Civil Procedure (Fall 2014, Professor D.

Buehler)
K.B. (Alex) Nguyen
I. Personal Jurisdiction power of specific courts to enter judgment against defendant
A. Tradition Bases for Jurisdiction (Presence, Domicile, and Consent)
- Territorial Rule every state possesses exclusive jurisdiction and sovereignty
over persons and property within its territory; no state can exercise direct
jurisdiction and authority over persons or property without (outside of) its
territory. (Pennoyer v. Neff)
- In personam suit against a person. For in personam suits, you must personally
serve nonresidents in the state. Publication notice is not enough because it would
never been seen by the interested parties and would be the constant instruments of
fraud and oppression. (Pennoyer v. Neff)
- In rem suit to determine status of property. Publication notice is enough
because property is always in the possession of its owner, in person or by agent;
and the theory is that seizure will inform the owner of the lawsuit. (Pennoyer v.
Neff)
- Quasi in rem property here provides basis for jurisdiction, but the suit is really
about personaly liability and/or obligations. Publication notice is enough because
property is always in the possession of its owner, in person or by agent; and the
theory is that seizure will inform the owner of the lawsuit. (Pennoyer v. Neff)
Pennoyer v. Neff two ways to serve: personally serve non-resident within the
state; or attach property owned by nonresident at the beginning of suit. States
courts only have personal jurisdiction over persons and property physically
located within the state. EXCEPTION: domestic relations cases, or where
defendant has consented to jurisdiction.
1. Presence tag jurisdiction; transient jurisdiction
Burnham v. Superior Court messy divorce in NJ; wife moved to CA; D
was served by CA court while visiting children in CA. [Courts of a State
have jurisdiction over nonresidents who are physically present in the State.
It doesnt matter the reason for being in the state (except fraud), and it
doesnt matter length of visit.
2. Domicile (Residency)
Milliken v. Meyer D was served while out of state, but in pursuant to
state law. Court held that authority of a state over one of its citizens is not
terminated by his absence from the state. Citizen enjoys privileges and
protection accorded by the state, and so has reciprocal duty.
- domicile is the state where the individual last reside AND had the
intention to stay/return. There can only be one domicile per person, and if
necessary, will revert back to place of birth.

3. Consent
Carnival Cruise Lines, Inc. v. Shute P fell while ship off the coast of
Mexico. Court held that because P signed a consent to forum selection in
Florida, suit must be brought in that state instead of Washington.
B. Minimum Contacts
International Shoe Co. v. Washington Delaware shoe company with salemen in
Washington but otherwise no physical offices or factories; being sued for
unemployment compensation fund. [To the extent that a corporation exercises the
privilege of conducting activities within a state, it enjoys the benefits and
protection of the laws of that state. The exercise of that privilege may give rise to
obligations; and, so far as those obligations arise out of or are connected with
the activities within the statepersonal jurisdiction is not inappropriate.] D
has to have minimum contacts with the forum state, AND that jurisdiction
does not offend the traditional notions of fair play and substantial justice.
- Two Must Ask Questions: (1) does a statute or rule authorize jurisdiction over
the defendant. If not, no jurisdiction! (2) Assuming there is jurisdiction
authorized, is the courts assertion of jurisdiction constitutional under the Due
Process Clause? Here, jurisdiction is constitutional if there is a traditional basis or
if D has minimum contacts with the forum state.
1. Long-Arm Statutes
- This is the first of the two Must Ask Questions. Does a statute or rule
authorize jurisdiction.
- states can authorize jurisdiction up to the constitution limitations of the
Due Process Clause; OR it can grant a more limited scope of jurisdiction
Illinois: persons transacting any business in state, contracting in state,
committing a tortious act in state, or owning, using or possessing any
real estate situated in this State.
Arkansas: the courts of this state shall have personal jurisdiction of all
persons, and all causes of action or claims for relief, to the maximum
extent permited by the due process of law clause of the Fourteenth
Amendment of the United States Constitution.
Federal Courts: [Federal Rules of Civil Procedure] FRCP 4(k)(1)(A),
federal courts use the long-arm statute of the state in which the sit. FRCP
4(k)(1)(C) recognizes that Congress can pass specific personal jurisdiction
statutes.
2. Minimum Contacts Test - minimum contacts sliding scale (International Shoe
test)
- substantial (pervasive) contacts continuous and systematic activities
(Walmart in Ark) jurisdiction exists for any claim against D

- continuous (but limited) contacts (International Shoe) jurisdiction

exists only for claims related to those contacts
- single act by D - ???
- casual or isolated contacts unrelated to cause of action jurisdiction
does not exist
a. Specific Jurisdiction
McGee v. International Life insurance company affirmatively
reaching out to California resident by mailing a reinsurance
certificate and soliciting business from California customer. Single
contact can be enough for specific jurisdiction because Ps claim
relates to Ds contacts. Court notes that state has a strong interest
in providing a forum for its citizens when insurers refuse to pay.
[This is about as expansive as it gets.]
Hanson v. Denckla Bank of Delaware trustee; person who
established trust in PA moved to Florida, and sent a note to
Delaware trustee to change the beneficiary. This was considered a
unilateral act by third party (deceased) and is not enough to subject
D (Delaware bank) to personal jurisdiction in Florida. There must
be some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum state, thus
invoking the benefits and protections of its laws.
World-Wide Volkswagen family bought car in New York and then
subsequently moved to Arizona. Car accident occurred in
Oklahoma on their way to AZ. Here, the Oklahoma court did not
have jurisdiction over NY car dealers because a consumers
unilateral act of driving through OK is not enough. There are two
prongs to the minimum contacts test:
1. Does D have minimum contacts with forum state? If not,
no jurisdiction!
2. If minimum contacts do exist, is the assertion of
jurisdiction fair? (traditional notions of fair play and
substantial justice)
- burden on the defendant (also, does conduct lead
to foreseeability of being haled into court?)
- interests of the forum state
- plaintiffs interest in obtaining relief
- judicial systems interest in procedural efficiency
- shared interest of the several States in futhering
fundamental substantive social policies
Burger King v. Rudzewicz defendants (Michigan residents)
negotiated contract with Burger King (principal place of business
Florida) to open a franchise in Florida. The suit arose when
defendants failed to pay franchise fees, even after renogotiations
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with BK home office. Here, we get the contracts + analysis

situation:
- parties prior negotiations
- contemplated future consequences
- terms of the contract
- parties actual course of dealing
The plaintiff bears burden of persuasion of minimum contacts (Ps
burden first prong of analysis). The burden of showing that
showing that jurisdiction would be unfair is defendants (Ds
burden second prong of analysis).
Asahi Metal Indus. Co. v. Superior Ct. Japanese company being
sued in California court for defective products. Company was
aware that product was going into CA, but otherwise did not
promote. The court did not have a majority on the stream of
commerce theory. So, there are two viable approaches:
1. OConnor Approach awareness that a product will
reach the state is not enough; defendant must purposefully
direct the product toward the forum state:
- design product for state market
- advertise in forum state
- establish channels for regular advice to forum state
customers
- use distributor who has agreed to serve as sales
agent in state
2. Brennans Approach awareness is enough. As long as
defendant is aware that the final product is being marketed
in the forum State, the possibility of a lawsuit there cannot
come as a surprise.
- stream of commerce refers not to unpredictable
currents or eddies, but to the regular and anticipated
flow of products from manufacturer to distribution
to retail sale.
b. General Jursidiction the court has general jurisdiction wherever the
defendant is domiciled. Individuals home one domicile, while corporations
(Inc., Co., and Corp ONLY) potentially can have two domiciles: the place
of corporation and the principal place of business (nerve center)
Perkins v. Benguet Consolidated Mining Co. Phillippines
company. Activities ceased become WWII. The owner returned
home to Clermon County, OH, where he conducted business on
behalf of the company:
- office files there; correspondence; salary checks; bank
accounts; policy determination

Here, the contacts are so substantial and pervasive that the

defendants really can be sued for anything. Ohio court has general
jurisdiction over defendant.
Helicopteros Nacionales de Colombia, S.A. v. Hall Helicol, a
foreign company is being sued in Texas for a helicopter incident
that occurred in Peru. The activities of the defendant company
included:
- CEO coming to TX to negotiate; helicopters were bought
in TX, and employees went there to train. Texas contracting
company pays Helicol via bank check from a TX bank.
The court held that there was not enough to assert general
jurisdiction over Helicopteros. The cause of action did not arise
out of or related to the corporations activities within the State.
CEOs trip was one isolated instance; paycheck was unilaterial
activity since Helicol couldnt dictate where the checks are from;
mere purchases are not enough to assert personal jurisdiction in a
suit unrelated to the contacts (Rosenberg Bros & Co. v. Curtis
Brown Co.)
c. Internet and Technological Contacts
Zippo Manufacturing Co. v. Zippo Dot Com, Inc. California
Internet company being sued for trademark infringement by
Pennsylvania plaintiff. The court held that PA did have personal
jurisdiction over defendant because:
- long-arm statute allows
- California company purposefully availed itself to
Pennsylvania: 3,000 subscribers + agreements with 7 PA
internet companies
- nature of contact sufficient (McGee)
- jurisdiction is not unreasonable (second prong test). PA
has a strong interest in adjudicating disputes involving one
of its resident corporations. Due regard needs to be paid to
plaintiffs choice to seek relief in PA. These concerns
outweigh the burden to D. The Due Process Clause is not a
territorial shield to interstate obligations that have been
voluntarily assumed.
- Zippo active/passive test, based on nature and quality of activity.
The problem is that there is no actual authority for this test. The
Supreme Court still has not decided on this issue.
- if actively reaching out; contracts; regularly transmitting
files JURISDICTION
- interactive exchange of info; no business will depend on
commercial nature of activity and level of activity

- passive; mere web service; no solicitation NO

JURISDICTION
- examples: [Compuserve v. Patterson files exchanged =
jurisdiction; Maritz protmotion of service and solicitation
of future business = jurisdiction; Inset website 10K CT
subscribers, toll free numbers = jurisdiction (outer
boundary); Bensunan passive website = no jurisdiction;
Pres-Kap consumer reaching out = no jurisdiction.]
Hy Cite Corp v. BadBusinessBureau.com, L.L.C. Bad Business in
an internet company based in the West Indies whose website
allows people to post bad reviews of companies. Hy Cite is a
Wisconsin corporation selling china. Hy Cite sued in WI. The court
ruled that:
- no personal jurisdiction because there was no pervasive
and systematic/continuous contact
- no specific jurisdiction because company did not
purposefully avail itself Consumer Advocate Program
might have qualified, but P reached out to D, and in the
end, no agreement was entered. The purchase of a single
unrelated book does not help, and all other contacts did
not specifically target WI residents.
- passive website may still give cause to personal
jurisdiction if the website is used intentionally to harm P in
the forum state
- interactive or commercial website may not be sufficient
for personal jurisdiction if its not aimed at residents in the
forum state. Must have: (1) expressly targeting forum state;
or (2) repeated commercial activities.
- there must be a nexus between the website and the cause
of action, or unless the contacts through the website are so
substantial that they may be considered systematic and
continuous for the purposes of general jurisdiction
II. Service of Process
A. Constitutional Requirements
Mullane v. Central Hanover Bank & Trust Co. (class action against bank trustee)
- notice must be reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to
present their objections.
- means employed must be such as one desirous of actually informing [defendant]
might reasonably adopt to accomplish service; no actually requirement, though,
that the defendant actually receives the notice
- the Due Process Clause requires reasonable methods, not perfect results
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- sufficiency of notice depends on situation

- publication notice is almost always insufficient
- mail notice may be sufficient in cases of large class of people/cost
consideration
Fuentes v. Shevin (replevin laws in Florida and PA)
- generally, defendants have a right to a prior hearing before deprivation of
property
- exceptions:
- important government or public interest
- need for very prompt action
- seizure by government official, under narrowly-drawn statute
B. Methods of Service / Service by Mail
- State court: state rules for service of process (Arkansas Rule of Civil Procedure
4)
- Federal Court: Federal rules for service of process (Federal Rule of Civil
Procedure 4) or State rules for service of process (because FRCP 4(e)(1) allows
you to use the rules of the state where the district court is located or where
service is made
- where it might make a difference Arkansas state rule allows for service
of process by mail, but not Federal Rules
1. Waiving Service / Service by Mail
- Federal Rules request for waiver (FRCP 4(d))
- Plaintiff can ask defendant to waive formal service by sending the
complaint and a waiver form by first-class mail
- Incentives for defendant to waive service:
1. Defendant has extra time to answer complaint (60 days instead
of 21 days).
2. If defendant refuses to sign and return the waiver, he or she can
be required to pay the costs of service and attorney fees (having to
do with the service of process)
Chapman v. New York plaintiff sues Cornell employees both in personal and
professional capacities.
- An individual, corporation, or association that is subject to service under
rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving
the summons.
- one waiver per person is sufficient
- waiver of service is not available for state, state agency, or state official

2. Service on Persons
FRCP 4(e)(1)-(2). Unless federal law provides otherwise, an individual-other
than a minor, an incompetent person, or a person whose waiver has been filed,
may be service in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or
(2) doing any of the following:
a. Personal Delivery on Defendant
Israel v. Oskey (Arkansas case, personally served) Ds contention
that he was mistaken in his belief that he was being hand a regular
mail does nothing to erode the admitted fact that appellant received
hand-delivery of service.
Tickle v. Barton (D tricked by Ps lawyer to go to banquet and
there served) Service obtained by fraud is not valid.
b. Leaving a Copy at Defendants Dwelling or Usual Place of
Abode
Brennan v. Wadlow (service was at fathers place of business, to
father, not where defendant resides) Strict compliance to the rule is
required. Service was not valid in this case, because it was: (1) not
where D resides, and (2) father did not reside there.
c. Delivery to an Agent Appointed by Defendant
National Equipment Rental, Ltd. v. Szukhent (service of process
to an agreed upon agent listed in contract who lived in NY, while
Ds lived in Michigan) (1) Since no rules in either NY or MI
prohibited the appointment of an agent; (2) that the agent promptly
forwarded the service of process to defendants; and (3) the parties
agreed to this as well as agent not having a conflict of interest,
service was valid. [The language of contract must be clear and
understood, and actual receipt of notice was a defense.]
3. Service on Corporations, Partnerships, or Associations
Under FRCP 4(h), any of the following are sufficient:
- service on a corporations officer, managing agent or general agent
Insurance Co. of North America v. S/S Hellenic Challenger
representative so integrated with the organization that he will know
what to do with the papers is sufficient; does not have to be actual
titled officers
- service on an agent of corporation authorized by law
4. Service in a Foreign Country - FRCP 4(f), (h)(2):
- comply with applicable treaty or convention (Hague Convention)
- if no treaty/convention, any of the following will work:
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- following foreign countrys law

- send letter rogatory to foreign court, asking how to serve
(downside is that it may take a long time, or no response at all)
- personal service, unless foreign law prohibits (this method is not
available for corporations)
- mail/signed receipt, unless foreign law prohibits
- by other means . . . as the court orders (email)
C. Mechanics of Service - FRCP 4(a)-(c) & 4(m):
- Plaintiff must serve the defendant within 120 days of filing complaint (FRCP
4(m))
- Process can be served by any person 18 years old and not a party (FRCP 4(c)(2))
III. Subject-Matter Jurisdiction
- before any case may be heard in federal court, two requirements must be met.
1. Article III, section 2 of the Constitution must authorize jurisdiction
2. Congress must enact a statute that gives federal courts power to hear the case.
- state courts can hear almost every case
A. Diversity Jurisdiction
- grounded in Article III, section 2, The judicial power shall extend to
controversies between citizens of different states, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.
- requires minimal diversity at least one P different from one D
- 28 U.S.C. 1332(a) statutory authorization of diversity jurisdiction of civil
actions
- citizens of different states (or citizens of a state and citizens of a foreign
state)
- amount in controversy exceeds $75,000
- requires complete diversity - all persons on one side of the controversy
be citizens of different states than all persons on the other side
1. Determining Citizenship
a. Individuals are citizens of the most recent state for which they
satisfy: (1) presence in the state, and (2) an intention to stay there.
- Mas v. Perry (grad students in LA, but domiciles of Mississippi;
landlord installed two-way mirror) diversity jurisdiction exists
because domiciles of MS and citizen of France while D was a
domicile of LA
b. Corporations (Co., Corp., Inc.) is a citizen of its (1) state of
incorporation and (2) the state where its principal place of business (nerve
center) is located
- Hertz Corp. v. Friend (car rental suit) court determined that the
principal place of business is not where the most amount of money
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is made, etc., but is the nerve center. This is usually the place
where HQs are at and control over the business is exerted.
c. Unincorporated association is a citizen of each and every state
where its members are domiciled
2. Amount in Controversy over $75,000
- a single plaintiff can aggregate unrelated claims against a single
defendant, but a plantiff can aggregate claims against multiple defendants
only if the claims seek recovery for the same loss
- A.F.A. Tours, Inc. v. Whitchurch (tour guide started a new
business after 17 years, previous employer sued) court held that
there was no legal certainty that the amount of controversy is
actually met. Hence, case could have been dismissed.
- multiple plaintiffs cannot combine claims to reach the minimum
jurisdictional amount, unless the claims are based on a common and
undivided interest
B. Federal Question Jurisdiction
1. Constitution Authorization Article III, 2 Judicial power shall extend to
all cases, in law and equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under their Authority.
- allows Congress to grant federal question over any case with a federal
ingredient
- basically, whenever there exists in the background some federal
proposition that might be challenged, despite the remoteness of likelihood
of actual presental of such a federal question. (Textile Workers Union)
- does not require meeting diversity jurisdiction rules
- Osborn v. Bank of the United States (Ohio federal bank; tax
dispute; state forcibly removed money from bank; bank sued)
court held that the Constitution grants Congress the power to
authorize. Because an Act of Congress created the bank and gives
the bank authority, when a bank sues, its a federal question. When
the bank is being sued, it may possibly be a federal question.
2. Statutory Authorization When does a Claim Arise Under Federal
Law? 28 U.S.C. 1331 The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United
States.
- statutory scope is narrower than what the Constitution allows, possibly to
avoid overwhelming court docket
- under statutory authority, a federal question must appear on the face of
the plaintiffs complaint

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- it is not enough that the plaintiff alleges some anticipated defense to his
cause of action and asserts that the defense is invalided by some provision
of federal law
- Louisville & Nashville R. Co. v. Mottley (railroad promised
couple free passes in perpetuity, Congress passed law later
prohibiting giving of free passes; RR stopped; couple sued in
federal court, anticipating that RR will use act as defense and
hence depriving Ps of property without due process) court held
that federal court did not have jurisdiction over parties; there was
no federal question and no diversity jurisdiction; Ps anticipation of
defense does not make the case a federal ingredient.
C. Supplemental Jurisdiction 28 U.S.C. 1367(a)
- broadly grants jurisdiction over all claims that are so related that they form part
of the same case or controversy under Article III of the Constitution
1. Does the court have original federal jurisdiction over at least one claim in the
lawsuit?
2. Do the federal federal claim and the supplemental state law claim arise from a
common nucleus of operative fact? (Gibbs test, mine worker sues for both
violation of federal statute and state issues)
- transactional test (same transaction or occurrence); anchor claim must
have federal ingredient
3. Do discretionary factors weigh against jurisdiction? 1367(c) district court
may decline to exercise supplemental jurisdiction if:
- claim raises novel or complex state law issues
- supplemental claim substantially predominates over claims for which
court has original jurisdiction
- court has dismissed all original jurisdiction claims, or
- exceptional circumstances and other compelling reasons
- federal courts have jurisdiction over any supplemental claims that satisfy the
Gibbs test of common nucleus of operative fact
- EXCEPTION: 1367(b)
- in diversity cases involving joinder or intervention of additional parties,
complete diversity must be maintained
- Owen Equipment & Erection Co. v. Kroger (Ps decedent
electrocuted; diversity suit in federal court, but diversity destroyed
with P added another D in amended complaint) court held that it
no longer had jurisdiction because complete diversity was
destroyed
D. Removal (from state court to federal) - 1446(a) and (d)
1. file a notice of removal in federal district court

11

- D must file notice of removal within 30 days after receipt of a copy of

the complaint (1446(b))
- if not initially removable, but becomes removable later (new
claims or parties), D must remove within 30 days of receiving the
amended complaint
2. include a copy of all process, pleadings, and orders previously served on
defendant in state court
3. promptly after filing, give written notice of the removal to all adverse parties
4. file a copy of the notice with the state court clerk; state court will not proceed
further until/unless remand
- motion to remand ( 1447(c))
- within 30 days after the notice of removal was filed for any
defect other than lack of subject matter jurisdiction
- if at any time before final judgment it appears that the DC lacks
subject matter jurisdiction, the case shall be remanded
IV. Venue and Forum Non Conveniens
A. Venue under 1391(b), a plaintiff can choose between two basic options for federal
court venue:
1. District where any defendant resides, if all defendants are residents of the state
in which the district is located, or
- if all Ds reside in the same district, venue is proper in that district
- if Ds reside in different districts, but in the same state, venue is proper in
ANY district in which one of the defendants resides
- does not apply when Ds are residents of different states
- aliens may be sued in any district - 1391(c)(3)
- fall-back provision ( 1391(b)(3)) venue exists in any district in which
any defendant is subject to the courts personal jurisdiction with respect to
such action, but plaintiff may only use this provision only if the other two
options do not apply (very rare)
2. District in which a substantial part of the events or omissions giving rise to the
claim occurred
- Bates v. C&S Adjusters, Inc. (P incurred while in PA; creditor also
principal place of business in PA; debt collection letter forward to NY
when P moved) court held that venue is proper in NY, because the suit
was over the collection notice, and that occurred in NY.
- change of venue:
- if venue is improper, the court shall dismiss, or if its in the interest of
justice, transfer the case ( 1406(a))
- even if venue is proper, the court may still transfer the case, for the
convenience of witnesses and in the interest of justice ( 1404(a))
- Hoffman v. Blaski (patent infringement action; P resides in IL
while D resides in TX; D filed to transfer case to IL, which was
12

granted) Supreme Ct. held that transfer of venue was improper,

because the case could not have been brought up in IL
- really important note: venue transfer can only occur in a district
where the action could have been brought originally
B. Forum Non Conveniens
- applies only when the court cannot transfer the case, such as when the more
appropriate forum is in a different court system (federal/state, state/state,
US(state)/another country)
- dismissal under this doctrine is rare
- plaintiffs choice of forum should rarely be disturbed
- if plaintiff is a foreigner, the presumption in favor of plaintiffs choice is
not as strong
- Gilbert factors (P brings suit in NY against warehouse qualified to do business
in NY, but issue (fire to warehouse) occurred in Virginia) court granted Ds
petition of forum non conveniens, stating that NY is not the proper forum :
- private interest factors:
- access to evidence
- access to witnesses
- access to premises
- enforceability of judgment
- all other practical problems
- public interest factors:
- administrative difficulties (congested dockets)
- localized jury duty
- local cases should be decided at home
- courts familiarity with applicable law
- appellate review standard of this doctrine is abuse of discretion
- unfavorable change in the applicable law only matters if the remedy is so clearly
inadequate or unsatisfactory that it is no remedy at all
- Piper Aircraft Co. v. Reyno (plane crash in Scotland; suit filed in CA on
behalf of Ps because CA has better laws favoring P) court weighed
private and public interest factors and upheld forum non conveniens
because: 1) Ps were not US citizens and 2) although Scottish law more
restrictive, the remedy is not so clearly inadequate or unsatisfactory that
its no remedy at all
V. The Law in Federal Courts
- Rules of Decision Act (28 U.S.C. 1652) the laws of the several states shall be
regarded as rules of decision, except where the Constitution, Treaties, or Acts of Congress
otherwise require or provide
- if there is a federal statute on point, federal courts must apply that statute and
RDA doesnt apply in this case
- this applies to substantive state law, both statutes and common law
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- Swift v. Tyson court applies federal statutes. If no federal statutes, court

must apply state statutes. If no state statutes apply, court is free to apply its
own conception of common law.
- Erie Railroad Co. v. Tompkins the state law to be applied is either
statute or common law, because there is no federal common law (overrules
Swift)
- substantive law = enforceability of contracts, tort liability, ownership of
property
- Interpretation of the Erie Doctrine:
- Guaranty Trust Co. v. York (breach of trust and misrepresentation suit; suit
barred by state statute of limitation) court uses an outcome-determinative test
and held that the outcome of the litigation in federal court should be substantially
the same as if it would be tried in state court. A state statute must be enforced if
it significantly affects the outcome. Here, it doesnt really matter whether SOL is
procedural or substantive law.
- Byrd v. Blue Ridge Rural Electrical Corp (SC employee got hurt on the job and
filed diversity suit in federal court; SC provides that judges decide on the question
of statutory employee, rather than juries) court held that in diversity cases,
federal courts are not required to apply state rules that provide judges rather than
juries determine factual disputes
- essential characteristic of the federal court system is a countervailing
consideration; the manner in which federal court distributes trial functions
between judge and jury under influence/command of the 7th Amendment
- questions: (1) is state law use outcome determinative, (2) is lack of
uniformity outweighed by strong federal interest?
- Hanna v. Plumer (automobile accident; disagreement as to application of state or
federal rules of service) court held that this is a procedural issue and not a
substantive law issue, so federal courts should apply FRCP.
- Questions to ask:
1. does the difference between state and federal law encourage forum
shopping?
2. does the difference between state and federal law lead to inequitable
administration of the laws?
- if difference is outcome determinative, ask if there is compelling
federal interest that outweighs Eries interest in uniform outcomes
- if difference is not outcome determinative, federal court not
obligated to follow state law

VI. Pleading
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A. Plaintiffs Complaint
1. Sufficiency of the Complaint (FRCP 8(a)) Twombly/Iqbal Plausibility Test
- complaint must contain: (1) statement of grounds for jurisdiction; (2)
short and plain statement of the claim showing that the pleader is entitled
to relief; and (3) a demand for the relief sought, which may include relief
in the alternative or different types of relief
- legal conclusions that lack supporting factual allegations are rejected
- if well-pleaded factual allegations are true, then question: do the facts
state a plausible claim for relief?
- in light of judicial experience and common sense, are there more
likely explanations for defendants conduct?
- Bell Atlantic Corp. v. Twombly (antitrust suit of the Little Bells)
nothing in the complaint shows anything more than parallel action;
claim is conceivable, but not plausible
1. Take the factual allegations as true, if the complaint is
well-pleaded and not conclusory
2. Determine whether the allegations plausibly give rise to
an entitlement of relief
- Ashcroft v. Iqbal (Iqbal detained following the 9/11 attacks;
claims that treatment in detention violated constitutional rights)
court held that the allegations were simply recitations of elements
and conclusory
2. Pleading Special Matters
- for fraud (FRCP 9(b)), you must allege the underlying circumstances
with particularity, to protect reputation
- special damages (FRCP 9(g)) must be specifically stated
- special damages = injuries that are not the inevitable or necessary
result of facts pleaded in the complaint.
- Ziervogel v. Royal Packing Co. (P suffered increased
blood pressure from car accident) this is special damages
and must be specifically stated
3. Alternative and Inconsistent Allegations (FRCP 8(d)(3), 10(b))
- alternative theories are permitted (car crash drivers negligence and
manufacturers defective design)
B. Defendants Response to the Complaint
1. Time Permitted for a Response (FRCP 12(a))
- generally, defendant has 21 days to respond after receiving the summons
and complaint
- exceptions:

15

- if D waives formal service (FRCP 4(d)), D gets 60 days to answer

(incentive!)
- the United States and government officials get 60 days to answer
- Ds options:
1. file an answer to complaint, or
2. file a FRCP Rule 12 motion
- clock stops once D files a Rule 12 motion, and Ds answer
is not due until 14 days after the court decides on the
motion
2. Rule 12 Motions (FRCP 12)
- motion for a more definitive statement (Rule 12(e))
- motion to strike redundant, immaterial, impertinent or scandalous
material (Rule 12(f))
- motion to dismiss (Rule 12(b))
1. no subject-matter jurisdiction
2. no personal jurisdiction
3. improper venue
4. insufficient process (document itself somehow defective)
5. insufficient service of process
6. failure to state a claim upon which relief can be granted
(Twombly/Iqbal)
7. failure to join a party
** rule 12(h) requires that defects in personal jurisdiction, venue,
process, or service of process must be asserted in the first pleading,
or they are waived!
3. Defendants Answer
- defendant must admit or deny the allegations stated in the Complaint
1. admit allegation
2. deny allegation, or
- must respond to the substance of the allegation (FRCP
8(b)(2))
- can deny part of an allegation, admitting the part that is
true (FRCP 8(b)(4))
- general denials permitted (FRCP 8(b)(3)), but can be
dangerous and rarely used in practice
- Zielinski v. Philadelphia Piers, Inc. (forklift
accident; D made a general denial and it backfired)
court held that even though D did not technically
own the lift and wasnt Ds employee, the general
denial resulted in P missing statute of limitation,

16

and held that for the purposes of the suit, D owned

the lift and that employee was employed by D
- if D fails to deny an allegation, it is deemed admitted
(FRCP 8(b)(6))
3. respond that D lacks knowledge or information sufficient to
form a belief about the truth of the allegation
- defendant must plead any affirmative defenses that might apply (FRCP
8(c))
- non-exclusive list of 19 defenses that D must include in the
answer if applicable
(accord and satisfaction; arbitration and award; assumption
of risk; contributory negligence; duress; estoppel; failure of
consideration; fraud; illegality; injury by fellow servant;
laches; license; payment; release; res judicata; statute of
frauds; statute of limitations; and waiver)
- under the residuary clause, D must include any other avoidance
or affirmative defense
- Ingraham v. United States (two Ps sued the Air Force; D
did not list as affirmative defense the TX statute capping
non-economic damages) court held that because D did
not include other affirmative defenses, it is deemed waived.
C. Amending the Pleadings
1. Before Trial
- P & D both have 21 days after answer of Rule 12; otherwise must obtain
courts permission
2. During and After Trial (FRCP 15(b))
- if there is evidence presented at trial that is not within the issues raised in
the pleadings, the court may permit amendment if:
1. doing so will aid in presenting the merits at trial; and
2. objecting party fails to show that the evidence would be
prejudicial
- generally, leave to amend is freely granted
- court can deny leave if there is undue delay, bad faith, or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by
allowance of the amendment, futility of the amendment, etc. (Foman)
- Beeck v. Aquaslide N Dive Corp (defective waterslide at home
association; D and others thought it was their slide until president
of company visited site over a year later and found out it was not
their slide) court held that because that because nothing was done

17

in bad faith, the DC did not abuse its discretion in permitting D to

amend its answer to deny that the slide was manufactured by them
3. Relation Back of Amendments
- date that claim was filed can be important when there is a statute of
limitations issue
- FRCP 15(c) allows amendments to relate back to the date the original
pleading was filed:
- new claims or defenses relate back if they arose from the same
conduct, transaction, or occurrence described in the original
pleading (transaction test)
- new parties relate back if the parties were on notice of the
lawsuit, and should have known their omission was a mistake
D. Policing the Pleadings Rule 11 Sanctions
1. Conduct Prohibited by Rule 11
- by signing and filing a pleading or motion, an attorney represents to the
court:
- not presenting pleading/motion for an improper purpose (harass,
delay, or increase costs)
- claims, defenses, and other legal contentions are not frivolous
- factual contentions have (or likely will have) evidentiary support
- denials of factual contentions are supported by evidence or based
on lack of information
2. Enforcement of Rule 11
- Two methods for enforcing Rule 11
1. Rule 11 Motion (FRCP 11(c)(2))
- moving party serves motion on the other party
- must wait 21 days before filing the motion with the court,
allowing the other party an opportunity to withdraw or
correct the offending pleading/motion (safe harbor
provision)
- court may award attorneys fees and costs to the party that
prevails on the motion
2. Show Cause Order (FRCP 11(c)(3)
- court can issue an order on its own initiative/sua sponte
- order requires the offending party to explain why it has
not violated Rule 11 (ie. to show cause)
- no safe harbor provision for show cause orders
- Hadges v. Yonkers Racing Corp. (racehorse driver suing racetrack
for alleging blacklisting him around the state) sanctions against
both Hadges and attorney court reversed the sanctions, safe
18

harbor wasnt provided because: 1) safe harbor period was not

available to Hadges and he did not get proper notice and 2) courts
sua sponte sanction not proper because it wasnt contempt
3. Nature of Rule 11 Sanctions type of sanctions sanctions are limited to
what suffices to deter repetition of the conduct or comparable conduct by others
(FRCP 11(c)(4))
- monetary sanctions (payment of a penalty to court)
- nonmonetary directives (ordering a party to do something)
- attorneys fees and costs for Rule 11 motion
4. Attorney Reliance on Client Representations
- attorneys are entitled to rely on the objectively reasonable
representations of the client (Hadges)
- objective reasonableness depends on surrounding circumstances
VII. Joinder and Class Actions
A. Joinder
1. Joinder of Claims
a. Joinder of Claims by Plaintiff
- rule 18(a) allows liberal joinder of claims by plaintiffs
- plaintiff can join any claim she has against defendant; claims do
not need to be related if against the same defendant
- court, however, can sever claims under FRCP 42(b) for
convenience, to avoid prejudice, or to expedite and economize
litigation
b. Joinder of Claims by Defendant
- FRCP 13 controls
i. Counterclaims
- claim asserted against an opposing party after an original
claim has been made (D makes counterclaim against P)
- compulsory counterclaims (FRCP 13(a))
- defendants must assert compulsory counterclaims;
failure to do so bars those claims in subsequent
lawsuits
- compulsory if:
- arises out of the same transaction or
occurrence that is the subject matter of the
opposing partys claim
- logical relationship between Ps claim and
Ds counterclaim
- United States v. Heyward-Robinson
(contract sued for breach of contract
19

against both a federal claim and a

private claim; D counterclaimed for
overpayment on both Navy and
private contracts; P counterclaimed
against D on private contract) close
and logical relationship test derived
here; absolute identity is not required
but must have logical relationship
between them.
- not compulsory if:
- the court does not have personal
jurisdiction over the defendant who would
assert the counterclaim
- asserting the counterclaim would require
adding a party over whom the court cannot
acquire personal jurisdiction; or
- when plaintiff filed action, the
counterclaim was the subject of another
pending action
- permissive counterclaims (FRCP 13(b))
- optional, not required
- any claim that is not compulsory, ie. claims that do
not arise out of the same transaction or occurrence
as plaintiffs claims
ii. Cross-claims (FRCP 13(g))
- claim asserted between co-parties (D1 cross-claim against
D2; P1 cross-claim against P2)
- must arise out of the same transaction or occurrence as
either plaintiffs claim or a counterclaim in the lawsuit
- different than permissive counterclaims, which
can be unrelated to Ps claims
- all cross-claims are permissive
- however, a cross-claim by D1 against D2 can
trigger D2s obligation to assert compulsory
counterclaims, if the counterclaim is substantive
- RMG v. Atlantis (tourist submarine
accident in Hawaii involving several
defendants) here a cross-claim of breach
of contract by one defendant triggers a
compulsory counterclaim, because its a
substantive claim
- contribution and indemnity not
considered substantive claim
20

21

2. Joinder of Parties

a. Who May Sue or Be Sued? The Real Party in Interest Rule

- FRCP Rule 17(a)
- an action must be prosecuted in the name of the real party of
interest, unless with falls within an exception listed in the rule
(an executor; an administrator; a guardian; a bailee; a trustee of an
express trust; a party with whom or in whose name a contract has
been made for another's benefit; and a party authorized by statute.)
- allows for correction of mistakes within a reasonable time
- Green v. Daimler Benz, AG (Dr. Greens Mercedes stuck
in snow bank and caught fire; sued in state court and then
moved to federal court; D moved for summary judgment
stating that Dr. Green not real party of interest because his
name not on title; Green moved to substitute insurance as
P) court held that unless counsel names a fictitious
plaintiff with the hope of learning the identity of the real
party of interest and substituting that party, a court should
not deny the party the benefit of Rule 17. Here, insurance
company (in subrogation) assumed in good faith that Dr.
Green was owner, and Dr. Green promptly responded
asking for substitution.
b. Permissive Joinder of Parties
i. (Permissive) Joinder of Additional Parties by Plaintiff
- permissive joinder (FRCP 20) if both:
1. right to relief asserted by or against the additional
party arises out of the same transaction or
occurrence as plantiffs action
22

- M.K. v. Tenet (Ps wished to join in suit

against CIA for violating Privacy Act; CIA
wanted to sever the parties) logically
related transaction test applies here
2. there are questions of law or fact that are
common to all plaintiffs/defendants
ii. (Permissive) Joinder of Additional Parties by Defendant
(Third-Party Practice)
- FRCP 14 allows defendant to file a third-party complaint
against an additional party only for derivative liability
claims claims that would shift defendants liability to a
third party (indemnification, contribution, subrogation)
- D can file a third-party complaint as a matter of right up
to 14 days after serving its answer; otherwise, must file a
motion seeking courts leave
- Factors to determine whether to grant D leave to file a
third-party complaint: (Too)
- does the 3rd party complaint further judicial
economy
- whether movant deliberately delayed or
was derelict in filing motion
- whether impleading would unduly delay or
complicate the trial
- whether impleading would prejudice the
third party
- whether the third party complaint states a
claim upon which relief can be granted
- Too Inc., v. Kohls Department Stores, Inc. (D
seeks to file 3rd party complaint against two exemployees in copyright infringement suit) court
allowed impleader after consideration of the factors
listed above

23

c. Compulsory Joinder of Parties (FRCP 19)

- three step test for applying Rule 19 compulsory joinder:

1. Is the absentee a necessary party? (FRCP 19(a))
- Mastercard v. Visa (dispute between MC and FIFA
regarding sponsorship; FIFA chose Visa in breach of
contract of first right of sponsorship with MC; Visa
argued its necessary/required party to the suit)
court held that Visa is not a required party
(necessary and indispensable) after looking at these
factors:
- in partys absence, court cannot accord
complete relief among existing parties
- proceeding without the absentee will
impair or impede the absentees ability to
protect its legal interests, or
- proceeding without the absentee risks
subjecting an existing party to double
liability or inconsistent obligations
2. If the absentee is a necessary party, is joinder of the
absentee feasible?
- Examples of when not feasible:
- joining would destroy subject matter
jurisdiction
- court lacks personal jurisdiction over the
absentee
- venue is improper for claims by or against
the absentee
24

- the absentee is immune from suit

(Pimentel the Philippines asserted
sovereign immunity)
3. If joinder of the absentee is not feasible, is the absentee
an indispensable party? Four factors are considered: (Rule
19(b)):
- prejudice to the absentee or the existing parties
- whether prejudice can be lessened by protective
provisions in the judgment, shaping the relief, etc.
- whether the judgment would be adequate; and
- whether the plaintiff would have an adequate
remedy if the case is dismissed
- Pimentel suit required dismissal because
the Philippines cant be joined, and any
judgment made in its absence would
strongly prejudice against the sovereign
nation; also not bound by judgment if not a
party to suit
d. Intervention by Absentees (FRCP 24)
- Three-step test for intervention of right (Rule 24(a))
1. does the absentee have an interest in the lawsuit?
2. if so, will the absentees interest be impaired or impeded
by the lawsuit?
3. if so, is the absentees interest inadequately protected by
the existing parties?
- Natural Resources Defense Council, Inc. v. U.S. Nuclear
Regulatory Commission (dispute over whether
environmental impact statements must be written before
uranium mining license is issued; two groups moved to
intervene) court held that intervention is proper looking at
the three step test of Rule 24(a)
- Permissive intervention (Rule 24(b)) criteria:
1. do the claims in the existing lawsuit and the absentees
claim or defense share a common question of law or fact?
2. if so, the court has discretion to allow intervention, as
long as it does not unduly delay or prejudice the
adjudication of the existing parties claims
e. Interpleader
- joinder device that allows someone in possession of property or
money to join all claimants to that property, in order to litigate the
ownership of the property in a single proceeding
25

- Rule interpleader (FRCP 22)

- Statutory interpleader (28 U.S.C. 1335, 1397, and 2361)
- state interpleader is available if both fails

- Situation in which you would turn to rule instead of statutory

interpleader?
AR -> TX, TX
AR is a neutral stakeholder, claimants are not diverse;
statutory: need diverse claimants
- N.J. Sports Productions, Inc. v. Don King Productions (boxing;
$3 million in contention between several claimants) court held
that statutory interpleader requirements are met.
B. Class Actions
1. Mechanics of Class Actions
a. Class Certification Requirements (FRCP 23(a)-(b))
- Requirement 1: Rule 23(a); all must be met
1. numerosity class must be so numerous that joinder of
all members is impracticable (about 40 or more is
sufficient, Hubler) (Arkansas: 17 is too few and 77 is
enough; not sure about in-between)
2. commonality there must be questions of law or fact
common to the class
3. typicality the representative plaintiffs claims must be
typical of the claims or defenses of the class
4. adequacy of representation the representative parties
must fairly and adequately protect the interests of the class
- Requirement 2: Rule 23(b); must qualify under at least one
category
1. 23(b)(1) applies only when there is a risk that:
26

- class members are seeking to recover out of a

limited common fund or
- individual lawsuits would subject the defendant to
incompatible standards of conduct
2. 23(b)(2) applies only when:
- defendant has acted or refused to act on grounds
that apply generally to the class, and
- Ps are predominantly seeking injunctive or
declaratory relief
3. 23(b)(3) applies only when:
- common questions of law or fact predominate over
issues affecting only individual members, and
- a class action is the superior method of
adjudicating the claims
- four factors:
- the class members interests in individually
controlling the prosecution or defense of
separate actions;
- the extent and nature of any litigation
concerning the controversy already begun
by or against class members;
- the desirability or undesirability of
concentrating the litigation of the claims in
the particular forum; and
- the likely difficulties in managing a class
action.
- notice and opportunity to opt out are required for
this type of class, but not for the other two
- Hubler Chevrolet, Inc. v. General Motors Corp (dispute between
a group of automobile dealers and GM over funds to go to
marketing [regional v. national]) court went through 23(a)-(b)
requirements step by step and concluded that class action is
appropriate and maintainable as a 23(b)(3) class
- Wal-Mart Stores, Inc. v. Dukes (sex discrimination; requested
class: all women employed by WM since 12/26/98) court held
that the suit does not meet the commonality requirement; also,
class is improperly certified as a b(2) class because seeking
backpay; dissent notes that majority substitutes predominance for
commonality test of 23(a)
b. Providing Notice to Absent Class Members
- Rule 23(b)(3) requires the best notice that is practicable under the
circumstances, including individual notice to all members who can

27

be identified through reasonable effort (extra sensitive to due

process rights of absent class members)
- notice by mail is usually sufficient (if name and address)
- plaintiffs must pay for cost of notice; doesnt matter if doing so is
cost prohibitive (Eisen)
- Eisen v. Carlisle & Jacquelin (odd lot trader suit; lower
court conduct a hearing on the merits and ruled that P only
needed to pay 10% of cost of notice, which was a lot of
money)- SCOTUS reversed and ordered dismissal because
notice must be sent to all members of the class and that Ps
must be responsible for costs
- individual notice is not mandatory for 23(b)(1) and 23(b)(2)
classes
c. Judicial Management of Class Actions
- FRCP 23(g) court must appoint class counsel
- mandatory factors:
1. the work counsel has done in identifying or
investigating potential claims in the action;
2. counsel's experience in handling class actions,
other complex litigation, and the types of claims
asserted in the action;
3. counsel's knowledge of the applicable law; and
4. the resources that counsel will commit to
representing the class;
- discretionary factors:
- counsels ability to fairly and adequately represent
the interests of the class
- FRCP 23(h) attorney fees
- awarded by court; non-taxable costs
- three different ways:
1. % of recovery
2. determined by statute
3. lodestar method - trial court must multiply the
number of hours reasonably spent by trial counsel
by a reasonable hourly rate. This figure can then be
adjusted upward or downward for certain factors
known as multipliers, such as contingency and the
quality of the work performed, to arrive at a final
fee
2. Settlement of Class Actions FRCP 23(e)
- court must approve (protection of absent class members)

28

- FRCP 23(e)(1) must direct notice of settlement, and if 23(b)(3) class,

must be given another opportunity to opt out
- Amchem Products, Inc. v. Windsor (asbestos claims; settlement that
stipulated intraclasses and what each may or may not recover; DC
approved) SCOTUS affirmed appellate courts reversal, citing serious
intra-class conflicts that precluded the class from meeting the adequacy of
representation requirements
- 23(a) and 23(b)(3) requirements must be met while taking a close
look at settlement
- failed predominance test different exposures to different
products over different periods of time; factual differences
translate into significant legal differences; meets commonality
- failed adequacy significant intra-class conflicts (those with
disease and those without); conflicts of interest
- failed typicality no typical set of representatives for class
- fail superiority series of statewide or more narrowly defined
adjudications more preferable
- mass tort cases not appropriate here
VIII. Discovery - set of procedures that allow or maybe require that parties exchange
information before trial, the rules of discovery are generally default and will apply unless the
parties change them. Ultimately, the courts look at whether the parties are being reasonable.
A. Mechanics of Discovery
1. Initial Disclosures and Discovery Conference
Mandatory:
- Discovery Conference Obligation (FRCP 26(f)) at pre-trial
conference, parties must discuss things put in a discovery plan and
filed with the court, including: when the initial disclosure are
made, the subjects and timelines of discovery, hot to process
electronic information, issues regarding privilege and trial
preparation materials, changes of discovery, and information about
protective orders (trade secrets, etc.)
- As soon as practicable, at least 20 days before the
scheduling order and
- No later than 120 days after the lawsuit is filed.
- Required initial disclosures within 14 days of the conference,
parties must disclose:
- The names and contact info of people with discoverable
info,
- A list of the categories or descriptions of documents,
- A computation of damages with supporting materials, and
- And insurance agreements

29

- Standard should disclose based on the information reasonably

available to the client at the time, and only obligated to disclose
things that are relevant to your claims or defenses FRCP 26(a)(1)
- Exemptions some things are exempt from the requirements of
initial disclosures. FRCP 26(a)(1)(b)
- Optional Devices beyond the required disclosures, there are optional
useful discovery devices including interrogatories, requests for production
or admission, depositions (oral or written), and medical exams
2. (Party-Initiated) Discovery Devices
- Interrogatories (FRCP 33) - Interrogatories are written questions
submitted to other party
- Responding party must answer each interrogatory under oath
(FRCP 33(b)(3))
- Responding party must serve answers and objections within 30
days (unless parties stipulate of the court orders otherwise) (FRCP
33(b)(2))
- In practice, objections must be timely served (otherwise they are
waived); answers can be served later without consequence)
- Limitations:
- Parties limited to 25 interrogatories (including all
discrete subparts), unless stipulate or court orders
otherwise (FRCP 33(a)(1))
- Can only be sent to parties
- Business Records Option (FRCP 33(d))
- If answer can be determined by examining business
records, party can produce those records instead of
answering interrogatory
- Burden of finding answer from records must be
substantially the same for either party
- Advantages:
- Not expensive to draft, can be drafted quickly
- Great way to get background facts (names, addresses,
objective data)
- Helpful in clearly defining what the issues are
- Disadvantages:
- Hard to get a smoking gun cant get key evidence and
nail the other side, because the other side has their
attorneys draft them and they are really careful
- Not getting genuine answers
- Often used as the first discovery tool because of background
information.

30

- Requests for Production (FRCP 34) - RFPs are written requests, asking
other party to produce documents, electronically stored information
(ESI), or other tangible things
- Party serving RFPs must describe items with reasonable
particularity (FRCP 34(b)(1)(A))
- Actually to the advantage of the attorney to be narrowly tailored
to not be snowed in
- Can ask for anything within the responding partys possession,
custody, or control (FRCP 34(a)(1))
- Can be quite broad, if a request for production is sent to a
company, they may have to go ask each of their employees if they
have the information for production
- Responding party has 30 days to respond (unless parties stipulate
or court orders otherwise) (FRCP 34(b)(2)(A))
- Advantages:
- Inexpensive
- Great way to obtain underlying documents so that the case
can be built without the attorneys spin on it
- Disadvantages:
- You have to be careful when youre drafting or you get
too much information; ask with reasonable certainty
- Some use at the same time as interrogatories, one of the
first tools probably used in discovery
- Requests for Admission (FRCP 36) - written requests, asking other
party to admit or deny:
- Facts, the application of law to fact, or opinions about
either (FRCP 36(a)(1)(A))
- The genuineness of any described documents (FRCP
36(a)(1)(B))
- Used to authenticate things, ask about specific facts, already have
an idea what you are asking, these are specific
- There are no limits on how many requests
- Responding party must admit, deny, or state lack of knowledge
(but only if party also states she has made a reasonable inquiry)
(FRCP 36(a)(4))
- Responding party has 30 days to respond (unless parties stipulate
or court orders otherwise)
- Important: if responding party fails to timely respond, the matter
is deemed admitted (FRCP 36(a)(3))
- Cannot withdraw or amend admission unless permitted by the
court (FRCP 36(b))
- Admission under FRCP 36 can be used only in the pending case
(not other cases)
31

- Advantages:
- Relatively inexpensive, can authenticate documents,
forces party to take a position
- Can use them to narrow the scope of issues that are in the
case
- Disadvantages
- You only get a minimal response, can say admit or
deny (vague admission)
- You often cant get the other party to admit that you are
right on the law or on a key fact
- No limits on how many and can use any time, generally
used in beginning to authenticate.
- Depositions by Oral Examination (FRCP 30) - attorney asks questions
to the witness (deponent); deponent answers under oath
- Atmosphere like trial testimony, usually in lawyers office;
transcript can be introduced as evidence at trial
- Testimony is transcribed by court reporter and/or recorded by
audio/video
- Limitations (unless stipulation or court order):
- Each party limited to 10 depositions (FRCP 30(a)(2)(A)
(i))
- Length limited to 7 hours (FRCP 30(d)(1))
- Limited to one deposition per witness (FRCP 30(a)(2)(A)
(ii)
- Can depose an organization by identifying the matters for
examination; entity then designates representative to testify
(FRCP 30(b)(6))
- You send a 30(b)(6) deposition notice that says what matters you
want to examine on, and that business has the responsibility to
choose the best person to testify about that
- Objections (FRCP 30(c)(2)): Attorney can object to question, but
deponent must answer unless:
- Necessary to preserve a privilege; (dont answer because
it would waive a privilege)
- Necessary to enforce court-ordered limitation; (court
previously said you couldnt talk about it)
- Necessary to present a motion for termination (based on
bad faith or harassment)
- Advantages:
- Not scripted answers, attorneys can alter questions in
response to what they are hearing
- Primary way to get key evidence before trial
- Disadvantages:
32

- Very expensive - must pay attorney to prepare (takes days,

weeks) because there is only one per witness. Since there is
only one, you dont want to burn them too early; most
attorneys will use everything else to get information to
prepare for the deposition of key witnesses.
- Depositions by Written Questions (FRCP 31)
- Similar to depositions by oral examination
- Difference:
- Questions are not asked by an attorney
- Instead, attorney submits questions in advance
- Court reporter records the deponents answer
- Rarely used in practice
- Not used because questions cannot be changed based on answers
given
- Advantages less expensive, attorneys dont actually have to be
there
- Medical Exams (FRCP 35)
- Unlike other discovery tools, requires court order (because the
procedure necessarily invasive)
- A party can be required to submit to a medical examination if two
requirements are met:
- Partys mental or physically condition is in
controversy (FRCP 35(a)(1))
- Requesting party demonstrates good cause for exam
(FRCP 35(a)(2)(A))
- Is condition genuinely at issue?
- Is there a less intrusive way to get information on
that condition?
- Medical exams can only be sought from parties
- Requesting party pays costs of exam
- Examined party has the right to request a copy of the examiners
written report (FRCP 35(b)(1))
- If the examined party requests a copy of the report,
however, she waives any privilege over any other reports
by her own doctor concerning that condition (FRCP 35(b)
(4))
3. Supplemental Discovery and Discovery Answers
- Supplementing (FRCP 26(e)) a party must supplement or correct its
disclosure or response in a timely manner or as ordered by the court,
including the testimony of expert witnesses.
- A party would want to do this because it preserves their ability to
use that information at trial.
33

- If something is incomplete or incorrect in a material respect.

B. Scope and Limitations of Discovery
1. Relevance and Proportionality
- Relevance FRCP 26(b)(1)
- general rule: parties may obtain discovery regard any
nonprivileged matter that is relevant to any partys claim or
defense
- court can expand scope for good cause, the court may order
discovery of any matter relevant to the subject matter involved in
the action
- need not be admissible evidence relevant information need not
be admissible at trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence
- American Roller Co. v. Foster-Adams Leasing, LLP (breach of
contract case; Ds argued P had intended to do this all along and
wanted to depose president of another company that is owned by
one of 35 investors of Ps business) court denied deposition
request, holding that D failed to show relevance and how this can
be related to a breach of contract
- Proportionality FRCP 26(b)(2)(C)
- Limitations the court must limit discovery if:
- discovery is unreasonably cumulative or duplicative
- discovery can be obtained from a more convenient, less
burdensome, or less expensive source
- party seeking discovery has had ample opportunity to
obtain the information
- burden or expense outweighs likely benefit (in light of
needs of case; amount in controversy; parties resources;
importance of issues, etc.)
- Gonzales v. Google (attorney general wants Google to provide
example URLs and search queries related to COPA and filtering)
court based on proportionality, permitted the URL requests, but
denies the queries because it is duplicative and burdensome
because there may be some privacy concerns embedded in the
search queries
2. Limits on Electronic Discovery FRCP 26(b)(2)(B)
- Specific Limitations on Electronically Stored Information - A party need
not provide discovery of electronically stored information from sources
that the party identifies as not reasonably accessible because of undue
burden or cost. On motion to compel discovery or for a protective order,
the party from whom discovery is sought must show that the
34

information is not reasonably accessible because of undue burden or

cost. If that showing is made, the court may nonetheless order discovery
from such sources if the requesting party shows good cause, considering
the limitations of Rule 26(b)(2)(C). The court may specify conditions for
the discovery.
- a condition may be cost-shifting
- Cost Shifting (Zubulake) the presumption is that the responding party
will bear the cost of producing the requested information.
- Zubulake v. UBS Warburg LLC (UBS hired P for Asian trading
desk; new manager hired; sex discrimination; sues; P wanted
emails from company record, which UBS claimed are on some 90
backup tapes) court defined the categories of electronic data and
factors to determine cost shifting; held that UBS must produce
sample and then will decide on cost shifting
- Five categories of electronic data:
1. active, online data (e.g., hard drive)
2. near-line data (e.g., optical disks, CDs)
3. offline storage/archives (e.g., CDs/drives that are stored)
4. backup tapes
5. erased, fragmented or damaged data
- 4 & 5 are considered inaccessible, and thus potentially
eligible for cost-shifting
- For inaccessible data, the responding party must produce a
sample, so the court can apply seven factors to analyze costshifting:
1. whether the requests are specifically tailored
2. the availability of the information from other sources
3. cost of production compared to amount in controversy
4. cost of production compared to parties resources
5. relative ability of each party to control costs
6. importance of the issues at stake in the lawsuit
7. relative benefit to the parties of obtaining the information
3. Privileges and Work-Product Protections
- Work Product Doctine FRCP 26(b)(3)
- protects documents prepared in anticipation of litigation or for
trial
- exception: if requesting party shows substantial need for the
documents, and an inability to obtain their substantial equivalent
by other means without undue hardship
- even if exception applies, core work product (attorneys
mental impressions, conclusions, opinions, or legal
theories) is always protected
35

- Hickman v. Taylor (tug sank and some of the crewmen died; tug
company hired lawyer to do prep work in anticipation of being
sued; lawyer interview survivors; when lawsuit happened, P sent to
lawyer request for copies of statements and oral discussions with
particularity) court held that this is work product doctrine and
protected; there are other ways P could get info, such as
interviewing the survivors themselves; this becomes Rule 26(b)(3)
- Witness Statements FRCP 26(b)(3)(C)
- witnesses interviewed by attorneys can request their own
previous statements without meeting the requirements of Hickman
- a previous statement is:
- a signed or approved written statement, or
- a recording of an oral statement (video, transcription, etc.)
- Attorney-Client Privilege
- Requirements:
1. holder of the privilege is (or sought to be) a client
2. communication is made between the client and a lawyer
(or the lawyers subordinate)
3. made in confidence for the purpose of securing legal
opinions, legal services, or assistance with a legal
proceeding (not for purposes of committing a crime or tort)
4. not waived by the client
- unless work product doctrine, attorney-client privilege is absolute
unless waived
- withholding privileged info (FRCP 26(b)(5))
- must expressly make the claim of privilege for the
documents you are seeking to protect
- must describe the nature of the documents in a way that
allows other parties to assess the claim (i.e. assess whether
the documents really are privileged)
- claw-back provision: if privileged info is produced
(mistakenly, accidentally), FRCP 26(b)(5)(B) allows you to
retrieve the material from the other side, which must return
the material
- Upjohn Co. v. United States (pharmaceutical company;
discovered that some foreign branches may have paid government
officials to secure business; order in-house counsel to conduct;
counsel sent out questionaires to company; IRS demanded all files
related to investigation; Upjohn declined) court held that (1)
attorney-client privilege protects communications even beyond
control group and (2) work product doctrine extends to
proceedings involving tax summonses.

36

C. Discovery Disputes Protective Orders, Motions to Compel, and Sanctions

- Motion for a Protective Order FRCP 26(c)
- filed by a person who has received discovery requests
- must make a good faith attempt to confer with opposing counsel before
filing motion
- court may, for good cause, issue an order protecting the party from
annoyance, embarrassment, oppression, or undue burden or expense
- Motion to Compel FRCP 37(a)
- filed by party that seeking discovery
- like rule 26(c), requires good faith attempt to confer
- Phillips v. General Motors Corp. (defective gas tank pickup truck suit; settled;
one exhibit contained info which included average settlement award, total number
and aggregate amount of settlements; LA Times motion to unseal; DC granted
motion, but stayed pending appeal) Ninth Circuit remanded for DC to conduct
good cause analysis:
- balance between presumptive public entitlement under FRCP 26(c) to
pre-trial discovery versus good cause why protective order is necessary
- balance public/private interests
- more than just trade secrets/confidential research protected under 26(c)
- Rule 37 Sanctions available options after motion to compel or protective
order:
- cost shifting: the prevailing party is entitled to recover reasonable
expenses incurred in the filing or opposing the motion
- exceptions: the movant filed the motion before attempting to
confer, the opposing partys nondisclosure was substantially
justified, or other circumstances make an award of expenses unjust
- applies to both the movant and the party opposing the motion
- Major sanctions FRCP 37(b)(2):
- striking pleadings, default judgment, dismissal of action, or
holding party in contempt of court
- National Hockey League v. Metropolitan Hockey Club (party
failed timely answer interrogatories) flagrant bad faith and
counsels callous disregard of responsibilities warranted dismissal
of suit
- also available if:
- party fails to appear at her deposition
- fails to serve answers to interrogatories, or
- fails to serve a written response to a request for
production
- exception for electronically stored information (FRCP 37(e))
- court may not impose sanctions for failing to provide
electronically stored information lost as a result of routine
good-faith operation of an electronic information system
37

IX. Summary Judgment, Trial, and Post-Trial Motions

A. Summary Judgment FRCP 56
- appropriate when there is no genuine issue as to any material fact FRCP
56(c)
- material fact = fact that might affect the outcome of the case
- genuine issue = reasonably jury could return a verdict for the party
opposing summary judgment
- Anderson v. Liberty Lobby, Inc. (libel case) court discusses what is
genuine issue and what is material fact.
- rationale: if there are no disputed material factual issues, there is no need for a
trial; judgment can be rendered as a matter of law
- in federal court, the deadline for filing a summary judgment motion is 30 days
after the close of discovery FRCP 56(b)
- continuance if party opposing summary judgment motion shows it
needs more time to discover essential facts, the court can grant a
continuance and postpose summary judgment FRCP 56(d)
- standard:
- party that bears the burden of proof for a claim must provide factual
support for that claim; otherwise summary judgment against that party is
appropriate
- if the claim is not supported with evidence, the other party is not
required to introduce evidence negating that claim
- Celotex Corp. v. Catrett (asbestos exposure leading to
death; D filed for summary judgment because P did not
produce any evidence showing exposure to asbestos)
SCOTUS granted motion for summary judgment because P
did not have evidence to make out a prima facie case; and
because D did not have to introduce evidence to negate Ps
claim
- 56(c) summary judgment because of failure to
make a sufficient showing of element essential to
case
- 56(f) allows motion to be denied if non-moving
party had not finished discovery
- 56(e) nonmoving party must go beyond
pleadings or discovery tools to show genuine issue
for trial
- when there is no evidence either way, summary judgment should be entered
against the party bearing the burden of proof on the claim
- courts must view the facts in light most favorable to the party opposing
summary judgment

38

- exception: court should not rely on the opposing partys version of the
facts if it is blatantly contradicted by the record
- Scott v. Harris (P speeding and sped up even more after cops tried
to pull over; after some amount of chasing, cops deemed too
dangerous and executed a maneuver to pull car off road; car
swerved off and resulting in major injuries; P sued; D moved for
summary judgment) SCOTUS viewed the chase video and
concluded that no reasonable jury could have considered that P
was taking precaution and hence Ps version of the story blatantly
contradicted by record
- if no reasonable jury could not believe the opposing partys version of
the facts, the court shouldnt either
B. Trial
1. The Constitutional Right to a Jury Trial
- Seventh Amendment in suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved
- historical test: would the claim have received a jury trial in common law
courts in 1791? (back in ye olde England)
- hybrid cases containing both legal and equitable claims
- claim for legal relief (money) raises an issue of fact, issue must
be tried by a jury
- doesnt matter if case is predominantly equitable in nature
- unless there are imperative circumstances in which trying the jury
questions first would cause irreparable harm, the jury issues must
be tried first
- Beacon Theatres, Inc. v. Westover (Fox and Beacon in
dispute over first showing rights; Beacon threaten to sue
Fox, so Fox pre-empted by seeking declaratory judgment
not anti-trust; Beacon counterclaimed with antitrust,
seeking monetary damages) court held that the legal issue
of whether the two are in competition should be tried first
by jury, followed by judge-determined issues of equity
- in federal court, a party must make a written demand no later than 14
days after the last pleading directed to the issue is served FRCP 38(b)
- under FRCP 42, the court may order separate trials of issues or claims,
but must preserve the right to jury trial
- Two-step Test for determining whether claims are legal or equitable
under the Seventh Amendment:
1. compare action to 18th-century actions brought in the courts of
England
- if there is not an exact fit, draw analogies
39

- courts focus on the nature of the issue to be tried, rather

than character of the overall action
- Chauffeurs, Teamsters, and Helpers Local 391 v.
Terry (truckers union; Ps were laid off; union
declined to refer to grievance committee; Ps sue
Union for failing duty to fair representation; seek
compensatory damages for lost wages and health
benefits) court held that generally money damages
are legal issues
- money issues in courts of equity are: (1)
restitutionary and (2) those incidental to or
intertwined with injunctive relief
2. Examine the remedy sought and determine whether it is legal or
equitable in nature
- this is the more important prong of the analysis
- if claim is for monetary relief, there is a strong
presumption that it is legal (Chauffeurs)
2. Jury Selection
- 28 U.S.C. 1861 (venire) prospective jurors must be selected at
random from a fair cross section of the community
- 28 U.S.C. 1865 jurors must meet the following requirements:
- U.S. citizen
- at least 18 years old
- able to read, write, understand, and speak English
- no mental or physical infirmity
- no felony conviction or charge
- voir dire FRCP 47(a) = court and/or attorneys question prospective
jurors about their backgrounds and potential biases before the jury is
chosen
- courts can dismiss jurors for cause
- 28 U.S.C. 1870 parties each have three peremptory
challenges
- Edmonson v. Leesville Concrete Company, Inc.
peremptory challenge cannot be based on race
- must make prima facie showing of discrimination
- if showing is made, burden shifts; other party must
articulate a race- gender- sexual-orientation-neutral
explanation
- this is not very difficult in reality; anything
will do
- J.E.B. v. Alabama Ex Rel. T.B. peremptory challenge
cannot be based on gender/sex
40

- SmithKline Beecham v. Abbott peremptory challenge

cannot be based on sexual orientation
- jury must initially have at least 6 and no more than 12 FRCP 48
- unless the parties stipulate otherwise, the verdict must be unanimous and
be returned by a jury of at least six members FRCP 48
3. Jury Instructions and Verdicts
- Jury Instructions:
- at the close of evidence, parties can submit requested jury
instructions FRCP 51(a)
- under federal rules, a party can request instructions after
the close of evidence only for issues that could not
reasonably have been anticipated or with courts permission
FRCP 51(a)(2)
- courts proposed instructions court must inform parties of its
proposed instructions and must give parties an opportunity to
object FRCP 51(b)
- in practice, attorneys and judges rely on model jury instructions
prepared and published by committees appointed by a states
supreme court.
- Arkansas Model Jury Instructions Civil
- objections to instructions:
- must be made on the record, out of the jurys hearing
FRCP 51(b)(2)
- must object before the instructions are given; if party fails
to do so, objection is waived FRCP 51(c)(2)
- timing federal rules allow the judge discretion to instruct the
jury either before or after closing arguments
- (Types of) Verdicts:
- general verdict most common type of verdict; after receiving
instructions and weighing evidence, jury renders a verdict for
plaintiff or for defendant
- special verdict (FRCP 49(a)) jury makes findings on specific
factual issues; judge then applies the law and rules for one party or
the other
- general verdict with interrogatories (FRCP 49(b)) combines
both general verdict and special verdicts if jurys answers are
inconsistent, court directs jury to reconsider, or orders a new trial
C. Judgment as a Matter of Law
- Two stages when motion for judgment as a matter of law (summary judgment)
can be made:
41

- pre-verdict: party makes motion prior to submission of a case to jury; if

granted, case does not go to jury
- post-verdict: party makes motion after verdict and entry of judgment; if
granted, court overturns jury verdict
- Pre-verdict motions FRCP 50(a)
- party against whom motion is brought has been fully heard on an issue
during a jury trial
- standard: a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue
- court considers all evidence in the record, drawing all reasonable
inferences in favor of the nonmoving party
- Reeves v. Sanderson Plumbing Products, Inc. (age discrimination
suit; D twice makes Rule 50(a) motion and was denied; verdict in
favor P) SCOTUS held that a Ps prima facie case, combined
with sufficient evidence to find that the employers asserted
justification is false, may permit the trier of fact to conclude that
the employer unlawfully discriminated
- McDonnell-Douglas framework:
1. Ps prima facie case
2. Ds burden to show non-discrimination
3. P opportunity to show reasons are really pretext
by a preponderance of evidence
- Renewed motion for judgment as a matter of law (post-verdict) FRCP 50(b)
- same standard as 50(a) the evidence is legally insufficient, and no
reasonable jury could render a verdict for the non-moving party
- court has three options when ruling on a Rule 50(b) motion:
1. deny the motion, upholding the jury verdict
2. grant the motion, and enter judgment in favor of the moving
party (overturning jury verdict), or
3. grant the motion, and order a new trial before a new jury
- Rule 50(b) motion is necessary for contesting the sufficiency of evidence
on appeal
- Unitherm Food Systems v. Swift-Eckrich, Inc. (patent dispute
alleging anti-trust violations) SCOTUS held that because D
failed to make a Rule 50(b) motion (or a Rule 59 motion), D was
precluded from raising the question of sufficiency of evidence on
appeal
D. New Trials
- Motion for a New Trial FRCP 59(a)
- federal rules do not explicitly list grounds for a new trial, but courts have
granted a new trial when:
- verdict against the weight of the evidence
42

- damages are excessive

- trial was not fair to the moving party
- for both Rule 50(b) and Rule 59(a), FRCP requires motion to be made
within 28 days after entry of judgment
- Dadurian v. Underwriters at Lloyds of London (jewelry purchased in
cash and then insured with Lloyds; claimed jewels robbed and sought
payment from Lloyds; Lloyds refused; jury made a verdict for Dadurian;
Lloyds properly raised Rules 50 and 59 motions) Appeals court held
that Lloyds motion for a new trial should have been granted, but did not
enter judgment as a matter of law because when there are questions of
credibility, courts tend to favor a decision by a jury
- Weisgram v. Marley Co. (fire and Ps decedent died of CO poisoning; at
trial expert testimony that product baseboard heater caused fire; D
objected in Daubert hearing, saying evidence was unreliable) SCOTUS
held that appellate court can make judgment as a matter of law, when after
suspect evidence has been thrown out, the remaining evidence does not
support jurys verdict
- this wasnt a close case; P had ample notice about Daubert rule
and plenty of opportunity to present expert witness
- Interactions between Rule 50 and Rule 59 Motions
1. A party makes a pre-verdict motion for judgment as a matter of law
under Rule 50(a)
- judge almost always denies motion and lets case go to jury
- if a party does not make a pre-verdict Rule 50(a) motion:
- party cannot make a rule 50(b) renewed motion for
judgment as a matter of law
- might not be able to make a Rule 59(a) motion for new
trial (disagreement among courts)
2. If jury renders a verdict against the moving party, that party will then
make a post-verdict motion, asking for judgment as a matter of law under
Rule 50(b), or in the alternative, for a new trial under Rule 59(a)
- party cannot appeal issues raised in a Rule 50(a) motion unless
the party also makes a post-verdict motion (Unitherm)
E. Relief from the Judgment
- correction of clerical errors (can be done at any time) FRCP 60(a)
- mistakes in addition/calculation
- misidentification of parties
- inadvertently omitted portions of a ruling announced in open court
- otherwise, party must seek relief within 1 year of judgment for:
- mistake, inadvertence, surprise, excusable neglect FRCP 60(b)(1)
- Briones v. Riviera Hotel & Casino (pro se employee sues for
wrongful discharge, didnt respond to Ds answer for 3.5 months)
43

court remanded case to DC to determine if its excusable neglect,

using Pioneer Inv. Servs. Co. factors:
1. danger of prejudice to the opposing party
2. length of the delay and its potential impact on judicial
proceedings
3. reason for the delay, including whether it was within
reasonable control of the movant
4. whether movant acted in good faith
- very rare that courts will find excusable neglect
- newly discovered evidence FRCP 60(b)(2)
- only if it could not be discovered in time for motion for a new
trial
- Patrick v. Sedwick (negligent post-operative care lawsuit)
factors to determine merits for new trial:
1. evidence must be such as would probably change the
result on a new trial;
2. must have been discovered since the trial;
3. must be of such a nature that it could not have been
discovered before trial by due diligence;
4. must be material;
5. must not be merely cumulative or impeaching (has to go
to merits of case)
- also, evidence must relate to facts which were in existence
at the time of the trial
- fraud, misrepresentation, misconduct by other party FRCP
60(b)(3)
- courts can grant relief after one year if there has been
fraud on the court
- Hazel-Atlas Glass Co. v. Hartford Empire Co (D and
counsel made up an article to help win judgment)
SCOTUS held that post-verdict relief still appropriate 9
years later because of fraud on the court
- no time limit for relief if:
- judgment is void FRCP 60(b)(4)
- judgment has been satisfied, released, or discharged; is based on an
earlier judgment that has been reversed or vacated; or application of
judgment is no longer equitable FRCP 60(b)(5)
- any other reason that justifies relief FRCP 60(b)(6)
- are factors of the case more like Ackermann or Klapprott
- Ackermann revoked citizenship; had money to appeal;
chose not to listen to lawyer and listen to someone else;
could appeal cheaply etc. does not warrant granting of
motion
44

- Klapprott appellant poor, sick, had no attorney, and was

jailed merited consideration for motion
X. Preclusive Effect of Prior Judgments
A. The Rules of Preclusion
1. Claim Preclusion a valid, final judgment on the merits of an action precludes
the parties or privies from relitigating claims that were or could have been raised
in that action. (Allen v. McCurry)
- Three Requirements:
a. Identity of Claims bars relitigation of claims that were or could have
been litigated in the prior action
- most jurisdictions (including Arkansas) use a transactional test
claims are precluded if they arise from any part of the transaction,
or series of connected transactions underlying claims in the prior
action (R2J 24)
- claims are not barred if a party could not litigate that claim in the
prior action (e.g., court did not have subject matter jurisdiction
over the claim)
- Nestor v. Pratt & Whitney (female machinist was fired
after altercation with male; brought suit to CCHRO (state
agency) to adjudicate for backpay; then suit in federal court
after grace period was over for other compensatory
damages not available in state agency) court held that the
claim is not barred from litigation, because Nestor could
not have brought these claims up in state agency
b. Identity of Parties claim preclusion applies only to parties to the
prior action or their privies; privity exists if:
- nonparty has succeeded to a partys interest in property
- nonparty controlled the original suit, or
- nonpartys interests were adequately represented by a party in the
original suit
- circumstances very narrowly construed, and for the purposes of
the exam, privity really doesnt exist
- Benson & Ford, Inc. v. Wanda Petroleum (dispute over
antitrust claims of price fixing; P voluntarily testified for P
in another suit; shares counsel with that other P; D argues
that Ps claim is therefore precluded) 5th Circuit
disagreed.
- P did not control the suit
- interests were not adequately represented
- did not have to join action
c. Final, Valid Judgment On the Merits
- valid means that the rendering court had jurisdiction
45

- a judgment is final if it ends the litigation on the merits (R2J 13

discusses nuances)
- judgment on the merits = (R2J 19)
- Rule 12(b)(6) dismissals
- summary judgment
- judgment as a matter of law
- NOT interlocutory judgment
2. Issue Preclusion (R2J 27) where an issue of fact or law is actually litigated
and determined by a valid and final judgment, and the determination is essential
to the judgment, the determination is conclusive in a subsequent action between
the parties, whether on the same or a different claim.
a. Identity of Issues issue preclusion only bars relitigation of the same
issue
- issue must be identical in all respects, AND
- controlling facts and applicable rules remain unchanged
- Commissioner of Internal Revenue v. Sunnen (patentholder/CEO deeds his patent royalties to wife; dispute
follows with IRS whether royalties are taxable because of a
previous agreement) court held that issue preclusion does
not apply here; although the agreement is the same,
controlling tax laws have changed
- also, claim not precluded because each tax year is
a different matter
b. Actually Litigated issue preclusion only bars issues that were
actually litigated in the prior proceeding (compare to claim preclusion,
where claims that could have been brought are also precluded)
- Cromwell v. County of Sac (bonds + interest coupons issued to
build a courthouse, but it was never built; court ruled in a prior suit
with a different plaintiff that plaintiff never gave value to those
coupons) court held that because these coupons are different
coupons, the issue was not actually litigated and therefore not
precluded (essentially, last suit did not determine that these
coupons were or were not obtained by fraud, etc.)
c. Necessarily Decided issue must also be essential to the courts
decision. If the issue was not necessary to the courts decision (or if the
record is unclear), then litigants are not precluded from relitigating the
issue
- Russell v. Place (P patent infringement on leather preparation; D
argues that this is novel and has been in public domain 2 years
before patent; P argued that court had already ruled in favor for it
in a previous infringement suit, so issue already decided and bars
relitigation) court held that because in the previous case, there
46

were actually two patent methods and the record was not clear on
which infringement was which, the uncertainty did not cause the
issue being presented here to be barred from litigation
d. Identity of Parties (Mutuality)
- Blonder-Tongue Labs v. University of Illinois Foundation
- Lawsuit 1: P sued D1 for patent infringement; P lost after
court concluded that patent was invalid
- Lawsuit 2: P sued D2 for infringement of the same patent;
D2 invokes issue preclusion (defensive nonmutual issue
preclusion = when defendant seeks to prevent a plaintiff
from asserting a claim the plaintiff has previously litigated
and lost against another defendant) (Parklane)
- court has discretion to retry the issue (permit defensive
nonmutual issue preclusion or not) based on consideration
of whether P had a full and fair chance last time
- P really has incentive to join all the Ds it can,
which promotes judicial efficiency/economy
- Parklane Hosiery Co. v. Shore
- Lawsuit 1: P1 sued D for false/misleading statement
- Lawsuit 2: P2 sued D on the same allegation
- P2 wins
- P1 invokes issue preclusion. This is called offensive
nonmutual issue preclusion and is permitted.
- occurs when P seeks to foreclose the defendant from
litigating an issue the defendant has previously litigated
unsuccessfully in an action with another party (Parklane)
- Offensive nonmutual issue preclusion is permitted, but
courts should not allow if plaintiff could have easily joined
the suits last time.
- prevents P from adopting wait and see approach
to litigate with one D before trying the next
e. Final, Valid Judgment On the Merits
- valid means that the rendering court had jurisdiction
- a judgment is final if it ends the litigation on the merits (R2J 13
discusses nuances)
- judgment on the merits = (R2J 19)
- Rule 12(b)(6) dismissals
- summary judgment

47