I.

PJ
1. Does the state have PJ over the D?
2. Look at the state PJ statute. Look to see if allows general/specific?
3. Where does the factual scenario fall under the statute?
 Any Pennoyer categories? / Systematic and continuous activity? (Int’l) (general)
i. Defendant Consents  in personam
ii. Defendant is a Resident of the forum  in personam
iii. Defendant is physically Present in the forum and served (Burnham)  in
personam
iv. Defendant has Property in forum and is attached  quasi in rem (lawsuit is not
about property) / in rem (lawsuit is about the property) (limited to value of
property)
v. Defendant is not physically present, but contacts are so Systematic and
Continuous that it is as if Defendant is present (Int’l)
 Can fall under specific jurisdiction?
i. D’s activities in the forum are isolated or sporadic and the claim is arising out
of those contacts
4. Now test for Due Process  “Are there minimum contacts between the defendant and the
forum state of a quality and nature such that the suit does not offend the traditional
notions of fair play and substantial justice?”
 Sovereignty (threshold factor) (Worldwide)
i. What the D’s contacts w/ forum are? Whether D purposefully availed himself?
Whether it was foreseeable that D would have to defend himself in that forum?
(Stream commerce  was it foreseeable that D’s products would exit the stream
of commerce into the forum?)
 Once you satisfy sovereignty  Convenience (Worldwide)
i. Convenient for parties to have the case heard in the forum? Where witnesses are
from? Whether the forum state has policy interests?

American Radiator  Tortuous act arises in the state where the injury occurs
Stream of commerce. (Asahi)
Plurality
 4- Sovereignty threshold. Must actually target the forum state. Being aware of the product being
sold in the forum is not enough. Product must be advertised, distribution centers, product
designed for that forum.
 4- As long as anyone in the chain manufacturer, distributor, retailer and purposeful action, its
enough.
 1- Defendant has to be aware his product is entering he forum, PLUS there has to be something
else like volume, value or hazard.

The Internet  The Supreme Court hasn’t explicitly addressed what counts as “minimum contacts” when
you interact through the internet.
 Most of the decisions regarding the internet and personal jurisdiction come from district and
circuit courts. State courts have been generally silent on the topic.
 Internet is another way that a defendant has contact with different forums
 The question becomes: Is the internet contact a way of showing purposeful availment of a
particular forum?

1. What was D’s internet activity? (was it a website? Who did the website serve? Did it advertise?)
 If dealing with activity (i.e. sales), look to Zippo to determine if the website is passive,
interactive, or active
2. Did the D intentionally direct electronic activity into the forum state? 
 What are the arguments that their internet activity was directed at the forum state?
 What are the arguments that it wasn’t intentionally directed?
ARGUE BOTH WAYS!!! 

II. SMJ  Does the court have the power to hear this kind of case?
a. Diversity
 28 USC §1332 gives authority to hear cases with diversity
 Test
1. Amount in controversy must exceed $75,000
2. All P’s must be of different citizenship than all D’s
 Amount in controversy §1332(a)
 AFA Tours, Inc.  You can add compensatory (loss of damages being
incurred) and punitive damages (punished for behavior) together.
 Claims in complaint can be aggregated if:
1. If 1 P & 1 D, P CAN add multiple claims together to satisfy
amount (unrelated claims can be added)
2. If multiple P’s no claim reaches amount CANNOT be aggregated
3. If multiple P’s and 1 P’s claim reaches amount, other P’s claims
CAN come in
4. If 1 P & multiple D’s & no claim reaches amount, CANNOT be
aggregated
5. If 1 P & multiple D’s & D’s are jointly liable CAN be aggregated
 Diversity:
 Individual  Mas v. Perry  domicile = presence + intention to remain
there
 Corporation  Citizen of state it's incorporated & state where
headquarters located
 Unincorporated Associations  Partnerships, LLC, unions  Take on
citizenship of every state in which members are citizens
 Insurance Companies  Citizens where incorporated, “nerve center” and
where particular person insured is a citizen
 Guardian/Estate  §1332(c)(2)
 Can have only one domicile at a time. Until you get a new one, you are
still domiciled in the old one
b. Federal Question
 Gives federal courts original jurisdiction over federal questions that arise under
federal law
 28 USC §1331  enables FQ for lower fed courts
 §1331  the federal aspect must be in the P’s case to bring the case in federal
court
 Louisville & Nashville Railroad Co.  “well pleaded complaint rule”  claim
arises under federal law when the federal issue in the case appears on the face
of the complaint itself. P CANNOT invoke FQ bu anticipating a federal
defense or importing a FQ into the case that is not essential to their case
III. Removal Jurisdiction
 The procedure that allows a lawsuit that was filed in state court to be transferred to
federal court
 Removal is allowed if P could have chosen federal court but chose state court instead
 Section (f)  cannot be removed if any D’s object.
 The D can only remove b/c D should have the same rights to choose the forum as P did
 1. Litigant equality, 2. Protection from the threat of local bias 3. Strategic decisions
(ex. Better jury pool)
 Timing  Under §1446 and §1447:
 D has 30 days to remove after receiving initial pleading (1446(b))
 Diversity never longer than a year (1446(c))
 P has 30 days to file a motion after the removal is filed (1447(c))
 Test:
1. Could that action could have been brought in federal court originally? Thru DJ
or FQJ
2. It cannot be removed from state court to federal court IF
a. Any D objects to removal (1446(b)(2)(A))
b. If the COA is diversity based, D cannot remove if from the
forum state (no risk for bias/prejudice if they are from state)
c. Out of the time limit (1446(b)(c)) (1447(c))
 Wrinkles to test:
 D has 30 days to remove (EXECPTION if a case was not originally
removable, but becomes removal by an amended complaint, party dismissed,
etc.)
 Removal cannot be based on a counterclaim
 If SMJ is based on FQ, D an remove regardless if resident of forum
IV. Ascertaining the Applicable Law – State or Federal
 If the outcome of the litigation will be impacted  Law is Substantive  State Law
applied
 If the outcome of the litigation will NOT be impacted  Law is Procedural  Federal
Law applied
 Comes up when 2 laws in conflict and 1 law is more beneficial to 1 side and 1 law is
more beneficial to the other side and they are arguing which law should apply
a. State Law & Federal Common Law/Policy
 3 prong Byrd Balancing Test  Erie, Guaranty Trust & Byrd:
1. What is the states interest in applying it's law
2. What is federals interest in applying it's law?
3. Outcome determinative?  if you apply one law over the other will there be a strong
likelihood the result will be different if the court applies one law over the other?
 Under Erie, if it is a fed. Issue governed by fed law. If it is a state issue 
governed by state law. Test that comes out of Erie, Guaranty Trust & Byrd 
we must balance whether there is a strong interest in applying federal law
(balance toward procedural), string interest in applying state law (balance
toward substantive) and whether applying 1 law or another will be O-D 
would it have resulted in forum shopping or the unequal administration of law
(balance toward substantive; twin goals of Erie)
b. State Law & FRCP
 Test comes from Hanna:
1. Is the FRCP legitimate? (ALWAYS YES under Rules Enabling Act)
2. Is the legitimate FRCP directly on point? (must be DIRECT)
 If yes  FRCP applies
 If no  GOES BACK TO BYRD BALANCING TEST
c. State Law & Federal Statute
 Test comes from Stewart:
1. Is the statute within Congress article 1 power to enact? (ALWAYS YES)
2. Does the statute in question cover the issue between the two parties? (Can be BROADLY
APPLIED)
 If yes (likely will be since Fed statue controls. No balance needed b/c Supremacy
Clause in Constitution
V. Pleadings
Commencing of an Action and Service of Process:
1. A civil action is commenced by filing a complaint with the court. Rule 3.
2. After, a summons will be served to each party. Rule 4.
Pleadings:
1. Pleadings are governed by Rule 7a. The three main pleadings include:
a. Complaint
b. Answer
c. Reply
2. Special matters are governed by Rule 9.  Subsections (b) and (g) require detailed or heightened.
3. For formal requirements such as captions/names of parties, paragraphs and separate sections, etc.,
use Rule 10.
The Complaint:
1. The appropriate standard for filing a complaint is governed by Rule 8a.
 A short and plain statement of the grounds for the court’s jurisdiction, unless the court
already has jurisdiction, and the claim needs no new jurisdictional support; 
 A short and plain statement of the claim showing that the pleader is entitled to relief; and
 A demand for the relief sought, which may include relief in the alternative or different
types of relief.
Pre-Answer Motions and the Answer:
1. A defendant must serve an answer within 21 days of being served with the summons and
complaint. Rule 12(a)(1)(A)(i). How many days would the defendant have to file a pre-answer
motion? 21. If said motion is denied, how many days would the defendant have to file an answer?
14 under Rule 12(a)(4)(A).
2. If a counterclaim or crossclaim is asserted, a party has 21 days to serve an answer to the
counterclaim or crossclaim. Rule 12(a)(1)(B).
3. When a complaint is filed, a defendant may assert the following defenses under Rule 12:
 Lack of subject matter jurisdiction  not waivable
 Lack of personal jurisdiction  waivable
 Improper venue 
 Insufficient process;
 Failure to state a claim upon which relief can be granted; and  not waivable
 Failure to join a party under Rule 19. Analyze under 8(a)(2) Iqbal test
4. Under Rule 12, which defenses can be waived? 12(b)(2)-(5) under Rule 12(h)(1) and Rule 12(g)
(2)
5. What defense can never be waived? 12(b)(1) under Rule 12(h)(3)
The Answer:
1. When the defendant files an answer to the complaint, the answer must either admit or deny every
claim. Rule 8(b)(1).
2. General denial of entire pleading is permitted under Rule 8(b)(3).
3. Partial denial falls under Rule 8(b)(4) and denial of sufficient knowledge to form belief falls
under Rule 8(b)(5).
4. If a defendant fails to deny any allegation, such allegation will be deemed admitted. Rule 8(b)(6).
5. Failing to provide file a motion or answer may result in the defendant being placed into default.
Rule 55.

COMPLAINTS
What is a Complaint?
 A complaint is pleading by the plaintiff (or 3rd party plaintiff) that alleges a claim and gives them
fair notice of what the plaintiff’s underlying claim is.
  Filing a complaint is the first step in commencing a civil action.
 FRCP 8  Well-Pleaded Complaint:
o Must state why the federal court has jurisdiction over the case;
o Enough facts or information to give D fair notice of what the claims against them are;
(we will flush this out more).
o Some request to the court to grant you a specific relief 

Dioguardi v. Durning  Rule: A complaint need only state a claim upon which relief can be
granted. It does not necessarily have to contain facts that can support a cause of action.

Twombly  Rule: formulated 8(a)(2) to mean that the complaint must include enough facts to
plausible on its face.

Iqbal Test:
1. ASK: What are the plaintiffs claims or claim and what must they do to establish those elements.
2. Ignore conclusions of law and support conclusions of fact. 
3. After you ignore all the conclusory statements, look at what is remaining (assuming they are true)
ASK: 
1. Is there is enough information and facts to put the D on notice of the claim being brought
against him?; and 
2. Do the facts that are remaining plausibly give rise to an entitlement for relief?
Affirmative Defenses:
1. An affirmative defense is a defense that does not follow logically from the plaintiffs’ assertions. P
would not be able to anticipate the issue raised.
2. Affirmative defenses are governed by Rule 8(c).
a. Even if everything else in the complaint is true, I should still win because…
The Reply:
1. Governed by Rule 7(a)(7) and Rule 8.
2. When a reply is filed:
a. The defense raises a counterclaim
b. Court is going to order that reply.
3. If the court requires a reply and a party fails to respond, the reply is deemed admitted.
Amending Pleadings:
1. Plaintiffs and defendants have rights to amend pleadings under Rule 15.
2. Before trial, a party may amend its pleadings once 21 days after serving it. Rule 15(a)(1)(A).
3. If the pleading is one which requires a responsive pleading, 21 days after responsive pleading or
21 days after service of a motion. Rule 15(a)(1)(B).
4. Additional amendments require written consent or the court’s leave. The court should freely give
leave when justice so requires. Rule 15(a)(2).
5. Relation back amendments only occur when there is a statute of limitations problem. Rule 15(c).

Beeck v. Aquaslide  Rule: The court should grant leave to amend when justice so requires,
especially if denying a motion to amend would unduly prejudice one party.

Swanson v. Citibank  Rule: When a plaintiff is alleging a claim of fraud in their complaint, they
need to meet a higher standard than Rule 8(a)(2)  look to 9 (b)
 VI. Discovery
 Rules 26-37
 Under Rule 26(f), once the pleadings are joined, the parties must confer as
soon as practicable to discuss the case and arrange for the Rule 26(a)
mandatory disclosures and a discovery plan. The court then issues a scheduling
order under Rule 16(b)
o Under rule 26(f) the parties have to turn over all of the categories in Rule
26(a)(1)(A). Once the conference has taken place, the disclosures must
be made within 14 days along with a discovery plan (Rule 26(f)(3) 
contents of the discovery plan)
o Thru the mandatory disclosure under Rule 26(a) they parties get a lot of
info  who the various parties are, who the witnesses are, whether there
will be experts, insurance documents, etc.
o If timing is difficult the parties can stipulate, or they can go to court as
well.
 Once parties have discovery plan  Court issues a scheduling order under Rule 16(b) 
lays out what discovery is going to take place, how long is expected for the discovery,
when the various parties have to react to the various discovery devices
Devices and Pros and Cons:
 Depositions (rule 30)  Common device. Recorded examination of a live witness under oath by
oral questions before a court reporter. Transcript is prepared and submitted to the person being
deposed for corrections and signatures.
o Advantages: can be used on parties and non-parties (Subpoena non-party under Rule
45- the court has no power over non-parties so if subpoenaed, now the court has
power over them and can hold them in contempt Rule 45(e)), can assess witness
credibility, can learn what witnesses know, can pin witnesses down, opposing counsel
does not directly control the response (can make objections but the witness has to answer)
(ONLY privileged information)
o Disadvantages: Can be expensive and time consuming
 Production of Property (Rule 34)  reports, letter, photos, emails, contracts, etc. that in in the
possession of the other side or witness. Inspect a piece of machinery, home, go on land, etc.
o Only applies to parties, if you want a non-party to produce something you must serve
them with a subpoena under Rule 45(b)(1) (Rule 34(c))
 Interrogatories (Rule 33)  A lawyer prepares a series of questions that are to be answered by
the other side under oath within a certain period of time. Exchange is accomplished by mail.
o Advantages: Can get background information or highly technical information, less
expensive
o Disadvantages: Can only be used on parties, no “give and take” can't frame a new
question in response to an answer on the spot, can take a while to get information,
attorneys frequently prepare the answers (carefully, sometimes no answers).
o If you are a D you can also propound interrogatories on a co-defendant under Rule 33(a) 
any party may serve upon any party
o If you object to a question in an interrogatory, explain the objection under Rule 33(b)(4)
 The party who propounded the interrogatory can either rephrase the question or
make a motion to compel under Rule 37(a) if they felt it should have been
answered.
 Requests for Physical and Mental Exams (Rule 35)  A party who was hurt in some kind of
way, you will want a physical or mental exam, so you understand the extent of the persons injury.
 o Requires a court order and a showing of good cause  The party who wants to get the
exam must demonstrate the need for the exam outweighs the pain or danger or
intrusiveness of the exam itself.
o Privacy interests
o Stipulate to having a physical exam under Rule 29, no need for court order (usually)
 Requests to Admit (Rule 36)  usually used at the end of discovery b/c the requesting party
wants to have sufficient information about the case in order to formulate the requested
admissions. Not used to get new information but to expedite the trial and reduce costs.
o Usually takes place at the end of Discovery- can ask the other side to admit the truth of any
matters within discovery. Purpose is not to get new info but to expedite trial and reduce
costs.
o If admitted, it's binding at trial and it relieves the party who made the request of the time
and expense of proving the admitted matter.

Other Important Rules

 Duty to supplement responses (Rule 26(e))
o A party must correct information if he has not already made it known to the other parties.
Applies to mandatory disclosure, interrogatories, requests for production, requests for
admission (Rule 26(e)11)
 A lot of information in discovery, over a long period of time (things can change)
so lawyers have a duty to supplement their responses
 Does NOT apply to deposition testimony because can be given to non-party
witness so monitoring that would be too burdensome.
 Privilege (Rule 26(b)(1)
o Privilege is absolute
o If a privilege attaches to a communication, that specific communication cannot be
discovered, no matter how much it is needed. Only that actual communication itself is
privileged (doesn’t mean the underlying facts can't be discovered, etc.) Attorney-
client privileged, spousal privileged, doctor-patient, privilege against self-incrimination
 Work Product (Rule 26(b)(3))  documents and other tangible things that are prepared in
anticipation of trial by either a lawyer, consultant, or insurer.
o Ordinary work product is discoverable if otherwise discoverable and there is no other way
to get information and not getting it will cause undue hardship
 One party can't piggyback on another party, everyone should do own work
 Situation where something disappears  one side took pictures of skid marks,
other side went and they were gone, that could be the kind of work product that
could be discoverable.
o Opinion work product is only discoverable under super duty necessity (NOT a rule but
comes from Hickman v. Taylor)
 Ex. personal notes of the attorney
 Expert Testimony (Rule 26(a)(2); 26(b)(4)
o If other side has engaged an expert and plans to call an expert at trial, you can get identity
(Rule 26(a)(2)) and report of anticipated testimony
o Can also depose the expert but have to wait until you have the report (rule 26 (b)(4))
o Can get documents by experts  NOT CONSIDERED WORK PRODUCT
o If other side has engaged an expert and does not plan to call him at trial, then you can only
get documents or other information, but you have to show exceptional circumstances.
 Rule 30(a)(2)(A)(iii) says that leave of court is necessary to take a deposition before the
time specified in rule 26(d). rule 26(d) requires that no discovery take place until the
parties have conferred under rule 26(f). Here there has been no 26(f) conference yet.
 There are some exceptions to Rule 30(a)(2)(A)(iii)—leave is not required if the notice of
deposition contains a certification that the person you want to depose is expected to leave
the country and you set forth those facts. So we would need to find out where he was
going on his business trip.
 You could ask the court for leave and hope for the best
 You could get the other side to stipulate under Rule 29(a) to agree to have it before the
26(f) conference
 You could wait until after the 26(f) conference and find out where Smith is and have the
deposition there
 You could wait and conduct other discovery in the mean time.

 You can request documents under rule 34 any time after the 26(f) conference (26(d)(1)
 30 days to respond rule 34(b)(2)(A)
 Overbroad. You are asking for too much stuff. Too expensive and difficult to produce.
No possession or control means we cannot deliver. Rule 34 (b) (2) (B)
 You can either modify the request taking the objections into account or move to compel
under rule 37(a).
 protective order under Rule 26(c)
 If P narrows the request and fix it—limit it to cars of a certain year or just from one part
of the country.
 If P does not have the information to narrow it intelligently, P can serve Rule 33
interrogatories to seek information of records in their possession or control. Then use
those responses to frame the Rule 34 request.
VII. Summary Judgement
 After discovery but before trial. One or both sides are moving on the ground that
discovery told us everything we need to know and it is clear that the court can make a
decision
 Genuine Dispute  Where a reasonable factfinder can come out either way
 Material Fact  Important to the outcome of the case. Depending on how it is decided
will make a difference in the outcome of the case
 Burden of Production  P (to produce a minimum amount of evidence to establish each
element of COA
 Burden of Proof  P or D (By a preponderance of evidence that their evidence is
weighted than the other side)
 Rule 56(a) The party moving for SJ must show that there is no genuine dispute as to
any material fact and therefore entitled to SJ as a matter of law
 The moving party’s materials must be viewed in the light most favorable to the
party opposing the motion.
 If the moving party HAS the burden of proof  No genuine dispute as to any
material fact
 HARD for P to get SJ b/c they have to prove multiple elements, own
affidavit would not be enough usually to sustain burden, could be biased,
need for a cross-examination.
 If the moving party DOES NOT have the burden of proof  can either show
by affirmative evidence that the facts supporting an essential element of a case
is missing (non-moving party does not have admissible evidence (rule 56(c)
(2)), or can just point to holes in the non-moving parties case (rule 56(c)(1)(A-
B)
 NOTE: CANNOT REST ON PLEADINGS
 Once moving party satisfies their SJ burden, switches to party opposing the
motion where they MUST demonstrate there are still questions of fact in order
to defeat the motion (evidence must be admissible at trial Rule 56(c)(2))
 Rule 56(b)  timely
 CAN cross-move for SJ: If D cross-moves for SJ they do not have burden of proof and
can either put forward evidence that negates an element of the claim or point to holes in
the record.
 VIII. Judgments as a Matter of Law
Judgment as a matter of law (Rule 50)
 Parallel for a motion for summary judgment (made before the trial so any evidence that is being used
is evidence that has been obtained through discovery.) But these are made during the trial, not
supporting, or opposing with discovery but with evidence that have come through the course of the
trial. But impact is the same, asking the court to render a decision without going to the factfinder
(jury) There is no need for this o go to factfinder, can be decided as a matter of law.
 Two points it can be made
1. Before case has gone to jury  after the plaintiff has rested or after the defendant has rested.
Traditionally, a motion for a directed verdict (rule 50(a))
2. After the jury comes back with the verdict  traditionally a j.n.o.v. (judgment notwithstanding
the verdict) (rule 50(b))
Now it is a judgment as a matter of law but terms are still used. The difference is the timing

We are measuring the P’s facts (burden of proof/persuasion)

A P can make this motion too, usually has to wait for D to put forward their evidence. As a matter of law,
I put forward so much evidence and D put forward nothing, a reasonable jury would find for me.

If you grant a motion for a directed verdict, that’s a final judgment and can go up on appeal

The standard by which the court finds a judgement as a matter of law appropriate:
 Motion raises a legal question, is there enough evidence to raise a question to a jury? (Burden of
proof)
 When court is making a determination, the court cannot consider the creditability of witnesses or the
weight of proof. They have to look at it as this is the evidence, does this satisfy each element of the
cause of action
 Evidence has to be looked at most favorable to the nonmoving party (benefit of all inferences in their
favor)
 When you view the evidence in the most favorable to nonmoving and reasonable people can differ it's
a question for the jury

Why do we allow this motion in two places? The second time we allow it a renewal for the previous
motion (j.n.ov. is 2nd)  28 days after entry of judgment
 It helps to persevere judicial economy and judicial efficiency.
 The judge is waiting to see what the jury comes back with. By waiting, the judge is allowing the
possibility that they will find for D, the D will be happy, and the P will not be able to attack that, the
appellate court does not have to deal with that difficult question.
 Thinking of ahead of the appellate piece of the case. The party will make a motion, the court will
deny, then you’ll make it again, if jury does not come in your favor and if judge thinks there is not
enough evidence, motion will be granted

If 50(a) motion was not filed or filed correctly, the court can might decide to hear JNOV if procedural
defect and not substantive issue.
 IV. Motion for New Trial  Rule 59
Aetna Casualty Rule: Granting or refusing of a new trial rests in sound discretion of trial judge & his
action thereon is not reviewable upon appeal except in the most exceptional circumstances.
 A judge should grant a motion for a new trial if there was a harmful error so serious that there
would be a reversal on appeal 
 A judge should deny the motion if it is harmless and not appealable meaning it would the error
would not affect the outcome of the case 
 If the court grants the motion for a new trial, it cannot be appealed because there is no final
judgment in the case 
 If the court denies the motion for a new trial, it can be appealed because it ends the lawsuits. 
 Motion can only be made once the jury comes back with a verdict. 
 Harmless errors not appealable (rule 61) - not grounds for appeal. 

Rule 59(a)(1) - the court may on motion grant a new trial on all or some of the issues and to any party if
after a jury trial for any reason … 
Some reasons include: 
1. Jury misconduct 
2. Errors
3. Evidence that was not available but is now available 
4. Incoherent jury verdict (2 pieces of verdict that don’t fit together)
5. Jury instructions etc. 
6. Most difficult ground: Verdict is against the weight of the evidence
7. Something to keep in mind!  Court should use one reason directly written in rules of civ
pro when granting motion for new trial. “In the interests of justice” reason in this case not
enough.
a. Ginsberg v. Williams: Suit for damages of a car accident; the defendant won in a jury
trial with plaintiff moving for a new trial. The court granted the motion in the interests of
justice. D moved to stop the new trial under Rule 59

Motion for new trial test and standard: even if there may be substantial evidence that would prevent a
directed verdict you can still have the granting for a motion for a new trial if 
1. The verdict is against the clear weight of the evidence. 
2. Verdict was based on evidence that is false.
3. Allowing the verdict would result in a miscarriage of justice. 
 V. Claim Preclusion
What is claim preclusion? Asserted in the second lawsuit in order to avoid the replication of claim and
can be brought up even if such a claim was not brought up the first suit.

Example:
P recovers $50,000 from D for a breach of contract claim.  If P believes that the award is too low, he/she
may not bring a second action against D for more money.  Additionally, if P discovers a statute that
allows a more generous measure of damages, he/she cannot bring a new action based on the statute. P is
also barred from retrying this case with a different lawyer.
 Two terms to be familiar with:
 Merged: if P wins then the judgment merges with the claim
 Barred: if D has successfully resisted a claim, P cannot bring a cause of action because it is
barred from previous result

Why do we have claim preclusion? 

 We want individuals to move on with their affairs without uncertainty that a court decision would
be inconsequential  Certainty of judgments
 No need to multiply costs or delays of litigation when a full and fair opportunity has been
accorded to the parties  Fairness and judicial economy

1. Same claim in action 1 and action 2

1. Whether it is a single theory of recovery
2. Whether the proof (evidence) in support of each claim is the same
3. Whether the claims are based on the same operative facts (transactional test)
2. Same parties or those parties have to be in privity in action 1 and action 2
 Examples of Privity: Respondeat Superior relationship (employer/employee),
trustee/beneficiary
3. You have to have a final judgment on the merits in action 1
 A judgment is on the merits even if it through Summary Judgment or default.
i. Examples of judgments not on the merits-lack or Personal Jurisdiction, lack of
Subject Matter Jurisdiction, lack of indispensable party.

1. Majority R (when there is a single theory of recovery) → A single theory of recovery

(e.g. negligence) can only be argued once and must be in the same lawsuit, cannot
split claims; notion of use it or lose it under Rule 13
1. Rush v. City of Maple Heights: A1: P sues D for property damage to P’s
motorcycle; P wins $100; A2: P sues D again for damages for personal injuries
sustained during accident; P wants to use issue preclusion on D’s negligence so P
wouldn’t have to prove it again; D wants claim preclusion on grounds that only
diff between suits is diff damages while COA is the same (negligence)
2. Minority R: evidence/proof in support of each claim is the same
1. In Rush, P followed minority rule & used it as strategy; Property damage claim &
personal injury claims have 2 distinct proofs, require diff kinds of evidence
2. R: If the same evidence will support multiple actions arising from the same
contract, there can only be one COA
1. Jones v. Morris Plan Bank of Portsmouth: Action 1: Bank v. Jones →
May/June installments, default judgment entered against Jones and Jones
pays two installments. Action 2: Bank v. Jones → July payment, bank
takes non-suit and takes the car). Action 3: Jones v. Bank → conversion.
 The court found that the bank should have sued for all payments during
the first action and therefore are barred from asserting that claim.
3. Transactional R: If facts surrounding a particular occurrence give rise to the same
COA, then there is no recovery
Mathews v. NY Racing Association, Inc.: A1: P sues D employees for assault, defamation etc. D wins.
A2: P sues D owner/employer for assault, false arrest/imprisonment, defamation, etc. D argues claim
preclusion on ground that COA is same. Court applied new test known as transaction test. Court found
privity among Ds, aka respondent superior.
 VI. Issue Preclusion
1. The issue was actually litigated, necessarily decided, and essential to the judgment in A#1.
 If A 2 is based on a different cause of action than A 1, only issues that were actually
litigated and decided in A 1 will be precluded in A 2.
 It must be clear what was necessarily decided in A 1. Usually need a special verdict.
 It must be a finding that directly supports the judgment in A1.
2. A final judgment in A#1 on the particular issue as to which issue preclusion is sought
 Note that it does not have to be on the merits, just final
3. Sometimes can be used even if the parties in A#2 are not the same or in privity with the parties in
A#1.
 The decline of the Mutuality Doctrine
“Actually litigated” example: Default judgment in A 1, can you use the issues that were decided in the
1st action?  They were not actually litigated, so you cannot use it. That’s what they mean by actually
litigated. There had to have been something that constitutes litigation

“Necessarily decided” example:

The court in A 2 has to be sure of what was decided in A 1 with respect to that issue. SO, they can use
preclusion correctly. If there is any question as to what was necessarily decided, you cannot use issue
preclusion.  Usually, a general verdict in A 1 (we find for p or d, all we know is what the jury's final
decision, not the reasons why it was found that way.) Other verdicts- special verdict – jury comes back
and specifically says why they held a particular way.  General verdict with interrogatory – we find for p
or d and they have to answer questions to show their thought process.

Mutuality:
Offensive Issue Preclusion – Party wins on an issue in A#1. P then seeks to use that favorable finding
from A#1 in A#2 to preclude a D from relitigating it in A#2. Preclusions is bein used to establish a claim.

Defensive Issue Preclusion – Party wins on an issue in A#1. D then seeks to use that favorable finding
from A#1 in A#2 to preclude a P from relitigating it in A#2. Preclusion is being used to defeat a claim (as
a defense)

Traditional Mutuality Rule – Parties must be the same (or in privity Respondent Superior) in A#1 and
A#2.
 Why? Because a judgment only binds a party of persons in privity with that party, and therefore a
judgment can only be invoked in another action by a party or a person in privity with that party

Rule in Federal Courts: there is no traditional mutuality. If it is defensive issue preclusion it is allowed
even if no privity if it is offensive issue preclusion must do balancing test in Parklane.

Bernhard v. Bank of Nat. Trust & Savings Ass’n  Rule: A party who was not bound by a previous
action may assert a plea of res judicata against a party who was bound by the previous action 
Parklane Hosiery v. Shore Rule: Warranted when: 1) plaintiff could not have readily joined in prior
litigation, 2) defendant had a full and fair opportunity to litigate the issue, 3) procedural opportunities
unavailable in the first actions compared to current case, 4) inconsistent judgment.
APPLY WHEN: Jurisdiction that has done away with traditional Mutuality and dealing with
offensive.
1. Determine issue preclusion
2. Offensive/defensive?
3. Determine if jurisdiction has done away with traditional mutuality
4. Apply Parklane if they have done away with traditional mutuality
VII. Joinder  USE CHART (ATTACHED)