civpro kang fall 2010

8/10/2019 CivPro Kang Fall 2010

1/32

CivilProcedure

Multiplicity

RJ

Statues and (c)

Claim PreclusionSame Claim & Same Parties

Valid Final Judgment On the Merits

IP

Actually Litigated and determined,essential to the judgment, valid finaljudgment

Joinder

Statutes, RulesRequired Joinder of Parties

Permissive Joinder of Parties

Joinder of Claims

Class actions

Prerequisites

Types

(c)ality

Jurisdiction

Erie

Choice of Law Problems

Federal courts apply state substantive law

and use federal procedure

Power

SMJ

Constitutional Grounding

Original Jurisdiction

Supplemental Jurisdiction

Removal

PJ

Consent, notice, presence, Long Arm

Contacts

Venue1391

Transfer

1404

FNC

Removal

1441

1446

1447

Lifecycle of alawsuit

Pleading

ComplaintPre-answer Motion

Answer

Amendments

Discovery

26-37

Relevant and Not Privileged

Pre-trial adjudicationRule 56 Summary Judgment

Trial

JMOL

RJMOL

New trial

Post Trial/AppealStandards of review

findings of factclearly erroneous

findings of lawDe novo

Exercise of DiscretionAbuse of discretion

0.0Civil Procedure.mmap - 12/3/2010 - Mindjet


2/32

POWER


3/32

Art. III, Section 1 creates theUSSC & Empowers the Congressto create inferior Courts

Art III, Sec. 2 creates outerlimit of the power of the courtsto two sets of nine cases andcontroversies.

02 SMJ.mmap - 12/3/2010 - Mindjet


4/32

Original Jurisdiction

28 U.S.C. 1331 -Federal Question -"all civil actionsarising under theConstitution, laws,

or treaties of theUnited States."

Complaint must make theclaim under federal law,See, Louisville & NashvilleRailway v. Mottley

Unless "fed warp" where strong federal interest exists

28 U.S.C. 1332 -Diversity of

citizenship

1332(a)

(1)Citizens of different states

"Citizen" means "state of domicile."Newman-Green Inc. v.Alfonzo-Larrain . Domicile meansresidence and intent to remainindefinitely. Choktaw Indians

Complete Diversity - Strawbridge v. Curtis(2)Citizens of a state and citizens or subjects of a foreign state

(3)Citizens of different states and in which citizens orsubjects of a foreign state are add'l parties

Amount in Controversy

Must exceed $75,000Courts defer to pleading except when it "appear[s] to a legalcertainty that the claim is really for less than the jurisdictionalamount..." St. Paul Mercury Indemnity Co. v. Red Cab Co.

Aggregation:

multiple Ps +1D; if one plaintiff reaches the statutorythreshold, then additional plaintiffs may join in thataction under 1367 see Exxon Mobil Corp. v. AllapattahServs. Inc.

1P+1D => it's ok to aggregate all

P's claims to reach the thresholdLPR count as aliens when they are suing other aliens andas "deemed citizens" of their state of residence whenthey are suing citizens of their state.

1332(c)

(1) Corporationshave DualCitizenship

Citizen of state of incorporation

Citizen of state ofprinciple place ofbusiness

PPoB may be

Nerve center (corp. HQ)Muscle (state where largestnumber of employees islocated)

State of greatest income(2) Legal representatives

are deemed citizen of stateof decedent, infant, orincompetent

Partnershipsall citizenships of each partner

02.1 SMJ - Original Jurisdiction.mmap - 12/3/2010 - Mindjet


5/32

Supplemental Jurisdiction1367

1367(a): "The districtcourts shall havesupplemental jurisdictionover all other claims thatare so related to claims inthe action within suchoriginal jurisdiction thatthey form part of the samecase or controversy under

Art. III.

2. USSC in GibbsCommon Nucleus ofOperative Fact--CNOF

ordinarily beexpected to trythem in oneproceeding

same "case or controversy"

1367(b):original jurisdiction foundedsolely on section 1332 the districtcourts shall NOT have supplemental

jurisdiction: ::when exercisingsupplemental jurisdiction over suchclaims would be inconsistent with the

jurisdictional requirements of 1332

over claims byPs againstpersons madeparties under R.14, 19, 20, or 24

P cannot use Supp.Jur. tosue TPD; if not Orig.Jur.,then it cannot be broughtin Fed.Ct., See, OwenEquipment & Erection Co.v. Kroger.

R 14 Kroger

Over claimsby persons:

proposed to be joined as

Ps under R. 19seeking to intervene as Psunder R. 24.

1367(c) - "Courts maydecline to exercisesupplemental jurisdictionover a claim if:

i. Claim raises

novel or complexstate law issue;

See, Szendry-Ramos

ii. Supp.j. claimsubstantiallypredominates over claimover which fed. Dist.Courts have orig. smj;

iii. Fed.dist. court hasdismissed all claims overwhich it has orig.smj; or

iv. other compellingreasons for declining

jurisdiction

1367(d) "The period of limitations for anyclaim asserted under subsection (a), andfor any other claim in the same action thatis voluntarily dismissed at the same timeas or after the dismissal of the claim

under subsection (a), shall be tolled whilethe claim is pending and for a period of 30days after it is dismissed unless State lawprovides for a longer tolling period."

02.2 SMJ - Supplemental Jurisdiction.mmap - 12/3/2010 - Mindjet


6/32

PersonalJurisdiction

Statutory Basis

4(k)(1)Serving a summonsor filing a waiver of serviceestablishes personal

jurisdiction over adefendant:

(A) who is subject to the [Personal] jurisdiction of acourt of general [Subject Matter] jurisdiction in thestate where the district court is located;(B) who is a party joined under Rule 14 or 19 and isserved within a judicial district of the United Statesand not more than 100 miles from where thesummons was issued; or

(C) when authorized by afederal statute.

See Dee-K Enterprises,Inc. v. Heveafil Sdn. Bhd.

Rule 4(k)(2)

Federal Claim Outside State-CourtJurisdiction. For a claim that arises underfederal law, serving a summons or filing awaiver of service establishes personaljurisdiction over a defendant if:

(A) the defendant is notsubject to jurisdiction inany state's courts ofgeneral jurisdiction; and(B) exercising jurisdiction isconsistent with the UnitedStates Constitution andlaws.

Notice

Notice that satisfies theDue Process Clausesmust be such as onedesirous of actuallyinforming the absenteemight reasonably adopt toaccomplish it. Mullane v.Central Hanover Bank &Trust Co.

To Known Persons with known addresses:personal service of process or regular mailTo persons unknown; if their interests aresubstantially the same as those of knownpersons, then they aren't deprived of DueProcess if the known persons representthem. It's ok to use publication notice(constructive notice) because even aprobably futile means of notification is all

that the situation permits.

Notice

23(c)(2) mandatory for (b)(3)

23(d)(2) discretionary notice

23(e)(1)(B) notice at time of settlement

Presence

People

If one is physically presentin a State, that State'scourts can exercise powerover you, see Scalia'sopinion in Barnham; alsoPennoyer.

Domicile in the stateis...sufficient to bring[a]...defendant within thereach of the state'sjurisdiction. Miliken v.Meyer

CorporationsProceed to contacts analysis

Consent

VoluntaryExplicit

Implied

Appearing in a court andmaking any motion orarguing on the merits

without first filing a 12b2motion is implied as awaiver of objections to PJ.See FRCP 12h2

Forum selection clausesoperate as consent; areimplied since the partyagainst whom they areenforced may not haveread them. See, .Carnival Cruise Lines v.Shute

(C)14th Amendment

5th Amendment

01 PJ.mmap - 12/3/2010 - Mindjet


7/32

Contacts

What isthe

plaintiff'sclaim?

Quantifydefendant'scontactswith theforumState.

Does the claim"arise out of orrelate to" thecontacts?

International Shoe

Yes,specificPJ

We consider onlypurposefully availedcontacts, so all"unilateral contacts"are ignored.Hanson v. Denkla .

State whether the P'sclaim arose from theD's purposefully availedcontacts. Mcgee, IntlShoe, Burger King

If the court exercises

personal jurisdiction, will itoffend "traditional notionsof fair play and substantialjustice?" World-WideVolkswagen Corp. v.Woodson

The Defendants burden

The plaintiffs interest

The interest of theforum State inadjudicating the dispute

The goal of efficiency in theinterstate justice system

The shared interest of theseveral States infurthering fundamentalsubstantive social policies

Asahi Metal Industry Co.v. Superior Court , whereUSSC held that when D'sburden was high, State'sinterest was slight, andcontacts were scarce, itwas inappropriate toassert PJ over the D.

No, Shafer v. Heitner

No,GeneralPJ

We consider onlypurposefully availedcontacts, so all

"unilateral contacts"are ignored.Hanson v. Denkla .

Determine whetherthere are enoughcontacts for the forumstate to assert generalpersonal jurisdiction.

Perkins , HelicopterosNacionales deColombia

01 PJ - Contacts.mmap - 12/3/2010 - Mindjet


8/32

Venue

'Founded Solelyon Diversity ofCitizenship'

1391(a)

(1) if all the defendants reside in the same state,the case may be brought in a judicial district inwhich any defendant resides(2) the case may be brought in a judicial district where

a substantial part of the events or omissions giving riseto the claim occurred or where a substantial part ofproperty that is the subject of the action is situatedIF and ONLY IF not(1) and not (2), THEN

(3) if there is no district in which the action mayotherwise be brought, then it may be in a district inwhich any of the defendants is subject to personaljurisdiction at the time the action is commenced.

FederalQuestion

1391(b)

(1) if all the defendants reside in the same state, the casemay be brought in a judicial district in which anydefendant resides(2) the case may be brought in a judicial district where asubstantial part of the events or omissions giving rise to theclaim occurred or where a substantial part of property that isthe subject of the action is situatedIF and ONLY IF not(1) and not (2), THEN

(3) A judicial district in which any defendant may befound, if there is no district in which the action mayotherwise be brought.

Corporations

1391(c)"Residence"

States with onejudicial district

a defendant that is acorporation shall bedeemed to reside inany judicial district inwhich it is subject topersonal jurisdiction atthe time the action iscommenced.

In a State which has more than one judicial district and in which a

defendant that is a corporation is subject to personal jurisdiction at thetime an action is commenced , such corporation shall be deemed to residein any district in that State within which its contacts would be sufficient tosubject it to personal jurisdiction if that district were a separate State, and, IFthere is no such district , the corporation shall be deemed to reside in thedistrict within which it has the most significant contacts.

Ali ens28 U.S.C. 1391(d)

May be sued in any district

See Dee-KEnterprises Inc. v.Heveafil Sdn. Bhd.

includes individualsand corporations

03 Venue.mmap - 12/3/2010 - Mindjet


9/32

Removal

Requirements1441Actionsremovablegenerally

(a) Any civil action brought in a State court of which thedistrict courts of the United States have original [SMJ]

jurisdiction, may be removed by the defendant or thedefendants, to the district court of the United States for thedistrict. . . embracing the place where such action is pending.

PJ; SMJ

venue is madegood by this statute

(b)

Any civil action of which the district courts have originaljurisdiction founded on [ 1331] shall be removable withoutregard to the citizenship or residence of the parties.

Any other such action [1332] shall be removable only ifnone of the parties in interest properly joined and served asdefendants is a citizen of the State in which such action isbrought.

No local defendant Rule

(c) Whenever a separate and independent claim or cause of action withinthe jurisdiction conferred by section 1331 of this title is joined with one ormore otherwise non-removable claims or causes of action, the entire casemay be removed and the district court may determine all issues therein, or,in its discretion, may remand all matters in which State law predominates.

Procedure

1446(a) short and plain statement of thegrounds for removal

1446(b) 30 day shot clock after notice isreceived or case becomes removableBUT never more than one year after thecomplaint is filed.

1446(d) copy of notice of removal filed w/clerk of state court; clerk effects the removal

1447(c)

motion to remand for lackof SMJ - 30 day clock

fed.dist.ct must remand if itever realizes it lacks SMJ

1447(e) Court may deny or allow joinder ofadditional s; if allowed joinder will "destroySMJ" court must remand to state court.

06 Removal.mmap - 12/3/2010 - Mindjet


10/32

Transfer

28 U.S.C. 1404

a. District

for the convenience ofparties and witnesses, inthe interest of justice, adistrict court may transferany civil action to anyother district or divisionwhere it might have beenbrought PJ

D cannot just consentto change PJ

SMJ

Venue

b.Divisionw/in district

Upon motion, consent orstipulation of all parties, anyaction, suit or proceeding of acivil nature or any motion orhearing thereof, may betransferred, in the discretion of

the court, from the division inwhich pending to any otherdivision in the same district .

Forum NonConveniens -Gilbert

Analys is

's choice should rarely be disturbed

Applies with less force whenthe plaintiff or real parties ininterest are foreign

Publicfactors

Congestion

Local interest in having localized

controversies decided at homeDiversity case in a forum at home with thelaw that must govern the action

The avoidance of unnecessary problemsin conflict of laws or in the application offoreign law

And the unfairness of burdening citizensin an unrelated forum with jury duty;

Privatefactors

Relative ease of access to sources of proof

Availability of compulsory process forattending unwilling, and the cost ofobtaining attendance of willing, witnesses;

Possibility of view of premises, if viewwould be appropriate to the action

All other practical problems

Change inSubstantivelaw

If the remedy provided by the alternativeforum is so clearly inadequate orunsatisfactory that it is no reason at all,

the unfavorable change in law may begiven substantial weight

Piper Aircraft v. Reyno

07.0Transfer.mmap - 12/3/2010 - Mindjet


11/32

LIFECYCLE


12/32

Pleading 1

8(a) A[complaint]must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction,unless the court already has jurisdiction and the claim needs no newjurisdictional support;

(2) a short and plainstatement of theclaim showing thatthe pleader isentitled to relief;and

Bell Atlantic v. Twombly, --Plausibility standard

Ashcroft v. Iqbal, the complaint must allegespecific facts that allow a court to infer theconclusion alleged. The court should rule on12(b)(6) motions by striking all legal conclusionsfrom the complaint and seeing if the allegedfacts allow an inference that the plaintiff isentitled to relief. Judges should use theirexperience and common sense to make thisdetermination.

(3) a demand for the relief sought, which may includerelief in the alternative or different types of relief.

Basics

7(a) Only these pleadings are allowed:

complaint;

answer;

an answer to a counterclaim designated as a counterclaim;

an answer to a crossclaim;

a third-party complaint;

an answer to a third-party complaint; and

if the court orders one, a reply to an answer.

11: Signing Pleadings

11(a) provides that all pleadings must be signed.

11(b) provides that the signer certifies that allfacts are true and that legal theories are assound as reasonable efforts can make them.

11(c) provides that opposing party can point out adefective pleading and, after a time, move forsanctions against the filer of the defective pleading.

11(d) this doesn't apply todiscovery (Rules 26-37)

04.1 Pleading.mmap - 12/3/2010 - Mindjet


13/32

Pre-answer motion

12(b)...[A] party may assert the followingdefenses by motion: ::A motion asserting any ofthese defenses must be made before pleading if

a responsive pleading is allowed. If a pleadingsets out a claim for relief that does not require aresponsive pleading, an opposing party mayassert at trial any defense to that claim. Nodefense or objection is waived by joining it withone or more other defenses or objections in aresponsive pleading or in a motion.

(1) SMJ

(2) PJ

(3) venue;

(4) insufficient

process;

(5) insufficientservice of process;

(6) failure to state aclaim upon whichrelief can begranted; and

(7) failure to join aparty under Rule 19.

12(g) Joining Motions.

(1) A motion under this rule may be joined with anyother motion allowed by this rule.

(2) Except as provided in Rule 12(h)(2) or (3), a partythat makes a motion under this rule must not makeanother motion under this rule raising a defense or

objection that was available to the party but omittedfrom its earlier motion.

12(h) Waiving and

Preserving CertainDefenses.

(1) A party waives anydefense listed in Rule12(b)(2)-(5) by:

(A) omitting it from a motionin the circumstancesdescribed in Rule 12(g)(2); or

(B) failing toeither:

(i) make it by motionunder [rule 12]; or

(ii) include it in aresponsive pleading or inan amendment allowedby Rule 15(a)(1) as a

matter of course.

(2) 12(b)(6) and (7), orto state a legal defenseto a claim may beraised:

(A) in any pleadingallowed or orderedunder Rule 7(a);

(B) by a motion underRule 12(c); or

(C) at trial.

(3) If the court determines at any time thatit lacks subject-matter jurisdiction, it mustdismiss the action. (12(b)(1) cannot everbe waived.)



14/32

Discovery

26-37

Rule 26 providesthe groundworkfor discovery:

26(a)(1)(A) - Parties must make spontaneous disclosures oftheir own evidence including names and contact informationof witnesses, the subjects regarding which they areknowledgeable; a description by category and location of

documents, information, and things; copies of insuranceagreements; computations of damages

26(a)(2)(A) - parties must disclose information aboutexpert witnesses and provide a written report of thewitnesses information if the witness was retained orspecially employed to provide her expert testimony.

26(b)(1) - Parties may obtain discovery regarding any non-privilegedmatter that is relevant to any party's claim or defense.

26(b)(2)(C) - Discovery may be limited if it is unreasonably cumulativeor duplicative, or can be obtained from some other source that is moreconvenient, less burdensome, or less expensive; the party seekingdiscovery has had ample opportunity to obtain the information bydiscovery in the action; or the burden or expense of the proposeddiscovery outweighs its likely benefit;

26(b)(3)(A)-(B) - Ordinarily, a party may not discover documents and tangiblethings that are prepared in anticipation of litigation or for trial by or for anotherparty or its representative. but those materials may be discovered they are

otherwise discoverable under Rule 26(b)(1); and the party shows that it hassubstantial need for the materials to prepare its case and cannot, withoutundue hardship, obtain their substantial equivalent by other means. --- If thecourt orders discovery of those materials, it must protect against disclosure ofthe mental impressions, conclusions, opinions, or legal theories of a party'sattorney or other representative concerning the litigation.

Rule 30 governs Depositions.

Rule 33 governs interrogatories.

Rule 34 governs requeststo produce materials forinspection, copying,testing, and sampling.

Rule 35governsphysical and

mentalexaminations.

Rule 36governsrequests foradmission.

Rule 37 provides courtsthe sanctions topenalize misbehaviorduring discovery.

08 Discovery.mmap - 12/3/2010 - Mindjet


15/32

Answer

8(b) Admissionsand Denials.

(1) In responding to a pleading, a party must:

(A) state in short and plain terms its defensesto each claim asserted against it; &&(B) admit or deny the allegations assertedagainst it by an opposing party. Beeck v. Aquaslide 'N' Dive Corp.

(2) Responding to theSubstance. A denial mustfairly respond to thesubstance of the allegation.

Zielinski v. Philadelphia Piers, Inc.

(3)

A party that intends in good faith to denyALL the allegations of a pleading...may doso by a general denial.

A party that does not intend to deny allthe allegations must either specificallydeny designated allegations || generallydeny all except those specificallyadmitted.

(4)

A party that intends in good faith to denyonly part of an allegation must admit thepart that is true and deny the rest.

(5)

A party that lacks knowledge...sufficient toform a belief about the truth of anallegation must so state, and the

statement has the effect of a denial.

(6)

An allegation...is admitted if a responsivepleading is required and the allegation isnot denied.If a responsive pleading is not required,an allegation is considered denied oravoided.

8(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively

state any avoidance or affirmative defense, including: [specific examples](2) Mistaken Designation. If a party mistakenly designates a defenseas a counterclaim, or a counterclaim as a defense, the court must, if

justice requires, treat the pleading as though it were correctlydesignated, and may impose terms for doing so.

13 Counterclaims

R.13(a) provides that "a pleading muststate as a counterclaim any claim that thepleader has against an opposing party ifthe claim:

(A) arises out of the transaction oroccurrence that is the subject matter ofthe opposing party's claim

SMJ will be guaranteed under1367 Supp.Jur

AND

(B) does not require adding another partyover whom the court cannot acquire

jurisdiction

R. 13(b) provides that "a pleading maystate as a counterclaim against anopposing party any claim that is not

compulsory.

That claim must have its ownjurisdictional basis (PJ andSMJ).



16/32

Amendments

15(a)AmendmentsBeforeTrial.

(1) Amending as aMatter of Course. A partymay amend its pleadingonce as a matter ofcourse within:

(A) 21 days after serving it, or

(B) if the pleading is one to which aresponsive pleading is required, 21 daysafter service of a responsive pleading or21 days after service of a motion underRule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, aparty may amend its pleading only with theopposing partys written consent or the courtsleave. The court should freely give leave whenjustice so requires.

(3) Time to Respond. Unless the court orders otherwise,any required response to an amended pleading must bemade within the time remaining to respond to the originalpleading or within 14 days after service of the amendedpleading, whichever is later.

15(c) RelationBack ofAmendments.

(1) When anAmendmentRelates Back.An amendmentto a pleadingrelates back tothe date of theoriginalpleading when:

(A) the law that provides theapplicable statute oflimitations allows relationback;||

(B) the amendment assertsa claim or defense thatarose out of the conduct,

transaction, or occurrenceset out--or attempted to beset out--in the originalpleading; ||

(C) the amendment changes the party or thenaming of the party against whom a claim isasserted, if Rule 15(c)(1)(B) is satisfied and if,within the period provided by Rule 4(m) forserving the summons and complaint, theparty to be brought in by amendment:

(i) received such notice ofthe action that it will not beprejudiced in defending onthe merits; and

(ii) knew or should haveknown that the actionwould have beenbrought against it, but fora mistake concerningthe proper party'sidentity.



17/32

Kill Points

12(b)(6)

before the answer

in the answer

based only on the complaint

Failure to state a claimupon which relief can begranted

12(c)

After the answer

Pleadings only

Dispositive defense suchas statute of limitations

56

After close of discovery and before the start of trialpleadings, discovery materials, affidavits, and evidence

No genuine issue as to material fact

Adickes - material viewed in lightfavorable tot he nonmoving party

Celotex, Bias - party who has the burdenof proof at trial has the burden in asummary judgment motion; Burden on

the moving party may be discharged byshowing there is an absence of evidenceto support the nonmoving party's case;burden is then shifted to the nonmovingparty to produce the evidence.

50(a)

After a side has been fully heard

all evidence introduced during the trial

Same standard as 56; Anderson v. Liberty Lobby

No legally sufficient evidentiarybasis for the jury to find in favor ofthe party with the burden of proof.

50(b)

After verdict

all evidence from trial

Requires a 50(a) motion to have beenfiled before issue submitted to the jury

Requires clear breach of procedure orclear weight of evidence goes against theside that won

- - Mindjet


18/32

MULTIPLICITY


19/32

Joinder

28 U.S.C. 1367

When the original claim has jurisdiction under 1331

1367(a): the district courts shall havesupplemental jurisdiction over all otherclaims that are so related to claims in theaction within such original jurisdiction thatthey form part of the same case orcontroversy under Art. III. Supp. Jur. shallinclude claims that involve the joinder orintervention of additional parties

In an civil action of which the districtcourts have original jurisdiction foundedsolely on section 1332

1367(b): the district courts shall NOThave supplemental jurisdiction over

claims by Ps against: ::when exercisingsupplemental jurisdiction over suchclaims would [violate complete diversity orAIC].

persons made partiesunder R. 14, 19, 20, or 24

P cannot use Supp.Jur. to sue TPD; if notOrig.Jur., then it cannot be brought inFed.Ct., See, Owen Equipment & ErectionCo. v. Kroger .

Over claims by persons:

proposed to be joined as Ps under R. 19

seeking to intervene as Ps under R. 24.

District court maydecline to exerciseSupp.Jur if:

claim raises a novel or complex issue of State law See, Szendry-Ramos

claim substantially predominates over theclaim or claims over which the district

court has Orig.Jur.

Court has dismissed all claims over which it has Orig.Jur.

In exceptional circumstances, there areother compelling reasons for decliningjurisdiction.

Rules

R. 14

R. 18

R. 19

R. 20

05.0Joinder.mmap - 12/3/2010 - Mindjet


20/32

Required Joinder o f Parties

Required

R. 19(a) provides that:

A party

Subject to the court's PJ

and whose joinder would not disrupt SMJ

must be joined if:

19(a)(1)(A) in that person's absence, the

court cannot accord complete relief

Joint Tortfeasors are not such parties, seeTemple v. Synthes Corp.

19(a)(1)(B) thatperson claims aninterest relating tothe subject of theaction and is sosituated thatdisposing of theaction in theperson's absencemay:

19(a)(1)(B)(i) as a practical matter impairor impede the persons's ability to protectthe interest

An injunction preventing a party fromleasing to TP makes the TP required.See, Helzberg's Diamond Shops v. ValleyWest Des Moines Shopping Center .

19(a)(1)(B)(ii) leave an existing partysubject to a substantial risk ofincurring...inconsistent obligationsbecause of the interest.

Indispensable

R. 19(b)providesthat:

if a party required to be joined under R.19(a) who cannot be joined, the partymust determine whether in equity andgood conscience the action should

proceed among the existing parties or bedismissed.

Factors forconsiderationare:

19(b)(1) the extent to which a judgmentrendered in that person's absence mightprejudice that person or the existing

parties

Potentially inconsistent obligations of anexisting party do not make the TPindispensable. See, Helzberg's DiamondShops v. Valley West Des MoinesShopping Center .

19(b)(2) the extent to which any prejudicecould be lessened or avoided by:

A. protective provisions in the judgment

B. shaping the relief

C. other measures

19(b)(3) whether a judgment rendered inthe person's absence would be adequate

19(b)(4) whether the plaintiff would have

an adequate remedy if the action weredismissed for nonjoinder

05.1 Joinder Of Parties - Required.mmap - 12/3/2010 - Mindjet


21/32

Joinder OfParties

R 20 permiss ive joinder of parties

20(a)(1)Personsmay join as plaintiffsin one action if

They assert a right jointly severally or inthe alternative with respect to or arisingout of the same TorO or series oftransactions or occurrences

AND any question of law or fact commonto all plaintiffs will arise in the action.

20(2)(2) Persons may be joinedin one action as defendants if:

Any right is asserted against themjointly severally or in the alternative withrespect to or arising out of the same

TorO or series of transactions oroccurrences

AND any question oflaw or fact common toall defendants willarise in the action

Impleader: R. 14

14(a)(1) A D may as TPP, servea summons and complaint on anonparty who is or may be liableto it for all or part of the claimagainst the D. Must obtaincourt's leave if TPD is impledmore than 14 days after serviceof answer.

When such derivative liabilityexists will be a matter ofsubstantive law. See, Price v.CTB, Inc.

14(a)(2): The TPD

must assert its defenses under R. 12

against the TPPmust assert its counterclaims against theTPP under R. 13(a)

may assert against the P any defense thatthe TPP has to the P's claims

may also assert against the P any claimarising out of the transaction or

occurrence that is the subject matter ofthe P's claim against the TPP

R. 14(b) When a claimis asserted against a P,the P may bring in a TPif this rule would allow


22/32

Joinder of Claims

Counterclaims

Compulsory

R.13(a) provides that "apleading must state as acounterclaim any claim thatthe pleader has against anopposing party if the claim:

A: arises out of the

transaction oroccurrence that is thesubject matter of theopposing party's claim

See, Plant v. BlazerFinancial Services

Jurisdiction will be guaranteed

under 1367 Supp.Jur

AND

B: does not require addinganother party over whom thecourt cannot acquire jurisdiction

Permissive

R. 13(b) provides that "apleading may state as a

counterclaim against anopposing party any claimthat is not compulsory.

That claim must haveits own jurisdictionalbasis (PJ and SMJ).

Rule 18

Rule 18(a)

In general. A party asserting a claimcounterclaim, crossclaim, or TPclaim mayjoin [to the original claim] as independent

or alternative claims, as many claims as ithas against an opposing party.

One claim must have original jurisdictionor supplemental jurisdiction.

Then add'l claims may be joined to it

Then see if there is Orig.Jur. for the claim.

If not, see if there is Supp.Jur. for the claim

05.3 Joinder of Claims.mmap - 12/3/2010 - Mindjet


23/32

Res Judicata

BasisStates and the federal courts mustrespect other state judgments

Art IV sec. 1 provides that "Full Faith andCredit shall be given in each State to the... judicial Proceedings of every otherState."

28 U.S.C. sec. 1738 provides, in part, that"...judicial proceedings ...shall have thesame full faith and credit in every courtwithin the United States ...as they have bylaw or usage in the courts of such

State...from which they are taken."

Marrese v. American Academy ofOrthopaedic Surgeons, USSC held thatsec. 1738 requires district courts to applyres judicata law of the state that issued

the judgment in the first case.

Respect means apply res judicata law ofcourt that entered judgment #1

Semtek

10.0 Res Judicata.mmap - 12/3/2010 - Mindjet


24/32

Taylor v. Sturgell

Claim Preclusion:ThePlaintiff is barred from

relitigating

1. The same claim

'Claim:' Two main definitions:

Same common core ofoperative facts required toprove the c/a

See Restatement,First, of Judgments

All c/a arising from the sameTransaction or occurrence orseries of transactions oroccurrences

See Restatement,Second, of judgments

Followed by thefederal courts

see, e.g., Rush v. Cityof Maple Heights,

2.between thesame parties

Same parties ortheir privies,including

1.agreement by the parties to bebound by a prior action

2.

preexisting "substantive legalrelationships" such as preceding andsucceeding owners of property

3.adequate representation by someone withthe same interests who was a party

4. A party assuming control over prior litigation

5. A party relitigating through a proxy

6.

Special statutory schemes such asbankruptcy and probate proceedings,provided those proceedings comport withdue process

Partners in interest notprivies because they arenot successors in interest

see, e.g., Searle Bros. v. Searle

Separate people eachhave their own c/a.

10.1 Claim Preclusion - same claim same parties.mmap - 12/3/2010 - Mindjet


25/32

Claim Preclusion:ThePlaintiff is barred from

relitigating

after a valid

the second courtshould give ajudgment of a firstcourt only the validitythat courts in thejurisdiction of thefirst court would give

it; if they wouldignore it because ofa lack of SMJ, thenso should thesecond court

See, e.g., Gargallo v. Marrill Lynch,Pierce, Fennery, Smith , state court lackedsubject matter and its sister courtswouldn't have followed it, so district courtdid not have to give it preclusive effect.

final judgment

The finality of state court judgments, andhence their utility in precluding claims isdetermined by the state's practice. Someare valid upon entry by the trial court,some after review by the first appellatecourt, and some after review by the StateSupreme Court, or the expiration of timefor review by the same.

The judgments of the federal districtcourts are final upon entry and havepreclusive effect in all other federal courts.

on the merits

"on the merits":

RJMOL 50(b)

Jury verdict

JMOL 50(a)

Summ. judgment (56)

Dismissal for misbehavior duringdiscovery/other misbehavior (i.e. under R.11 or R. 37)

12c

12(b)(6), when it's with prejudice

Semtek says this is onl ypreclusive in the same District

Default judgment

Rule 41(b) on the merits meansw/prejudice which means on themerits.

Not "on the merits

12b1-5, and 7

12b6 when it's with leave to amend

When federal district court is sitting indiversity, its dismissal has only the samepreclusive effect that it would have if astate trial court would have, no more.

See, e.g., Semtek Intl Inc. v. LockheedMartin Corp. , dismissal w/prejudice of

state law claim by C.D. of CA b/c ofrunning of statute of limitations did notpreclude the from re-filing in MD.

10.2 Valid Final Judgment on the Merits.mmap - 12/3/2010 - Mindjet


26/32

IssuePreclusion

Requirements

1. actually litigatedLook at briefs, trial transcript

2. and determined,Look at judge's finding of fact

3.Essential tothe judgment

Jury =BlackBox

Jury found forparty -> allelementsprecluded

See, e.g., Illinois Central Gulf R.R. v.Parks, successfully precluded fromrelitigating issue of 's negligence

Jury foundagainst party ->no elementsprecluded

See, e.g., Illinois Central Gulf R.R. v.Parks, unable to preclude from suingon their negligence because 's loss inprior litigation did not necessarily showthat the issue sought to be precluded wasactually determined.

When the issue islogically necessaryfor the jury'sdecision, then it isessential to the

judgments

Multiplesufficientgrounds

1strestatement

all areprecluded

2nd

restatement

None areprecluded

unless affirmed on appeal

4. Valid

Just as in CP, the 2nd court need givepreclusive effect only to issues that the

jurisdiction of the 1st court would follow;may ignore those judgments that wouldbe ignored due to lack of jurisdiction.

5. Final

Just as in CP, the 2nd court need givepreclusive effect only to those issuessettled in matters final by the standards ofthe 1st court's jurisdiction.

By

A defendant may not utilize issuepreclusion against a party that has nothad it's day in court (with the usualexception for privies).

See, e.g., USSC's holding inBlonder-Tongue Laboratories, Inc. v.University of Illinois Foundation .

Offensive

mutual issuepreclusion

may be available in some cases wherethe plaintiff can litigate separate issuesfrom the same TorO or to prevent

relitigation of jurisdiction or venue...

non-mutualissuepreclusion

Mutualityabandoned?

In State Farm Fire & Casualty Co. v.Century Home Components , the courtheld that when two judgments in priorcases had favored the plaintiffs but one

judgement had favored the defendant, theinconsistency prevented allowingoffensive non-mutual issue preclusion as

to the issue of the defendant'snegligence.

In Parklane Hosiery Co. v. Shore , thedefendant was precluded from relitigatingthe issue of their fraudulent statements.They had a full and fair opportunity tolitigate the facts in the first suit with theSEC. They were fully aware of thesignificance of a loss and it is verycommon for private causes of action toarise after an SEC enforcement action.

the victim of preclusion must have had its day in court

10.3 Issue Preclusion.mmap - 12/3/2010 - Mindjet


27/32

ConstitutionalPhillipsPetroleum v.

Shutts

PJ

Power overplaintiffs

Court holds

there is adifferencebetween Dsand Ps

Ds are burdened

Ps in a class action are protected by judge

Must receive notice,opportunity to respondand/or opt out

Ps suffer nothing

attorneys fees

won't be deposed

little to no discovery burden

Notice

Statutory

23(c)(2)B: mandatory notice + opt out for 23(b)(3)

Requires individual notice

For b1 & b2

a civil rights class action; no noticebecause if an individual sues andconsequences are the same

23d1b

appropriate notice to some or all classmember as the court deems

23e1 Notice before settlement

Constitutional

Shutts

Notice and opt out is sufficient Is it necessary?

Those who could not be reached Excluded from class

Mullane

Those who could not be reached includedin class because their interests wererepresented

Standard: notice reasonably calculated toapprise interested parties of the pendencyof the action

Remember: laws come from a bunch of places make sure you satisfy them all

12.4 Class Actions - Constitutionality- Jurisdiction.mmap - 12/3/2010 - Mindjet


28/32

StatutorySMJ

1331

federal questions are federal questions,no SMJ problem

1332

Complete diversityRequired only for thenamed classrepresentatives.Supreme Tribe of Ben-Hur v. Cauble

AIC

Onlyrepresentative(s)need tosatisfy AIC,

2005 Exxon Mobil Corp. v.Allapattah Services, Inc.

Unit of analysisis the claim

If the court has original jurisdiction over asingle claim in the complaint, it hasoriginal jurisdiction over a civil actionwithin the meaning of 1367(a)

Incomplete diversity destroys originaljurisdiction with respect to all claims

AIC is notimportant

A failure of complete diversity, unlike thefailure of some claims to meet therequisite amount in controversy,contaminates every claim in the action

Held, that 1367 overruledZahn and Clark

12.4 Class Actions - Constitutionality- Jurisdiction.mmap - 12/3/2010 - Mindjet


29/32

23(b) Types of Class Actions

When individual prosecutionswill create a risk of:

23(b)(1)(A): Inconsistent injunctions"inconsistent or varying adjudications" thatwould "establish incompatible standards

of conduct for the party opposing theclass"

23(b)(1)(B): Adjudications with respect toindividual class members that, as apractical matter, would be dispositive ofthe interests of other members not partiesto the individual adjudications or wouldsubstantially impair or impede their ability

to protect their interests

23(b)(2): the party opposing the class hasacted or refused to act on grounds thatapply generally to the class, so that finalinjunctive relief or correspondingdeclaratory relief is appropriate respectingthe class as a whole

Think civil rights class actions for primarilyinjunctive relief; see, Communities forEquity v. Michigan High School Athletic

Assn.

23(b)(3): Court finds that the questions oflaw or fact common to class members

predominate over any questions affectingonly individual members and that a classaction is superior to other availablemethods for fairly and efficientlyadjudicating the controversy.

The matterspertinent to thefinding include:

the class members' interests inindividually controlling the prosecution ordefense of separate actions

the extent and nature of any litigationconcerning the controversy already begunby or against class members

the desirability or undesirability ofconcentrating the litigation of the claims ina particular forum

the likely difficulties in managing a class action

Too many individual findings of fact wouldmake this a no-go, see Heaven v. TrustCompany Bank .

12.2 Class Actions - Types.mmap - 12/3/2010 - Mindjet


30/32

23(a) Prerequisites

Numerous Thousands is OK

Common questions of law or fact

Typical Representatives

The similarities between the class repsand the class members must outweighthe differences; the representatives mustall possess the characteristic that makesthe class common. See, Communities forEquity v. Michigan High School Athletic

Assn.

AdequacyRepresentatives

Will be likely to vigorously prosecute ontheir own behalf and on behalf of theunnamed Ps. See, Communities forEquity v. Michigan High School Athletic

Assn.

It violates the 14th Amendment to berepresented inadequately by a class.Hansberry v. Lee

Attorneys

Are competent to represent the namedand unnamed Ps.

12.1 Class Actions - Prerequisites.mmap - 12/3/2010 - Mindjet


31/32

Adequacy ofrepresentation in a prior

suit

Hansberry v. Lee

P in suit 2 is trying to apply IP against Ds

Hansberrys never had day in court

Plaintiff contends that Suit 1 was a class actionIL supreme court held that this was so

IL Supreme Court

Were Hansberrys &sellers members of thatsupposed class

No, didn't own property;couldn't be members of class What about seller?

Even if it were a class,who representedHansberrys' interests? no one

Was suit 1 a class action?

No, D's in first suit wereindividuals, notstructured as a classaction

Created individualobligations, not jointobligations

No class; no preclusion

Can USSC Reverse?

Why doesn't itsimply reverseand say itwasn't a class

State law meanswhat state courtssay it means

Constitutionmeans whatUSSC says itmeans.

Yes, because it canget down to basicsand say the classformation violateddue process (14thAmendment)

taking away"right to sue"w/o dueprocess

It violates the 14th Amendment to berepresented inadequately by a class.Hansberry v. Lee

previous parties in "class action" didn'tshare interests with Hansberrys

12.3 Class Actions - Constitutionality- Adequacy.mmap - 12/3/2010 - Mindjet


32/32

apply both

Apparently anti-SLAP is ok in fed. dist. ct.

State substantive law and federal procedure

App ly Federal Law

Choice of Law

SynthesisCollision in State & federal law

No

yes, classify law

Federal Judge made law

Look to Guaranty Trust; Byrd; and Hanna

Forum shopping

Uniform application of the laws

Federal interest

Internal surrender provision

Avoid forum shopping andinequitable administration of thelawsHanna

outcome determinative

Federal Interests

Federal Law

US Const.

Federal Statute

if (c)al

FRCP

if (c)al and w/in limitsof 28 USC 2072

Federal cour t

state substantive claimin diversity

or supplemental

AND federal court practice differsfrom state court practice

What are collisions

murkyBurlington North R. v. Woods

Stewart Org. v. Ricoh

11.1 Choice of Law.mmap - 12/3/2010 - Mindjet

civpro kang fall 2010

Documents