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Civil Procedure, Fall 2012.

Forum Selection = PJ + Notice + SMJ + Venue
Assess SMJ on every claim filed in fed. ct.

I. PERSONAL JURISDICTION
a. Court must have power over the
i. D herself or
ii. The Ds property.
b. General: subject to suit on any claim that arose anywhere in the world.
i. Presence
1. If you are present then you will be subject to PJ. (Pennoyer)
a. Does not necessarily apply to corporations.
2. Citizen of a Forum
a. Individuals
i. Subject to general PJ if they are a citizen of that forum.
ii. Domiciled in the forum.
b. Corporations
i. Does not necessarily apply to corporations.
ii. Principal Place of Business (PPoB) is generally used
for Diversity Jurisdiction language.
1. PPoB is usually reserved for the purposes of the
diversity statute.
a. PPoB can be a small collection of
executives that doesnt necessarily have
sufficient contacts, etc. with the forum.
3. Transient Presence GRAY AREA, EXAM Q
a. If a person is there in the state then they are subject to PJ
even if they are not a citizen.
b. Gotcha or tag jurisdiction. (Burnham)
i. Majority Opinion: believe that you need more than
mere presence MUST meet International Shoe basis.
ii. Minority Opinion: just because you are there, you are
subject to PJ dont have to analyze under the
International Shoe test.
ii. Consent
1. Consenting to jurisdiction in a particular forum.
2. Agency: appointing agents for service of process
a. Constructive Consent: because you are driving in a particular
state you are particularly consenting to allowing yourself to be
sued in that state. (Non-resident motorist act; Hess); Specific
Jurisdiction
i. Not as strongly supported. The current law supports a
International Shoe minimum contacts test.
iii. Service itself does not give you PJ over a D. It is tied up with PJ. There are
formal rules that must be adhered to which cannot give you any more than
they are entitled to under the Constitution.

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1. Traditionally: In the Pennoyer era, cases blended service of process
and PJ together. When Pennoyer was decided, service of process on
a D within the forum state was the predominant means of obtaining
jurisdiction as well as giving notice. Under Pennoyer, then, if service
was not made properly then PJ was not obtained.
2. Modernly, both are quite distinct either may be satisfied though the
other is not.
a. Proper service is not a substitute for a basis for the court to
exercise PJ.
i. BOTH requirements must be met (PJ and Service) in
order for the suit to proceed.
iv. Long-Arm Statutes: most states allow jurisdiction over non-residents.
1. A non-resident D can be sued in a state on a claim that arises from the
D doing something in that forum.
2. Based on specific types of contact with the forum state.
a. Require that the claim sued upon arise out of the act itself.
3. Not all assertions of jurisdiction under long-arm statutes are
constitutional simply because the statute authorizes it.
a. i.e., it would be unconstitutional for a P from WA that
purchased goods from CO to assert PJ over the D from CO in
WA.
4. Authorizing PJ in cases where the D acts outside of the state but
causes an effect within it. (Burger King)
a. Claims that may arise out of transacting business in the
forum state.
v. Substantial and Continuous Contacts (off of Helicopteros)
1. Allows you to be sued on anything in that jurisdiction.
a. D would expect to be sued in that jurisdiction on any claim and
b. D would not suffer any inconvenience from defending there.
2. **Goodyear: must show that the D is essentially at home in the forum.
a. General Jurisdiction cannot be based on purchases and sales;
must be based on physical presence.
c. Specific: jurisdiction over claims arising out of a specific cause of action.
i. International Shoe Test: minimum contacts + Fair Play and Substantial Justice
1. Minimum Contacts
a. Minimum Contacts jurisdiction is limited to claims arising
from, or limited to, the Ds contact with the forum state.
i. Applies to individuals as well as corporations.
b. Must have a relevant contact before looking at fairness.
c. TEST:
i. Jurisdiction is permissible based on the quality and
nature of the contacts within the state.
1. Could the individual reasonably expect to be
hailed into ct. in that jurisdiction?
(Foreseeability)

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a. Is it foreseeable that the D can get sued
in that forum?
2. Did they take affirmative steps to reach into that
jurisdiction? (Purposeful Availment)
a. Ds contacts may have enough of a
relationship with the underlying cause of
action that it may support minimum
contacts jurisdiction.
i. The D has been trying to reach
into that jurisdiction.
d. Quality and Nature of Contacts
i. Purposeful Availment
1. The D must have purposefully availed itself of
the privilege of conducting activities within the
forum State, thus invoking the benefits and
protections of its laws. (McIntyre)
a. The Ds voluntary act.
b. McIntyre: there is no definite law
still in flux. APPLY THE
DIFFERENT APPROACHES.
(GREY AREA, EXAM Q)
2. D must have made a deliberate choice to relate
to the state in some meaningful way.
3. Keeton v. Hustler Magazine, Inc.
ii. Stream of Commerce is not enough to subject someone
to PJ. OConnor: need an intent to serve that forum.
1. D must do more than sell goods in a forum.
a. e.g., D seeks to serve the market in a
particular state by designing product for
the market in that state or advertising
there.
2. Foreseeability that the product will get there is
not enough.
e. Number of contacts vs. the quality of contacts
i. Increasing Contacts
Extent of Contacts jurisdictional consequences
Substantial/Pervasive general jurisdiction
Continuous but limited specific jurisdiction
Single Act specific jurisdiction
Casual or Isolated no jurisdiction
No contacts no jurisdiction
ii. Decreasing Contacts
iii. A single fortuitous contact with state that is
unintended or intended does not constitute sufficient
contact for PJ. (World Wide Volkswagen)

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f. Focus: on the cause of action, not the state of the contacts at the
filing of the lawsuit.
i. Prior contacts: when contacts have been stopped for
some time from a D, but those contacts still resulted in
a cause of action.
2. Traditional Notions of Fair Play and Substantial Justice
a. Is a secondary consideration after it is found that deliberate
contacts exist between D and the forum state.
i. In Specific Jurisdiction: when those contacts give rise
to the claim.
ii. Implementing the minimum contacts + purposeful
availment test.
b. Ps interest, Ds interest, and the forum states interest
i. Factors to be weighed when determining jurisdiction.
1. Ps interest in obtaining convenient relief.
2. States interest in efficient resolution; judicial
efficiency.
ii. The contacts arent great, but there are really good
reasons of why we should have jurisdiction.
c. Fairness (Burger King Corp)
i. A jurisdiction must not be difficult or inconvenient for
the D to defend a case and
1. The D should not be at a severe disadvantage in
the litigation.
ii. *Relative wealth of the parties is irrelevant.
d. In Rem and Quasi-in-Rem Jurisdiction
i. Use the property of the D for a jurisdictional basis.
ii. In Rem: the case is about the ownership of property itself.
iii. Quasi-in-Rem: the lawsuit has nothing to do with the ownership of property,
but the property is used for a jurisdictional basis.
iv. Attachment
1. A court can attach the property if it is something a non-resident D
owns or claims to own. (Pennoyer)
2. Constitutional Requirement: the property must be attached at the
outset of the case.
a. The D must beet the International Shoe test. (Shaffer v.
Heitner)

II. NOTICE AND THE OPPORTUNITY TO BE HEARD
a. Service of Process RULE 4
i. Service of the initial notice to the D of the filing of a lawsuit against him.
1. Process: consists of a summons and a copy of the complaint.
ii. Requirements of the court:
1. Must have Subject Matter Jurisdiction (SMJ);
2. Must have PJ over Ds (Constitutional requirement);
3. Must have statutory requirements for PJ (long-arm statutes).

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iii. RULE 4(c)(2): service can be effected by any non-party who is at least 18
years old.
iv. Process MUST be served within 120 days after filing the complaint. If you do
not, the court will dismiss the case with prejudice, unless you can show good
cause for the delay. (RULE 4(m))
v. RULE 4(e)(2): Methods of Service: Individual. There are three methods.
1. Personal Service
a. Deliver the summons and complaint directly to the D.
b. Can be done anywhere in the forum state.
2. Substituted Service
a. Can leave copies of the summons and complaint at dwelling or
usual place of abode. (Khashoggi)
b. Must leave them with a person of suitable age and discretion
that resides there.
3. Agent Service
a. Serve the Ds appointed agent.
4. RULE 4(e)(1)
a. Court can also use any method for service of process that is
allowed by state law of the state where the federal court sits, or
b. In which service was effected.
c. Party in another state: may use any method of service rules
authorized by that states service rules because that state is the
state where service is effected.
vi. RULE 4(h)(1): Methods of Service: Corporation.
1. If D is serve anywhere in the United States then RULE 4(h)(1) applies.
a. Must serve an officer or managing or general agent of that
corporation.
i. Parallels RULE 4(e), (e)(1).
2. If D is served outside the United States then RULE 4(h)(2) applies.
vii. RULE 4(d): Waiver of Service
1. P can send the process and waiver form a D with a self-addressed
envelope. If D returns the service, then the D has waived service of
process. If D does not waive formal service, than the P will have to
formally serve process. If formally served, D must pay for it.
2. RULE 4(d): Incentives for waiving service.
a. (d)(1): creates duty to avoid unnecessary expenses of serving
the summons.
b. (d)(2)(B): the court must impose the cost of the service on a D
who refuses to waive service without good cause.
c. (d)(3): reward for waiving service allows 60 days instead
of the usual 20 days, to respond to a complaint.
viii. RULE 4(k): Territorial Limits of Effective Service
1. When suit is brought in fed. ct., two questions are asked to determine
whether that court can assert jurisdiction over the D:
a. Has the relevant legislature authorized the jurisdiction? and

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b. If it has, would it be constitutional for the court to exercise
jurisdiction in the circumstances of the particular case?
2. RULE 4(k)(1): can service process throughout the state in which the
fed. ct. sits. Can serve process out of state only if a state ct. could have
served process there as well.
a. Exceptions:
i. RULE 4(k)(1)(B): can serve process from a fed. ct. as
long as it is within 100 miles of the courthouse.
1. Only applies to parties who are joined later
under RULES 14 and 19 (impleaded parties).
ii. RULE 4(k)(1)(C): Federal statutes may allow for more
service of process outside of the state if statute suffices
to support jurisdiction for a particular type of case.
1. Often in parties subject to interpleader
jurisdiction.
b. Constitutional Standard for Notice
i. RULE 4(b): Notice must be reasonably calculated under circumstances to
inform the D of the suit. (Mullane v. Central Hanover Bank)
1. Balancing process what process is due?
a. Compare the cost v. benefits. (Matthew v. Eldrige, see
Connecticut v. Doer, 165)
i. How costly is it to the government? To the public?
ii. Benefits: how much better will the decisions be? How
important is the deprivation to the P?
1. i.e., if you lose your place to live, then it may be
a huge deal.
ii. Notice by publication
1. Usually in a newspaper. This type of notice may be okay. Is primarily
a last resort.
c. Opportunity to be Heard
i. Major factors to protect the D:
1. D gets a hearing on the merits at some point.
2. P must give an affidavit of its claim.
3. May require that the Ps affidavit state the facts in specificity.
4. Get a writ of possession from a judge, not a sheriff.
5. P may be required to post a bond.
6. D gets the property back pending litigation by posting a bond.

III. SUBJECT MATTER JURISDICTION
a. General
i. Can establish by:
1. Diversity Jurisdiction, or
2. Federal Question Jurisdiction (FQJ), or
3. Supplemental Jurisdiction.
ii. A court must have the power to hear a particular type of case the P wants to
file. Jurisdiction over cases and claims.

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iii. Do you go to st. ct. or fed. ct.?
1. Fed. cts. are authorized to hear cases between states, between citizens
of different states, between citizens and aliens, cases arising under the
fed. Constitution and fed. law, among others.
a. Makes sense to have a ct. hear cases that involve the
application and interpretation of fed. law protects it from
unsympathetic construction by state courts and to allow
definitive interpretation of fed. law.
2. Two main categories: cases that arise under fed. law and cases
between citizens of different states.
iv. The P has the burden to establish SMJ.
1. There is a presumption against fed. jurisdiction; the P must properly
plead that federal jurisdiction exists.
v. Must determine SMJ at the time of the complaint.
vi. SMJ issues can be raised at ANY TIME throughout litigation.
1. A ct.s lack of SMJ is a defense that cannot be waived.
b. Diversity Jurisdiction 1332
i. Complete Diversity Rule
1. Diversity jurisdiction exists only if all Ps are citizens from different
states than the Ds.
a. No same state on both sides of the v.
2. Strawbridge v. Curtis: the Constitution requires minimum diversity.
ii. Diversity of Citizenship 1332(a)(1)
1. Test for diversity when filed. A subsequent change in citizenship or
domicile is irrelevant.
2. Individuals
a. Citizenship is determined by:
i. US Citizen,
ii. State of domicile.
1. An individual can only be domiciled in one state
a time.
b. Change in citizenship can be only be established by:
i. Taking up a true, fixed, and permanent domicile in a
different state with an intent to remain there.
ii. Domicile, established by two factors:
1. Physical presence in the state, and
2. Intent to remain there (make it your permanent
home).
a. An intent to stay indefinitely.
c. Alienage: citizens of state and foreign citizens
i. The minimal diversity rule goes away as long as you
have parties from different states.
3. Corporations
a. A corporation is determined with strict adherence to the
requirements of a states corporation law; how the state defines
the legal entity.

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b. Corporations have dual citizenship; both must be diverse from
Ps citizenship for diversity purposes. State of incorporation
AND PPoB.
c. 1332(c)(1): the P has the burden of alleging the corporations
state of incorporation and PPoB.
d. 1332(c)(1): Citizenship is determined by
i. Any state where it is incorporated; AND
1. Any state where incorporation papers are filed.
ii. Principal Place of Business (PPoB). (Hertz)
1. Nerve Center Test
a. Place where the corporations high level
officers direct, control, and coordinate
the corporations activities.
i. i.e., if the bulk of a companys
business activities visible to the
public take place in NJ, while its
top officers direct those activities
just across the river in NY,
then the PPoB is in NY.
2. There can only be one PPoB.
e. Citizenship of unincorporated corporations is determined by:
such as partnerships, unions, or LLCs
i. Looking to the citizenship of all its members.
4. Representatives
a. How to treat the citizenship of representatives that sue on
behalf of others?
i. 1332 (c)(2): in suits on behalf of decedents, minors,
and incompetents:
1. Look to the citizenship of the person being
represented, not the citizenship of the
representative.
2. Class action look at the citizenship of the
representative only, not the citizenship of those
being represented.
iii. Amount in Controversy Requirement
1. 1332(a)(1): the amount in controversy must exceed $75,000.
2. The Ps claim governs unless it is clear to a legal certainty that P
cannot recover the alleged amount.
3. Ps ultimate recovery is irrelevant to SMJ.
4. Aggregation of Claims:
a. Where you add to or more claims to achieve the >$75,000
requirement.
b. *Can aggregate claims if there is one P vs. one D. Cannot
aggregate if there are multiple parties on either side. If there
are joint claims, you can go with the total value (# is irrelevant).
i. 1P v. 1D (different causes of action) aggregate;

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ii. 1P v. 1D for $50K and v. 1D for $40k no aggregate;
iii. 1P v. 2D for $90K aggregate;
iv. 2P v. 1D for $50k each no aggregate.
c. Federal Question Jurisdiction 1331
i. A claim that arises under fed. law. Citizenship is IRRELEVANT and the
amount in controversy does not matter.
ii. To invoke FQJ, the fed. issue must:
1. Look only to the Ps complaint. Do not look at what the D does either
in the answer or the counterclaim.
a. Well-Pleaded Complaint Rule (Mottley)
i. Look only to the Ps claim ignore everything else. To
test, ask:
1. Is P enforcing a federal right? If so, it is
probably a FQ case.
ii. Unadorned by anticipated defenses or other extraneous
material.
2. Be a sufficiently central part of the dispute to justify jurisdiction
(actually disputed).
3. Substantial.
iii. Federal Issues embedded in state-law claims between non-diverse parties
1. Test:
a. Actually disputed,
b. Substantial,
c. Is OK to hear in fed. ct. without disturbing Congress view of
appropriate balance between fed and st. cts.
d. Supplemental Jurisdiction 1367
i. Fed. ct. has supplemental jurisdiction over claims that share a common
nucleus of operational fact with a jurisdiction-invoking claim. Common
nucleus test is always met by a claim that arises from the same transaction or
occurrenceas the claim that has invoked an independent basis of fed. SMJ.
1. Gibbs: transaction or occurrence always meets Gibbs.
ii. 1367: a case is properly in fed. ct., BUT there is a claim in the case that does
NOT meet diversity or federal question jurisdiction.
1. Supplemental jurisdiction can make it possible for the ct. to hear this
claim.
iii. Constitutional Power of fed. cts. to hear claims that have NO independent
statutory basis of fed. jurisdiction; elements of definition:
1. Fed. and non-fed. claims must share a common nucleus of operative
fact.
2. Fed. and non-fed. claims be so related that a P would ordinarily be
expected to try them all in one judicial proceeding.
3. The fed. question must have substance sufficient to confer SMJ.
4. The fed. question should be substantial.
iv. Apply 1367 in Two Steps:
1. Does 1367(a) grant supplemental jurisdiction to this claim?

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a. If claims share a common nucleus of operative fact with the
claim that got the case into fed. ct., then YES. (If it meets
Gibbs.)
b. Where there is a fed. hook you have jurisdiction unless
(b).
2. 1367(b): takes away on that grant of supplemental jurisdiction, BUT
only in certain situations.
a. 1367(b) applies only in diversity cases to the following
claims:
i. Claims by P against parties joined under RULE 14, 29,
20, or 24.
ii. Claims by RULE 19 Ps.
iii. Claims asserted by people seeking to intervene as P
under RULE 24.
v. If 1367(b) doesnt apply, then there is supplemental jurisdiction.
1. i.e., a claim by a D against Ps is OK.
vi. Limitation:
1. Does not apply to non-diverse parties suing each other on either side
of the v.

IV. REMOVAL 1441, 1446, 1447
a. Can remove if the fed. cts. have SMJ, PJ, and Venue.
i. Exceptions: (apply ONLY to DIVERSITY CASES, not FQJ)
1. No removal if any D is a citizen of forum [where claim was filed].
2. Cannot remove a diversity case more than 1 year after the case was
filed in st. ct.
b. Limitations
i. A P must have been able to commence the action in fed. ct.
ii. A D can only remove from st. ct. to fed. ct.
1. Ps cannot remove, only Ds.
iii. All Ds must agree to removal.
1. 1441(c): minor exception a single D can remove if there is a
separate and independent fed. claim against him.
iv. NO home state removal; in-state D rule.
1. A D cannot remove the case if he is being sued in his own home state.
a. e.g., P from OR sues D from CA in CA, D cannot remove.
c. 1441(a): must remove to the fed. ct. embracing the st. ct. where the case was filed.
i. Case will be removed to the dst. ct. that has jurisdiction in that county.
d. Removal must be within 30 days after the case being removable (i.e., when service
has been effected).
i. 30 days starts again for newly served Ds.

V. VENUE
a. General
i. Determines where within a court system a case can be brought. Is primarily a
matter of convenience.

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ii. Is the court where you are the appropriate court? Where else could it be
brought that is better suited?
b. Basic Provisions
i. In removal cases, venue is the dst. ct. embracing the st. ct.
ii. Local actions must be brought in the dt. where the land lies.
iii. Rules for transitory cases (anything that is not a local action).
1. P has two choices of venue:
a. Any dt. where all the Ds reside, or
b. Any dt. where a substantial part of the claim arose.
c. Transitory Actions: anything that is not based on a local action; Ps choices of venue
i. 1391(a), (b): governing venue in Diversity/non-Diversity cases
1. Dt. where all Ds RESIDE, if ALL Ds live in the same state.
a. Residence, for venue:
i. Individuals: wherever domiciled.
ii. Corporations: apply the statute; places where they are
subject to PJ.
1. Any judicial dt. where it is subject to PJ at the
time of action;
2. In any dt. in the st. within which its contacts
would be sufficient to subject it to PJ if that dt.
were a separate state;
3. If no dt., corporation is deemed to reside in dt.
within which it has the most significant contacts.
2. Dt. where a substantial part of the events or omissions giving rise
to the claim arose.
3. If jurisdictions (1) and (2) are unavailable, then:
a. (Fallback: action founded in diversity) (a)(3): Dt. in which any
D is subject to PJ at the time action is commenced, if there is
no Dt. in which action can be brought.
b. (Fallback: action not founded in diversity) (b)(3): Dt. in which
any D may be found, if no Dt. in which action may otherwise
be brought.
d. Transfer of Venue (Piper Aircraft)
i. Can transfer from one st. ct. to different st. ct. in the same state. Cannot
transfer from st. ct. in one state to a st. ct. in another state can only transfer
in the same system.
ii. Can transfer from one fed. ct. to another fed. ct. in a different state through
transfer because it is in the same system.
iii. Definitions:
1. Transferor ct.: ct. from which we are transferring.
2. Transferee ct.: ct. to which we are transferring.
iv. Transfer Statutes 1404, 1406
1. 1404(a): Transferor Ct. is the proper venue.
a. Permits a transfer to any ct. where the suit could have been
brought.
i. Must have (can be waived):

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1. Proper Venue, and
2. PJ.
b. Standard of Transfer:
i. Convenience of the parties.
ii. Convenience of the witnesses.
iii. Interest of justice.
c. Choice of Law: take the law of the original forum.
2. 1406(a): Transferor court is an improper venueor when PJ is
missing.
a. Goldlawr transfers: allows the transfer of cases if venue is
improper and if it lacks PJ.
b. Standard of Transfer:
i. If it is filed in an improper venue the ct. shall
1. Dismiss, or
2. In the interest of justice, transfer.
ii. Dismiss or transfer to any dt. where it could have been
brought.
c. Choice of Law: use the law of the destination; original law
does NOT follow.
e. Forum Non-Conveniens (Piper Aircraft)
i. The ct. dismisses the case because there is a more appropriate venue.
1. An appropriate forum, even though competent under the law, may
divest itself of jurisdiction for the convenience of the litigants and
witnesses when it appears that action should proceed in another forum
which the action might have originally been brought.
2. A factor of convenience.
ii. Transfer is not availablebecause the more appropriate ct. is in a different
judicial system.
1. Occurs usually when the better court is in a foreign country.
iii. ONLY applies when venue is proper in the initial forum and there is an
alternate forum available.
VI. JURISDICTIONAL CHALLENGES
a. How and when a D may object to a Ps selection of forum.
b. Special Appearance Doctrine: if a D wants to challenge PJ, D can make a special
appearance, by which the D challenges only PJ and nothing else.
i. Generally, can only raise the PJ issue. If the D asserts more then the D will be
deemed to have made a general appearance which subjects the party to PJ.
ii. Can raise a PJ issue + notice to remove to fed. ct. and it does not constitute a
general appearance.
c. RULE 12: when D is sued and receives notice, D has a choice of response. D can
answer [a pleading] or make a motion.
i. RULE 12(b) defenses that D may raise in answer or by motion to dismiss.
1. 12(b)(1): lack of SMJ;
2. 12(b)(2): lack of PJ;
3. 12(b)(3): improper venue;
4. 12(b)(4): insufficient process;

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5. 12(b)(5): insufficient service of process;
6. 12(b)(6): failure to state a claim;
7. 12(b)(7): failure to join an indispensable party. (see RULE 19)
ii. RULE 12(g)(2): defenses 12(b)(2) through (b)(5) MUST be asserted in the
first RULE 12 response or they are waived.
1. Only one chance to raise a defense; cannot raise after. (RULES 12(a),
(b), (g), (h))
d. Collateral and Direct Attacks on PJ
i. Direct Attack: make an appearance and object to PJ (special appearance).
ii. Collateral Attack: an attack on a judgment made in a different proceeding.
1. Can object that the ct. had PJ in the first place;
2. Cannot object to liability on the merits opportunity is given up
when no direct attack is made.
3. No SMJ.

VII. ERIE DOCTRINE
a. Determining what law to use in diversity cases.
b. Application:
i. When there is already SMJ and Diversity Jurisdiction.
ii. When there is a question of which law to apply st. or fed.?
c. BLL: apply st. substantive law and fed. procedural law.
i. e.g., st. rule do X; fed. rule do Y; is X or Y substantive of
procedural?
d. Steps in applying Erie; Test:
i. Outcome Determination:
1. Is there a conflict between st. and fed. law?
a. If not, then both are to be applied.
2. Is there a valid fed. rule on point?
a. If so, apply the procedural rule.
b. On Point: how hard to work to find distinctions between fed.
and st. approaches? (Shady Grove)
i. All you have to show is that it is arguably procedural.
c. Rules Enabling Act (REA): fed. rules cannot modify st.
substantive rights.
ii. Balancing Interests:
1. Interest in applying st. approach v. fed. approach.
iii. Twin aims of Erie:
1. Avoidance of Forum Shopping.
2. Avoidance of Inequity based on Citizenship of Parties.
iv. Overriding fed. interest?
1. U.S. Constitution vs. St. law: applies over st. law.
2. Fed. statute vs. St. law: whether Congress had the authority to enact
the fed. statute.
a. Congress has constitutional authority to enact statutes that
govern procedure in fed. cts., even if falling between
procedural and substantive, can be classified as either.

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3. Fed. rule vs. St. law: if FRCP conflicts with st. law, then fed. rule
applies if it is valid.
4. Fed. judicial practice vs. St. law: ct. should generally apply st. rule if
the difference between it and fed. practice could prove outcome
determinative.
v. Apply St. law unless there is an overriding Fed. interest

VIII. PLEADINGS
a. Documents that set forth claims and defenses (i.e., complaint, answer, etc.).
b. Complaint: the Ps pleading; when the complaint is filed, the lawsuit is commenced.
i. RULE 8(a): requirements of the complaint
1. Grounds for jurisdiction (SMJ).
2. A short and plain statement of the claim showing that you are entitled
to relief.
a. Statement of facts constituting a cause of action, in ordinary
and concise language without repetition.
b. Must state a plausibleclaim for relief.
3. A demand for relief/judgment.
a. What do you want?
b. May include relief in the alternative or different types of relief.
c. P must instruct the ct. to what recovery P seeks from D.
ii. Twiqbal: determining if complaint met RULE 8(a)(2)
1. A court must:
a. Ignore legal conclusions;
b. Take factual allegations as true (for purposes of motions to
dismiss) possibility and probability
c. The claim must:
i. P must demonstrate why their complaint is a plausible
oneand hope to discount other obvious alternative
explanations.
ii. Judge must apply his judicial experience and common
sense in determining the plausibility of a claim.
iii. Exceptions: when you have to have more detail
1. Exceptions:
a. RULE 9(b): circumstances constituting fraud or mistake must
be pleaded with particularity.
b. RULE 9(g): items of special damages must be pleaded with
specificity.
iv. Sufficiency
1. Legally: whether the P has alleged a claim that is cognizable by law.
a. Ct. assumes Ps factual allegations are true; asks: if these
things are true, would the law provide a remedy for the P?
i. No: makes no sense to proceed P cannot prevail, even
if allegations are proved.
ii. Yes: proceed with litigation, incl. discovery.
b. Ct. does not accept legal conclusions as true.

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2. Factually:
a. Code pleading: requires a P to make a statement of facts
constituting a cause of action, in ordinary and concise language,
without repetition.
i. Must state ultimate facts.
ii. P who alleges facts that are too specific could be guilty
of pleading the evidence.
b. P can allege alternative theories in a complaint (RULE 8(d)).
c. Ds Response
i. When a D is sued and receives notice, D has a choice of response: D can
ANSWER a pleading or make a motion.
ii. Motion: a request that the court order something.
1. For judgment on the pleadings;
2. Motion to Dismiss (12)(b);
3. Motion to Strike (12(f));
4. Motion for a more Definite Statement (RULE 12(e)).
iii. RULE 12(b): defenses that D may raise in answer or by motion to dismiss.
12(b)(1): lack of SMJ;
12(b)(2): lack of PJ;
12(b)(3): improper venue;
12(b)(4): insufficient process;
12(b)(5): insufficient service of process;
12(b)(6): failure to state a claim;
12(b)(7): failure to join an indispensable party. (see RULE 19)
1. RULE 12(b)(2), (3), (4), or (5) defenses MUST be put in the first
response.
a. If not asserted in the FIRST response, then they are waived.
2. 12(b), (1), (6), (7) can be raised for the first time ANYTIME during
trial.
iv. Answer
1. RULE 8(b): responding to the allegations of the complaint
a. Admit: every allegation must be responded/answered to.
i. Silence is interpreted as admission.
b. Deny: a denial must fairly respond to the substance of the
allegation.
i. General denial: D denies each and every allegation of
the complaint.
ii. Specific denial: responding to each paragraph of the
complaint individually used in conjunction with
admissions.
c. Lack sufficient information to admit or deny: a party that lacks
knowledge or information sufficient to form a belief about the
truth of an allegation must so state. Has the effect of a denial.
2. FAILURE TO DENY IS AN ADMISSION on all allegations, except
for damages.
3. Can raise new matters through Affirmative Defenses (RULE 8(c)(1)).

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a. Opportunity to raise defenses (e.g., SoL, SoF, res judicata).
b. Injects a new fact.
c. Must plead them or else you waive them.
d. Amended Pleadings
i. RULE 15
1. 15(a): three basic rules of amendment.
a. P can amend pleading once before D serves her
answer/responsive pleading.
b. D has the right to amend once within 20 days of serving answer.
c. If there is no right to amend, you seek leave of court. The
amendment shall be freely given when justice so requires.
2. 15(c): Relation back amendments after the SOL has run.
a. 15(c)(1)(B): amendment is to add a new claim.
i. Amended pleadings will relate back if they concern the
same conduct, transaction, or occurrence as the
original pleadings.
b. 15(c)(1)(C): trying to amend to add a new D.
i. Allowed if you sued the wrong person the first time
around but, somehow, the right person knew about it
and can be charged with knowledge of it and that but
for a mistake he would have been charged in the
original complaint.
c. 15(c)(1): relation back if the statute allows it.
e. RULE 11
i. Requires the attorney to sign all documents except for discovery documents.
Certifies that to the best of the attorneys knowledge and belief, after an
inquiry under reasonable circumstances, that:
1. The document is not for an improper purpose.
2. The legal contentions are warranted by law, or there is at least a non-
frivolous argument that the law should change.
3. The factual contentions have evidentiary support or are likely to after
further investigation.
4. The denial of factual contentions has evidentiary support or are likely
to after further investigation.
ii. Procedural Matters under RULE 11:
1. The certification is affective every time the document is presented to
the court (continuing certification).
2. Sanctions are discretionary and are to be aimed at deterrence. Can be
non-monetary.
3. A motion for violation is served but not filed.
iii. Attorneys Screwing Up
1. S.L.I.M.E.
a. Stupidity, Laziness, Ignorance, Malice, Evasion.
iv. 21 day safe harbor. (Rector)
1. Attorneys have 21 days to re-file/fix mistake.

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v. As long as an attorney makes a good faith effort to perform, the attorney
should be fine under RULE 11.

IX. JOINDER RULES 13, 14, 18, 19, 20, 42
a. Assess SMJ for every claim.
b. Claim Joinder by P: RULE 18(a) P can assert any and all claims against the D.
i. P is not required to assert all claims she has against the D.
ii. Ps are not the only litigants that can assert claims.
iii. Joinder rules are procedural and CANNOT affect SMJ.
iv. Important Considerations:
1. Are you in fed. ct. or st. ct.?
a. Do the rules allow joinder of claims or parties at issue?
b. Is there a PJ claim; venue for additional claims?
2. Fed. SMJ 1367:
a. Does the Constitution allow jurisdiction over additional
issues/parties?
b. Did Congress authorize that exercise of jurisdiction over
additional claims/parties?
c. Claim Joinder by the D
i. Counterclaim: a claim against an opposing party.
1. RULE 13(a)(1): Compulsory Counterclaim
a. A claim that arises from the same transaction or occurrence as
the Ps claim.
i. e.g., P sues D, D has a claim that arises out of the same
transaction; D is required to file a counterclaim.
b. Compulsory because it must be asserted in this claim. If it is
not asserted in this case, you can never assert it again.
i. e.g., A and B collide. A sues B in C1. B sues A in C2.
C2 is dismissed.
c. ONLY COMPULSORY CLAIM THAT YOU MUST
ASSERT
ii. Cross-claim: permissive, not compulsory.
1. RULE 13(g): a claim against a co-party that must arise from the same
transaction or occurrence as the underlying dispute.
a. Between parties on the same side of the v.
iii. Permissive Counterclaims:
1. RULE 13(b): under RULE 18, you are not a claimant unless you can
assert a claim back the other direction, i.e., a counterclaim.
a. RULE 18 only works for you once you add in a claim relying
on 13(a) or (b).
d. Proper Parties
i. RULE 20(a): who may be joined as co-Ps and co-Ds in a single case.
1. Permissive Party Joinder by Ps/Ds
a. 20(a): can assert any right to relief, with respect to or arising
out of the same transaction, occurrence, or series of
transactions or occurrences. And,

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b. 20(b): any question of law or fact common to all Ps will arise
in the action.
2. Procedural Aspects: considerations
a. Venue,
b. Personal Jurisdiction.
c. SMJ
ii. RULE 21: Misjoinder
1. A ct. can add or drop a party by motion or on its own. It can also sever
a claim.
2. Cant necessarily dismiss.
e. Necessary and Indispensable Parties
i. RULE 19: Compulsory Joinder who must be joined in a pending case?
(Haas; if G isnt joined then there are conflicts about what might happen in the
next case).
1. Three Tests for necessity:
a. RULE 19(a)(1)(A): without the absentee, can the ct. complete
relief among those already joined?
i. If no, then the absentee is necessary.
b. **RULE 19(a)(1)(B)(i): the absentees interest might be
harmed if she is not joined.
c. RULE 19(a)(1)(B)(ii): does the absentees interest potentially
subject the D to multiple or inconsistent obligations?
2. Is joinder of the absenteefeasible?
a. If feasible, join absentee to the case.
i. Factors in determining feasibility:
1. Absentee is subject to PJ.
2. Venue would be proper.
3. Whether claim asserted by or against the
absentee would invoke FQJ or diversity
jurisdiction.
ii. Not feasible:
1. PJ: no feasible if there is no PJ, AND
2. SMJ: not feasible if it would destroy diversity
jurisdiction.
b. If joinder is not feasible, the ct. must assess whether it should
in equity and good conscience proceed with the litigation
without the absentee or dismiss the pending case. (turn to
RULE 19(b))
**JOINT TORTFEASORS ARE NOT INDISPENSABLE PARTIES**
ii. Feasible and Necessary: deciding whether to proceed Without Absentee or
Dismiss the case
1. RULE 19(b): steps
a. Under RULE 19(a) absentee is necessary (three tests).
b. To dismiss, must demonstrate that the party is indispensable.
i. Not Indispensable case proceeds.
ii. Is indispensable (cannot be joined) case is dismissed.

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c. Rarely dismiss, unless there is some court where P can sue.
i. Totally in the discretion of the court.
f. Impleader (Third-Party Practice) RULE 14
i. Allows the D to join somebody new (third-party D; TPD) because the TPD
is or MAY be liable to the D for all or part of the Ps claim.
1. e.g., P sues D for damages. D has a right to indemnity for the claim
from T. D can implead T. Any judgment for D can be deflected to T.
2. Reasoning: if D were to lose to P and not implead T, then D would
have to sue T in a separate proceeding. Thus, delaying the resolution
of the dispute and tax payers would have to pay for two suits.
ii. Classification of parties:
1. Original D becomes the third-party P.
a. Is still considered a D for purposes of 1367 Supplemental
Jurisdiction.
2. Impleaded D becomes the third-party D.
iii. Timing: 14 days.
iv. Jurisdictional Aspects:
1. Supplemental Jurisdiction: 1367
a. 1367 governs because a Ds impleading is not a claim by a P
against a D. The only reason D2 is liable to D1 is liable to P is
because of a common nucleus of operative fact.
b. BUT, a Ps claim against the TPD would not get Supplemental
Jurisdiction because it is a claim from a P against a D that was
joined under RULE 14.
g. Intervention RULE 24
i. An absentee seeks to bring himself into a case. It is up to the absentee to
decide which side to come on.
1. Coming to assert a claim or defend a claim. Assess SMJ on the claim.
ii. Two types of intervention. Must be timely.
1. RULE 24(a)(2): Intervention of Right
a. Satisfied if you can show that the absentees interest will be
harmed if she is not joined and her interest is not adequately
represented now.
2. RULE 24(b)(2): Permissive Intervention
a. Absentees claim or defense has at least one question in
common with the pending case.
h. Interpleader
i. Commonly involves a dispute over property. Somebody holding property
(stakeholder) can force all potential claimants into a single case.
1. Basic scenario: an insurance company that owes, under an insurance
policy, a large sum of money. There is a large group of people that
claim that that money is theirs.
a. The party that holds the property that everybody is interested
in throws it at the ct. and says go at it.
b. Identifies for the ct. who the claimants might be.
c. The claimants then come in and fight for the money.

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ii. Two types of Interpleader:
1. Rule Interpleader: RULE 22 (more narrow)
a. A diversity of citizenship case.
2. Statutory Interpleader: 1335 (more broad)
a. You need one claimant diverse from one other claimant. You
do not need complete diversity.
b. Minimum diversity.
c. Amount in controversy: $500.
i. Class Action
i. Purpose: a claim, with damages, is originally so small that there is a need to
bind other people so that the claim for damages can be a significant amount.
ii. General:
1. Due Process Goals:
a. Notice, Opportunity to Respond, and a representative who
provides adequate representation in C1 (Mullane).
2. Class Actions allow the vindication of small legal interests.
a. Allows the court to dispose of, in one large case, a large
number of parties efficiency.
iii. Initial Requirements: must meet every single one.
1. RULE 23(a)(1): too numerous for a practicable joinder.
a. Numerosity: too impracticable that joinder will be achieved
using standard mechanisms.
2. RULE 23(a)(2): commonality.
a. Commonality:
i. Common questions of law or fact to the class.
ii. Defining the class: very important because of the issue
of commonality (b)(3). If there is some big issue that,
if common, would help get rid of the other issues in the
case, then those big/common issues predominate.
3. RULE 23(a)(3): representatives claims must be those typical of the
class.
a. Typicality: claims or defenses of representative parties are
typical of the claims or defenses of the class.
4. RULE 23(a)(4): representative will fairly and adequately represent the
class.
a. Adequacy: representatives will fairly and adequately protect
the interests of the class.
iv. Types of Class Actions: mandatory class actions must first go through 23(a)
1. RULE 23(b)(1): Prejudice Class Action
a. Where class treatment is necessary to avoid harm to the class
members or to the party opposing the class.
b. Focus on what the D is being told to do.
i. Runs a risk of inconsistent or incompatible standards
for the D.

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ii. A small pool of money that is not enough to pay all the
class members. Must deal with whatever money is
available.
2. RULE 23(b)(2): Party opposing the class acted on grounds that are
generally applicable to the class, and that makes an injunction or
declaratory judgment appropriate.
a. Focus on what the P gets.
b. Injunctive/declaratory relief benefits the entire class.
3. *RULE 23(b)(3): Damages class.
a. Must show that common questions predominate.
b. The class action is the superior method for resolving this
dispute.
v. **Notice to the Class
1. RULE 23(b)(3): Class representative pays to give individual notice to
all members reasonably identifiable. Must tell class-members various
things, including:
a. They may opt-out.
b. They will be bound if they do not opt-out.
c. They may enter a separate appearance through counsel if they
want.
vi. Jurisdiction
1. SMJ: diversity jurisdiction
a. For citizenship, look to the representative of the class.
b. Amount in Controversy: OK as long as the representatives
claim exceeds $75,000, even if the other class members claims
do not. Class members claims can invoke supplemental
jurisdiction. (Exxon Mobil)
X. DISCOVERY
a. Required Disclosures
i. RULE 26(a): parties must produce information at three different times in the
course of litigation.
1. Purposes:
a. Preservation of evidence.
b. Narrowing issues between parties.
c. Permit parties to acquire greater information about their own
and opposing sides case.
i. Information for settlements.
ii. Even out information balances.
iii. Eliminate surprises during trial.
2. 26(a)(1): Initial Disclosure.
a. Must identify people and documents with discoverable
information that you may use to support your claims or
defenses.
b. P must give a computation of damages.
c. Defending party must tell about insurance that she has for all or
part of a claim.

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3. 26(a)(2): Experts.
a. RULE 26(b)(4): each party must identify all experts who may
testify at trial at least 90 days before trial.
b. If retained or specifically employed to provide testimony, a
disclosure must be accompanied by a written report
prepared/signed by the expert.
i. Must include: facts or data considered by the witness.
ii. Drafts of any report/disclosure is protected under Work
Product.
c. Categories of Experts:
i. Hired for Testimony at Trial: everything is discoverable,
except for drafts.
ii. Retained for Trial consultation: within the scope of
work product; information is protected and cannot be
discovered, unless there is a exceptional circumstance
or substantial need.
iii. Informally consulted: no discovery.
4. 26(a)(3): Trial Evidence.
a. Pre-Trial disclosures: required, prior to trial, to disclose the:
i. Names of witnesses expected to be called at trial
(depositions used at trial).
ii. List of documents and exhibits to be offered into
evidence.
5. 26(e): Supplemental Disclosures
b. Scope of Discovery RULE 26(b)(1) (Relevance)
i. Standard: RULE 26(b)(1) can discover anything relevant to a claim or
defense of any party.
1. Things reasonably calculated to lead to admissible evidence.
ii. Things Protected from Discovery:
1. Privileged Material
a. FACTS are NOT protected.
b. Confidential communication.
i. Attorney-Client.
2. Work Product RULE 33
a. Unless other party demonstrates a :
i. Substantial Need
ii. Substantial Harship
b. Even then, opinion work product is absolutely protected.
i. Impressions of the attorney: products created in the
course of legal duties.
c. Material prepared by an attorney in anticipation of litigation is
NOT subject to discovery.
iii. RULE 26(5)(a): Privilege Log
1. Must record all objections on privilege (privileged material/work
product).

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2. 26(b)(3): documents and tangible things; attorney and other agents
(broadly defined).
c. Discovery Tools
i. Depositions RULE 30, 31
1. Purpose
a. Lock down answers.
b. Eliminate surprises at trial.
c. Get more information about whether information is out there.
2. Who can be deposed?
a. Anyone with discoverable information.
b. 10 depositions per side parties can agree to more.
c. Non-party witnesses (3rd party deposition).
i. RULE 45: must issue a subpoena.
3. Must give a reasonable notice of deposition.
4. Failure to attend renders the party liable for fees (RULE 30(d)).
ii. Interrogatories RULE 33 written questions that require written
responses under oath (NOT followed in OR)
1. Limitations:
a. Not effective for determining testimony/credibility of a witness.
b. A fine line is exercised by attorneys since they are phrasing
the clients responses.
c. A party can only serve 25 interrogatories.
2. Can serve on any party.
a. Cannot send to a non-party.
3. 30 days to submit.
4. Is best for background information; unlikely to get a smoking-gun.
5. Contention interrogatories: requesting (almost) legal conclusions.
iii. Request to Produce Documents RULE 34
1. Documents/Physical evidence must be produced for inspection,
copying, or testing.
a. Requesting access.
2. Must respond within 30 days after being served.
3. The motion for this usually does not go to court until you get in a fight
about it.
iv. Physical or Mental Examinations RULE 35
1. A court can compel someone to get a medical examination. Only
applies to a party.
2. MUST have a court order.
v. Request for Admission RULE 36
1. Used to determine what the issues are and which are not in dispute.
2. Opposing party has 30 days to admit, if not it is admitted.
3. If not admitted, the party must specify why it denied or state in detail
why it cannot truthfully admit or deny (RULE 36(a)(4)).
d. Responding to Discovery Requests

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i. Objections RULE 26(b)(2): grounds that the information sought is too
vague, too broad, would cost too much to produce, and the utility is
outstripped by the cost to produce.
1. Factors: relevance, cost, lack of clarity, etc.
2. Can object to almost anything (RULE 33(b)(4), 30(c)).
ii. Remedies
1. Protective Order (by responding party):
a. Motion to Quash (RULE 26(c)).
2. Motions to Compel (vs. responding party) RULE 37(a)
a. Want to know what else is out there have to make an
assumption of whether it is worth chasing down.
b. Must have a legal obligation so that the other party has to
respond.
iii. Dont have to reveal privileged information.
e. Discovery Sanctions: responses inconsistent with the letter, purpose, and spirit of
discovery rules.
i. Rules:
1. RULE 37(c)(1): addresses what happens when a party fails to make
one of the required disclosures.
2. RULE 37(c)(2): fail to admit something that should have been
admitted under RULE 36.
3. RULE 26(c): the party from whom discovery is sought asks the court
for a protective order.
ii. Sanctions:
1. Partial Failure to Comply: party can make a motion to compel the
answers under RULE 37(a)(2). Can recover costs, including
attorneys fees for bring the motion, if you win on the motion.
2. Total Failure to Comply: RULE 37(d) can get sanctions right way
and recover costs.
a. Striking the pleadings.
b. Disallowing evidence.
f. Timing and Pre-trial Disclosures, Conferences, and Orders RULE 16
i. Timing: RULE 26(f)(1) discovery conference.
1. Parties/counsel must confer a soon as practicable.
2. Create a discovery plan so that things more quickly and efficiently.
3. At least 21 days before a scheduling conference is to be held or a
schedule order is due under RULE 16(b).
a. Scheduling order can be issued at any time:
i. Must be issued no later than 90 days after the
appearance of the D and
ii. 120 days after the service of complaint.
ii. Disclosures: must be made 30 days prior to trial.
1. Other party has 14 days to make objections as to the admissibility of
the depositions, documents, or exhibits.
iii. Pre-trial Conferences and Orders RULE 16
XI. PRE-TRIAL ADJUDICATION

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a. Voluntary Dismissal: RULE 41(a) where P wants to dismiss the case.
i. Stipulation of the Parties: must be signed by all parties who have appeared.
ii. Court Order: can be dismissed by a ct. on terms the ct. considers proper.
iii. P may dismiss without prejudice once by serving a notice of dismissal before
the D serves his answer or motion for summary judgment.
b. Involuntary Dismissal: can occur with prejudice if determined by the ct.
i. If P fails to move forward then D can move for dismissal of any action or
claim against it.
1. Failure to Prosecute
2. Failure to abide by the fed. rules.
3. Failure to abide by a ct. order.
c. Default
i. RULE 55(a): P must request the entry to default from the clerk of the court
when the D has not responded within 20 days after service of process.
d. RULE 12(b)(6) Motion
i. Motion to dismiss for failure to state a claim.
1. A claim for which a ct. might grant relief.
2. Does it state a legally sufficient claim?
ii. The ct. does not look at the evidence. Instead it looks only at the face of the
complaint.
e. Motion for Summary Judgment
i. Court can look at the evidence.
ii. Standard for granting a Motion for Summary Judgment:
1. Moving party must show that there is no genuine issue as to any
material fact, and
2. That she is entitled to a judgment as a matter of law.
iii. RULE 56(a): no genuine dispute as to any material fact and the movant is
entitled to a judgment as a matter of law. Stems from a 12(b)(6) motion.
1. Test
a. Is there a genuine issue of fact?
i. Could a reasonable jury find for P?
b. All reasonable inferences for non-moving party.
c. Ct. cannot make credibility assessments.
d. Reasonableness in light of the standard of proof.
2. Argument for Motion for Summary Judgment:
a. In light of the evidence presented in the motion, NO reasonable
jury could find for the other party.
3. There is no reason for a trail based on the information presented to the
court. Evidence must be able to be admitted to trial. Pleading is not
enough, its not evidence.
4. Timing: can file for Summary Judgment at any time, except 30 days
after the close of discovery.
XII. TRIAL AND RELATED MOTIONS
a. Right to a Jury Trial
i. 7th Amendment: preserves the right to a jury in actions at law, but not suits at
equity.

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1. Historical Test:
a. Legal: more often than not, money is legal.
i. Replacing something that is lost; money is as good a
substitute as anything.
b. Equitable: more often than not is injunctive.
i. Giving back something that was lost.
ii. Important Issues:
1. Determine a right to a jury trial issue by issue.
2. If an issue of fact underlies both the remedy at law and the remedy at
equity, you MUST have a jury.
3. Generally, we will try jury issues first, i.e., legal issues get tried first.
b. Selection of a Jury
i. RULE 48: Governs how many jurors there are in a civil case in fed. ct.
1. Each side has unlimited strikes of potential jurors for cause.
2. Each side has 3 peremptory strikes.
a. Must have a race neutral and gender neutral reason for using
peremptory strikes.
c. Motions Related to Trial
i. Judgment as a Matter of Law: RULE 50(a) the judge steps in and takes the
decision away from the jury. Occurs when there is insufficient evidence to
support a jury verdict.
1. Terminology: directed verdict.
2. Can move for JMOL only after the other side has had its chance to
present its case.
ii. Renewed Motion for Judgment as a Matter of Law: RULE 50(b): the judge
has let the case go to the jury, and the jury has returned a verdict for one party.
The ct. enters a judgment. The losing party brings this motion and if the
motion is granted, we take the judgment away from the person who wont the
verdict and enter judgment for the person who lost the verdict.
1. A motion for JMOL at the appropriate time is a prerequisite to a
Renewed JMOL.
iii. Process for JMOL
1. P presents case/arguments:
a. If D finds that Ds case is more probably than not, D can:
i. File for JMOL before D files their case.
1. Must lay out specific arguments of law and fact
that P has not managed to establish the
necessary facts to establish the burden of proof.
2. If denied: D puts on case/argument.
2. Ds case/arguments:
a. Sometimes, P can rebut.
b. Renewed filing of a JMOL.
i. After submission of all evidence
AND
ii. Before submission to the jury.
c. If denied

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3. Verdict:
a. File for a renewed JMOL / JNOV.
i. CANNOT be filed unless a JMOL had been made
before the submission to the jury but AFTER the
submission of all the evidence.
b. Setting aside jury decisions: judgment not withstanding the
verdict (JNOV).
i. If NO reasonable jury could reach that conclusion;
ii. The verdict is against the great weight of the evidence.
4. MUST raise or object arguments to the TC judge or else you are out
of luck for preserving issues for appeal.
iv. Motion for a New Trial: RULE 59(a) judgment has been entered but there
have been errors at trial that require the case to be retried.
1. The Jury Verdict is against the great weight of the evidence.
a. A grant of new trial is NOT appealable.
b. Courts can decide a new trial sua sponte no motion is
required.
XIII. PRECLUSION DOCTRINES
a. Claim Preclusion (Res Judicata): you get ONE case in which to vindicate your claim.
i. C1 and C2 MUST involve the same claim.
1. Transactional Test: a natural grouping or common nucleus of
operative facts.
ii. C1 and C2 were brought by the same claimant against same D.
1. Same parties or parties in privity, and
a. i.e., C1: A v. B, C2: A v. B; or, A1 v. B, C2: A2 v. B, where
A2 was represented by A1; fiduciary roles).
b. Substantive Legal Relationships
i. i.e., successors to property.
2. Same configuration.
iii. C1 must have ended in a valid final judgment on the merits.
1. i.e., if C1 dismissed for lack of PJ or SMJ then it was NOT on the
merits.
b. Issue Preclusion (Collateral Estoppel): prevents re-litigation of particular issues that
were actually litigated and decided in the first case.
i. Generally
1. Only have to worry about Issue Preclusion if you lost in the C1.
2. It works against the party that LOST in C1 on the issue.
a. i.e., A sues B, A loses. A sues C, C will argue that since A lost
on the issue in C1, A shouldnt be able to come argue it again.
3. Party MUST be the same party or in privity.
4. Action isnt barred in a subsequent action if the issue differs from prior
litigation.
5. Parties must always get their day in ct., unless:
a. P2 agrees to be bound by C1.
b. Preexisting legal relationship (claim preclusion).
c. Adequate representation in C1 (party in C1 is a fiduciary).

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d. Actual control by P2 over P1.
ii. Elements:
1. Same issue, previously litigated and determined in C1.
2. Issue must have been essential to the judgment in C1.
3. C1 must have ended in a valid final judgment on the merits.
4. Against whom Issue Preclusion is being used:
a. Can ONLY use Issue Preclusion against someone who was a
party in C1.
5. By whom is Issue Preclusion asserted?
a. Mutuality is NOT required by due process.
b. Mutuality Doctrine has exceptions. Parties dont necessarily
have to be in privity.
iii. Defensive Non-Mutual Issue Preclusion: new party in C2 invoked issue
preclusion to prevent the P from establishing a fact that P had already been
unable to establish in C1. (Blonder-Tongue)
1. Defensive use: when a D seeks to prevent a P from asserting a claim
the P has previously litigated and lost against another D.
2. C1: P sues D1, P loses. C2: P sues D2, D2 pleads Issue Preclusion to
bar P from re-litigating Issue from C1.
iv. Offensive Non-Mutual Issue Preclusion: new P who seeks to borrow a finding
from a prior action to impose liability on a party who was a D in a prior action.
(Parklane Hosiery v. Shore)
1. Offensive use: occurs when the P seeks to foreclose the D from
litigating an issue the D has previously litigated unsuccessfully in an
action with another party.
2. C1: P1 sues D, D loses. C2: P2 sues D, new P invokes Issue
Preclusion to establish issue from C1 in C2 against D.
3. It is OK to use offensive preclusion UNLESS:
a. P in C2 could have easily joined in C1.