law.
Davis v. Precoat Metals (N.D. Ill. 2002)
Discovery requests are proper where they are narrowly tailored to specific allegations at issue in the
case. Requesting information about similar conduct, in a narrow time frame, at the same plant (but for
a different class of employees) is not too broad and is relevant to the claim.
Steffan v. Cheney (D.C. Cir. 1990)
Sanctions are not appropriate for a failure to comply with a discovery request with the request is not
related to the substantive claim. Discovery must be related to the substantive issues of the complaint.

Silvestri v. General Motors Corp. (4th Cir. 2001)

The plaintiff breached his duty to protect the key piece of evidence from destruction or to at least notify
the defendant of his claim (which would not have been hard to do). Without the evidence, the
defendant cannot fairly defend itself, therefore the complaint should be dismissed.
Hickman v. Taylor (SCOTUS 1947): attorney-client privilege later codified in rule 26
Communication with client, observations and notes by counsel are considered attorney work-product,
and is privileged. By allowing disclosure, it would result in inefficiency, unfairness, a demoralization of
attorneys, and poor service of the interests of clients and the cause of justice.
- If an opposing party can show necessity to privileged information, court may order disclosure.
Thompson v. The Haskell Co. (M.D. Fla 1994)
A party may only discover physiatrists notes because they are only record at the time of the alleged
injury (defendant cannot recreate) and substantive claim of emotional distress is highly dependent on
doctors opinion
- It would be unduly burdensome (exceptional circumstances) to not allow disclosure
- If it was a report written in the normal course of business, discoverable (ER doctors report) but
not if a specialized report
Chiquita International Ltd. V. Bolero Reefer International
Party had opportunity to perform their own inspection, but neglected to do so. Failure does not amount
to exceptional circumstance required. Therefore, experts opinions are protected, but facts relied upon
are discoverable.
Stalnaker v. Kmart Corp (D. Kan. 1996)
A party seeking a protective order has the burden to show good cause (embarrassing, overly
burdensome, annoyance) . Sexual activities of D with non-parties are outside of the scope of the claim.
Zublake v. UBS (S.D.N.Y. 2003)
A company with relevant electronic information should be ordered to produce those records at its own
expense if they are relatively accessible and inexpensive to produce. FR create a rebuttable presumption
that the producing party should bear the cost of production; if production requests place an undue
burden or expense on the producing party, the Rules allow cost-shifting to pay for production. To
determine if costs should be shifted: (1) how specific the requests are, (2) the likelihood that the
requests will succeed, (3) how available the requested information is from other sources, (4) why the
producing party keeps the requested information, (5) how the requested information benefits each
party, (6) how much the production costs, (7) each party's ability and incentive to control costs of
disclosing the information, (8) and each party's resources.
RESOLUTION WITHOUT TRIAL: forced and voluntary
1. Pre-Trial Adjudication
a. Default Judgment: FR 55(a) when D does not respond to complaint
i. Allows a court to rule for moving-party (usually P) because the non-moving
partys failure to plead or defend claims
ii. FR 55 is a judgment on the merits
1. LIMIT: Appealable

iii. LIMIT: Default cannot be entered (or is not valid) if D has not received proper
notice
1. FR 60: A D who did not receive proper notice can reopen the suit
2. Can be set aside for good cause (FR 55(c) and FR 60(b))
a. Court does not want to reward winners by technicality
Peralta v. Heights Medical Center (SCOTUS 1988)
A default judgment may not be entered against a D who did not have adequate notice of the
proceedings against him, even though the same result would be entered on retrial; does not need to
prove he would have had a successful defense (Due Process, 14th Amendment)
- Failure to give proper notice invalidates default judgment
b. Summary Judgment: FR 56 when trial would be futile, before discovery phase
i. Allows dismissal of a suit to be granted when the record shows that there is no
genuine issue as to any material fact then the movant is entitled to judgment
as a matter of law
ii. Facts are not in dispute (that would be jurys role) but about law
1. Frequently, a FR 12(b) challenge
2. Party lacked any evidence supporting a necessary element of the claim
or defense
a. Reasonable minds could not differ
iii. Iqbal/Twombly made FR 56 easier for the D by raising standard of proof need in
pleading stage
iv. DEFENSES: D has two approaches: (Celotex)
1. I have proof I didnt do it
2. You dont have any proof I did it
c. Judgment as a Matter of Law/Directed Verdict: FR 50, after P presents evidence
i. Dismissal because the D has not presented a case that would permit a jury to
decide in his favor no legally sufficient evidentiary basis
1. Must be before it goes to the jury, else file a JNOV
ii. Party lacked any evidence supporting a necessary element of the claim or
defense
1. Reasonable minds could not differ
2. No need for a jury to assess credibility or weigh evidence (facts are not
in dispute)
iii. All evidence should be considered in the light and with reasonable inferences in
favor of the party opposed to the motion. (assume everything is true)
d. Failure to Prosecute/Involuntary Dismissal of Suit: FR 41(b), P abandons lawsuit
i. Either D or court can move for motion after P fails to prosecute
1. If D failed to engage, it would be a default judgment
ii. Forces the parties to stay engaged in suit and not waste judicial resources
iii. Court has discretion in determining when the suit is over
e. Weighing of Evidence: in support of a pleading, a party may submit evidence
i. FR 56(c)(4) -An affidavit or declaration used to support or oppose a motion
1. Must be made on personal knowledge,

2. Set out facts that would be admissible in evidence, AND

3. Show that the affiant or declarant is competent to testify on the matters
stated
a. Personal knowledge and specific details are required
b. Usually drafted by lawyer and signed by party
ii. Court can consider deposition testimony, answers to interrogatories, verified
pleadings
1. pleadings are not evidence because they are not sworn under oath but
they can be used as admissions for failure to deny in Answer
Celotex Corp v. Catrett (SCOTUS 1986)
P sued manufacturer of asbestos claiming it was responsible for her husbands death. D brought motion
for summary judgment. The requirements of 56(c) do not require that movant produce evidence; a
moving party may meet its burden of persuasion by demonstrating that the nonmoving party failed to
supply sufficient evidence of an issue of material fact. P failed to prove the product caused the death.
- Under Adickes, P just had to say that there was an issue and P will prove (negate claim). Now,
standard is raised to make P bring evidence to support claim
- Aligns burden of proof at trial with burdens at summary judgment
- Parties must be diligent about discovery, cannot wait to summary judgment has passed to
gather key evidence
Bias v. Advantage International Inc. (SCOTUS 1990)
P overdosed on cocaine; family claimed breach of contract against agent for failure to get insurance
policy; D argues no breach because D could not have gotten a policy because of Ps drug use; family said
P doesnt use drugs, but teammates say I saw P use. Motion for Summary Judgment: there is no
genuine issue of material fact because the specific evidence of teammates trumps the general denials.
Houchens v. Met Life (SCOTUS 1991)
Ps husband disappeared and is presumed dead, P argues by accident to collect on insurance policy; sues
for breach of contract; P only needs to prove that there is a genuine issue as to a material fact (i.e.,
whether or not a reasonable person could infer the death was an accident); P has no evidence husband
is actually dead; inference of death cannot be drawn from the facts and grants summary judgment.
Pennsylvania R.R. v. Chamberlain (SCOTUS 1933)
Action for negligence by P against the RR contending that certain rail cars collided, killing P. Ps evidence
was based on the testimony of someone who heard but did not see the collision (requires inference);
Held, there is equal support for the inference that a collision occurred btw other strings of rail cars,
where the facts show that an inference is not more likely than not, court cannot let the P win (has not
satisfied Ps burden of persuasion.
2. Voluntary Dismissals: Settlements
a. FR 41(a): Court may dismiss if all the parties agree
b. FR 41(b): P may unilaterally dismiss any time before D has answered
c. After D has answered, only the court can dismiss (and its discretion) (FR 41(a)(2))
TRIAL AND THE TRIERS

1. Jurors
a. Responsibilities include: 1) finding facts, 2) voice of community, 3) democratic
institution
b. Judge instruct jurors on substantive laws (instructions are open to appellate review)
c. 12 people (SCOTUS constitutionalized 6 person civil juries)
d. FR 48 - Unanimous verdicts are required unless the parties agree to accept a nonunanimous verdict
2. Excluding Improper Influence: Juries are only allowed to consider evidence presented at trial
a. Jury must come to a decision that can be sustained by some evidence
b. To control for aberrant verdicts:
a. Voir direeliminate jurors who might reach irrational verdict
b. Law of evidence controls what is presented
Peterson v. Wilson (5th Cir. 1998)
A trial judge overturned a verdict based on his conclusion that the jury based its decision on a
misunderstanding of the judges instructions after talking with a juror after the trial. Judge is prohibited
from using information to award JNOV.
3. Judges either elected or appointed.
a. Voluntary Recusal when the judge has a conflict of interest, he should remove himself
from the case
a. Judges are only excluded by law when: 455(b)1. They have acted as a lawyer previously in the action
2. Have a financial interest in a party (or related to someone that does),
3. Where judge has served as a government employee who expressed a
policy/opinion on the particular case/issue
4. When judges impartiality might be questioned (broad reading)
b. Conflict can be waived only if financial interest falls in A and is fully disclosed
1. 445b: cannot be waived and judge should be recused
b. Challenging the Judge Failure to Recuse
a. FR 52(a)(6) a finding of fact by a judge can be set aside on appeal if it is
clearly erroneous
b. Permits a peremptory challenges of judges (by filing an affidavit) claiming the
judge is prejudiced against a party.
1. Only allowed if the party can show cause
c. If a judge fails to recuse, can file 28 USC 351 a procedure by which persons
can file complaints against judges
1. Judges are then investigated and perhaps punished
2. LIMIT: a violation does not remove you judge, only a recusal does that
Caperton v. Massey (SCOTUS 2009)
Due process question in recusing judge: the timing and amount of the contributions to a judge created a
potential for bias. DISSENT: Worry that by making judges recusal a Due Process issue, it will open flood
gates of litigation and expansion of federal influence into state judges.
c. Role of the Judge

a. Keep the case about the merits, not mere technicalities

1. Many determinations at judges discretion, allowed to ignore FR in
exceptional circumstances when justice so requires
b. Efficiency and Judicial Economy (encourage settlement)
1. FR 16 Pretrial Conferences, scheduling and management.
2. FR 16(a)(5) Judge is to facilitate settlement as a goal of pretrial
discovery conferences
1. FR 16(c)- Management techniques judges can use to encourage
settlement, Matters for Consideration in Pretrial
c. Not let a jury decide for the party when the facts do not support claim
1. Methods: Summary Judgment, Judgment as a Matter of Law, JNOV
d. Rule of matters of law (but not fact)
1. Provide Jury instructions
2. For all final decisions, FR 52(a)(1) requires the court must find the
facts specially and state its conclusions of law separately when ruling
on a dismissal
a. Explain decision and inferences.
b. Not a requirement for juries.
c. Required to make appeals easier.
Sanders v. Union Pacific Railroad Co. (9th Cir. 1998)
A court may dismiss a case with prejudice without first employing lesser sanctions where a party's
disobedience of a judge's orders threatens to bring about delay and expense.
McKey v. Fairbairn (D.C. Cir. 1965)
Judge did not abuse his justifiably large discretion in refusing to permit P to amend the pretrial order to
reflect a new theory during the trial. Additionally, the trial court was correct in directing a verdict for Ds.
P ignored scheduling timetable set up under FR 16(c)(2). Parties are responsible for maintaining the suit,
not judges.
4. Right to Trial by Jury: 7th Amendment -only applies to Federal. Most states have similar law
a. FR 38(b),(d) - Either party must request jury trial, or right is waived
b. Federal courts grant right to trial only if the right existed in 1791 (Bill of Rights)
a. In actions that would have been "at law" in 1791 - right to a jury
1. Type of action was for legal remedy (usually money)
b. In actions that would have been "in equity" in 1791 - there is no right to a jury
1. Type of action was for equitable remedy usually a specific remedy
c. FR 39(c) allows a court to use a jury trial at its discretion
c. Judgments cannot be re-examined
a. prevents judges from overruling or undoing work of juries, unless a factual
determination was clearly erroneous
d. FR 49- provides for use of "special verdicts" in jury trials,
a. Jury is asked to respond to specific questions and determining the amount of
the damages, if any
b. Rather than just finding liability or non-liability (general verdict)
5. Controlling Juries After the Verdict

a. JNOV replacing the jury verdict with the judges verdict because of insufficient
evidence (final decision, so appealable)
a. Must make a FR 50 motion before it goes to the jury and after the jury verdict
b. New Trial: FR 59- either party or judge can move for a new trial
a. Reasons for New: 1) incorrect process and 2) insufficient evidence
b. Not appealable until after second trial (unless new trial was granted as part of a
conditional JNOV
Reid v. San Pedro, LA & Salt Lake Railroad (Utah 1911)
If its not more likely than not the defendants fault, then you CANNOT let the jury rule in favor of the
plaintiff. Must give judgment notwithstanding the verdict or summary judgment.
Lind v. Schenley Industries (3d Cir. 1960)
The subject matter of the case was simple and easily comprehendible by the jury. The main task of the
jury was to determine if the witnesses were truthful. The jury found the testimony of P and his secretary
to be credible. Court abused its discretion by substituting its judgment for that of the jury (JNOV).
- When determining if there should be a new trial, verdict should be considered with the context
of the case to assure there is no miscarriage of justice
6. Appeals
a. Final Judgment Rule: a party can only appeal a final decision28 USC 1291
1. Whatever the ruling is, after the judge makes order, is there any
remaining determination on the merits of the case? If no, appealable.
2. No appealing interlocutory rulings
b. Rule 41(b) dismissal for any reason except lack of jurisdiction, improper venue, or for
failure to join a party operates as a final judgment on the merits
c. FR 50(c) - In order to be able to have new trial, the party must make a FR 50 post-verdict
motion otherwise, barred from appealing on grounds of insufficient evidence. Has 4
possible combinations:
a. Denial of both motions (most common)
b. Denial of j.n.o.v and granting of new trial
c. Grant j.n.o.v. and deny new trial (immediately appealable)
d. Grant both motions
d. Appeals depend on:
a. A party (who raised the argument below) identifying an error of the trial court
(at the time, not after the fact) AND
b. Showing that the error resulted in an erroneous outcome AND
c. You have to wait to appeal until the case is all over (The Final Judgment Rule)
7. Conditional New Trials : Judge may order new trial on just damages or conditional new trial
a. Remittitur- new trial unless plaintiff agrees to accept reduced damages
a. Not allow to set remittitur and then ask for new trial
b. SCOTUS declared constitutional
b. Additur new trial unless defendant agrees to accept increased damages
a. SCOTUS declared unconstitutional
c. Punitive Damages are always reviewable by a higher court

Apex Hosiery Co. v .Leader (3d Cir. 1939)

An interlocutory order may not be appealed, only final judgments. D seek to review a discovery order
(FR 34) requiring them to produce certain documents for use by P at trial.
Norton v. Snapper (SCOTUS 1987)
Ps finger was cut off by Ds lawnmower; (1) design defect under strict product liability (2) negligence (3)
breach of warranty of merchantability; strict liability turned on whether it was defective because of lack
of dead mans device and whether defect caused injury; jury decided P wins on the strict liability
claim; D moved for JNOV and won; on appeal court says jury could have reached that conclusion so it
was an abuse of discretion to grant JNOV.

RES JUDICATA
28 USC 1738 - Full Faith and Credit Act, requires all courts in the United States to treat a state-court
judgment with the same respect that it would receive in its state of origin.
1. Claim Preclusion - forbids a party from litigating a claim that was, could or should have been
raised, in former litigation
i. Both cases involve the same claim
1. Claim for both is right to relief arising from a transaction or occurrence
a. Same transaction or occurrence:
i. Common nucleus of operative facts
ii. Uses T/O because it mirrors the joinder ruleif the
claim could have been joined in the first suit it is
reasonable to require it instead of bringing two suits on
the same facts
2. Had opportunity to bring both claims the first time, but did not
3. Test:
a. Is this the same transaction or occurrence?
b. Was there a final judgment in the first suit?
c. Were the parties or parties in privitiy the same?
d. Was the issue in the first case competently, fully and fairly
litigated?
4.
ii. LIMIT: only applies to parties who are named in suit 1
1. Or are in privity (successive owners, represented by the class)
Rush v. City of Maple Heights (SCOTUS 1958)
Must bring all claims regarding the same transaction or occurrence against the same D together, or risk
claim preclusion. When a single wrongful or negligent act causes injury to both the person and property
of the same individual, only one cause of action arises.
Frier v City of Vandalia (7th Cir. 1985)
Car owner brought suit against city for multiple towings of cars parked illegally; first in state court for
replevin then in federal court on Due Process. Held, a claim which could have been brought against the
same D arising from the same T/O must be brought or it will be claim precluded. Fed court follows the

preclusion rule of the court where the first claim was heard (state court) Full Faith and Credit Act.
Searle Bros. v. Searle (Utah 1978)
Suit 1 divorce split property between husband and wife. Wife got land. Suit 2 - Sons sued wife
because they claimed land was taken from them without due process. Wife claims res judicata and
collateral estoppel. No res judicata because sons were not parties to Suit 1. No issue preclusion because
sons in Suit 2 were not in privity (with husband in Suit 1) and their interests were not represented. Must
have strong legal relationship to be bound (contracts, waive rights to later litigate, class actions).
Taylor v. Sturgell (SCOTUS 2008)
Virtual representation is too broad of a claim preclusion standard. A party has a right to know when its
interests are being litigated and may be precluded in the future. Virtual representation is not an
accepted form of privity.
Gargallo v. Merrill Lynch, et al (6th Cir. 1990)
The Full Faith and Credit Act, 28 U.S.C. 1738, requires a federal court to give a state court judgment
the same preclusive effect that it would have in a state court. Ohio state courts would have ruled that
the judgment was invalid because the Ohio court had no jurisdiction over the issue (federal securities
suit), so the federal court must rule that the first judgment was invalid, thus does not bar second suit. A
federal court may not give claim preclusive effect to a prior final judgment by a state court upon a cause
of action over which the state court had no subject matter jurisdiction.
2. POLICY:
a. Efficiency
b. Consistency
2. Issue Preclusion - collateral estoppel: some issue involved has been previously litigated
a. Prevents inconsistent judgments on the same issue
b. Suits 1 and 2 arise from different causes of action and prevents parties or their privies
from re-litigating facts and issues in suit 2 that were fully litigated in suit 1
i. An issue of fact or law is
ii. Actually litigated and determined by
1. Substantivelysame content
2. Procedurallysame burden of proof, same rules of evidence, same
stakes for D
iii. A valid and final judgment, AND
iv. The determination is essential to the judgment in suit 1
v. The determination is conclusive in any other suits between the parties
1. Whether on the same or different claim
2. Party must have had adequate opportunity and incentive to litigate the
issue in an earlier proceeding
c. FR 52 - requires the judge to set forth findings of fact and conclusions of law, to help
judges in Suit 2 know what issues should be precluded (Illinois Central RR v. Parks)
i. If two issues were the reason for the determination, neither are precluded (use
to be both were)
ii. If issue could not have been brought then not precluded

d. Offensive Collateral Estoppel: most courts will not allow offensive; some courts will
allow it as long as it is fair under the circumstances
i. D fully litigated Suit 1
ii. P2 could have easily joined Suit 1
iii. D could foresee multiple suits before Suit 1 ended (incentive to litigate Suit 1
fully)
iv. No inconsistent judgments in prior suits over issue/same procedural
opportunities/rules
v. Result: P2 gets same result as P1 without burden of trial
vi. Consequence: Allows P2 in Suit 2 to sit and wait for another judgment against
the D, and if it is favorable to P1, can use Suit 1 to P2s advantage
e. Defensive Collateral Estoppel
i. D1 is sued by P1 and D1 wins
1. P1 had fully and fairly litigated Suit 1
ii. D2 is sued by P1
iii. Result: D2 can use Suit 1 to bar suit because issue has already
iv. Consequence: encourages P to join all Ds at once, because if P loses against D1,
all other Ds can use Suit 1 to bar action. But if P wins Suit 1, not allowed to use
because every D gets a chance to defend (due process).
Illinois Central Gulf Railroad v. Parks (Ind. CofA 1979)
Since there is no way of knowing why the jury came to the conclusion they did, the second suit is not
precluded because the issue was not really litigated and determined with finality. If a judgment could
have been based on two findings, the party pleading issue preclusion has the burden of proving
judgment depended on the issue being claimed as precluded (otherwise its open for the 2nd suit).
Parklane Hosiery Co. v. Shore (SCOTUS 1979)
It is within the trial courts' broad discretion to determine when offensive collateral estoppel should be
applied; however, in cases where a P could easily have joined in the earlier action, or where the
application of offensive collateral estoppel would be unfair to a D a trial judge should not allow the use
of offensive collateral estoppel.
State Farm Fire & Casualty Co. v. Century Home Components (Or. 1976)
Where inconsistent determinations result in prior suits on issue, the application of collateral estoppel
would most likely be unfair (regardless if it undermines judicial consistency). If Suit 1 and Suit 2 come
out differently, no estoppel.
f.

When Issue Preclusion should not be allowed

i. Courts must have a way out of former decisions if substantive, constitutional
law changes or if there is a history of inconsistent prior decisions. RS 26.
1. The party did not have the ability to amend or appeal
2. Change in the substantive law
3. Difference in forum or procedures in courts
4. Change in burden for a party or risks involved
5. Special Circumstances
Kovach v. District of Columbia (D.C. Ct. of App. 2002)

No claim preclusion because of later change in substantive law. Issue preclusion applies because by
paying the ticket, P admitted liability. Therefore P was not part of the class of people who were
discriminated against, which would be the issue at trial, and therefore has been already settled.
- Problem: discriminatory nature of return on ticket money issue was never litigated, which was
Ps claim. The parties never actually litigated and settled the matter. Public policy justification.
3. Blocking Collateral Attack: In Defense of Res Judicata
a. 28 USC 1738 demands that the federal government give the same Full Faith and Credit
to state court judgments as those states would give.
i. Assumes Full Faith and Credit to Federal decisions
b. Article IV of Constitution obligation of state courts to recognize sister-state judgments
i. Gap: If a judgment is objected on the grounds that it is void or invalid for lack of
jurisdiction, can be collaterally attacked
Durfee v. Duke (SCOTUS 1963)
A judgment is entitled to full faith and crediteven as to questions of jurisdictionwhen the
second court's inquiry disclosed that those questions have been fully and fairly litigated and finally
decided in the court which rendered the original judgment.
- If SMJ had never been brought up in suit, open to collateral attack. Preclusion doesnt apply.
- If SMJ is brought up, litigated, and determined, not open to collateral attack. Precluded.
- If PJ had never been brought up, it is waived. Precluded.
c. Can appeal instead of collaterally attacked suit.
i. Many times will not work because Court 1 committed no error.
d. FR 60(b) opportunity to re-open a suit because of a special circumstance
i. FR 60(b)(2) - can open a case within 1 year of conclusion if new evidence is
discovered
ii. FR 60(b)(3) can reopen if a party misrepresents (lies, hides information, fraud)
during the suit
iii. Otherwise, very limited. Must be exceptional situation (later proof P lied)
United States v. Beggerly (SCOTUS 1998)
Finding very obscure information, which was available the whole time to both parties, years after
litigation ended is not a sufficient miscarriage of justice to demand departure from doctrine of res
judicata.
SETTLEMENT
1. Reasons for Settlement
a. Trials are costly, unpredictable, all or nothing (you can control the stakes in settlement)
b. Confidentiality of issues
i. Unless part of public record (and filing accepted by the court)
ii. If future litigation over related issued, cannot hide facts but can hide terms of
settlement
c. Faster resolution
d. CONs: D may have much stronger resources, thus, bargaining power; D may be scared of
the risk and pay to settle meritless claim
e. Settlements cannot be attacked later unless as a contract issue (fraud, mistake, etc)

2. Types of Settlement
a. Arbitration
i. Alternative Dispute Resolution parties engage with the help of arbitrator to
come to settlement and are bound by the judgment by law of contracts.
Outside the formal procedures of the court
ii. Most arbitration is contractually agreed upon prior to (not even allowed to go to
court)
1. Pros - room to be creative, potential for personalized procedures, ability
to control applicable substantive law, more privacy, can utilize
arbitrators with specialized knowledge
2. Cons cannot appeal decision (binding), no public scrutiny of decisions,
possibility for biased arbitrator
iii. Courts will only review process of arbitration to make sure if it fair and review
award if there is evidence of extreme misconduct by the arbitrator
iv. Federal Arbitration Act requires courts to honor arbitration agreements. Can
only be attacked under contract law (fraud, coerced, unconscionability)
v. Alternative Type: Nonbinding Arbitration- parties are not bound by settlement
unless both agree, but must participate before allowed to bring formal suit
1. Good Faith Negotiating require of labor unions
b. Mediationi. Mandatory- business contracts, family law
ii. Voluntary hire a mediator to here both sides and decide for a party
iii. Mediators decision is final and non-appealable
c. Contracting to Dismiss - a party agrees not to bring a suit or drop an existing suit in
return for something (usually money)
d. Summary jury trial- Use of a mock jury with abbreviated evidence. Verdict is nonbinding and become the basis for negotiations.
e. Negotiation between the Parties
3. Form of Settlements
a. Stipulate to judgment: "Consent decree" - court states terms of settlement as a final
judgment
i. Advantage is need to be enforced later by court (no need to file new suit)
ii. Keeps suit in the jurisdiction is was settled in (otherwise, breach of
settlement is a state claim)
b. A state court can enforce a settlement of a federal issue (settlement trumps
jurisdiction issues)
i. If party does not comply with suit- can challenge a final jurisdiction in court
ii. Suit over Settlement is treated like a contract suit (need to file new suit)
c. If a party brings suit over settled issue affirmative defense accord and
satisfaction
d. Confidentiality of Settlements Confidentiality can be stipulated.
i. If breached, liable for breach of contract. Can require return of documents
to prevent breach.
ii. Cannot be closed to future judicial proceedings
1. Must have clause except as required by judicial process, or as
otherwise required by law, else risk entire agreements validity
questioned

2. Relevant, unprivileged, historic facts cannot be kept confidential

from future proceedings (but can protect the terms of the
settlement)
iii. Damages if breached: liquidated damages or new suit
Matsushita Elec. Industrial Co. v. Epstein (SCOTUS 1996)
A federal court must give a state-court judgment the same effect that it would have in the courts of the
state in which it was rendered. Consent decree trumps jurisdictional issues.
- Parties should check to see that state law has authority for preclusive effect.
- Settlements can settle suits that courts would not have jurisdiction over (Global settlements)
Kalinauskas v. Wong (D. Nev. 1993)
A party may depose a witness who has entered into a settlement agreement with the opposing party
that bound the witness to confidentiality when the witness has factual information relevant to the case.
Terms of the agreement need not be disclosed, but substantive facts should be allowed.
AT&T Mobility LLC v. Concepcion (SCOTUS 2011)
Class actions are not allowed in arbitration agreements, because the goal of arbitration is to facilitate an
informal and efficient process to settle claims.
- Parties are allowed to limit the issues subject to arbitration, specific rules and the parties in
which to participate in the arbitration
Ferguson v. Writers Guild of America (Cal. App. 3d 1991)
Court is only allowed to question the process of the arbitration, not the determination/outcome.
Court can only examine if the parties 1) have agreed to submit their controversy to arbitration, 2)
whether the procedures employed have deprived an objecting party of a fair opportunity to be heard,
and 3) whether the arbitrators have exceeded their powers.
McKey v. Fairbairn (D.C. Circ. 1965) pg. 546 (of coursebook)
the trial judge did not abuse his justifiably large discretion in refusing to permit plaintiff to amend the
pretrial order to reflect a new theory during the trial. The discretion of a trial judge in refusing to permit
a party to change a theory during the trial is justifiably large 1. The judge refused to permit evidence of
part of the housing code because the plaintiffs had agreed at pretrial conference that the issue was
about negligence ONLY, and it was too late to come up with a new theory. Must do research before
case really gets going.