Civil Procedure II Outline

CHECKLIST TO CIVIL PROCEDURE II
I. JOINDER OF CLAIMS/PARTIES
A. Joinder Of Claims
B. Joinder Of Parties
II. DISCLOSURgDISCOVERY
A. Purpose/Effect
B. Automatic Disclosure
C. Scope
D. Discovery Devices
E. Protective Orders
F. Sanctions
G. Pretrial Conference
JII. PRE.TRIAL DISPOSITION
A. Default Judgment
B. Voluntary Dismissal
C. Involuntary Dismissal
D. Consent Judgment
E. Motion For Summary Judgment
IV. JURY TRIAL
V. MOTIONS AT THE CLOSE OF PROOF AND MOTIONS AFTER VERDICT
A. Motion For Judgment As A Matter Of Law

B. Renewed Motion for Judgment As A Matter Of Law
C. New Trial
VI. APPELLATE REVIEW
A. Appealability
B. Reviewability
VII. DOCTRINES OF FORMER ADJUDICATION
A. Former Adjudication
B. Claim Preclusion - Res Judicata
C. Issue Preclusion - Collateral Estoppel
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page I

t.
A. Joinder Of Claims:
1. Joinder of claims by a single plaintiff against a single defendant

a. Federal practice: A single plaintiff may join any and all claims he has against
a single defendant, even if they are unrelated. F.R.C.P. 18. Therb is no
compulsory claims joinder rule, i.e., no joinder rule requires plaintiff to join
claims - even if related - in one suit. However, the common law doctrine of
Res Judicata, in effect, requires plaintiff to join related claims (no claim
splitting). See Res Judicata, Section VII, infra, atpage 41.
b. State practice (code pleading): Some state claims joinder rules require that
claims arise out of the same transaction or involve common questions of law.
2. Counterclaims and Cross-claims

a. Federal practice
1) Counterclaims: A counterclaim is an affirmative claim asserted in a
defensive pleading (typically, the answer) that the pleader (typically, a
defendant) has against an opposing party (typically, a plaintiff).
a) Compulsory counterclaims: If the counterclaim arises out of
the same transaction or occulrence ("logical relation" test) as
the opposing party's claim, it must be asserted or the claim will
be barred in a subsequent suit.
NOTE - Ancillary jurisdiction cross-over: Federal courts assert

ancillary jurisdiction over compulsory counterclaims.
b) Permissive counterclaims: If the counterclaim does not arise out of

the same transaction or occurrence as the opposing party's claim, it
may be asserted at defendant's option. Federal courts will not
assert ancillary jurisdiction over permissive counterclaims.
2) Cross-claims: A cross-claim is:

a) A claim by a party against a co-party (e.g., co-defendants)
b) That arises out of the same transaction or occurrence that is the
subject of the original action. ("Logical Relation" test)
Cross-claims are never compulsory; only permissive. They are
asserted in the defensive pleading (typically, the answer).
NOTE - Ancillary jurisdiction cross-over: Federal courts assert

ancillary jurisdiction over proper cross-claims.
b. State practice
1) Cross-complaint: California does not recognize the counterclaim or
cross-claim, but rather provides that a defendant's claim against any
party may be asserted by way of a cross-complaint.
a) A cross-complaint is a separate pleading and is not part of the
answer.
Fleming's Fundamentals Of Law (@ 2007') Civil Procedure II Page 2

B. Joinder Of Parties:
l Permissive party joinder: All persons may join in one action as plaintiffs or be joined
in one action as defendants if:
a. A right to relief is asserted by, or against, each plaintiff or defendant relating
to or arising out of the same transaction or occuffence, or series of
transactions or occutrences (logical relation test); and
b. Any question of law or fact common to all these persons will arise in the action.
NOTE - Potential "pendent party jurisdiction" crossover.
2. Compulsory party joinder ("necessary and indispensable parties")

a. Necessary party (a party who should be joined, if feasible): F.R.C.P. l9(a) provides
that a person who is subject to service of process (i.e., personal jurisdiction) and
whose joinder will not deprive the court of jurisdiction over the subject matter (i.e.,
destroy complete diversity) should be joined as a party in the action if:
1) In his absence complete relief cannot be accorded among those already
parties, or
2) His interest in the subject of the lawsuit is such that to proceed without
him may either
a) As a practical matter impair or impede his ability to protect that
interest in a later proceeding or
b) Expose those already parties to the lawsuit to a substantial risk
of double, multiple or otherwise inconsistent obligations.
b. Indispensable party (a necessary party whom it is not feasible to join and in

whose absence the lawsuit - "in equity and good conscience" - should be
dismissed): This issue arises where the court has determined, under Rule 19(a),
that the person (i.e., "nonparty") should be joined but it is not feasible to do
so, either because the nonparty is not subject to personal jurisdiction in the
forum or his joinder would destroy diversity jurisdiction.
The court then faces the "indispensable party" issue whether, "in equity and
good conscience", the lawsuit should proceed without the nonparty or should
be dismissed because proceeding in his absence would be too prejudicial to
the rights of both the nonparty and persons already parties to the action. If the
court, weighing the following factors, determines "in equity and good
conscience" that the suit should be dismissed, then the nonparty is labeled an
"indispensable party" :
l) To what extent a judgment rendered in the person's absence might be
prejudicial to him or those already parties;
2) The extent to which the court, by the shaping of relief or other
practical measures, can lessen or avoid prejudice;
3) Whether a judgment rendered in the person's absence will be adequate;
4) Whether the plaintiff, if his suit is dismissed for nonjoinder, will have
an adequate alternative forum in which to bring his suit.
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 3

c. Exam analysis: Attempt to argue against indispensability. Modernly, any interested
party should be joined if practical considerations dictate (complete relief)
d. Challenging nonjoinder of an indispensable party: Defendant can move to dismiss
for failure to join an indispensable party either in a pre-answer motion [Rule 12(b)]
or anytime thereafter in the lawsuit (even on appeal for the first time). Therefore,
this objection is not waived during the life of the original lawsuit.
e. Exam tip:
1) Permissive joinder issue asks: may the plaintiffs join in one suit or
may they join several defendants in one suit?
2) Compulsory joinder issue asks: must a nonparty (e.g., one not
voluntarily sued by plaintiff and who does not seek to join the action
through "intervention") be joined? Three step analysis:
a) "Necessary party" issue asks: Should the nonparty be joined?
lApply Rule 19(a)l
b) If so, is it feasible to join the necessary party?
c) "Indispensable party" issue asks: if the nonparty should be joined
[applying Rule 19(a)], but it is not feasible to do so (because he is
not subject to personal jurisdiction or his joinder will destroy
complete diversity), should the court dismiss the suit rather than
proceed in the absence of the nonparty? [Apply Rule 19(b)]
3. Impleader ("third party practice"): A defendant is permitted to bring into the lawsuit an
additional party ("a person not a party to the action") who is or may be liable to the
defendant for all or part of the original plaintiffs claim against the defendant. The
additional party is called the third party defendant and the defendant is called the Third
Party Plaintiff. The purpose of impleader is to permit a defendant to join a derivative or
contingent claim for indemnity against a person not sued by the plaintiff as a defendant.
CAVEAT: A defendant cannot use impleader to shift liability to a person defendant

contends is directly liable to the plaintiff. Defendant can only join "derivative" or
"contingent" (not independent) claims against Third Party Defendant.
e.g., FRAZIER v. HARLEY DAVIDSON MOTOR CO.
Example: P sues D and D impleads his liability insurer.

NOTE - Ancillary jurisdiction crossover: Federal courts will assert ancillary
jurisdiction over properly impleaded claims.
4. Intervention: A nonparty, upon timely application, may voluntarily become a party to

a lawsuit between other parties in order to protect his interest
a. Intervention of right: A nonparty must be allowed to intervene
1) When a statute of the United States confers an unconditional right to
intervene; or
. 2) When one claims
a) An interest to the property or transaction which is the subject
of the lawsuit and

b) The disposition of the action in the intervenor's absence will be
likely to impair his ability to protect that interest and
c) Existing parties to the action cannot adequately protect the
intervenor's interests
NOTE - Ancillary Jurisdiction Crossover: Federal courts will assert

ancillary jurisdiction over claims asserted by one who intervenes as of
right, except where to do so would be inconsistent with the statutory
requirement of "complete diversity".
b. Permissive intervention: A nonparty may be allowed to intervene:

l) When a statute of the United States confers a conditional right to
intervene; or
2) When an applicant's claim or defense and the main action have a
question of law or fact in common. (key issue on exam)
NOTE - No ancillary jurisdiction: Permissive intervention requlres

an independent basis of subject matter jurisdiction
5. Interpleader
a. Interpleader is a joinder device by which a person holding property (the
"stakeholder"), who may be subject to inconsistent claims on that property
(the "stake"), can join all the claimants in one interpleader action and require
them to litigate among themselves to determine who has a right to the
property.
b. Purposes
1) To protect the stakeholder from the risk of incurring double or multiple
liability
Example: Husband dies leaving life insurance policy to "my wife". Wife 1
and Wife 2 both claim the total proceeds. Their claims are adverse (because
they are mutually exclusive). If Insurer pays the full amount to Wife 1, it
runs a substantial risk of having to pay Wife 2 also.
2) Interpleader can also be properly invoked where the claims against the
stake are not technically adverse so that there is no risk to the
stakeholder of incurring double or multiple liability, but the claims, in
the aggregate, exceed a limited fund held by the stakeholder.
Example: Insurer issues a liability insurance policy to Insured limited

to $20,000 per accident. If Insured is involved in an accident with Bus
Company, Insurermay properly file an interpleader action requesting
the court to determine how to allocate the $20,000 among the various
bus passenger-claimants. Here, the purpose of interpleader is not to
protect Insurer from multiple liability (because there is no such risk),
but rather to protect the claimants from prejudice which could occur if

the first few claimants to assert their claims totally depleted the
$20,000 leaving nothing for the remaining claimants.
3) Judicial economy
c. Federal interpleader ("Rule 22" and "Statutory"):
l) F.R.C.P. 22provides one means of bringing an interpleader action in
federal court. Allows stakeholder to assert a claim right in the stake in
addition to the "claimants". Drawback to proceeding under Rule 22: All
the normal limitations regarding personal and subject matter jurisdiction,
and venue, apply.
2) "Statutory Interpleader" under the Federal Interpleader Act: (liberal
approach) Facilitates bringing interpleader actions in federal courts by
loosening the traditional limitations on personal and diversity
jurisdiction, and venue. Courts have interpreted this Act as also allowing
the stakeholder to assert a claim in the stake as well as the "claimants".
Traditional Statuto 335
Amountin'n, $75,000.00 plus $500.00 minimum

Gontrovefslq
Diversity Complete Minimal (any 2 claimants)
Notice Strict - Territorial limits of the state Nationwide process

or state long arm Federal Long Arm
nue Normal venue rules apply Where any claimant resides

6. Class actions: This joinder device permits a lawsuit to be brought by a class representative
on behalf of large numbers of persons whose interests are sufficiently related so that it
serves the goal of judicial economy to adjudicate their rights and liabilities in one action.
a. To proceed as a class action, the court must, in its discretion, certify the action as
a class action at a certification hearing. Seven requirements must be satisfied:
l) An identifiable class: The class action complaint must contain a
description of the class which will permit the court to determine who
falls within the class and who doesn't. This is necessary to determine
who gets "notice" and who will be bound by the class action judgment
2) The class representative: Must be a member of the class
3) "Numerosity": The class must be large enough so that joinder of all
members as named parties is impracticable
4) "Commonality": The members of the class must share questions of law
or fact in common. In many jurisdictions, only one significant question
of law or fact will be sufficient
5) "Typicality": The claims or defenses of the class representative must
be typical of the members of the class
6) "Adequate representation": The class representative must adequately
represent and protect the interests of the class members.
NOTE: Even if the court finds, during the certification hearing, that the
class representative will adequately protect the class members' interests, if
in fact he does not provide adequate representation (e.g., inept conduct of
the litigation), then the class members, citing the Due Process Clause, may
not be bound by the class action judgment. HANSBERRY v. LEE
7) The class action must fit within at least one of the three types: (or
categories) of class actions:
a) "Prejudice" class action [Rule 23(bX1)]: Where the prosecution of
separate actions by the class members would create a substantial
risk of prejudice either (1) to other members of the class, not
parties to those actions, whose interests might be adversely
affected by those actions (e.g., where the class members are
claimants to a limited fund); or (2) to the defendant who could be
subjected to inconsistent judgments in those separate actions
b) "Injunctive" class action [Rule 23(b)(2)]: Where the defendant has
acted or refused to act on grounds generally applicable to the class
as a whole and the predominant relief sought by the class is final
injunctive relief or a corresponding declaratory judgment
c) "Damage" class action [Rule 23(bX3): Where the only relation
among the class members is that they claim to have been
damaged by defendant in a similar way and the predominant
relief sought by the class is damages. In order for the class action
to qualify as a "damage" class action, two additional
requirements must be satisfied:
(1) "Predominance": Common questions of law or fact
must predominate over questions affecting only
individual class members.

(2) "Superiority": The court must determine that the class
action is superior to any other method (e.g., individual
actions) for resolving the controversy.
b. Notice reouirements
1) Required notice (strict): If the court certifies the class action as a
"Damage" class action [under Rule 23(b)(3)], then the court must
direct to the class members "the best notice practicable under the
circumstances, including individual notice to all members who can be
identified through reasonable effort. "
a) The class representative must bear the heavy expense of notice;
court cannot shift cost of notice to defendant.
b) The notice shall inform class members of their right to "opt
out" of the class, i.e., to terminate their involvement in the suit.
2) Discretionary notice: If the court certified the class action as a "Prejudice"
class action [under Rule 23(b)(1)] or an "Injunctive" class action [under
Rule 23(b)(2), then the method of notice is up to the court's discretion.
c. Subject matter jurisdiction requirements (Very testable crossover)

1) Diversity: Citizenship of the representative (not the class members)
controls in determining diversity.
2) Amount in controversy: Under case law existing prior to the enactment of
the Supplemental Jurisdiction provisions of the Judicial Improvements Act
of 1990, each individual class member's claim had to meet the $75,000
amount in controversy requirement (unless all claims could be aggregated
which was usually not allowed under the common law rules of aggregation).
In 2005, the U.S. Supreme Court held EXXON CORP. V. ALLAPATTAH
SERVICES, that under the Supplemental Jurisdiction statute, supplemental
jurisdiction can be asserted over an individual class member's claim which
does not meet the amount in controversy requirement (assuming, of course,
complete diversity is satisfied) as long as a class representative's claim does
exceed $75,000.)
3) In 2005, Congress created the Class Action Fairness Act ("CAFA")
which amends both the diversity statute and the removal statute in big
multi-state class action suits. CAtr'A provides for "nunimal" diversily
in which any one member of the class (named or not) has diverse
citizenship from any one defendant and where the aggregate amount in
controversy exceeds $5 million. CAFA also expands removal
jurisdiction over class actions, in part, by eliminating, in removal of
class actions, the requirement, in diversity cases that no defendant may
be a citizen of the forum state.

lt.
A. Purpose And Effect: Liberal federal discovery rules are designed to promote adjudication of
cases on the merits, rather than through the tactic of "surprise" (i.e., hiding evidence from the
adversary). Another purpose is to narrow the issues and to promote settlement (avoiding trial,
if possible, thereby promoting 'Judicial economy"). Facts placed in issue by the pleadings
may, after full and open disclosure of the evidence through discovery, not really be in dispute.
Hence, discovery may provide a basis for stipulations, settlements and summary judgment.
However, because of the nagging problem of continuing abuse of the discovery rules by
adversaries who employ these rules as litigation tactics, the Advisory Committee has added
F.R.C.P. 26(a) which provides for required disclosure of certain information.
"Disclosure" does not replace "Discovery" but is an additional requirement. It calls for
automatic exchange of specified categories of basic information by the parties to a federal
court lawsuit in three distinct stages corresponding to 26(a)(l), (a)(2) and (aX3).
This automatic "disclosure" obligation is not triggered by a discovery demand. Counsel, as
officers of the court, are required to comply with the demands of new Rule 26(a) without
awaiting discovery requests. The purpose behind this new "Disclosure" requirement is to cut
down on traditional "Discovery", and the interminable motion practice that accompanies it, to
save the parties and the court system time and money.
B. Automatic Disclosure:
l. Stage 1 - Initial disclosure under Rule 26(aX1): Rule 26(a) provides for three stages
of automatic disclosure. The first, under Rule 26(aX1), calls for the exchange of
basic, core information. It is, in effect, a kind of pre discovery, which, together with
the mandatory "meet and confer" conference under Rule 26(f), will (hopefully) cut
down on traditional discovery. NOTE: effective l2lll, Rule 26(a)(1) has been
amended to eliminate the ability to district courts to "opt out" of the required initial
disclosure rules. These amendments also changed the scope of initial disclosure as
follows:
' a. Subparagraph (aXlXA) requires disclosure of the identity of each individual
"likely to have discoverable information that the disclosing party may use to
support its claims or defenses, unless solely for impeachment.
b. Subparagraph (aXlXB) requires the disclosure of a copy, or a description, of
all documents, data compilations, and tangible things in a party's possession,
custody, or control and that the disclosing part may use to support its claims
or defenses, unless solely for impeachment.
E-DISCOVERY AMENDMENT: The category calted "data

ebftp,il4 th .b-oh-r.€iiltepd'ryitfi fi6rr:cs=te.Euif lle$,,.,=- ", '-;
'..
s,,lcironica .3torediinfo. lqd '{hiteinafter;:ffSili'} ig, 'alohg'=.=
with documents and tangible things, must be disclosed.
f,'leming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 9

c. Subparagraph (aXlXC) requires the disclosure of a computation of any category
of damages claimed and further requires that any supporting documentation and
other evidentiary material be made available for inspection and copying unless
privileged or otherwise protected from disclosure.
d. Subparagraph (aXlXD) requires disclosure of liability insurance agreements.
This provision converts the former "discovery" Rule 26(b)(2) which merely
allowed a party to request such information into a mandatory disclosure
requirement.
Timing of (aXl) disclosure: Disclosure under 26(a)(l) should take place at, or
within 14 days after, the mandatory "Meet and Confer" conference required
by Rule 26(f). At the "Meet and Confer" conference, the parties may agree to
extend the time for (aXl) disclosure.

judg4ent that may be entered in the action or to indemnify or ieimburse for
payments made to satisfy the judgment. This discovery may include thi iaentity
of the carrier and the nature and limits of the coverage. A party may also obtain
discovery as to whethei ttrat insurance cairier is disputing the agreement'i
covgryge bf the claim ;nvolved'ihff ac,, ni but,'not ai to the nature1,5nd,.".., "
subsianceof that{isputeiInfoimatio6=-,c-@erxiug,theinsutlurceagieementisnot
,,by'f,+ason of disclosure athnissi'ble'in G* ehce:at,,trial.":Cal Code Ci*Proc,$,,. ..1
2011.210
The Economic Litigation Rules provide for a special discovery procedures simitar to
::
initid disclosuie, but avaiiable only in limited'.tivit cases (amoUnt in contioverSi
under $25,000):
. Reciprocal "case questionnaire": Plaintiff has the option to seive a case
., queslisnnaire on:the defendant at the startof titigat:ion which is designed to elicit
basic information about each partyts case, including names and addresses of all
5it*e$ses'ryith knowledge of $'i€levant fae$'li*,of alldocuurents relevant to ,,, ,,
. eca ;;itbtement o111r-e-rytur1anaam"!,3i'qffrnag;C;'*A,infsf,mation as to
.....:insurbncrecover4e;..iajuii*andtrea1ing.physicians.
2. Stage 2 - Disclosure under Rule 26(aX2): 26(a)(2) requires disclosure of the identity
of all persons who may offer expert testimony at trial (i.e., testifying expert trial
witnesses). Under old, unamended, Rule 26(b)(4XAXi), this information was
available only by serving interrogatories. Now, under 26(a)(2), the identity of expert
trial witnesses must be disclosed without waiting for a discovery request. 26(a)(2),
also requires, as to each expert witness who is "retained or specially employed" to
provide expert testimony at trial or whose duties as a party's employee regularly
involve giving expert testimony, the disclosure of a detailed report which contains the
opinions to be testified to, the grounds supporting those opinions, and details about
the expert witness' qualificatiohs and experience.
NOTE: Rule 26(b)(4), which used to provide very minimal protection to expert trial
witnesses from being deposed by requiring that interrogatories first be served and
answered and, afterwards, that a motion be made for further discovery, like deposing
the expert, has also been amended to allow routine deposition of expert witnesses
without seeking permission from the court.
Disclosure of expert trial witnesses is nol mandatory. A party seeking to discover the
opposing party's expert trial witnesses must serye a demand for exchange of expert
witness information:
CA RULE: "After the setting of the initial trial date for the action, any party may
obtain discovery by demanding that all parties simultaneously exchange
inform;tion conlCrniftg €a;:.h othtft$cxp€rf ial witnesses to 0l:lowing extClrt:
ihe
(a) Any party miy demand a mutual and simullaneous exchange by atl parties of a
list containing the name and address of any natural person, including one who is a
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 1L

p..-rty, whose,'oral-or@osition,testimont irt theform of,,ante*pert:, Iiinion any party
+$s,to btrir cnce at th$"F"= ,-..'.,
,.,
On;ni;.u"rt [esignati*.,brep"rty under subdivisiopLa).iq a purt Ji.a

employee of a party, or has been retained by a party for the purpose of forming and
:-fuiesws,Cn:oryrnion in 4nticipatioi oe tile titigtion or in preparation for the,,,triel,.,
ofitre uction, the designation of that witness shall include or be iccompanied by an
expert.witne*$d.iarati0[.under$ection2014.260;..::.
(c) Any party may ilso inctuOe a demand for the mutual and simultaneous
,produc,tion;fOiinip-ttion antl copyingof all discoverable r.-pgrts.*nd WritingS if
',.,
any, made by any eipert described in zubdivision (b) in the course of preparing that
expert's opinion.t'
3. Stage 3 - Disclosure under Rule 26(aX3):26(a)(3) requires disclosure shortly before trial
of the evidence (both testimonial and documentary) that each party may use at trial. For
many years prior to this amendment, pre-trial orders have routinely required parties to
exchange such information. 26(aX3) now incorporates such practice into the F.R.C.P.
26(a)(3) disclosure must occur at least 30 days before trial, unless changed by pretrial
order.
-
CA RULE: The compelled disclosure of the identity of nonexpert witnesses
intendedtobecalleilattriaIviolatesthiquaffiedworkproductprotection
doctrine." CITY OF LONG BEACH V. SL]PERIOR COURT. 64 CaI. App 3d 65.
Sorn-,supe*of courts hare,local rules that require paiii*t'exdangCir,qlldtiid .
.*itn€ases ln fuited'eitiliasesr,sny5arty=rnay $erve oh*e @ershordy, before
ffial a r*.q* ,'io iden-tify fu witn es,:wno-will.teSjify at t il, oth€f'thsn foii : ,' '
iinpeachm-nl-C*t€oAe Civ Froc,-$96(d;(Sbo.n C.'Litigaiionfur irnited Civil

Cases)
C. The Scope Of Discovery:
l. In general: NOTE - By amendment effective I2lW, Rule 26 (bxl) has been amended
to narrow the general scope of discovery, as follows: [F.R.C.P. 26(bX1)]: May
inquire into all non-privileged information that is "relevant to the claim or defense of
any party." For good cause, the court may order discovery of any matter relevant to
the subject matter involved in the action. Rule 26 (bxl) further provides that
"relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence."
a. Financial status: General rule - The financial worth of a party is normally not
relevant to the subject matter and, thus, not discoverable. Exception: Punitive
damages
b. Liability insurance coverage: Although not admissible at trial (because
normally irrelevant and prejudicial), the existence and scope of a liability
insurance policy is discoverable in most jurisdictions because such disclosure
of such information, on discovery, can promote settlement. F.R.C.P. 26(b)(2)
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure fI Page 12

has been amended so that the disclosure of liability insurance agreements
must be automatically disclosed under 26(aX1XD).
c. Privileged matter is not discoverable:
Examples
I ) Attorney-Client privilege
2) Confidential communications between spouses
3) Testimony against spouse
4) Privilege against Self-Incrimination
5) Doctor-Patient Privilege
d. CA RULE: NOTE: California has not followed the amendment to the

feileral niles,that nar..rowedthe scope of discovery toinfoffia.ti0n ,
Coraandiith'thisti .::'
*ni+irrty msy.ob'.t inldiScwely re r,ding:4,nJ mattcr, not pf,iVileg$that ds
relevant to the subjeci maner iivo,lied in the pending action or to the
determination of any motion made in that action, if the matter either is itself
admissible in evidence or appeair."asonably calculated to lead to the
discovery of admissible evidence. Diicovery may relate to the claim or
defenqe 'the'party sCekihg discoveryl,or,of auyothergar{;,to.dli!:action. .
Discovery may be obtained of the identity and location of persons having
*--*leitge,of.any, scovrCrCble'.rnat@ a-,'welt asd*'he'ixistence; deseription,
n-atuie, clrstody, conditiore, and location of any docurnent, {@gible,thihg, or
land or other property."
2. Proportionality Rule - Rule 26(b)(2): Allows court to limit discovery if the burden or
expense of the proposed discovery outweighs its likely benefit.
E-DISCOVERY AMEN DM E NT: Rule 26(b l(2, distinguishes between accessible

nSl ana ESI which is not reasonably accessible as follows: a party need not
provide discovery of ESI that the party identifies as "not reasonably accessible
because of undue burden or cost." On motion to compel, the burden of claiming
inaccessibility is on the claiming partJ. The burden of challenging the claim then
shifts to the requesting party who must show "good carse" for ordering
prduction
a
J. Trial preparation materials re: "Work Product" doctrine: IHICKMAN v. TAYLOR]
and codified in F.R.C.P. 26(bX3)1. Qualified immunity, meaning that work product
protection is not absolute (in contrast with the absolute protection afforded by
evidentiary privileges).
a. Elements which must be satisfied for "work product" protection:
1) Documents and other tangible things (e.g., reports, notes, memos,
witness statements, but note that one cannot ask an attorney to reveal his
mental impressions even though not contained in a document)
2) Prepared in anticipation of litigation

3) By or for a party or that party's representative (therefore, not only
attorneys can create protected work product; trial preparation materials
of a party or a party's representative, like an insurance claims agent,
also receive work product protection)
CA RULE: Requirements for CA 'kork product" protection: CA

case law applies a"derivativelnon-derivitive" test: to qualify as work
product, the material must be created by, or derived from, an
attorney's work on behalf of a client that reflects the attorney's
evaluation or interpretation of the law or facts (e.g., charts and
diagrams prepared for trial; compilations of entries in recordsl
appraisats, opinions, and reports of experts employed as consultants)
NOTE: (tntike federal work product rule,whichrequires the document
or other tangible thing to have been prepared "in anticipation of
litigation or for trialr" California case law applies work product
protection "to writings prepared by an attorney while acting in a
nonlitigation capacity." STATE COMP.INS. FUND V. SUP. CT.
(2001) 9l cA4th rom.)
Non-derivative Material:
Witness shtemcnts made'bf,,the'witne$s to th€ iilt€rviewing',;,. .,:;r .
attorney: Untit e the federal work product doctrine, witness

statements made by the witness to the interviewing attorney are
not protected as work product; these are considered non-
derivative, "evidentiilryr" material. However, such statements are
discoveiable for "good cauieo' (based on CCP$ 2031.010 et seq.,
where a demand for inspection has been refused, the demanding
party must show "specific facts showing good cause justifying
discoveiy" to obtain a court order compelling production). The
good cause showing is a lower standard than the "injustice or
unfair prejudice" showing required foi discovering non-mental
impressions work produiL To establish good sause, the requesting
party must show (1) a special necd foi discovery (e.g., to refresh
witness' memory) aid (2j the inability to obtain a similar
statement (e.g., can't locate witness or witnesi memory tral faaea).
NOTE: this is similar to the FRCP 26(bX3) requirement for
overcoming factual work product (substantial need + inability to
ffitai*imeubsf *i*rcaryut$haiashibt
The identity and location of witnesies, i.e., persons having
knowledge of relevant facts, are diicoverable.: NOTE: Under
FRCP 26{a),the identity and locaiions of "each individual likely to
have discoverable information that ihe disclosing party may use to
support its claims or defenses, unless solely for impe4chment" is
subjabt to',rb.Q-ifed$nitid) disblbsufn.

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure tr Page 15
,these, d,piote as faetual. *b piodutf lnder th:Cft ileral'rules-)',,
and aiio includes photos or fihns that wiluld reveal an attorney's
mental impressions, conclusions or theories (e.g., by the camera angle
lir-o-sen bj.,thCatoine,.y:in fi ,$h-otogpaphl;-.r".
i
=,
c. Compare work product immunity with attorney client privilege: Attorney - Client
privilege protects confidential communications from client to his attorney
(benefits the client by encouraging full disclosure by client to attorney of
information necessary for sound legal counsel). In contrast, work product
immunity protects an attorney's trial preparation materials, not communications
between client and attorney (benefits the attorney by allowing him to prepare
case in privacy; deters "free-loading" by adversary).
d. The underlying facts and identity of witnesses, even though acquired by the
party in anticipation of litigation at great expense, are not protected from
discovery under the work product rule.
4. "Discovery of facts and opinions of experts [F.R.C.P. 26(b)(4)l

a. The facts and opinions of experts may be discovered only as follows:
1) "Testifying expert witnesses: Pursuant to amendment, effective llIl93,
F.R.C.P. 26(bX4XA) no longer provides any protection from discovery
for the facts and opinions of prospective expert trial witnesses, even if
they were acquired in anticipation of litigation or for trial. The
amended rule allows a party routinely to depose prospective expert
trial witnesses. Recall that, if the expert trial witness was "retained or
specially employed" to provide expert testimony or is a party's
employee whose duties regularly include giving expert testimony, a
detailed report must be prepared and disclosed under Rule 26(aX2). If
a report must be disclosed under 26(a)(2), amended Rule 26(b)(4XA)
requires that the deposition follow disclosure of the report."
2) Non-testifying expert "retained or specially employed in anticipation

of litigation or for trial:" Where an expert has been retained merely to
develop information or opinions to prepare for trial, but is not expected
to testify, the adversary can only discover such facts and opinions
upon motion and a showing of "exceptional circumstances". (Note: In
contrast with work product rule, which protects documents and other
tangible things but not the underlying facts, F.R.C.P. 26(b )(4) protects
an experts "facts and opinions" [whether or not contained in a report]
acquired in preparation for litigation.)
a) Examples of "exceptional circumstances": Monopolization of
qualified experts, or where the accident scene investigated by
an expert has been cleaned up.

3) Casually or informally consulted expert: An expert who is only casually
or informally consulted in preparation for trial, but not retained or
specially employed, receives absolute protection, even as to his identity.
4) Protection of the intellectual property of an unretained expert: Rule 45

was amended in 1991 to provide protection for the opinions and
information of experts not prepared at the request of a party. Rule
a5(cX3XB)(ii) provides: "If a subpoena (ii) requires disclosure of an
unretained expert's opinion or information not describing specific
events or occurrences in dispute and resulting from the expert's study
made not at the request of any party the court may, to protect [the
expertl, quash or modify the subpoena or if the party in whose behalf
the subpoena is issued shows a substantial need for the testimony or
material that cannot be otherwise met without undue hardship and
assured that the [expert] will be reasonably compensated, the court
may order appearance or production only upon specified conditions."
D. Soecific Discoverv Devices:
1. Oral depositions IF.R.C.P. 301: An oral deposition is the testimony of a witness out-of-
court before an official who is empowered to administer an oath, by a party who has
given notice to all other parties so that they can be present to cross examine the deponent.
a. As a general rule, any party may take the deposition of any witness, either
party or nonparty, after the commencement of the action.
l) The number of depositions (both "oral" and "written" together) each
side can take is limited to 10 per side. Leave of court or agreement of
the parties is required before all plaintiffs, all defendants or all third
party defendants can take more than ten depositions.
2) Leave of court is now also required to depose a person who has
already been deposed in the action
3) Normally, discovery, including depositions, may not commence until
the parties meet and confer to plan their discovery. Such a meeting is
required in every action under Rule 26 (f). Therefore, in order to take
the deposition of either a party or a non-party before the Rule 26(0
conference, leave ofcourt is required, unless the person to be
examined is about to become unavailable for examination in the U.S.
4) The party noticing the deposition may, without leave of court or
agreement of the parties, record the deposition non-stenographically
5) NOTE: By amendment effective 1210I, "a deposition is limited to one
day of seven hours unless otherwise authorized by the court or agreed
by the parties."
b. Notice: The deposing party must give written notice to every other party,
. identifying the deponent and the time and place of the deposition. If a party
was not present or represented at the taking of the deposition or did not
f,'lemingos Fundamentals Of Law (@ 2007) Civil Procedure II Page 18

receive reasonable notice, the deposition cannot be used against that party as
evidence at trial.
c. Place: In federal practice, a nonparty witness who has been subpoenaed may
be required to attend a deposition at any place within 100 miles from the place
where that person resides, is employed or transacts business in person, or is
served, or at such other convenient place as it fixed by order ofthe court.
F.R.C.P. a5(cX3XAX 1 1).
d. Deposition of a party witness: Notice of deposition is all that is required to
depose a party witness.
e. Deposition of a nonparty witness: In addition to the service of a notice of
deposition on all parties, the nonparty witness should be subpoenaed.
Deposition of a corporation: Where a corporation, association or governmental
body is a deponent, the adversary need not identify the particular individual who
must appear to give testimony. The notice of deposition need only name the
corporation and describe with reasonable particularity the matters on which
examination is requested. The corporation must then designate the appropriate
witness who will testify at the deposition on behalf of the corporation. The
corporation will be bound by its deponent's answers.
b' Documents: The deposing party may require the deponent to bring with him to the
(}
deposition relevant documents and tangible things in his possession. If the

deponent is a party, the notice of deposition shall contain a request for such
material, identified with reasonable particularity. If the deponent is a nonparty
witness, he should be served with a subpoena duces tecum which is court process
that commands the deponent to bring with him documents and tangible things
identified with reasonable particularity in the subpoena duces tecum
h. Use of deposition as evidence at trial [F.R.C.P. 32]: (Evidence crossover) The
problem here is that deposition testimony is made "out of court" ando thus,
raises "hearsay" issues if sought to be admitted as evidence at trial.
1) The deposition of a party or nonparty witness may be used for the
purpose of contradicting or impeaching the testimony of the deponent
as a trial witness.
2) The deposition of a party witness may be used for any purpose allowed
by the rules of evidence. Example: Party admission - any relevant
statement of an opposing party (e.g., deposition testimony) can be
introduced at trial to prove the truth of the matter asserted in the
statement, whether or not that party takes the witness stand at trial.
Theory: let the party who made the admission explain it in court. Note:
A party admission is just "evidentiary", i.e., it can be used as evidence
but it does not knock the issue admitted out of the case. By contrast,
see Effect of Rule 36 Admission, Section X, infra, atpage 45.
3) The deposition of a nonparty may be used as affirmative evidence if
the deponent is "unavailable", e.g., dead, ill, incompetent or beyond
the subpoena power of the court.

i. NOTE: Effective l2l0l, rule 30 was amended to provide the court specific
authority to impose appropriate sanctions upon persons whose conduct impeded,
delayed or frustrated the fair examination of the deponent. See Rule 30 (dX3).
2. Written depositions [F.R.C.P. 31]: The deposing party submits, in advance, written
questions (along with written cross-examination questions of the other parties) which
an officer of the court puts to the deponent orally. The deponent answers orally, under
oath, and the answers are recorded. Much less effective than oral depositions because
there is no opportunity to frame follow-up questions (and cross-examination
questions) in light of answers to previous questions.
Interrogatories [F.R.C.P. 33]: Interrogatories are sets of written questions submitted by

ono party to another party requiring an answer by the party in writing under oath, unless
the question is objected to in which event the reasons for the objection shall be stated in
lieu of an answer. Rule 33 limits the number of interrogatories each party may serve to
25, including all discrete subparts. This number may be increased by leave of court.
a. Who may serve and be served: Any party may propound any number of
interrogatories to any other party. Non-parties cannot be served with
interrogatories. Interrogatories can be served by upon the plaintiff at any time
after commencement of the action and upon any other party after service of the
summons and complaint upon that party.
b. Duty to investigate: Interrogatories require the answering party to provide
such information as is available to the party (whether or not within the
personal knowledge of the party). The answering party is under a "duty of
reasonable inquiry" to undertake "simple investigatory procedures not
requiring undue burden or expense".
NOTE: Corporate duty - (re: corporate knowledge). Corporate parties are

required to undertake more extensive investigation in order to fully answer.
"Corporate knowledge" is held to include the collective knowledge of all
managers and important agents of the corporation.
c. Option to produce business records: Gives a party to whom interrogatories are

propounded the option to produce business records, in lieu of answering, if an
answer can be supplied only by extensive searching of the answering party's
records. Note, however, that this rule may not be used in bad faith merely to
shift the burden of the answering party back to the inquirer.
d. Failure to make adequate responses: Under F.R.C.P. 37(a), an evasive answer
is deemed to be a failure to answer. Hence, if an answer is incomplete or
evasive, the court may, on motion to compel [F.R.C.P. 37(a)], order the
responding party to answer more fully.
e. Use of interrogatory answers as evidence at trial: (Evidence crossover) As
with deposition testimony, interrogatory answers are out-of-court declarations
and, thus, ifthey are offered into evidence at trial, hearsay issues are raised.
The following hearsay exclusions or exceptions permit the use of
interrogatory answers as evidencei

1) Party admission: any relevant statement contained in an interrogatory
answer can be used by an opposing party as evidence at trial to prove
the truth of the matter asserted in the statement. A party admission is
only an evidentiary admission, i.e., it does not knock the fact admitted
out ofthe case as an issue.
2) Impeachment prior inconsistent statement: An interrogatory answer of
a party which is inconsistent with the testimony of that party as a
witness on the stand may be admitted into evidence to impeach that
witness's testimony.
E-DISCOVERY AMENDMENT: The 2006 e-discovery amendment to Rule

33,allows roduction of ESt in response to an interrogatory IF 'the buiden of
deriving ot ascertaining the answer is substantially the same for the party
serving ihC interrogatory as for the party served."
4. Request for admission [F.R.C.P. 36]: At any time during discovery, a party may serve
upon any other party a written request to admit to the truth of any relevant matters set
forth in the request that relate to statements or opinions of fact or of the application of
law to fact, including the genuineness of any documents described in the request. This
tends to expedite trial preparation in that it naffows the field of issues in controversy.
a. Effect of admission: An admission in response to a request for admission is a
"judicial" admission, i.e., it conclusively establishes the matter admitted for
pulposes of the pending matter. The matter admitted is no longer a disputed
issue in the case; the responding party cannot introduce evidence at trial to
controvert the matter admitted.
b. Failure to respond: If there is not timely response to the request, the matter is
deemed admitted.
c. Motion to withdraw or amend an admission: The court has the discretion, upon
motion, to permit withdrawal or amendment of an admission "when the
presentation of the merits of the action will be subserved thereby and the party
who obtained the admission fails to satisfy the court that withdrawal or amendment
will prejudice that party in maintaining the action or defense on the merits."
d. False denial: If the responding party denies a matter which, in good faith, he
should have admitted, the responding party may be liable to reimburse the
requesting party for the full costs of proof on that issue at trial.
"ff a party to whom requests for admission are directed fails to serve a timely
r@onse,:.. . {b} uestirtg pa$J nay.mbve,for:eh,order thCt the
genuineness of any documents and the truth of any matters speeified in the
requests be deemed admitted, as well as for a monetary sanction under
Chapter 7 {com mencing with Secti,on ?"023.0 lU."

5. Request for production of documents and things and entry upon land for inspection
and other purposes IF.R.C.P. 341: At any time during discovery. a party may request
any other party to produce for copying or inspection relevant documents and tangible
things in the possession, custody or control of the responding party. Also, a party may
request entry upon designated land or other property in the possession or control of
the responding party for the pulpose of inspection and measuring, surveying,
photographing, testing or sampling the property.
a. Designation of items - Time, place and manner: The request shall set forth the
items to be inspected either by individual item or by category, and describe each
item and category with "reasonable particularity". The request shall specify a
reasonable time, place and manner of making the inspection.
b. "Possession, custody or control": The responding party need only produce
items which are in his possession, custody or control. The responding party
has a duty to use his influence to obtain the requested items.
SOCIETE INTERNATIONALE V. ROGERS
c. Materials in possession of a nonparty: F.R.C.P. 34 may not be used to reach
materials in the possession of a nonparty. Such material must be reached by
subpoena duces tecum.
E- b-f SCOV*Y AM ENDM ENT -he ioOe d--on-ry amendmert to Rule 3 provid-i
tha,t a,,par.tj may,sefVe.:a reQuest:'to.:,inSpect, coPjo te r,sarnple dti. ents or
elecmniial.ly ito;,red infoT.marton . . ;' i).The rule now allows a party to "test sample" ESI
and allows access to the responding party's computer network subjeit lo reasonableness.
The request may specify the form or forms in which ESI is to be produced. The
responding party may then object to the requested form of production or, if no form of
production is requested, the responding party must state the form or forms it intends to
usei If the'iequesl doesnot s cify th€'form(S) of prducfion;.the iesp ndingparly must
produce fisl as oidinarily:, -intained or in reasonabty uiCbleform(s. .'Finally, the
responding patt5r,,s"u6 not,.pf.oduc€ the same ESI in mofe than one form.
6. Physical or mental examinations [F.R.C.P. 35]: When the mental or physical condition
(including the blood group) of a party, or of a person in the custody or under the legal
control of a party, is in controversy, upon motion and for good cause shown, the court
may order that party (or person) to submit to a mental or physical examination.
a. Motion required. This is the only federal discovery device, which requires a
motion to the court in the first instance. All other devices are "on notice".
b. Persons subject to examination: Only parties or persons in the custody or under
the legal control of a party are subject to examination. The latter refers to minor
children or legally incompetent adults who are represented in court by guardians.
Employees are not in the "custody or legal confol" of their employers.
c. Specific mental or physical condition must be "in controversy":
1) Where a party plabes his own mental or physical condition "in issue",
that condition is "in controversy" for purposes of Rule 35 and the court
will order an exam appropriate to that condition. Example: P sues D
for whiplash in auto accident suit. D moves for examination of P's

back, affixing a copy of P's complaint to his moving papers. P's back
condition is "in controversy".
2) Where the moving party places another party's condition in issue, the
moving party must make an evidentiary showing that the responding party
may well have a specific condition appropriate to the examination
requested. Movant can't use Rule 35 to go on "fishing expedition", hoping
to discover, through a battery of exams, a relevant condition.
Example: Bus rear ends a tractor-trailer. In suit by bus passenger against

bus driver, passenger moves to compel driver to submit to an eye exam.
Affidavit of another driver, driving in same direction as bus, affirming that
he saw the red brake lights of the tractor-trailer a half mile before bus
driver is sufficient to place driver's eyesight "in controversy".
SCHLAGENHAUF V. HOLDER
a) An examination cannot be compelled merely to test the
eyesight or mental or physical condition of an eyewitness for
impeachment purposes.
3) "Good cause": Court must find that the moving party cannot obtain the
necessary information from other sources, e.g., previous examinations of
the same condition by other doctors where there is no reason to doubt
their reliability.
4) Exchange of medical information: The examined party has a right to
receive a copy of the results of the compelled examination and of any
earlier reports on the same condition in the hands of the opposition.
However, by making such a request, the examined party must deliver to the
opposition, upon request, reports by his own doctors regarding the same
condition, (thereby waiving his evidentiary doctor-patient privilege).
,CA:nH[Rur$ ,,rn G iiea ciut c*ss - ueon t iiiig,itiqn Rul.t

Eiommic:Liiigation Rules limit discovery in Limitd Civil Cases (*nCer $25,000) in
order to reduce the cost of litigation in small cases. Under these rules:
. Each party is limited tn one oral deposition.
.,' {'Gmbba$'f le.M,,S.so? a-h-party mayserve onleach adir:rse pertyno rnore
than 35 of any combination of interrogatories, requests for admission or
dcmandsforinspection.Subpartsarenotallowed.
. No limit on physical, mental and blood examinations, or on discovery of the
identity of the opposing party?s expert witnesseJ
E. Protective Orders: Upon motion, and for good cause shown, the court, in its discretion, may
make any order which justice so requires to protect a party from "annoyance, embarrassment,
oppression or undue burden or expense", including preventing or limiting discovery. The court
has maximum flexibility in fashioning an order that strikes a balance between the burden on
the moving party and the need of the responding party for the information he seeks to discover.

1. Inconvenient place of deposition
a. Nonresident defendant: Upon an application for a protective order, courts are
inclined to hold that a nonresident defendant should be deposed at his
residence rather than where the suit is pending.
b. Nonresident plaintiff: Courts are more inclined to require a nonresident
plaintiff to appear in the local forum since he chose to file his action therein.
2. Deponent too ill to attend deposition

3. Deposition questions limited only to certain matters
4. Unreasonable conduct of deposition
5. Unnecessary deposition
6. Burdensome interrogatories: If interrogatories are unnecessarily numerous,
overbroad, or costly to answer, the court may order that they be redrafted, or excuse
the opposing party from answering.
7. Confidential information: Protective orders may issue to prevent unnecessary exposure of
personal matters, or to require that the deposition be taken privately and sealed.
8. Trade secrets: Other secrets, such as business or trade secrets, may be protected from
unnecessary or irrelevant disclosure.
F. Sanctions:
l. Motion to compel (where responding party fails to answer) [F.R.C.P. 37(a\]: Where
deponent refuses to answer a question, where an interrogatory is objected to rather
than answered, or where a request for a document is refused, the discovering party
may move for an order compelling discovery.
2. Sanctions for failure to comply with court order IF.R.C.P. 37(b)l:

a. If a nonparty fails to obey a Rule 37(a) court order directing him to answer, he
may be held in contempt.
b. Under Rule 37(b), if a party fails to obey a Rule 37(a) court order directing him to
answer, the court may make such orders "as are just", including the following:
1) An establishment preclusion order that certain facts shall be taken to
be established for the purposes of the action in accordance with the
claim of the party obtaining the order.
2) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting that party from
introducing designated matters in evidence;
3) An order striking out pleadings, or staying proceedings until the order
is obeyed, or dismissing the action or rendering a default judgment
against the disobedient party;
4) In lieu of the above, or in addition, disobedient party may be held in
contempt.
5) In lieu of the above, or in addition, the court shall order the disobedient
party and/or his attorney to pay reasonable expenses caused by the failure
to obey.
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure ll Page 24

c. In'deciding which sanction to impose under Rule 37(b), the court has wide
discretion to adjust the severity of the sanction to fit the importance of the
discovery sought and the reason for refusal. The harshest sanctions are
imposed for the most flagrant cases of disobedience. The severest sanctions,
such as dismissal, default judgment and, to some extent, an establishment
preclusion order, will not be upheld on appeal without a showing of a willful
failure to comply. Note: Negligence is generally the defense.
d. Sanctions for untruthfully denying a request to admit: Denying party must pay
cost to prove the matter involved.
Sanctions for filing a meritless claim: Rule 1 1 of the Federal Rules of Civil
Procedure authorizes federal courts to impose sanctions only on the attorney
who signs the papers in a meritless claim, and not on the law firm.
3. Sanctions for failure to disclose under Rule 26 (a):

a. Rule 37(c)(1) provides that a party may not offer as evidence information which,
without substantial justification, was not included in the initial disclosure
{(26(aXl)}, unless the failure to disclose was harmless. The court may award
other sanctions in addition to, or in lieu of, this newly available sanction.
E-DISCOVERY AMENDMENT: The 2006 e-discovery amendment to Rule 37(f)

relates to the issue of document retention by providit g thut, absent exceptional
circumstances, a coart, ay otirnpose sanctions fof,fnlling to prq,ylde 8SI losf as a
iesult'of routine, god.faithoperation,of an electronic information systern.
G. Pretrial Conference: The purposes of the pretrial conference is to promote settlement

(thereby avoiding trial) or, if settlement is not possible, then to streamline the trial by
narrowing the issues (thereby shortening the trial), sharpening the issues to be tried, and
establishing an agenda for trial which will reduce the likelihood of surprise.
1 Pretrial order - Formal order containing matters agreed upon at the pretrial conference:
a. Supersedes the pleadings
b. Shall be modified "only to prevent manifest injustice"
c. Matters not included in order may be admissible in court if introduced and not
objected to in a timely manner
Fleming's Fundamentals Of Law (@ 2007\ Civil Procedure II Page 25

III. PRE.TRIAL DISPOSITION
A. Default Judgment:
1. When a pafty against whom a judgment for affirmative relief is sought fails to plead
to the complaint or otherwise fails to contest the action, a default may be entered
against him. The default judgment may be entered either
a. By the clerk where the damages demanded in the complaint are for a "sum
certain" and defendant has not appeared [F.R.C.P. 55(bXl)], or
b. By the court in all other circumstances [F.R.C.P. 55(bX2)]
2. Right to Notice and Hearing Before Entry of Default Judgment
a. Where the amount of damages is unliquidated, the court will hold a hearing to
assess damages.
b. Notice to defaulting party: If the defaulting party has "appeared" in the action,
he must receive notice of the hearing at least three days prior to that hearing.
F.R.C.P.55(b)(2). Appearance means some conduct by the defaulting party by
which he shows some interest in defending the suit. He may then attend the
hearing and contest the amount, extent or type of relief sought or challenge the
entry of a default judgment altogether.
3. In light of the general preference for a full adjudication of cases "on the merits",
courts have the discretion not to enter a default judgment (or to set one aside, under
Rule 60(b), for a variety of reasons which include the following:
a. Defendant may have a meritorious case
b. "Excusable neglect"
c. The amounts involved or the issues at stake are great
4. Default judgments can also be entered as a sanction for disobeying a court order.
5. Once entered, and if not set aside [under Rule 60(b)], a default judgment carries all
the res judicata effect of a judgment upon the merits. A valid default judgment must
be enforced by sister-state courts under the Full Faith and Credit Clause, like any
other valid judgment on the merits. A default judgment can, however, be collaterally
attacked for lack of personal jurisdiction.
B. Voluntary Dismissal [F.R.C.P. 4l(a)]:
1. Notice of dismissal: Plaintiff retains the right to dismiss his own action by filing a
notice of dismissal. However, notice must be filed before the filing of the adversary's
answer or motion for summary judgment. Thereafter, plaintiff cannot dismiss without
defendant's consent or leave of court. The dismissal is without prejudice unless the
plaintiff has once before dismissed the same action based on the same claim.
2. By leave of court: A court may grant plaintiff s motion for leave to dismiss on such
terms and conditions as the court deems proper. Unless otherwise stated, such dismissal
is without prejudice.
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure tr Page 26

C. Involuntary Dismissal [F.R.C.P. a1(b)]:
1. Before trial: Like a default judgment against a defendant, an involuntary dismissal

may be imposed on a plaintiff as a sanction for failure to comply with procedural
rules or orders. For example:
a. Failure to comply with a discovery order
b. Failure to amend pleadings within the time permitted after the nlotion to
dismiss for failure to state a claim (or demurrer) is granted
c. Failure of the plaintiff to appear at a pretrial conference
d. Failure to prosecute the action with "due diligence"
NOTE: A disciplinary dismissal is a harsh sanction in that it is a dismissal without
trial and carries full res judicata effect, unless the court specifies otherwise. Note: An
involuntary dismissal for lack of jurisdiction, improper venue or failure to join an
indispensable party does not have res judicata effect.
2. At trial: In an action tried without a jury, the court will, on proper motion, dismiss the
action at the close of the plaintiffs evidence if, on the facts and the law, no right to
relief is shown. Such a dismissal is a disposition on the merits.
D. Consent Judgment: (stipulated judgment) A court judgment which embodies the terms of a
settlement agreement between the parties.
E. Motion For Summary Judgment [F.R.C.P. 56]: (Testable)
t. Purpose: To determine whether a trial is necessary; whether there are disputed fact issues
for a jury to determine. In contrast with a motion to dismiss for failure to state a claim (and
a motion for judgment on the pleadings), a summary judgment motion looks behind the
pleadings.
2. Test: Summary judgment shall be granted if there is "no genuine issue as to any
material fact" and, on the basis of the undisputed facts, the moving party is entitled to
a judgment as a matter of law.
-1- Procedure:
a. Movant's burden: The moving party has the initial burden to show that there is no
genuine issue as to a material fact. If he fails to meet that burden, his motion must
be denied (even if the respondent has submitted no evidence to show that a
genuine issue does exist). In attempting to meet his movant's burden, the moving
party may submit the pleadings, deposition transcripts, interrogatory answers,
admissions and affidavits made on personal knowledge.
b. Respondent's burden: If the moving party meets his burden, then the burden
shifts to the respondent to set forth specific facts showing that there is a genuine
issue for trial. If respondent fails to meet this burden, the court will grant
summary judgment. In attempting to meet his burden, respondent may submit
counter affidavits and discovery materials; however, he may not rest upon the
mere allegations of his pleadings (if respondent is the plaintiff) or upon the
denials in his answer (if respondent is the defendant).

c. A11 issues of credibility and all reasonable inferences are to be resolved in
favor of the non-moving party.
d. Effect: Summary judgment discourages frivolous suits and is used to prevent
very clear one-sided cases from going to trial.
e. Partial Summary Judgment: A partial summary judgment may be granted on
one claim (where multiple claims have been joined in one suit) or on the issue
of liability alone, leaving for trial the determination of damages. If summary
judgment is not rendered on the whole action, the court may make an order
specifying those facts that appear to be without substantial controversy.
CA Rule: As of 2001, the California Supreme Court has held that "zummary
judgment taw in this state now conforms, largely but not completely, to its
federal counterpart." AGUILAR V. ATLANTIC RICHFIELD CO., (2001)
25 C4th 826. Thus, in California. as in federal court under CELOTEX.
where the plaintiff has the burden of production at trial, the moving
defendant can meet its movant's burden of production to show "no genuine
issue as to a material fact" by sho*ing that the plaintiff lacks evidence to
meet its burden of production at trial. To make this showing, the defendant
,cann6i sinn$ty assert,that plaffitr has,n-o evid-nee,'but must affirmatively
show'an absencedevidence'by'the plaintiff, e.g., through,plaintiff's i. ,,1'
admissions, deposition testimony of plaintiff's own witnesses

IV. JURY TRIAL
A. Right To Trial By Jury:
1. Sources of the right: There are two major sources of the right to a jury rial in federal
court:
a. The Seventh Amendment is the federal constitutional source of the right to a jury
trial. Although it is not applicable to the states in civil actions, most state
constitutions contain similar provisions providing for jury trials in civil actions.
b. Some federal statutes creating federal causes of action expressly provide for a
jury trial.
2. "Historical Test": The Seventh Amendment states: "In suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved ..." This means that a party has the constitutional right to have all issues
relating to claims triable in a common law court tried by a jury ("legal" issues).
There is no right to have issues relating to equitable claims ("equitable" issues) tried by a
jury. The most important factor in characteizing a claim as legal or equitable is the
remedy sought. Hence, a claim for damages is generally considered "legal", whereas a
claim for injunction, rescission, specific performance or other "equitable" remedies is
considered "equitable".
a
J. BEACON THEATRES.INC. v. WESTOVER (1959) and its progeny:
a. BEACON THEATRES. INC. v. WESTOVER: In a case containing both
"legal" and "equitable" claims, issues that are common to these legal and
equitable claims must be tried first to a jury.
b. DAIRY QUEEN,INC. v. WOOD (1962):
1) This case brought about the demise of "clean-up" doctrine under which
legal issues which were "incidental" to an essentially equitable case were
tried to the court. DAIRY QUEEN held that issues common to equitable
and legal claims must be tried first to a jury, even if legal claims are
"incidental" to equitable claims.
2) In determining whether to characterize a claim as "legal" or
"equitable", the court can consider procedural developments since
1791. Thus, a claim for an "accounting", though historically an
equitable remedy, was recharacterized, in DAIRY QUEEN, as a
"legal" claim because it is similar to a damage remedy and a federal
court today, under F.R.C.P. 53(b), can appoint a special master to
assist the jury in computing complex damage awards.
c. ROSS v. BERNHARD (1970): Where procedures historically available only

in a court of equity are used as a vehicle to assert "legal claims", the
underlying legal issues should be tried to a jury. Thus, in a stockholder
. derivative suit asserting a legal claim for damages, issues relating to the
substantive legal claim must be tried to a jury, even though the stockholder
Fleming's Fundamentals Of Law (@ 2007') Civil Procedure II Page 29

derivative suit historically could only be brought in an equity court. The court
looked to the "heart of the action", which was a legal claim for damages.
d. New statutory causes of action:
1) CURTIS v. LOETHBR (1974): Where Congress has created a new
statutory right, nonexistent in 1791, the statutory right must be
analogized to legal or equitable rights that were in existence in ll9l.
Thus, a claim for damages in a suit brought under the federal Civil
Rights Act of 1968 was analogized to a "legal" right because the damage
remedy was the traditional form of relief offered in common law courts.
2) ATLAS ROOFING COMPANY v. OCCUPATIONAL SAFETY &
HEALTH REVIEW COMMISSION (197 7); GRANFINANCIERA'
S.A. NORDBERG (1989): Where Congress has created a new statutory
"public" right closely intertwined with a federal regulatory program and
has provided for its enforcement in an administrative agency or a
specialized court (e.g., Bankruptcy Court), which function without juries,
the Seventh Amendment does not require a jury trial. Rationale: Congress
has the power to assign adjudication of "public" statutory rights to an
agency tribunal or specialized court for speedy determination by a
specialized group of experts.
4. Asserting the right to a jury trial and waiver: In federal court, a party who wants a
jury trial of an issue must affirmatively assert his jury trial right "by serving upon the
other parties a demand therefore in writing at any time after the commencement of the
action and not later than 10 days after the service of the last pleading directed to such
issue." Failure to do so will result in a waiver of the jury trial right. F.R.C.P. 38.
CA RULE: Unlike federal eour! where the demand for a jury triat of an issue must be
made early in the lawsuit, i.e., in writing and no later than 10 days after the service_of
the,la*t ple*fingdfccted to s-de$,idcue'in',Cditg no,particular fo ,of demand is ,
required; the demand could be made orallyfor the first time at a case management
:confer+ntC. Tha,iiEhi to,a juty tritfis waitpd if no,,dehand is made by the time the case
is first set for trial.-
B. Jury Selection: The 14th Amendment's Equal Protection Clause prohibits systematic
exclusions and arbitrary discrimination of minorities and women in jury selection.
C. Voir Dire Examination Of Jurors: Attorneys/Judges conduct an investigation to see if each

juror will be fair, impartial and unbiased.
1. Challenge for cause: Any juror who shows bias or an interest in the outcome of the case
can be excused for cause, and there is no limit to the number of such challenges a party
can make.
2. Peremptory challenges: Each party is entitled to a limited number of challenges
without showing cause (cannot be based on race or sex).

D. Comments By Trial Judge: The federal rules permit a trial judge to comment to the jury on
the quality of the proof presented which bears on the issues that the jury is to decide,
provided that he informs the jury that it, not he, is the decision maker.
E. Jury Instructions: While the ultimate responsibility for jury instructions rests with the
judge, counsel for each side may submit jury instructions to the judge who will decide
whether or not to submit such instructions to the jury. General rule - A failure to request an
omitted instruction or to object to an instruction results in a waiver. An erroneous or
insufficient instruction, even if properly challenged, will not lead to a reversal unless it
results in a prejudicial error.
F. Verdicts: (federal practice requires unanimous verdicts)

1. General verdict: The jury finds for either plaintiff or defendant but does not disclose
the grounds for the verdict.
2. Special verdict: A special verdict consists of the jury's answers to specific factual
questions on which it is instructed to make findings. The judge then applies the law to
the jury's findings of fact and enters the appropriate judgment.
3. General verdict with written interrogatories: The jury is asked to give a general
verdict and also to answer specific questions concerning the ultimate facts of the case,
so that the basis for that verdict is disclosed.

V.
MOTIONS AFTER VERDICT
A. Motion For Directed Verdict. Now Called Motion For Judgment As A Matter Of Law:
In 1991, F.R.C.P. 50 amended to eliminate the terms "Directed Verdict" and "Judgment
Notwithstanding the Verdict." Each of these are now called "Motion for Judgment as a Matter
of Law." In addition, the 1991 amendment eliminated the requirement that the moving party
had to wait until the close of the opposing party's case. Under the amendment the motion can
be granted after the opposing party has been fully heard with respect to an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to have found for that party with
respect to that issue.
For the motion to be granted, the court must find that the evidence is insufficient for the
jury to render a reasonable verdict for the non-moving party, i.e., that there are no genuine
issues of fact for the jury to determine. When the court grants a directed verdict, it takes the
case away from the jury and enters judgment as a matter of law.
1. Standard for granting directed verdict: Judge considers the evidence in the light most
favorable to the non-moving party. KEY - The evidence must be such that there is
only one way that a reasonable jury could decide the case; such that reasonable
persons could not differ as to which party ought to prevail. There are two different
tests for deciding the directed verdict motion:
a. The Substantial Evidence Test (applicable in federal court): The court will
grant the motion unless there is substantial evidence upon which the jury
could render a reasonable verdict for the non-moving party. The judge can
look at the "whole case", including the uncontradicted and unimpeached
testimony of the movant's witnesses.
b. The Scintilla Test (minority rule applicable in some state courts): The court will
deny the motion if there is any (a shred, a "scintilla of") evidence upon which a jury
could reasonably render a verdict for the non-movant. The court may only look at
the non-moving party's evidence and resolve all credibility issues and rational
inferences in favor of the non-moving party.
2. Defensive directed verdict: Made by the party without the burden of production to
argue that the non-moving party has not met his burden of production.
a
J. Offensive directed verdict (rarely granted): Made by the party who bears the burden of
production. An offensive directed verdict motion is much more difficult to win than a
defensive one because the movant must not merely show that he has met his burden of
production, but that his case is virtually indisputable (i.e., beyond rational dispute).
4. Effect: If the motion is granted, it takes the case away from the jury and the court
enters a judgment in the moving party's favor.

B. Motion For Judgment Notwithstanding The Verdict. Now Called Renewed Motion For
Judgment As A Matter Of Law:
What was formerly called a Motion for Judgment Notwithstanding the Verdict (J.N.O.V) was
simply a directed verdict motion (now called Motion for Judgment as a Matter of Law), which
was renewed after the jury rendered its verdict. It is a device for nullifying an irrational jury
verdict, i.e., one that is not rationally supported by the evidence. A J.N.O.V motion is made
after the jury returns its verdict but no later than l0 days after entry of judgment. F.R.C.P.
s0(b).
1. Standard for granting J.N.O.V motion: Same rules as apply to granting a directed
verdict. KEY - No reasonable jury could have decided the way this jury did.
2. Movant must have previously moved for a directed verdict at the close of all the
evidence as prerequisite for a J.N.O.V. motion. F.R.C.P. 50(b).
3. Motions for J.N.O.V. and New Trial: If motions for J.N.O.V. and new trial are both
made, the court must rule on both even if the court granted the J.N.O.V. If the
J.N.O.V. is reversed on appeal, the appellate court then can review the court's
conditional ruling on the new trial motion. If the trial court grants the J.N.O.V.
motion, his ruling is immediately appealable even if he conditionally granted a new
trial. F.R.C.P. 50(c). If the trial court denies the J.N.O.V. motion, the appellate court
can reverse the denial and enter judgment for the appellant. F.R.C.P. 50(d).
C. Motion For New Trial:
1. Grounds for motion:

a. Irregularity in proceedings:
1) Misconduct of trial judge: e.g., making improper statements to the jury,
coercing counsel and witnesses, making errors of law or abusing his
discretion regarding any ruling during trial or pre-trial
2) Misconduct of counsel: e.g., improper argument, inflammatory
remarks during trial
3) Jury misconduct
a) Standard ofproper deliberation: Jurors are supposed to decide
cases by applying the law as explained by the judge and by
rationally deliberating only upon the evidence brought forth at
trial. A serious deviation from this standard, if prejudicial,
could constitute grounds for a new trial.
Examples; considering evidence obtained outside the

courtroom, deciding the case based on personal knowledge,
compromise or quotient verdict, coin flips
.
b) Restrictions on use of juror testimony to impeach the verdict:
There are three different tests regarding admissibility of juror
testimony to prove jury misconduct:
(1) MANSFDLD RULE (minority state rule): inadmissible.

(2) Iowa rule (majority state rule): Juror testimony re mental
processes (intrinsic misconduct) is inadmissible; juror
testimony re "overt acts" (extrinsic misconduct) is
admissible.
(3) Federal Rule of Evidence 606(b) (federal court): Juror
testimony that relates to any statements made during
deliberations, concerning a juror's mental processes or
emotions, is inadmissible. However, a juror may testify
whether "extraneous prejudicial information was
improperly brought to the jury's attention or whether any
outside influence was improperly brought to bear upon
any juror".
b. Verdict is against the great weight of the evidence: Judge can order a new trial on
this ground if, in his discretion, he feels there has been a "miscarriage of justice"
c. Accident or surprise
d. Newly discovered evidence: A new trial may be granted in order to consider
evidence discovered after trial which due diligence would not have revealed in
time for trial. Must be highly significant. (crucial to outcome)
2. Motion must be timely made: Motion for new trial must be served not later than 10
days after the entry of judgment.
-1. Limited new trial: Court can order a new trial limited just to the tainted issues.
However, these issues to be retried must be truly separable from the rest of the case.
Typically, limited new trials are granted to retry issues relating to damages.
a. Remittitur: (conditional new trial re: damages) A remittitur is an order for a new
trial limited to damage issues, subject to recall if the plaintiff consents to a
reduction of an excessive damage award. If plaintiff so consents, a new trial is
denied.
b. Additur: (conditional new trial re: damages) An additur is an order granting a
new trial limited to damage issues, unless the defendant consents to increase
the amount of an inadequate damage award. Federal practice forbids additur.

VI. APPELLATE REVIEW
An appeal is to determine whether reversible error has been committed. Appellate courts do not
normally reffy cases. Rather, the review is limited to a consideration of rulings made below in
light of the record on which those rulings were made.
A. ApBealability - The timing of appeals: The issue here is whether appellant can take an
immediate appeal from an order or whether he must wait until a final judgment is entered.
1. The Final Judgment rule: Federal law (28 U.S.C.A. section l29l), and a majority of
states, follow the rule that an appeal generally is only permitted from a "final
judgment". A final judgment is one that finally disposes of the case; where nothing
remains to be done in the suit but to execute the judgment. Thus, "interlocutory"
(non-final) orders are generally not immediately appealable.
a. Rationale:
1) The Court of Appeals should not be burdened with piecemeal appeals.
2) Parties should not be burdened with the cost and delay of frequent,
multiple appeals in the same action.
3) The Court of Appeals should not waste time considering issues which
may be rendered moot by subsequent proceedings in the trial court,
e.g., appellant may ultimately win the case.
2. Not immune from review: The fact that an order is not immediately appealable does
not mean that it is immune from review. If a judgment is later entered, which is
adverse to the party aggrieved, an appeal may be taken which might raise the issue of
the correctness of a previous non-appealable order.
3. Exceptions to Final Judgment rule:

a. Cases involving multiple claims or multiple parties [F.R.C.P. 5a(b)]: In a case
involving "multiple claims" (i.e., separately enforceable claims) or multiple
parties, an immediate appeal can be taken from an order that finally
determines one or more (but fewer than all) of those claims if the trial judge
l) Directs entry of a final judgment as to the finally determined claims
and
2) Certifies "that there is no just reason for delay'l of an immediate
appeal.
b. The Supreme Court has promulgated a new Rule 23(f) as follows: A court of
appeals may in its discretion permit an appeal from an order of a district court
granting or denying class action certification under this rule if application is made
to it within ten days after entry of the order. An appeal does not stay proceedings
in the district court unless the district judge or the court of appeals so orders.
Unless Congress takes action to delay its effective date or modify its terms, Rule
23(0 will take effect on December 1, 1998.
c. Collateral Order Doctrine: A judicial exception which allows an immediate appeal
from an order that finally (conclusively) determines an important question which is

collateral (i.e., unrelated) to the underlying merits of the dispute between the
parties. The appeals court must also find that delaying appeal of the order to the
appeal from the final judgment would effectively render the order unreviewable.
COHEN v. BENEFICIAL INDUSTRIAL LOAN CORP.
d. "Death Knell Doctrine" rejected in Federal Court: In COOPERS & LYBRAND
v. LIVESAY, the U.S. Supreme Court refused to allow an immediate appeal of
an interlocutory order refusing to certify an action as a class action. The court
rejected plaintiff-appellant's argument that the court's order was "final" in a
practical sense because plaintiff would not have the incentive to continue his suit
without class action certification and, thus, the order sounded the "death knell" of
his action. Rationale: undermines the finality rule. NOTE: Some federal Courts of
Appeal have certified orders involving class action certification for immediate
appeal under 28 U.S.C.A. section 1292(b).
e. Statutory Exceptions to the Final Judgment Rule (28 U.S.C.A. *1292):
1) Immediate appeal from an interlocutory order granting, denying or
modifying preliminary injunctive relief automatically allowed.
28 U.S.C.A. 8t292(a)
2) Orders appointing receivers
3) Decisions in patent infringement actions that are final except for an
accounting
4) Certain orders in admiralty proceedings
5) Discretionary Appeals [28 U.S.C.A. section 1292(b)l - Dual Certification:
Step 1 - District judge must certify that the interlocutory order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from
the order would materially advance the ultimate determination of the
litigation.
Step 2 - The Court of Appeals must also exercise its discretion in favor
of hearing the appeal.
f. Appellate review by extraordinary writ: A Writ of Mandamus is an order of an

appellate court directing the judge to perform his legal duty. Writ of
Prohibition is an order enjoining the judge from conduct which exceeds his
lawful authority. Grounds for issuance in federal courts:
1) Where the trial judge exceeds the lawful exercise of his jurisdiction;
there is a "clear" abuse of discretion
2) Where the trial judge abdicates his jurisdictional obligations
3) Where the order involves an important issue of first impression
requiring guidance for lower courts, e.g. writ of mandamus issued for
immediate reviewbf Rule 35 order compelling nine examinations in
SCHLAGENHAUF V. HOLDER
4) One area where mandamus seems freely available in federal appellate
courts is that in which the trial judge denies a jury trial.
See BEACON THEATRES.INC. v. WESTOVER

5) Ca. appellate courts routinely grant writs of mandamus to allow immediate
appeals of denials of motions to dismiss for lack of personal jurisdiction
6) Discretionary character: Such writs are always discretionary with
appellate courts and, for the most part, rarely granted.
g. Orders after judgment: An order granting a new trial is an interlocutory order

and, thus, not immediately appealable in the federal courts. Hence, the new
trial must go forward before an appeal of the new trial order can be taken by
the aggrieved party from a final judgment entered against him.
B. Reviewability:
1. Legal error and misconduct: The appellate court may review any trial court action or
decision and the conduct of the persons before the court to determine if there were any
legal errors in the proceedings. If such errors existed, the appellate court may reverse and
order a new trial.
2. Harmless error v. prejudicial error: An appellate court may not reverse a judgment
below unless the error was "prejudicial", i.e. determined the outcome of the case.
a
-'). Cross-Appeal: After filing of notice of appeal by appellant, a successful litigant may appeal
parts of trial court decision which were unfavorable to him by filing a cross-appeal.
4. Issue must have been asserted below: Generally, new issues cannot be raised for the
first time on appeal.
5. New matter: Newly discovered evidence, evidence of jury misconduct, or other

evidence coming to light after trial may not be presented directly to an appellate court
An appellate court is not equipped to try facts. Such evidence must be presented to
the trial court in a new trial, after remand by the appellate court.
6. Scope of appellate review:

. a. Errors of law: "de novo" review, which means that the appellate court owes no
deference to the ruling of the trial court. If the jury was erroneously instructed
on the law, the verdict cannot stand even if there is substantial evidence to
support findings which might have been made pursuant to correct instructions.
b. Discretionary rulings: Appellate court will not substitute its discretion for that
of the trial judge, absent "abuse of discretion" by the trial judge.
c. Findings of fact by jury: It is not the function of the appellate court to make factual
determinations. However, an appellate court can review factual determinations to
assure that they are sufficiently justified by the evidence. The appellate court will
not weigh the evidence to second guess the jury. It merely tests the legal sufficiency
of the evidence to determine if the verdict is rationally supported by substantial
evidence.
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure fI Page 37

d. Findings of fact by judge (nonjury rial): A judge's findings of fact may not be
set aside unless the appellate court finds that they are "clearly erroneous".
e. Trial De Novo (new trial): Legislationmay sometimes authorize a trial de
novo, which is, in effect, a new trial in a higher court. This form of review is
generally limited to review of uial courts which exercise minor jurisdiction, as
a court of smgll claims, and which make no record of their proceedings.
Fleming's Fundamentals Of Law (@ 2W7) Civil Procedure If Page 38

v[.
A. In General: Former adjudication is generally divided into two parts. The first being Res
Judicata (claim preclusion), which prevents the relitigation of a claim that has already been
adjudicated, or a claim that "should have" been asserted, in the former litigation between
the same parties. The second type of former adjudication is Collateral Estoppel (issue
preclusion), which precludes the relitigation of an issue that was actually and necessarily
determined in the former litigation involving the same parties but a different cause of
action.
1. Full Faith and Credit Clause: The clause is applicable to the doctrines of former
adjudication.
2. When former adjudication takes effect: Preclusion effect of a decision dates from the
time the decision becomes final.
B. Claim Preclusion - Res Judicata: A valid and final judgment on the merits of a claim or cause of
action precludes reassertion of that claim or cause of action in a subsequent action between the
same parties or their privies, even as to claims that should have been, but were not, raised in the
former case.
1. Merger: If judgment was for the plaintiff on the claim in the former litigation, and he
asserts a second claim in the subsequent suit which he should have asserted in the
former litigation (because it was part of the same cause of action as asserted in the
former litigation), the second claim is "merged" in the prior judgment.
2. Bar: If judgment was for the defendant, plaintiff is barred from reasserting the same
cause of action in a subsequent proceeding.
-J. Affirmative defense: Res Judicata is an affirmative defense and a party wishing to
rely on the doctrine must assert the defense in his answer or it will be deemed waived.
4. Prerequisites to the application'of Res Judicata:
a. Same cause of action:
1) Same transaction test (federal and most states): The majority test declares
that there is a single cause of action when the claims asserted arise out of
the same transaction or a series of closely connected transactions. Consider
whether the claims are closely connected in time, space and origin
constituting a convenient litigation unit. Consider whether you have the
same witnesses, proof, and if there is overlapping evidence in both suits.
2) Primary rights theory (CA RIJLE): Focus on the rights of the
plaintiff that were allegedly breached in each suit; each right
constitutes a separate cause of action.
Example: A first suit involving a personal injury claim followed by a
second lawsuit for property damage arising out of the same accident. In a
primary rights jurisdiction, the second claim is not precluded by res
judicata. There is no claim splitting because each right is a separate cause
of action. (In a "Same Transaction Test" jurisdiction, the second claim
would be precluded because the two claims form part of the same cause of
action.)

C.A R.ULEr,€ follows the pfimary iights appioaChto'defixing '
at&ni'f.-i;erthere is a seperate cam€ of''bdi'qnt-
,:thCi'.samc cause of
for the invasion of each primary right. Eiample (1): in a peiional
injury suit foi common law negligence arising out of an
automobile accident, breach of any statutory duty to the plaintiff
musi also be joined b"."ot* the same prtmai right to befree fii
bodity iijiryisimplicated. Howev"t, plaiotiffdoes not have to
joifl n':clairnfo-4ioperty damage to hercar because-that -'i=,,,
implicates a difference primary right to be free from injury to her
properif. ample, a+ i.*f, an insured iues,,.Tmtfeasor foi .',
property damage to his automobile not covered by insurance
pOticy,,fn suit #2 by.Insurer,,4ainst T-orifeasoio In r,'barred_ '
from asCg*ed its.suh,mgation,rights foi amount paid"to insufed
for property damage to insured's car (reason: same primary right
already sued upon by insured).
3) Different parties - separate causes of action: If two parties have claims

arising from the same incident, they are separate causes of action.
Thus, for example, husband and wife, injured in an auto accident, can
each sue defendant in separate lawsuits.
b. Finality: Res Judicata applies when the prior judgment was based on a final
determination of the cause of action asserted in the first action (Final
Judgment Rule). If a claim has been separately determined in the action, it
may be treated as the equivalent of a final judgment for Res Judicata pulposes,
even though the action is still pending (where multiple claims involved).
1) Interlocutory orders: Res Judicata never attaches to an interlocutory order
2) Conflicting judgments: Last in point of time conffols
c. On the merits: Where the claim has been tried and determined; where the court
has ruled that plaintiff has or has not established his claim. An "on the merits"
judgment is a prerequisite to applying Res Judicata because every party has the
right to his day in court before a cause of action is deemed finally decided and
further litigation proscribed.
Where the court dismisses on a ground that does not relate to the merits, the
judgment of dismissal usually does not bar a subsequent action; e.g. dismissal for
lack of jurisdiction, improper venue, or a dismissal expressly without prejudice.
There are, however, certain exceptions, such as default judgments and certain
involuntary dismissals.
1) Default judgment: Deemed to be "on the merits" despite the lack of a
determination of the claim on the evidence
2) Involuntary dismissal [F.R.C.P. al G)]: Unless the court in its order for
dismissal otherwise specifies, an involuntary dismissal (other than a
dismissal for lack of jurisdiction, for improper venue, or for failure to join
an indispensable party) operates as an adjudication "upon the merits".

Example: An involuntary dismissal for "failure to prosecute" is deemed to
be an adjudication "on the merits" despite the lack of a determination of the
claim on the evidence
3) Statute of Limitations: Not "on the merits"
4) Failure to State a Claim for Relief: Judgment "on the merits" unless
entered "without prejudice"
5) Voluntary dismissal [F.R.C.P. 41(a)]: "Without prejudice" except that a
"notice of dismissal" [F.R.C.P. al(a)(1)] does operate as an adjudication
"on the merits" when filed by a plaintiff who has previously dismissed an
action based on the same claim
6) Consent Judgment: Res Judicata applies
d. Validity: A judgment is invalid if

1) The court lacked subject matter jurisdiction over the case;
2) The court lacked judicial jurisdiction (e.g., personal jurisdiction over
defendant; or
3) Notice to defendant failed to conform to due process requirements
5. Compulsory counterclaims: When a defendant fails to raise a compulsory

counterclaim (one that arises out of the same ffansaction or occulTence as the main
claim), the claim is waived and may not be asserted subsequently as a claim in a
subsequent action.
6. Third party claims and cross-claims: When asserted, are subject to res judicata. Such
claims are never compulsory, and therefore, defendant does not waive them by failing
to assert them in the original action.
7.@:Suchjudgmentsbindonlythepropertyattached(notthe
owner personally).
8. In Rem judgments: Such a judgment purports to determine the rights of all claimants
(known or unknown) to the property and is, therefore, given full res judicata effect in
subsequent actions involving claims to the same property.
. 9. Reopening the judgment [F.R.C.P. 60(b)]: A judgment may be reopened on certain
specified grounds, such as "excusable neglect" (commonly asserted to set aside
default judgments), "newly discovered evidence", or "fraud". Re-opening a judgment,
where allowed, can prevent serious hardships that res judicata may cause.
C. Issue Preclusion - Collateral Estoppel: Where the second lawsuit involves a different claim,
the first judgment may be invoked as to all issues which were actually litigated and
determined in the first action and necessarily determined (i.e. essential to the determination
of the first action).
**NOTE IN COMPARISON: Res judicata precludes the relitigation of claims which are
considered part of the same cause of action without regard to whether they were actually raised or
determined in the original suit. However, the claims in both the original and subsequent action
must involve the same "cause of action". Collateral estoppel operates only to preclude the
relitigation of specific issues that actually were litigated dnd determined and necessarily

determined in the previous action. Unlike res judicata, the cause of action will be different in the
two actions.
l. Prereouisites to the aoplication of collateral estoopel:
a. "Identical issue": Collateral Estoppel.applies only when the identical factual
issue is involved in both actions. Similarity of issues is not enough.
b. "Actually litigated and determined": The issue preclusion effect of a prior
judgment in a later action applies to those issues actually litigated and
determined in the former action, but not to those issues which merely could have
been (but were not) litigated therein. The trier of fact in the former action must
have actually made a determination (i.e., a finding) with respect to the fact in
order for collateral estoppel to preclude relitigation of that fact in the subsequent
action.
1) If a general verdict is rendered in the former action and there is no way of
knowing which of the issues the jury ruled on in reaching its conclusion,
none of the issues litigated in that action will be given collateral estoppel
effect.
2) Default judgment: A default judgment will not be given collateral
estoppel effect because there is no actual determination of facts on the
evidence in a default judgment.
"Necessarily determined" - Essential facts: Collateral estoppel applies only as

to those fact issues decided in the former action that were essential to the
judgment. EXAM TIP: Ask whether the particular fact that was determined in
the former action explains the judgment in that action.
NOTE - Alternative grounds for the judgment: Where alternative grounds for
the judgment in the former action have been "actually determined" (i.e., each
ground could independently support or explain the judgment), some courts
give collateral estoppel effect to all of those grounds while other courts give
collateral estoppel effedt to none of them (split of authority).
d. "Full and fair opportunity to litigate": If the party against whom collateral
estoppel is invoked can show that he did not have a full and fair opportunity to
litigate the issue in the former action, he will not be precluded from relitigating
that issue in the subsequent suit, e.g. lower incentive to litigate vigorously in the
first suit (smaller stakes in the first suit), substantial procedural defects or
irregularities in the trial in the first action (e.g. compromise verdict or other jury
misconduct), more restrictive procedural rules in the former action (e.g.,
discovery less available in former action). EXAM TIP: Look for facts which
indicate that the fact determination in the former suit is unreliable.
2. Exceptions to issue preclusion:

a, Change in facts: Collateral estoppel does not preclude the relitigation of an
issue if the evidence relating to it has changed significantly since the prior
judgment (i.e., newly discovered evidence).
b. Burden of proof: When the two actions involve the same or different parties,
the loser may relitigate an issue in a new claim if the burden of proof is lower
or if the stakes are larger, in the second litigation.
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure IIPage 42

D. Persons Bound By Res Judicata:
1. Due Process requirement: It is never possible to bind someone who was not a party or
who did not at least have notice and an opportunity to appear in the case, either in
person or through a privy or adequate representative.
2. Parties and privies

a. Parties: Actual litigants to an action are necessarily bound.
b. Suit in different capacities: A decision in a suit litigated by a person acting in
one capacity has no former adjudication effect in a suit in which that
individual appears in a different capacity.
c. Privies: A person "in privity" with a party in the former action is usually bound to
the same extent as the party. Privity is a legal conclusion defined as someone who
has a mutual or successive relationship to the same property or right.
1) Procedural privity: Such privity exists where the nonparty is adequately
represented in the first action by a party. (representative of a class action
for example)
2) Substantive privity: Such privity arises from a substantive legal
relationship. The nonparty is bound because of a prior legal relationship to
the party
3. Nonparties: In general, a nonparty is not bound by a judgment because he has not had
his day in court.
E. Persons Bound By Collateral Estoppel:
1. Parties and privies

NOTE - Applicable as against adverse parties only: In order for afact to be given
collateral estoppel effect, the parties in the subsequent suit must have been "adverse
parties" in the former suit. Therefore, if the parties in the second suit were merely
co-defendants in the first suit, collateral estoppel will not be applied in the second
suit. If, however, one defendant in the first suit cross-claimed against the
co-defendant, collateral estoppel may be applied in the sOcond suit.
F. Persons Who Can Invoke Collateral Estoppel:
1. Mutuality rule: Since a judgment cannot be used against a person who was not a party
or in privity with aparty, that person has traditionally been barred from taking
advantage of the judgment
2. BERNHARD v. BANK OF AMERICA: The BERNHARD rule is the majority
view and is an exception to the mutuality rule when a nonparty is going to use a prior
judgment as a shield.
Defensive use.' The rule states that a judgment in the first action may be asserted as a
defense in a later action by one who was neither in privity with a party nor a party in

the first suit, so long as the party against whom the judgment is raised was a party or in
privity with a party in the first suit. Rationale: judicial economy
3. Prior iudsment used as a sword
Offensive zse: Courts have been reluctant to permit a nonparty to use a prior judgment
to invoke collateral estoppel as a plaintiff in the subsequent suit. However, in many
jurisdictions (including federal courts) a nonparty to a prior action has been allowed to
use a prior judgment to establish liability against a party to that prior action where it is
"fair' to that party. IPARKLANE HOSIERY v (1979) allowed offensive use
in federal courtl
4. Considerations: Before a court will allow a stranger to invoke collateral estoppel

defensively or offensively against a party to the prior proceeding, it is especially
crucial that the party have had a "full and fair opportunity" to litigate the particular
issue in the prior suit. In addition, where the stranger seeks to invoke collateral
estoppel offensively, look for other signs of "unfairness", e.g.
a. Did the stranger adopt a "wait and see" tactic (deliberately refusing to join as a
party in the previous suit to protect himself from an adverse judgment)?
b. Is the fact finding in the prior suit an "aberration"? (look for conflicting fact
findings on the issue in previous lawsuits).
c. Was it not foreseeable to the party in the prior suit that other plaintiffs
would bring subsequent suits in which they would seek to use collateral
estoppel offensively against the party?
Fleming's Fundamentals Of Law (@ 2007) Civil Procedure llPage 44

CIVIL PROCEDURE APPROACHES
Federal Subject Matter .Iurisdiction Minimum Contacts
l. Exclusive Jurisdiction 1. PurposefulAvailment
2. Concurrent Jurisdiction A. Purposeful Or Deliberate Acts
A. Federal Question B. Frequency And Regularity
B. Diversity C. Nature And Quality
1) Amount In Controversy D. Nexus Test
2) Domicile
2.Fair Play And Substantial Justice
A. Convenience Of Forum
B. Interest Of Forum In Adjudicating Suit
C. Interest In Providing Local Forum
D. Access To Alternative Forum
E. Avoidance Of Multiple Suits/Conflicting
Adjudications
Choice Of Law Disclosure/Discovery

1. Erie l. Disclosure
2. York- Outcome Determinative 2. Scope of Discovery
3. Byrd- Balance 3. Work Product
4. Hannah- Supremacy 4. Experts
5. Devices
6. Medical Exams
7. Sanctions
Res.Iudicata Collateral Estonnel

l.Same Cause of Action 1. Identical Issue
2. Finality 2. Actually Litigated and Determined
3. On The Merits 3. Necessarily Determined
4. Validity 4. FulVFair Opportunity To Litigate
x Persons Bound * Persons Bound
* Persons Who Can Invoke

Civil Procedure II Outline

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CHECKLIST TO CIVIL PROCEDURE II

JII. PRE.TRIAL DISPOSITION

IV. JURY TRIAL

V. MOTIONS AT THE CLOSE OF PROOF AND MOTIONS AFTER VERDICT

A. Motion For Judgment As A Matter Of Law

VI. APPELLATE REVIEW

VII. DOCTRINES OF FORMER ADJUDICATION

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page I

1. Joinder of claims by a single plaintiff against a single defendant

2. Counterclaims and Cross-claims

NOTE - Ancillary jurisdiction cross-over: Federal courts assert

b) Permissive counterclaims: If the counterclaim does not arise out of

2) Cross-claims: A cross-claim is:

NOTE - Ancillary jurisdiction cross-over: Federal courts assert

Fleming's Fundamentals Of Law (@ 2007') Civil Procedure II Page 2

2. Compulsory party joinder ("necessary and indispensable parties")

b. Indispensable party (a necessary party whom it is not feasible to join and in

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 3

CAVEAT: A defendant cannot use impleader to shift liability to a person defendant

Example: P sues D and D impleads his liability insurer.

4. Intervention: A nonparty, upon timely application, may voluntarily become a party to

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 4

NOTE - Ancillary Jurisdiction Crossover: Federal courts will assert

b. Permissive intervention: A nonparty may be allowed to intervene:

NOTE - No ancillary jurisdiction: Permissive intervention requlres

Example: Insurer issues a liability insurance policy to Insured limited

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 5

Traditional Statuto 335

Amountin'n, $75,000.00 plus $500.00 minimum

Diversity Complete Minimal (any 2 claimants)

Notice Strict - Territorial limits of the state Nationwide process

nue Normal venue rules apply Where any claimant resides

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 6

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 7

c. Subject matter jurisdiction requirements (Very testable crossover)

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 8

E-DISCOVERY AMENDMENT: The category calted "data

f,'leming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 9

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 10

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 1L

On;ni;.u"rt [esignati*.,brep"rty under subdivisiopLa).iq a purt Ji.a

iinpeachm-nl-C*t€oAe Civ Froc,-$96(d;(Sbo.n C.'Litigaiionfur irnited Civil

C. The Scope Of Discovery:

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure fI Page 12

d. CA RULE: NOTE: California has not followed the amendment to the

E-DISCOVERY AMEN DM E NT: Rule 26(b l(2, distinguishes between accessible

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 13

CA RULE: Requirements for CA 'kork product" protection: CA

Witness shtemcnts made'bf,,the'witne$s to th€ iilt€rviewing',;,. .,:;r .

attorney: Untit e the federal work product doctrine, witness

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 14

4. "Discovery of facts and opinions of experts [F.R.C.P. 26(b)(4)l

2) Non-testifying expert "retained or specially employed in anticipation

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 17

4) Protection of the intellectual property of an unretained expert: Rule 45

D. Soecific Discoverv Devices:

f,'lemingos Fundamentals Of Law (@ 2007) Civil Procedure II Page 18

deposition relevant documents and tangible things in his possession. If the

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 19

Interrogatories [F.R.C.P. 33]: Interrogatories are sets of written questions submitted by

NOTE: Corporate duty - (re: corporate knowledge). Corporate parties are

c. Option to produce business records: Gives a party to whom interrogatories are

Fleming's Fundamentals Of Law (@ 2007) Civil Procedure II Page 20