Civil Procedure Review

IV. Res
I. Jurisdiction II. Erie III. Joinder
Judicata

1. Subject Matter 1.
Jurisdiction Joinder of Claims
Permissive Joinder of 1. Res Judicata
Parties (Claim Preclusion)
2. Personal Compulsory Joinder of
Jurisdiction Parties
2. Collateral
3. Due Process Estoppel
2.
Counterclaim (Issue Preclusion)
4. Service of Crossclaim
Process (Notice) 3rd Party Claims
3. Parties
Who is subject to
5. Venue claim or issue
3.
preclusion?
Intervention
Interpleader  (Not on
6. Removal Final)
Class Action
7. Waiver

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 I. Jurisdiction Checklist

Is There
Subject Matter
Jurisdiction?

United States Constitution, Article III: Federal Courts Are Courts of Limited Jurisdiction:

1 2 3 4 5
Federal Diversity Alienage Admiralty Disputes Between
Question 18 U.S.C. §1332 18 U.S.C. §1333 18 U.S.C. §1333 States, Counsels, and
18 U.S.C. §1331 Ambassadors

Federal Question Basics: 28 U.S.C. §1331

 Does the claim arise under the constitution, treaties, or laws of the U.S.?
 Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ?
 Remember, NO $ Amount limit: Can have SMJ over a $1 dispute.
 Federal Jurisdiction may be exclusive to federal court (e.g., patent or copyright claims); or
 Federal Jurisdiction may be concurrent with state court jurisdiction (e.g., civil rights or federal
employment liability act (FELA) claims), subject to the right of removal.

Federal Question Flow Chart

Yes Does the π’s well pleaded complaint allege an express or implied No
federal cause of action?

Does the π’s well pleaded complaint allege a state law cause of action
Yes in which federal law is an essential element?

Does the federal law that is an element authorize a private right of

action? No

Don’t rely too much on this. I derived this rule from Smith
Yes v. Kansas City Title and Merrell Dow v. Thompson.
Aronovsky says the COA are still split and the SC has not There is
There is FQJ ruled. So, in some circuits this would work but don’t treat it NO FQJ.
as a hard and fast rule.
143728798.doc -2-
 Is There
Subject Matter
Jurisdiction?

United States Constitution, Article III: Federal Courts Are Courts of Limited Jurisdiction:

1 2 3 4 5
Federal Question Diversity Alienage Admiralty Disputes Between
18 U.S.C. §1331 18 U.S.C. §1332 18 U.S.C. §1333 18 U.S.C. §1333 States, Counsels, and
Ambassadors

DIVERSITY OF CITIZENSHIP BASICS

1) COMPLETENESS: Diversity must be complete. There cannot be anyone on the left of the “v” and the right. All π’s must be
different from all ∆’s.
2) DATE: Diversity is calculated as of the date the action was instituted.
3) CITIZENSHIP (Domicile)
a) PERSONS: Where you were born and continues through your life unless:
i) You physically change your state; and
ii) You have the intention of remaining in the new state for the indefinite future.
iii) If person has multiple homes in different states, look of that person’s center of gravity by looking at:
(1) Where does the person live?
(2) Where is the family?
(3) Where does the person pay taxes?
(4) Where does that person work?
(5) Where are the cars licensed?
(6) Where does the person vote?
b) CORPORATIONS:: Every corporation has two domiciles:
i) state of incorporation; and
ii) its principle place of business (usually where the corporate headquarters is located. Two tests for principle place
of business:
(1) Nerve Center Test – place where corporate decisions are made; or
(2) Muscle (Plurality) Test - place where the corporation does most of its manufacturing or service providing.
c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member. So, a
national labor union like the Teamsters could never pass the federal diversity test because it has members in all 50
states.
d) PARTIES IN REPRESENTATIVE ACTIONS (e.g., representative of a child, probate, or derivative actions or class action
suits:
i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative.
ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party.
4) AMOUNT IN CONTROVERSY: must be over $75,000, exclusive of interest and costs but inclusive of punitive damages.
143728798.doc -3-
 Is There
Subject Matter
Jurisdiction?

Supplemental Jurisdiction Created by Judicial Interpretation and Codified in 28

U.S.C. §1367

1 2 2a 3 4 5
Federal Diversity Supplemental Alienage Admiralty Disputes Between
Question 18 U.S.C. (Pendant & 18 U.S.C. 18 U.S.C. States, Counsels, and
18 U.S.C. §1332 Ancillary) §1333 §1333 Ambassadors
§1331 18 U.S.C. §1367

SUPPLEMENTAL JURISDICTION BASICS

1) Pendant & Ancillary Jurisdiction: United Mine Workers v. Gibbs – state tort claim added to federal employment
question. Supreme Court ruled that federal court could assume jurisdiction over state claim because they all emanated
from the same set of facts. This ruling, called the pendant doctrine, expanded the definition of case and controversy
under Article III.
a) Ancillary claims doctrine allowed π’s to bring a case and allowed ∆’s to assert jurisdictionally insufficient compulsory
counter-claims, cross-claims, and 3rd party claims.
2) §1367: After some restrictions in Owens and Finley, Congress codified Gibbs in §1367.
a) §1367(a): Matters originating from a common nucleus of operative facts are now considered part of the same case or
controversy for Article III purposes.
b) §1367(b): Codifies Kroger but rejects Finley. limits reach of jurisdiction only in diversity only cases — exercise of
jurisdiction must be consistent w/§1332 (diversity statute) §1367(b) applies
Remember,
i) No supplemental jurisdiction; must have independent jurisdiction
ONLY if diversity claims by Π against persons made parties by:
for sole
is the
(1) Rule 14 (Impleader)
(2) Rule 19 (Compulsory Joinder of Parties)
(3) Rule 20 (Permissive Joinder of Parties) eral court.
b a si s fo r being in fed
(4) Rule 24 (Intervention)
c) §1367(c) — gives Ct discretion to hear cases (like Gibbs — but not clear whether list is illustrative or exhaustive)
i) Says that the Ct may decline to exercise j if:
(1) Claim raises a novel or complex issue of state law
(2) The claim substantially predominates over the claim(s) over which the dc has original jurisdiction
(3) The Court has dismissed all claims over which it has original jurisdiction
(4) In exceptional circumstances – other reasons

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 Supplemental Jurisdiction
Flowchart
18 U.S.C. §1367

No This is a basic
Same case or No SMJ
controversy? requirement of
§1367(a).
Yes

Federal Question Fed. Ques.

§1367(b) limitation
or does not apply to Fed
Diversity? SM
Ques.
J

Diversity Only
∆
§1367(b) limitation
Claim by π or ∆?
does not apply to
SM
claims brought by ∆.
J
π

14 19 20 (∆) 24 This is the §1367(b)

Party added under No SMJ
what Rule? limitation.

20(π), 23

The literal language of §1367 lets the

claim in. But the legislative history
indicates that Congress wants the claim
TROUBL to stay out. The Courts of Appeal are
E! split. The Supreme Court granted
certiorari in 2000, Justice O’Connor

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 PERSONAL JURISDICTION

CONSTITUTIONAL BASES: STATUTORY BASIS MODERN SERVICE

Rule 4 (a-e, h, n)
14TH AMENDMENT ARTICLE IV, §1: State Federal
DUE PROCESS FULL FAITH & CREDIT Long Arm Rule 4(k) Reasonably Calculated
REQUIREMENT CLAUSE Statute (2) Under the Circumstances to
Notice And Full Faith and Credit Give Notice
Can Restrict Constitutional
Opportunity to Be Will Be Given in Each Mullane v. Central
Personal Jurisdiction But
Heard State Hanover Bank
Traditional Bases of Personal
Jurisdiction
Consent
Express: Carnival Cruise Lines Domicile Physical Presence in State
Gordon v. Steele: Kid at Tag Jurisdiction Lives!
Implied: Hess v. Pawloski
College Burnham v. Superior Court
Waiver: Insurance Corp of Ireland
Milliken: WY Domicile Served Ex-Husband Served While Visiting
Contract / Agent Appointment / Shows up in CO Kids
to Litigate
Modern Basis of Personal Jurisdiction
∆ must have sufficient minimum contacts within the forum state such that
maintenance of the suit does not offend traditional notions of fair play and
substantial justice.
International Shoe Co. v. Washington

S UF F I CIE N T M I N I M UM C O N TA CT S FAIR PLAY ANDS U B S TA N TI A L J U S TI CE

(CAPFI) (BLIM FEW)

1. Cause of Action: Where did the cause of action 1. Burden on the Parties: Economic, time, relative
arise? burdens.
2. Activities: Scrutinize these activities in the forum 2. Law: What forum’s law?
state: 3. Interest of the State: in providing a forum for &
a. Systematic & Continuous = General protecting its citizens.
Jurisdiction 4. Multiplicity of Suits: Will they all be resolved?
b. Sporadic = Specific Jurisdiction
c. Direct vs. Indirect 5. Forum: Alternative forum available? Fair &
d. Dangerous activity? convenient?
3. Purposeful Availement: Has ∆ purposefully 6. Evidence: Where is the bulk of the evidence?
availed itself of the benefits & protections of 7. Witnesses: Where are the witnesses?
forum’s laws? Hanson v. Denkla.
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Underlying Policies:  Judicial Efficiency;  Limit Forum Shopping; 
Possible Exam Questions
Venue Rules: 28 U.S.C. §1391
Venue in diversity cases. §
1391(a).
1. Any dist. where any ∆ resides, if
all ∆’s reside in the same state.
2. Any dist. Where a substantial
part of the controverted events
occurred or where the disputed
property is located. Can have
venue in multiple locations.
Venue in all other cases. §
1391(b).
1. Same as in diversity cases,
above.
2. Same as in diversity cases,
above.
3. Where any ∆ can be found only
Venue of corporate ∆’s §
1391(c).
1. Anywhere corp. is subject to PJ.
Venue for aliens 28 U.S.C. §
1391(d).
1. Any alien, incl. alien corps., can
143728798.doc
VENUE:
Transfer of Venue: 28 U.S.C.
Federal Courts NEVER transfer
to State Courts. Use FNC in such
case.
State Courts NEVER transfer to
federal Courts or to different
States. Use FNC in such case.
§1404 Balancing Test
Convenience of parties & witnesses
+ Interests of justice must
substantially outweigh π’s interest
in choice of forum.
Choice of Law: Diversity Cases
Only
Laws of the transferring state apply
unless venue was improper, in
Venue Exam Tricks
Transferring Court can only send a
case to a court where the “action
could have been commenced or
initiated.” Therefore, the receiving
Court must have all 3, even if the
transferring Court doesn’t:.
1. Subject Matter Jurisdiction
2. Personal Jurisdiction
3. Venue
Forum Non Conveniens
Public vs. Private Factors -
Balancing Test
Private Interest Factors
1. Access to sources of proof
2. Ability to compel attendance of
witnesses
3. Convenience to voluntary
witnesses
4. Difference in substantive law that
will be applied in new forum is
not decisive in dismissing on
grounds of FNC, but could be
relevant if the law in the
alternative forum were
completely inadequate. Piper.
Public Interest Factors
1. Local interest in having disputes
resolved locally
2. Court congestion
General Rule
FNC is tough on π’s, especially in
light of statutes of limitation and
Pers. Juris. Courts know this and
won’t grant FNC unless:
1. There is an alternative forum;
2. ∆ waives statute of limitations
defense; -7-
 Removal: 28 U.S.C. §1441
STATE Court FEDERAL Court

4. State to Federal ONLY; 1. Completely Discretionary

5. ALL ∆’s must consent; 2. Must have been qualified to grant
6. ORIGINAL ∆’s only; no original jurisdiction.
counterclaim ∆’s 3. May grant supplemental
jurisdiction as long as at least one
separate and independent federal
No Removal for In-State claim eligible for removal.
Defendants in Diversity-
Only Cases
Federal Question Claims Non- Federal Question Claims
Pass Through Federal Question Pass Through Supplemental
Filter Jurisdiction Filter
28 U.S.C. §1331 28 U.S.C. §1367

Federal Question Flow Chart Same Case or

Common Nucleus of
Yes Does the π’s well pleaded complaint N
allege an express or implied federal o
cause of action? Meets Supplemental
Jurisdiction
Does the π’s well pleaded complaint Requirements under
Yes allege a state law cause of action in §1367?
which federal law is an essential
element? Yes No
Does the federal law that is an
element authorize a private right of No §1441(a) Not Part of Same
action?
Court May Exercise Constitutional
or Decline Per Case
Yes Authority Granted
under §1367(c) Separate &
There is
Independent
There NO FQJ.
Claim?
is FQJ

143728798.doc -8-
 §1441(c)
§1441(a) Court May Keep
Court Must Or
Hear Court May
Remand

143728798.doc -9-
 Waiver

Consolidation of
What May NEVER Be Waived? What May Be Waived? Defenses
Rules 12(g) and 12(h)

SMJ Is A Constitutional Issue and Cannot Be Personal Jurisdiction

Waived. Notice
Parties to an Action May NEVER Consent to Service of Process
Waiver of SMJ Venue

143728798.doc - 10 -
 Erie Doctrine Flowchart
The discouragement of forum shopping and avoidance of inequitable
administration of the laws

Is state law Fed Rule on Point? Possibly/N Do BOTH

substantive / N (look at twin aims of o
black letter O Erie before deciding) (Grey
law? Area)
YES Byrd Test Hanna Dicta
Is state rule bound up Analyze in light of
YES Hanna Holding with (implementing twin aims of Erie.
Apply Fed Rule if it’s of) state created 1. Forum Shopping?
valid. rights& obligations? 2. Inequitable admin.
Does it regulate of the laws?
State law primary behavior?
applies (f/ Erie
Valid if reasonable Y N Y N
& RDA)
person would consider
it procedural State Rule of State Fed law
law form & law
mode.
BALANCE

Fed. Outcome
Countervailing determinative
Interests (for fed test (for state
law) law)
(always have If outcome would be
uniformity, but different depending
weak on its own. on which law
Byrd was judge/jury applies (i.e. statute
relationship which of limitations is very
outweighed determinative if its
outcome run in state and not
determinacy) fed)

143728798.doc - 11 -
 III. Joinder

Joinder of Claims
3 Sentences at most on exam:
1. In federal practice a π can join any claims he or
she has against the ∆.
2. In a state following the FRCP, a π can join any
claims he or she has against the ∆ because
those are the Federal Rules.
3. If state X follows the more traditional rule of

Permissive Joinder of Parties: 2 Prong Test

1 ¶ at most on exam.
T&O + CQ = Permissive Party Joinder
1. Claims or defenses stem from the same
transaction; AND
2. There is a common question of law or
fact
Compulsory Joinder of Parties
Rule 19(a)
1. Who is necessary and should be joined if
possible?
a. Will parties be injured by failure to join
outsider?
b. Will outsiders be prejudiced by result?
Exam Tip: Probably only situation in which
outsider is not compulsory is tort action. Joint
tortfeasors are NOT compulsory; π may only
want or need to sue the rich ∆.
2. Can you join the outsider? If not, why not?
Exam Tip: look out! Reason could be SMJ and/
or PJ. If so, be ready to perform the entire
analysis.
3. I can’t join this guy; what do I do now?

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FRCP
Joinder by Π
Or
Claims 18 (a) Parties 20 (a)
A party asserting 20(a) Permissive
a claim to relief as
an original claim,
Joinder. All persons
may join in one
counterclaim, action as plaintiffs
cross-claim, or if they assert any
third-party claim, right to relief …
may join, as arising out of the
many claims as same transaction,
the party has occurrence, or
against an series of
opposing party. transactions or
occurrences and if
any common
question of law or
fact common to all
these persons will
arise in the action.
Definitions
All persons may be
joined in one action
as defendants if
there is asserted
against them any
Real Party in interest:
right to relief …
one who will benefit
from action, one who arising out of the
has a substantial same transaction,
interest. occurrence, or
Original claims: series of
transactions or
claims by Π’s 20(b) Separate
occurrences and if
against ∆’s. Trials. The court
any common
Counterclaims: may make such
question of law or
made by ∆’s against orders as will
fact common to all
prevent a party
these persons will
Π’s, it is from being
arise in the action.
an embarrassed,
delayed, or put to
independent cause expense by the
of action. inclusion of a party
Cross-claims: against whom the
claims between co- party asserts no
parties. claim and who
3rd Parties: a party asserts no claim
brought into the against the party,
action by a current and may order
∆. separate trials or
3rd Party claims make other orders
claim by ∆ event delay or
3rd Party Π, to join a prejudice.
3rd party.
Joinder- Big Picture
Must satisfy both FRCP and SM Jx.
Subject Matter Jx
AND
Joinder by ∆ §1331- Federal §1332- Diversity §1367-
Questions and $ Amount Or Supplemental Jx
- District courts shall $75,000.01 Where DC has
Claims 13 (a, b, g) Parties 14, 19 have original Jx arising minimum original Jx, they
(a) Compulsory O
14(a) When Defendant May
under the Constitution
etc.
&
COMPLETE
shall have supp.
Jx over all other
Bring in Third Party. At any Note: this is not
Counterclaims - A
pleading shall state
r
time after commencement
of the action a defending exclusive JX Diversity claims that are
party, as a third-party related to the
as a counterclaim “Arising Under” In Amount claimed in
plaintiff, may cause a original claim
any claim it has summons and complaint to order to invoke federal good faith is when they are
against any opposing be served upon a person not court jurisdiction the relevant, not
a party to the action who is federal issue must be a amount the court
part of the same
party, if it arises out
or may be liable to the third- sufficient or central part awards, UNLESS to claim or
of the transaction or party plaintiff for all or part
of the dispute. a legal certainty Π controversy.
EXCEPT- when
occurrence that is of the plaintiff's claim
against thePlaintiff
third-party cannot recover they original
the subject matter of 14(b) When May Well Pleaded
plaintiff.
Bring in Third Party. When a Complaint Rule- For a $75k. Claim must claim arises
the opposing party's exceed 75,000 not
counterclaim is asserted litigant to invoke federal SOLELY under
claim and does not against a plaintiff, the question jur. It is actual award.
Diversity must §1332 the DC
require for its plaintiff may cause a third necessary both that the
party to be brought in under case “arise under” the exist at the time WILL NOT have
adjudication the
circumstances which under constitution or some the complaint is Jx over claims
presence of third this rule would entitle a other aspect of federal
parties of whom the defendant to do so. law and that this fact filed with the made by Π’s
court cannot acquire 19(a) Persons to be Joined if appear on the face of a clerk. It need not against persons
Feasible. A person who is well pleaded complaint. exist at the time under RULE 14,
jurisdiction. But … subject to service of process If a substantial issue is
(b) Permissive and whose joinder will not not raised as a of trial or when 19, 20, or 24.
(see exception). deprive the court of legitimate part of the the cause of Thesee
DC may also
§1367(b)
Counterclaims. A decline supp. Jx if:
jurisdiction over the subject plaintiffs own claim for action can
arose
pleading may state matter of the action shall relief there is no federal A plaintiff often 1) A novel or
as a counterclaim be joined as a party in the question jurisdiction cure the lack of complex state law
any claim against an action if under the statute. Issue issue
(1) in the person's absence that the D raises in the
diversity problem
opposing party not 2) Claim dominates
complete relief cannot be answer or that the by dismissing non-
the claim which
arising out of the accorded among those plaintiff anticipates
Merrell Dow-A are diverse parties.
already parties, or irrelevant for a original Jx was
transaction or complaint alleging
based.
(2) the person claims an jurisdictional
violation of apurposes.
federal
occurrence that is interest relating to the statute in a state cause 3) Dc has
the subject matter of subject of the action and is of action, when congress dismissed claims
the opposing party's so situated that the has determined that under DC’s original
disposition of the action in there should be no Jx.
(g) Cross-claim
claim. the person's absence may :
Against Co-Party. A
private, federal, cause of 4) Other
(i) as a practical matter action for the violation
pleading may state impair or impede the compelling
does not state a claim inal Claim
as a cross-claim any
person's ability to protect “arising under” the
that interest or
claim by one party
Constitution or Laws of
(ii) leave any of the the United States.
persons already parties
against a co-party
subject to a substantial risk
arising out of the 19(b) Determination
of incurring by Court Whenever Joinder Not
double, multiple,
transaction or Feasible.
or otherwise If a person as described in subdivision (a)(1) - (2)
inconsistent
occurrence that is hereof cannot be made
obligations by reason of the a party, the court shall determine
whether the action
claimed should proceed among the parties before
interest.
the subject matter it, or should be dismissed, the absent person being thus
either of the original regarded as indispensable. The factors to be considered
action or of a by the court include: first, to what extent a judgment
rendered in the person's absence might be prejudicial to the
counterclaim therein person or those already parties; second, the extent to
or relating to any which, by protective provisions in the judgment, by the
property that is the shaping of relief, or other measures, the prejudice can be
subject matter of the lessened or avoided; third, whether a judgment rendered in
the person's absence will be adequate; fourth, whether the
original action. plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.
l - 13 -
8798.
1 td oo
prc
 Counterclaims, Crossclaims, and 3rdParty Claims
(Impleader)

Counterclaims
1. Compulsory: Rule 13(a); use it or lose it. Underlying policy concerns: efficiency and economy. A counter claim
is compulsory if it “arises out of the same transaction or occurrence” that is the subject matter of the π’s claim
(counterclaim must be pleaded)
2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same
transaction: (from Plant v. Blazer Financial Services) State Courts will usually respect Rule 13(a); but it is not
guaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will probably
not allow a new suit on the same facts.
a. Are the issues of fact and law raised by the claim and counterclaim largely the same?
b. Would res judicata bar a subsequent suit on ∆’s claim absent the compulsory counterclaim rule?
c. Will substantially the same evidence support or refute π’s claim as well as ∆’s counterclaim?
d. Is there any logical relation between the claim and the counterclaim?
3. Permissive: Rule 13(b); everything else.
4. Exam Tip: Rule 13 pretty much allows a ∆ to counterclaim against a π for anything he wants. Remember
Pugsley said the title “plaintiff” doesn’t mean squat in Tort law; it just means you filed first.
5. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no
diversity), invoke §1367 Supplemental Jurisdiction and be sure to use the buzzwords:

Cross-Claims
Rule 13(g) (∆ vs. ∆)
1. Always Permissive
2. Can invoke §1367 if claim won’t stand alone.
3. Exam Tip: When in doubt, examine Transaction & Occurrence; it’s pretty much the basis of everything in
CivPro, so if you’re blanking out, start writing about T&O.

3rdParty Claims (Impleader)

Rule 14

1. Adding New Parties: Theoretically, an infinite number of parties may be added to the action, from retailer to
manufacturer, to each-and-every supplier involved along the way.
2. Exam Tip: Remember that every party added means you must establish personal jurisdiction over all these
parties. Big exam points here.
3. Can invoke §1367 if claim won’t stand alone.
4. 3rd party ∆’s counterclaiming back will probably be compulsory because permissive counterclaims are usually
transactionally related and therefore NOT subject to supplemental jurisdiction.
5. Rule 14(a) Amendment: original π may amend complaint to directly assert claim against newly impleaded 3 rd
party ∆.
6. Kroger Rule: Original π cannot assert supplemental §1367 claim against parties brought under Rule 14 (third
party practice); Rule 19 & 20 (Basic Joinder Rules); and Rule 24 (Intervention). It does NOT say anything about
Rule 13 (counterclaim and cross-claim). - 14 -
143728798.doc
 JOINDER DIAGRAMS

Rule 13(a) Compulsory Counterclaim Rule 13(b) Permissive Counterclaim

Negligence or
π ∆
π ∆ Tort
Negligence or
Tort Permissive
Counterclaim for
Compulsory Negligence or
Counterclaim Tort
for

A counter claim is compulsory if it “arises out of the

same transaction or occurrence” that is the subject
matter of the π’s claim (counterclaim must be pleaded)
Rule 13(g) Crossclaims
4 Part Test to define when a claim or counterclaim
arises from the same transaction: (from Plant v. Blazer
Financial Services) Negligence or
π ∆
1) Are the issues of fact and law raised by the Tort
claim and counterclaim largely the same?
Negligence or Crossclaim
2) Would res judicata bar a subsequent suit
Tort for Product
on ∆’s claim absent the compulsory counterclaim
Liability
rule?
3) Will substantially the same evidence
support or refute π’s claim as well as ∆’s Existing Co-∆
counterclaim? (Party to Original
Action)

143728798.doc - 15 -
 JOINDER DIAGRAMS

Rule 13(h) Joinder of Additional Parties to Crossclaims or Counterclaims

Rule 14(a) S1 – Adding Third Party Defendant

π Negligence or ∆
∆
Tort Negligence or
π rd
(3 Party
Negligence or Tort
Crossclaim π)
Tort

Existing Co-∆ Contribution

(Party to Original or Indemnity
Action) Claim

Joinder of Additional
Parties (Not In
Original Action) 3rd Party
∆

In this example, an
original ∆ crossclaims
against another original
∆ AND joins a 3rd party
∆ as well. 3rd Party
(Newly Joined)

143728798.doc - 16 -
 JOINDER DIAGRAMS

Rule 14(a) S6 – TPD Can Assert Claim Rule 14(a) S7 – π Can Assert Claim
Against π Against TPD

∆ ∆
π Negligence or Tort (3rd Party π) π Negligence or Tort (3rd Party π)

Claim m
mnity ai
Inde cl
n or ss
ibutio ro
Contr C
Requires same Transaction
or Occurrence as π’s claim
Counterclaim
against 3rd Party π
3rd Party ∆ 3rd Party ∆

Requires same Transaction

or Occurrence as π’s claim TPD MUST assert all
against 3rd Party π defenses available
under Rule 12 and
counterclaims and
crossclaims under
Rule 13.

143728798.doc - 17 -
 JOINDER DIAGRAMS

Rule 14(a) S9 – TPD Joining Another Third

Party Defendant Rule 18(a) Joinder of Claims

∆ π
Negligence or
π Negligence or (3rd Party Tort ∆
Tort π)
Breach of
Contract

Contribution
or Indemnity
Claim

3rd Party
∆

Contribution
or Indemnity
Claim

3rd Party
∆

143728798.doc - 18 -
 JOINDER OF PARTIES DIAGRAMS

Rule 20(a) S1 Joinder of Parties - π’s Rule 20(a) S2 Joinder of Parties – ∆’s

Negligence or Negligence or
π ∆ ∆
Tort Tort
π

Negligence or Negligence or
Co - π Co-∆
Tort Tort

Permissive Joinder of Parties: 2 Prong Test
1 ¶ at most on exam.
TO + CQ = Permissive Party Joinder
Claims or defenses stem from the same transaction;
AND
There is a common question of law or fact binding
the parties.
Permissive Joinder of Parties: 2 Prong Test
1 ¶ at most on exam.
TO + CQ = Permissive Party Joinder
Claims or defenses stem from the same transaction;
AND
There is a common question of law or fact binding
the parties.

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 Interpleader Rule 22, 28 U.S.C. §1335
“You all figure out who I need to pay if I am liable (which I
may not be)”

Interpleader Basics
Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) the
ownership of which is or may be claimed by more than one party. It is a device to resolve at one time the claims of
many persons to one piece of property or sum of money, such as a bank account claimed by more than one person.

Policy Objective: So that the stakeholder will not have to pay the same claim twice.

Practical Application: Interpleader is a π’s tool to join all claimants at once; but may be employed by a ∆ through
use of cross-claim [Rule 13(g)], compulsory counterclaim [Rule 13(a)], or permissive counterclaim [Rule 13(b)].

Issue 28 U.S.C. §1335 Rule 22

Subject Matter
Jurisdiction
- Diversity Minimal diversity; determined between Complete diversity; stakeholder on one
claimants. (At least 2 claimants diverse) side and claimants on the other
- Amount $500 in controversy $75,000+

Personal Jurisdiction Nationwide service of process Need personal Jurisdiction; service

and under Rule 4
Service of process
Venue Residence of one or more claimants Residence of any claimants (if all from one
state); district where dispute arose; district
where property is; district where any
claimant found if no other basis for venue
Injunctions Statutory authority for injunctions (28 USC Only basis is provision in 28 USC §2283 for
§2361) stay “where necessary in aid of . . .
jurisdiction”
How to Invoke: Post a bond with the Court to cover value of Deposit controverted property with the
stakeholder invokes controverted property. Court.
and is called π

143728798.doc - 20 -
 “I wasn’tRein
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ebde,r,by
uotuI n
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eay”

claimants in order for Rule 22

interpleader to work!

Intervention Rule 24

Rule 24(a): Intervention of Right

Automatic, uncontestable right if:
1. Unconditional Right Granted by Federal Statute; OR
2. Applicant has interest in transaction or property + disposition will impair his interest - no existing party can
adequately represent his interest

Rule 24(b): Permissive Intervention

At discretion of Court if:
1. Conditional Right Granted by Statute; OR
2. Common Question of Law or Fact; OR
3. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope
of protective orders and confidentiality agreements. Example: Environmental Lawyers intervene to contest Oil
Co. settlement agreement ordering destruction of discovery documents which may show broader pattern of

- 21 -
 Rule 24(bI¹n
):te
Lriv
meit
netidon
PuFrlp
oowscehIanrttervention

Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope of
St ep 1:
protective orders and confidentiality agreement s.
Example: Environmental lawyers intervlement agreement ordering destruction of discovery documents which may
show broader pattern of abuse, suppression of which arguably would be

Judicial Expansion of Rule 24(b):

1.

2.

contrary to public policy.

Does a Federal Statute grant Yes
MUST Grant
unconditional right of
This is Rule 24(a).
intervention?

Does a Federal Statute grant
conditional right of
intervention?
MAY Grant
Yes This is Rule 24(b)
Court will consider delay or
prejudice to original parties.

Step 2:
CAN’T SOMEONE ELSE DO IT?

Is there a party to the case

who will adequately
represent the applicant’s Yes MUST Grant
legitimate interest in the
This is Rule 24(a).
controverted matter?
(Can an existing party cover
your ass? )

Step 3:
CONSIDERATIONS OF JUDICIAL EFFICIENCY AND PUBLIC POLICY.

Is there: MAY Grant

A common question of law or fact? Yes This is Rule 24(b)
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- or -
A limited purpose that would Court will consider delay or
serve public policy? prejudice to original parties.
143728798.doc - 23 -
 Class Actions Rule 23: “We Were All Screwed Over!”

23(A) CLASS PREREQUISITES (CEN C TAB) JURISDICTION

Federal Question: Normal Rule Applies
1. CLASS: is roughly definable and π is a member;
2. ECONOMY: Judicial Economy is Served; Diversity: Class action is a representative action.
3. NUMEROUS: Potential π’s too numerous for joinder;  Diversity is based on the representative. Just make
sure you pick a π from another state.
4. COMMON LEGAL THEORY: Claims have a Common  Amount in Controversy cannot be aggregated.
legal theory or arise out of the same transaction or
 If it’s classified as a 23(b)(2) injunctive claim, you
occurrence;
would value the injunction and that could get you over
5. TYPICAL: Claim of named π must be Typical of the the $75k
class;  Or you could file it in state court.
6. ADEQUACY OF REPRESENTATION: Named parties  But in a 23(b)(3) case you’d have a big problem if your
must Adequately represent the class; individual claims were not each over the $75k
7. B RULE 23(B): Action must fall within one of three requirement.
categories of Fed Rule 23(b)
Personal Jurisdiction: Not the Shoe, Denkla, VW test.
 Identifiable Class Focuses mostly on notice.
 Named πs (or ∆s) are members of the For 23(b)(3) damages case, requires:  Adequate
class representative  Notice Right to opt out. Not required
 Numerosity for 23(b)(1) or (2) cases.

143728798.doc - 24 -
 Mru
P tu
ac tiaclaitlyA
o
pfpE ctaotipopnel
lis
PET M NIL
IV: RES JUDICATA
Same Primary rights Issue Necessary to the
involved? “Go Away, Leave Me Alone, I Don’t Want first action?
Same Evidence? To Talk About It Anymore!” Identical Issues?
Same Transaction or r(Who or which partiesfund
In a limited are subject
case; if to claim
suits or
brou
23(B) TYPES OF CLASSES
Colla
Ptoelircayl Esto Ap
v
Class defined Objective
Re p
oied l
Define 23( version of Rule 19 joinder. inconsistent decisions o ght
s Judicata (Cla clusion)
b) Mass (1)  Class members may NOT opt out (Issue Preclusion)
impairment of interests of class issu
indi viduea llpyr, eficlru
stsiπo nta
?kes it all.
 and are BOUND by the holding. members. Avoid harm to ∆’s and Class Action protects other π’s.
im Pre absentees.
23(b)  Limited to Injunctive or Protect rights where large numbers of Civil rights cases.
(2) Declaratory Relief persons are affected.
 No $ damages
Res Judicata Basics
 Class members may NOT opt out
1. Definition: RJ means you cannot re-litigate a matter that you previously litigated or could have litigated.
23(b)  $&Monetary Class action for everyone who was
2. Merger Bar: The Damages
controverted matter (cause  Judicial efficiency
of action) is like a poker chip, you only get two choices: bet it or
(3)  Must be superior to other  Allows relief where individual π’s overcharged 10 cents on every can of
don’t bet it. You can’t break it in half and play part now and part later. Additional theories that could have been plead
available methods could not economically pursue tuna they bought at Ralph’s. No one
but weren’t are merged into the first judgment and further litigation is barred by RJ.
 Must present common questions of action would sue individually. But as a class
3. Claim for Relief is The Key: So, what’s the claim for relief (cause of action)? Is it litigation to preserve a right or to
law or fact. (Predominance of  Could be only effective method of it would make sense and Ralph’s
remedy a wrong? Courts have held both ways and a minority of jurisdictions still use the right-wrong test. But the
common question) ∆’s would have to react.
majority position is to focus on the transaction. deterring
On the exam,behavior
focusofonsome
transaction & occurrence. If the claim arises
 π bears cost of notice to all class
from the same transaction or occurrence, it’s probably(many small
covered violations).
by RJ.
members. In-other-words, if π bought a toaster that exploded and killed her pet iguana, she’s probably got half
a. Example:
 aNotice
dozenmust inform
theories membersunder
of recovery may tort and contract law (strict liability, warranty, breach, etc.). But all those
opt-out.arise from the same occurrence – the toaster explosion. Most Courts would rule this a single cause-of-
actions
action for RJ purposes.
4. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand its
central importance to the concept of res judicata.
5. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage
multiple litigation (judicial efficiency). But Courts will interpret claims narrowly if they are concerned about the
harshness of preclusion and the burden on the π.
Collateral Estoppel Basics
1. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. If RJ is a
meat cleaver, lopping off the entire claim, CE is a scalpel, severing only the issues previously adjudicated. There are 3
requirements for CE:
a. Same Issue
b. Actually Litigated
c. Necessarily Decided (This is important. The issue may previously have been decided but was not necessary to
resolution of that case.
2. Example: Driver A hits Driver B, sues B for negligence, and wins. Assume that there was no compulsory counterclaim
rule, so B never counterclaimed against A. Now Driver B wants to sue Driver A for his injuries.
a. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence,
143728798.doc claims are specific to the π, so that single accident gave rise to valid claims for both A and B. - 25 -
b. But B will be estopped from asserting a claim of negligence against A. This is because A actually litigated and
necessarily determined that B was the negligent driver in the accident. For purposes of the exam, don’t worry
about comparative negligence claims.
 Do the issues in the current case stem from the same
transaction or occurrence as a previously litigated
case?

Was there a final judgment in the previous case?

(Final means all steps in the adjudication except
execution & appeal.) No
Jurisdiction
Venue
Was it considered “on the merits”? Joinder of an Indispensable
Party
RES JUDICATA (CLAIM PRECLUSION) FLOWCHART
Yes
12(b)(6)
Default judgment or Consent decree
Summary judgment & Directed Verdict
(JMOL)
Yes

Was it valid? No
Proper court with subject matter and personal
jurisdiction?
§1738 “Full Faith & Credit” valid state court decisions
Yes
are binding in federal court unless state court lacked
competency.

Does 2nd Action Involve Same Parties or Those In

Privity?
(Privity requires a legal relationship between the
parties)

143728798.doc NO CLAIM PRECLUSION - 26 -

CLAIM PRECLUSION
RJ won’t apply if the matter hasn’t
Entire claim is precluded, including matters that were
been finally and validly decided by a
or should have been litigated.
proper Court!
 Yes

No

Yes
No

Yes

Orig
reasons.
Counter Claim
Cross Claim
rd
3 party Claim
Claim by 3rd P

Π
∆
3rd
∆
Π - 27 - Part
143728798.doc