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Civ. Pro II Professor DiFonzo Spring 2010
Civ. Pro II Professor DiFonzo Spring 2010
V. Venue:
Venue is decided after the issue of jurisdiction is established and determines which
district within the jurisdiction is most appropriate for bringing the action.
Federal Venue Statutes apply only where claim is initially brought in federal court
since states have their own statutes and removal is to the district where the state court is
Improper venue does not lead to dismissal, but rather it leads to the case being
transferred to a different courthouse within the jurisdiction. Rule 12(b)(3) for venue.
28 U.S.C. 1391: (a) for diversity jurisdiction, AND (b) for federal question
Rules: (28 U.S.C. 1391, 28 U.S.C. 1404, 28 U.S.C. 1406)
1391(a): Action where jurisdiction is based on diversity can only be brought:
(1) If all defendants from same state District where any of defendants reside
(2) District where substantial part of the events giving rise to the claim occurred
(3) If not (1) or (2) Any district where defendant subject to personal jurisdiction
1391(b): Action where jurisdiction is based on federal question can only be brought:
(1) If all defendants from same state District where any of defendants reside
(2) District where substantial part of the events giving rise to the claim occurred
(3) If not (1) or (2) Any district where defendant may be found
Note: Found is an Intl. Shoe test for minimum contacts
1391(c): Venue for corporations is anywhere with jurisdiction or significant contacts
1391(d): An alien defendant can be sued in any judicial district
1404: Court can transfer venue on its own for convenience of the parties or on motion
1406: Court can either dismiss or transfer case filed in the wrong venue
VI. Issue/Claim Preclusion: Claim preclusion and Issue Preclusion are affirmative defenses
under Rule 8(c), so if they are not raised, they are waived. To get a case dismissed on these
grounds, you MUST MOVE FOR SUMMARY JUDGMENT!!! You will need to file the
summary judgment motion and include evidence of the prior trial being adjudication on the
merits. You can also file this as a 12(b)(6) motion, but it is then converted into a summary
judgment motion because there would be evidence attached to it of the prior case. When
evidence is included, the court must treat it as a summary judgment motion per Rule 12(d).
1. Involuntary Dismissal and Waivers in the Rules.
Many rules create situations where failing to raise an issue is considered waiver, which
works in conjunction with claim and issue preclusion to bar subsequent raising it
Rules: (Rule 12(g) and (h), Rule 13(a)(1), Rule 41(b), Rule 42, Rule 12(d))
Rule 12(g) and (h): Only 1 Rule 12 motion is allowed with all issues that need to be
raised included with it. If not included then waived (except for 12(b)(1) and 12(b)(6)).
Rule 13(a)(1): A compulsory counterclaim arising out of the same transaction or
occurrence as the claim must be raised in the pleading or else it is waived.
Rule 41(b): The effect of involuntary dismissal is that it is a judgment on the merits
unless stated otherwise except based on: jurisdiction, venue, or failure to join.
Rule 42: (a) Allows courts to join trials that deal with a specific issue if based on the
same question of fact or law. (b) Allows courts to separate trial into distinct issues.
Rule 12(d) converts any motions that include matters outside of the pleadings into
Summary Judgment Motions. (This is the case for all claim and issue preclusion)
2. Claim Preclusion (Res Judicata).
Claim Preclusion (deals with issues that should and could have been litigated): a final
judgment on a claim is conclusive on all matters that were, could have, and should have
been litigated. The first final judgment is conclusive on all matters that were raised,
and should have been raised that are part of the same transaction or occurrence.
(1) Final judgment (2) on the merits where (3) claim must be same in first and
second suit (operative facts test) and (4) parties must be same in both cases
A Consent Decree (settlement that judge signs) has preclusive effect on future claims
Every Party Gets a Day in Court (Searle Brothers v. Searle)
Rules: (Operative Facts Test Frier v. City of Vandalia, Rule 13(a)(1), 28 U.S.C. 1738)
Operative Facts Test (Frier): If suits are based on a common core of operative facts, a
judgment in the first suit will bar any legal claims that were or could have been litigated
in that suit based on those facts, even if they are based in different legal theories (Note:
even though you need to combine all claims arising out of the same transaction or
occurrence, the court may (per Rule 42(b)) may sever parts of a complaint for trial)
Rule 13(a)(1): A compulsory counterclaim arising out of the same transaction or
occurrence as the claim must be raised in the pleading or else it is lost. This works
with claim preclusion, but only if there has been a pleading. (Martino v. McDonalds)
1738: All court rulings (including whether on the merits or not) must be equally
enforced in all courts (i.e. - federal law gives same preclusive effect as state ruling)
Cases: (Searle Bros. v. Searle, Gargallo v. Merrill Lynch)
Searle Bros. v. Searle: The right to intervene as a party in a prior suit does not bar the
party from a subsequent suit where he did not intervene (everyone gets a day in court).
Gargallo: If a state court renders a judgment and the case is brought to federal court, the
state courts rules determine whether it was a judgment on the merits per 28 USC 1738.
3. Issue Preclusion (Collateral Estoppel).
Issue Preclusion (deals only with issues that were litigated) when there is a judgment
on a specific issue in one case, another cause of action raising the same issue is
already considered to be adjudicated as to that issue, and cant be litigated again.
Offensive Issue Preclusion: When a plaintiff uses issue preclusion to stop defendant
from raising a defense on an issue that has already been decided. Incentive for plaintiff to
wait and see outcome of other cases to use preclusive effect on the defense to their claim.
Defensive Issue Preclusion: When a defendant uses issue preclusion to stop plaintiff
from re-litigating an issue that has already been decided in the defendants favor.
Incentive to join many defendants for benefit of suing once rather than each defendant.
Burden of Proof Matters since criminal trials (beyond reasonable doubt) will have
preclusive effects on civil trials (preponderance) on the issue but not vice versa.
Preponderance is a subset of beyond reasonable doubt because burden of proof is higher.
Jurisdiction Matters since a court ruling on issues of jurisdiction will have different
effects in federal and state court within that district (i.e. subject matter dismissal is
preclusive in only federal but not state but personal is preclusive in both within that state)
Issue Must Actually Be Determined and if it is inconclusive as to which issue is
determined, only the appellate court can give preclusive effect by addressing the issue
specifically or else it is not know which issue should be precluded and properly decided.
Cases: (Illinois Central Gulf Railroad v. Parks, Parklane Hosiery Co. v. Shore, State
Farm Fire v. Century Home Components)
Illinois Central: Only the central issue of a case can have preclusive effect since the issue
is specifically decided to its conclusion, but issues that could have been decided on
multiple grounds are not preclusive unless the ruling is conclusive on the specific ground
(i.e. not showing loss of consortium is not preclusive on issue of negligence for spouse)
Parklane Hosiery: The Supreme Court will not allow offensive issue preclusion where:
(1) Plaintiff could have easily joined the prior action. OR
(2) Defendants did not have a fair opportunity to litigate the case due to:
(a) no incentive to litigate the first suit but more incentive to litigate the subsequent
(b) if the case relied upon is inconsistent with other cases in favor of the defendant
(c) the second case affords the defendant procedural opportunities unavailable in the
first action capable of causing a different result.
Note: This is a discretionary rule that the court can choose to apply
NOTE: A party that has never litigated an issue can never have that issue precluded
against them since it would violate their due process constitutional rights. So:
(1) Offensive issue preclusion can only be used against a party that has already litigated
(2) Defensive issue preclusion can only be used to bar parties that have already litigated
the issue against a defendant before (Generally used when P loses)
State Farm v. Century: Where rulings are inconsistent, collateral estoppel is unfair and it
is a strong indication that it would work an injustice if the defendant re-litigated. The
court has authority under Rule 42 to join and separate claims dealing with a common
issue and court may choose the most representative cases to try first.
Rule 42: (a) Allows courts to join trials that deal with a specific issue if based on the
same question of fact or law. (b) Allows courts to separate trial into distinct issues.
Restatement (Second) of Judgments 29. Issue Preclusion in Subsequent Litigation
Grounds for why issue preclusion may lead to an unfair result include:
(2) Procedural protections available in the forum for the 2nd party that were not for the 1st
(3) Party could have joined in a previous suit (this is to deter waiting for outcome)
(4) Determination inconsistent with another determination on same issue
(6) Party would be prejudiced
(7) Issue is of law and would foreclose possibility of changing the rule
(8) Any other compelling reasons that the party should re-litigate