Civil Procedure Barbri Lecture Notes

12 Sections to our Outline:

1. Personal Jurisdiction (P.J.)
2. Notice
3. Subject Matter Jurisdiction (S.M.J.)
4. Venue
5. Erie Doctrine
6. Pleadings
7. Joinder
8. Discovery
9. Pre-Trial Adjudication
10. Trial
11. Appeals
12. Claim and Issue Preclusion

I. Personal Jurisdiction

Asks one question: In what states can the plaintiff sue the defendant?
Whether we end up in state court or federal court, the court must have power over
something. Only two things a court can have power over in personal jurisdiction:
o Power over the defendant himself
o Power over the defendants property
Three Kinds of P.J.
o In Personam
Court has power over the defendant himself
o In Rem
Court has power over the defendants property
o Quasi-in-rem (QIR)
Court has power over the defendants property
How do we know whether the court has power?
o The due process clauses of the Constitution set the outer boundaries
o Due process clauses tell the courts how far they can go
o Our case must fall within the due process circle in order to be constitutional
The state has to have a statute that grants P.J. in the certain case
o First step is to look for a statute! Does a statute allow for personal
jurisdiction?
If the answer is no, then there is no P.J.
If the answer is yet, then we look at whether the case is constitutional

Section A. In Personam
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Power over the defendant

General vs. Specific:
General Jurisdiction:
o The defendant can be sued in the forum for something that occurred anywhere
in the world
Specific Jurisdiction
o Youre being sued for something that happened in the forum

The Constitutional Limit

Pennoyer
o Gives us the traditional basis of In Personam Jurisdiction:
Defendant is served with process in the forum
Defendants agent was served in the forum
Defendant is domiciled in the forum
Consent
o This became a huge problem because you could easily leave the forum and get
away from the suit
o Hess vs. Palowski 1927
Pennsylvania citizen drives to Mass.
Gets in car accident
Plaintiff wants to sue in Mass.
Defendant got out of the state back to PA.
Nevertheless, jurisdiction was upheld under the Non-Resident Motorist
Act
Every single state has a Non-Resident Motorist Act! Its still good law!
NRMA By driving your car in our state, you consent to jurisdiction for
automobile wrecks. If you drive in our state, and you have a wreck, youve
consented to jurisdiction, AND you have appointed a state official as your
agent for service.
This case expands consent to implied consent
Expands the idea of having an agent, to giving you an agent
Every time you drive over a state line, you are consenting and
receiving a state agent
o International Shoe 1945
The court gives us a new formula
We have jurisdiction is the defendant has such minimum contacts with the
forum so that jurisdiction does not offend traditional notions of fair play
and substantial justice
What does this even mean?
Three important things from this case:
By 1945 it is clear that we can serve process outside the forum
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 That test seems to have two parts. A contact part, and a fairness part.
It does not overrule Pennoyer. It is an alternative to Pennoyer.
o McGee 1957
It upholds jurisdiction in California over a Texas insurance company
It was based on only one contract of insurance
The court emphasized that the Texas company had solicited its business
The court also emphasized the states interest in provided justice for its
residents
o Hanson v. Denckla 1958
This now starts to cut back on jurisdiction
Hanson says that under International Shoe, the contact must result from
defendants purposeful availment. This means the defendants voluntary
act. The contact cannot be an accident
In Hanson, they held that Florida had no jurisdiction over a Delaware bank
The Delaware bank had done some transactions with a Floridian, but
this was just because a Pennsylvania lady moved to Florida
o World Wide VW 1980
New York family decides to move to Arizona
They buy a car in NY, drive towards AZ, but never get there
They have a horrible car accident, get injured badly, and sue on Oklahoma
The Supreme Court says there is no jurisdiction in OK over the NY
retailer or the NY distributor. There was no purposeful availment
The defendants did not send the car there. They didnt reach out to
Oklahoma. The car got there because the defendants drove it there (third
party unilateral act).
Surprising outcome because its foreseeable that the car could end up there
The court says that foreseeability is relavent, but its not foreseeability
that the product could get there
The court says it must be foreseeable that the defendant could get sued
in that forum. Here they said its not foreseeable that the defendant
could get sued in Oklahoma
This doesnt make sense If its foreseeable that your product might
get there, isnt it foreseeable that you could get sued there?
o Burger King 1985
A contract case in Florida
Burger King sues two little Michigan guys in Miami
BK wants to sue in their home town
The court says there is jurisdiction in Florida over these Michigan guys
Emphasize these things:

 The court makes it clear that there are two parts to International Shoe
A contact part, and a fairness part
You must have a relevant contact before fairness becomes a relevant
factor at all. This means it could be the fairest and most convenient
forum in the world, but you do not get jurisdiction unless there is a
contact
The contact in this case was easy. The MI guys entered a 20 year deal
with the guys in FL
They argue its not fair The court made it clear there is a difficult
burden on the defendant if theyre going to argue fairness.
If the defendant is going to argue fairness, the defendant must
show that the forum is so gravely inconvenient, that shes at a
severe disadvantage in the litigation
Its almost impossible to show this
o Asahi Metal Industry Co. v. Superior Court 1987
Classic stream of commerce case
EXAMPLE:
I make some component (lets say valves) in State A
I sell them to a widget manufacturer in State B
The widget manufacturer in State B takes my valves, puts them in their
widgets, makes the product, and then markets the final product in
States C, D, and E
My valves get to States C, D, and E; but I did not send them there
I sent them only to the widget manufacturer in State B
My valve explodes in States C, D, or E.
They want to sue me in State C, D, or E.
Do I have a relevant contact in State C, D, or E?
Assahi gives us no law
Two Theories:
The Brennan Theory Says theres a contact if I put the product into
the stream and reasonably anticipate that it will get to State C, D, or E.
I would reasonably anticipate that State B would sell them to state C,
D, or E. It makes sense because I know there is a market for my
product
The OConnor Theory Says you need more than that. You need what
Brennan said, plus an intent to serve States C, D, or E. Maybe I
advertised there, or maybe I had some sort of consumer service there.
Without this, its just a unilateral act of a third party
o McIntyre 2011
We think were going to get a law, but we get an even worse split
There is an English company that manufactures huge metal sheering
machines for scrap metal shops

The English company sells them to a company in Ohio

The Ohio company then sells them to states around the United States
One gets sold in New Jersey
The plaintiff gets injured while working this machine and sues the English
company in NJ
4 Justices adopt the OConnor Test
2 Justices say they arent going to take sides
3 Justices would have upheld jurisdiction basically by the Brennan
Theory
We STILL have no idea what the law is

o Burnham v. Superior Court- 1990

New Jersey citizen sued in California for a claim that arose in NJ
This only works if California has General Jurisdiction
The defendant was served with process in California
Question: Does the traditional basis under Pennoyer of service of process
in the forum; is that good by itself?
Justices Split 4 vs. 4
Scalia Theory Presence when youre served is good by itself. The
traditional basis under Pennoyer is still good by itself
Brennan Theory Said you must meet International Shoe for every
case.
o Goodyear 2011
Supreme Court unanimously talked about General Jurisdiction and
rejected G.J. in North Carolina
The Court appeared to give us an even tougher test than the Continuous
and Systematic Test
They say you have to show that the defendant is "essentially at home
in the forum.
They said for a human being, its where it is domicile
They said for a business it would be where it is formed, and where it
has its principal place of business
Suggests that general jurisdiction cannot be based on purchases and sales
Must have some physical presence there, but nobody knows how much
In the Constitutional Test (Due Process):
o First thing to discuss is whether there is a traditional basis test.
Is there a Pennoyer test for example?
Talk about the Burnham split
o If no Traditional Basis Test, then apply international shoe
How do we apply International Shoe?
o (1) There must be a relevant contact between the defendant and the forum
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o Two factors to look at:

Defendant must have availed (reached out) herself in some way. Must
have reached out. This cannot be an accident. It has to be her purposefully
reaching out.
Must be foreseeable that the defendant could get sued in that forum
o (2) If we have a Relative Contact, then assess whether this is General or
Specific
This issue of relatedness.
We have to ask one question: Does the plaintiffs claim arise from the
defendants contact with the forum? If yes, then it is specific jurisdiction.
If no, then its only ok if we have general in personam jurisdiction. The
defendant must have continuous systematic ties with the forum, and now
because of Goodyear, the defendant must be essentially at home in the
forum.
o (3) Assess whether jurisdiction is fair
The burden is on the defendant to show that it is gravely inconvenient
Five Fairness Factors
Inconvenience for the defendant and his witnesses (In Burger King
they made the little guys travel, so this is difficult)
The forum states interest (McGee upheld jurisdiction because
California had an interest in providing justice for its people who were
ripped off by out-of-staters)
The plaintiffs interest (Plaintiff may have an interest in litigating here
because he might be injured and cannot travel, for example)
The legal systems interest in efficiency
Shared substantive policies
The Statutory Inquiry (Long Arm Statutes)
o There must be a statute that allows the exercise of General In Personam
Jurisdiction
o Every state has statutes
o Every state also has a long arm statute
Long arms always are going after a non-resident, and theyre almost
always specific jurisdiction
They come in two varieties
California Long Arm Says we have jurisdiction to the full extent of
the Constitution (This kind of statute is very easy)
Laundry List Long Arm Lists various things that a defendant can do
to subject himself to jurisdiction
The key here is to look at the language. It varies so you have to be
careful
Courts interpret the same language in different ways

Hypo:

Plaintiff lives in Maryland

One day plaintiff drives over to Virginia
While in Virginia, Plaintiff sees a clock shop owned by Uncle Joe
He goes inside and buys a clock
He takes it back to Maryland, and puts it on his wall
One day while hes there, the spring on the coo coo clock bird breaks and the
bird shoots out at him and injures him
o Plaintiff sues owner of clock shop in Maryland
o Is there In Personam jurisdiction in Maryland?
First thing we do is look for a statute. Does a Maryland statute allow
jurisdiction here? Look for a Long Arm Statute. What if the statute says
there is jurisdiction if the non-resident committed a tort in Maryland.
Some people will argue yes, some will argue no.
Constitutional analysis There is no Traditional Basis from Pennoyer here,
so we have to go with the International Shoe test
Is there a relevant contact between Uncle Joe and Maryland
Did Uncle Joe reach out to Maryland in some way? There has to be
purposeful availment!
You need purposeful availment. What if the clock shop is just over the
boarder? What if Uncle Joe advertises in Maryland? What if Uncle Joe
says he has lots of customers in Maryland?
Is it foreseeable?
Not just that the product would get to Maryland, but also that
Uncle Joe would get sued in Maryland.
What about relatedness?
Does the plaintiffs claim arise from the defendants contact?
What about fairness factors? The defendant has a huge burden here.
Defendant has to show that hes at a severe disadvantage
What about inconveniences for Uncle Joe and his witnesses? There
is no way this is inconvenient because its a neighboring state
The states interest
The plaintiffs interest
Efficiency
Shared substantive policies
o
o
o
o
o
o

Section B. In Rem & Quasi-In-Rem

Jurisdiction is over the defendants property

We would always rather have In Personam, but we can always try In Rem or
Quasi-In-Rem if not
The property doesnt have to be land. It can be a car, a bank account, a watch, etc.
In Rem vs. Quasi-In-Rem
o In Rem
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 Suit is about who owns the property

The whole point of the lawsuit is to figure out who owns the property
o Quasi-In-Rem
The dispute has nothing to do with ownership of the property
It is a claim unrelated to the ownership
Great example is in Pennoyer with Mitchell v. Neff
The holding in Pennoyer is that the court has to attach the property at
the outset of the case

How do we handle these today?

o We need an Attachment Statute (Not a Long Arm!)
It says that the court can attach a property that the defendant owns or
claims to own
o Go to the Constitutional Test
Pennoyer said property has to be attached at the outset
Schaffer 1977
Held that, along with the property being attached at the outset, the
defendant meets the International Shoe test
Basically the same as the In Personam Constitutional Test

II. Notice
Section A. Service of Process
Governed in Court by Rule 4
Rules for Service of Process
1. Process consists of a summons and a copy of the complaint
2. Service can be made by any non-party who is at least 18 years old
3. Rule 4-E(2) Gives you three choices on how to serve a human being
o Personal Service Walk up and hand over the documents
o Substituted Service It must be at the defendants usual abode (common
sense) and you must serve someone of suitable age and discretion who resides
there.
o Service on an Agent you may serve the defendants agent.
Rule 4-E(1) You may use state law methods for serving process
4. Service of Process on a business Rule 4-H(1)
o You can serve an officer or managing or general agent
o Rule 4E(1) applies here as well. We can use state law methods as well.
5. Waver of Service by mail under Rule 4-D
o You mail to a defendant the process and two copies of a waiver form, along
with a self-addressed envelope
o Within 30 days, the defendant signs the waiver form and mails it back to you
o Through that, the defendant waives formal service notice
o If the defendant does not do so, and doesnt have a reason for not doing so,
then she will pay for the cost of service for the serve of process
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Section B. The Constitutional Standard

Mullane v. The Central Hanover Bank 1950
o Notice must be reasonably calculated under all the circumstances to apprise
the party of the proceeding
o Actual Notice is not required
Jones v. Flowers 2006
o If the plaintiff becomes aware of a lack of actual notice, then you might have
to try another method
III. Subject Matter Jurisdiction (S.M.J.)

What court do we go to?

Do we go to state court or do we go to federal court?
P.J. is over Parties, while S.M.J. is over Cases and Claims
Federal Courts can only hear certain kinds of cases (limited S.M.J.)
You cannot go to Federal Court unless you meet either Diversity of Citizenship,
or Federal Question
State Courts can hear anything (General S.M.J.)

Section A. Diversity of Citizenship

Section 1332 A(1) of the Judicial Code
When were talking about four digit numbers, this is not a federal rule. This is a
statute passed by Congress.
Two Requirements for Diversity of Citizenship:
o The case is between citizens of different states, and
o The amount in controversy exceeds $75,000
Sub-Section 1. Citizens of Different States
o Complete Diversity Rule Always start with this
There is no diversity if any plaintiff is a citizen of the same state as any
defendant.
o Citizenship of a Human Being
A U.S. citizen is a citizen of the state where Domicile.
You have ONE domicile at a time. You can only be a citizen of ONE state.
You only have one, and you retain it until you change it
How do you change your domicile?
You have to have physical presence
You have to have the intent to make it your home for the future
o Citizenship of a Corporation
1332 C(1) says a Corporation is a citizen of states where incorporated,
and the state of its principal state of business
Technically a corporation can incorporate in more than one state
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How do we determine a corporations Principal Place of Business? The

Supreme Court brought us a decision in the case Hertz
The P.P.B. is the place where managers direct, control, and coordinate
corporate activities (The Nerve Center)
o Citizenship of Unincorporated Businesses (partnerships, LLCs, etc)
They are citizens of the states where their members are citizens
They can be a citizen of all 50 states potentially

Sub-Section 2. Amount in Controversy

o The Amount must EXCEED $75,000. Must be at least $75,000.01
o Aggregation
Where we must add multiple claims to get over $75,000
Rule We aggregate the plaintiffs claims if its one plaintiff vs. one
defendant
The claims do not have to be related at all!
If we have one plaintiff bringing in two claims (one for $40,000 and
one for $50,000), we aggregate the claims
You cannot aggregate if there are multiple parties on either side!
o With Joint Claims, you use the total value of the claim, and here the number
of parties is irrelevant
Aggregation rules dont matter with joint claims
Section B. Federal Question Jurisdiction
The other big way to get into Federal Court
Section 1331 Citizenship is irrelevant and there is no amount requirement, as
long as it is a federal question. We need a case that arises under Federal Law
o Well Pleaded Complaint Rule Motley Case
To figure out if this is a FQ case, we look only at the complaint, and when
looking at the complaint, look only at the claim itself. Ignore everything
else.
Is the Plaintiff enforcing a federal right?
o Motley Case
Married Couple (Motleys) had lifetime tickets on the railroad, and then
Congress passed a law saying that railroads cannot give away free passes.
Motleys show up one day wanting to use their passes, and the railroad said
no, there is a federal law that says no.
Motleys sue, saying (1) the railroad is breaching the contract, and (2) that
the federal law does not apply to them (On the face of this complaint, they
talk about federal law. BUT this cannot go to federal court! Only number 1
is the claim! Number 2 is anticipation to a defense!)
It must go to a state court

EVERY SINGLE CLAIM has to have Subject Matter Jurisdiction (Diversity or

Federal Question). Not just the original claim that got the case into the Court.

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What happens if we have a claim that does NOT meet Diversity or FQ? This is
when we talk about Supplemental Jurisdiction

Section C. Supplemental Jurisdiction

What happens when we have a claim that does not meet Diversity or FQ?
Thats when we look at Supplemental Jurisdiction
Section 1367 in the Judicial Code
Supplemental Jurisdiction gets non-federal, non-diversity claims into federal
court.
The case must have originally met diversity or FQ.
This is for an additional claim.
o Mine Workers v. Gibbs - 1966
Involved coal mines with one plaintiff and one defendant
Plaintiff asserted two claims against the defendant
P (TN)
Claim 1 FQ Violation of Federal Labor Law (Gets the case into
federal court)
Claim 2 State Law This does not invoke federal question because
its based on state law. It does not invoke diversity because it is TN v.
TN.
D (TN)
The Supreme Court said that a federal court can hear claim 2 if its part of
the same case or controversy as claim 1.
It said that Claim 2 would be all right if it shares a common nucleus
of operative fact with Claim 1.
Two Steps to ask
o Does 1367A grant supplemental jurisdiction over this claim?
Yes, if it meets Gibbs. If it shares a common nucleus of operative fact.
o Does 1367B take away supplemental jurisdiction here?
1367B applies only in diversity cases. Never in FQ cases.
1367B takes away supplemental jurisdiction only over certain claims by
plaintiffs; not by defendants.
Section D. Removal
The defendant transfers (Removal) the case from state court to federal court
Removal is a one-way street. It only goes from the state court to the federal court.
Remand If the case does not belong in federal court, then the federal court with
remand (send it back) to state court
In order to remove, the defendant files a Notice of Removal
Rules:
o The case is removable if it meets Federal SMJ. (It does meet Diversity or FQ)
o There is an Exception in Diversity Cases ONLY!

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 No removal if any defendant is a citizen of the forum.

o You must remove within 30 days after service of process
o All defendants who have been served must join the notice of removal
o The 30 days starts again for newly served defendants
IV. Venue

S.M.J. tells us that we can go to federal court

Venue tells us exactly which federal court
o Places the case in the proper district

Section A. Plaintiffs Choices

1391B(1&2) Gives us Two Basic Choices
o We can lay venue in any district where ALL defendants RESIDE.
Special Rule If all defendants reside in different districts of the same
state, we may sue them in a district where any one of them resides.
A human being Resides in the district where domicile
A business Resides in all districts where it is subject to P.J.
o We can lay venue in any district where a substantial part of the claim arose.
Section B. Transfer of Venue
Technically, when we use the word Transfer, we are going from one court to
another in the same judicial system (Example: one federal court to another federal
court).
The Original Federal Court is called the Transferor, and the one to which we
transfer is called the Transferee (From the Transferor, to the Transferee).
Two Transfer Statutes
o 1404 and 1406
Under both statutes, the Transferee must be a Proper Venue and have P.J.
over the defendant.
A very slight Exception: The court can order a 1404 transfer to any
district if all parties agree.
1404
The Transferor is a Proper Venue
Tells us we can transfer in the interest of convenience and the interest
of justice
1406
The Transferor is an Improper Venue
We can transfer in the interest of justice, or dismiss
Section C. Forum Non-Convenience (F.N.C.)
This is where a Court Dismisses because there is a much more appropriate court
somewhere else
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Why would we do this?

o The more appropriate court is in a different judicial system, therefor we
cannot transfer
o This usually comes about when the more appropriate court is in another
country
Piper Aircraft vs. Raino
o Plane crash in Scotland
o All the decedents were Scottish, but the plane was manufactured in the U.S.
o We had litigation in a federal court in Pennsylvania
o The court said it must be dismissed and litigated in Scotland
Footnote 6 of the Piper case lists the factors
Note: That other court must be adequate.

V. The Erie Doctrine

Federal Court under Diversity Jurisdiction. Rarely does it ever come up in FQ.
There is an issue that the federal judge must decide, and the question for us is, in
deciding that issue, must the judge follow state law (Erie Question)? Or can she
do her own thing?
Black Letter Answer:
o Erie says:
In a Diversity Case, the Federal Court must apply State Substantive Law
If this issue is a matter of Substantive Law, then the federal court is
going to follow State Law
Erie said that this result is commanded by:
The Rules of Decision Act (RDA) Section 1652
The Constitution of the United States The 10th Amendment
The Elements of a claim are substantive and must be followed by state law
What if its not so clear? Statute of Limitations, Burden of Proof, etc.
The Starting Point is The Hannah Prong
ALWAYS START WITH HANNAH!
How to Approach this!
o Hannah v. Plummer
Is there a Federal Directive (Federal Rule) on point? If so, you apply the
Federal Directive. The Hannah Prong!
If there is an F.R.C.P., then we dont need to do any Erie Analysis
All you have to show for an F.R.C.P. to be valid is show that it is
arguably procedural
No F.R.C.P. has ever been held as invalid, and they never will be
What happens if there is no Federal Directive on point? Then we go to
Erie! The Erie Prong!
If this issue is a matter of Substantive Law, then the federal court must
follow State Law
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 How do we figure out if it is Substantive?

Here are three tests:
o Outcome Determinative
Guarantee Trust v. York
The Supreme Court said that the statute of limitations must be followed
because it is Outcome Determinative because:
If you apply the State Law, the case is dismissed now. If you ignore the
State Law, the case goes forward. This is a different outcome. We cannot
have a different outcome, therefor we apply the State Law
o Balance the Interests
Bird v. Blue Ridge 1958
State Law that said the judge is to decide on a certain issue
In deciding whether you have to follow State Law, lets weigh the State
System interest against the Federal System interest.
o Twin Aims of Erie
To Avoid Forum Shopping, and The Inequitable Administration of the Law
If the federal judge ignores this State Law, will it cause parties to flock
to Federal Court? If so, we do not like that; so we should follow the
State Law.

VI. Pleadings

Documents you file with the court

Section A. The Complaint

The Plaintiffs pleading, which starts a case as soon as she files this with the court
Rule 8A tells us we need three things in the complaint:
o Statement of S.M.J.
o This is in order to show the federal court why we are there
o A short and plain statement of the claim
o This is the most important and gives us the most problems
o A demand for relief
Federal courts always tried to avoid talking about facts (you used to only have to
put the other side on notice), but this changed with the following cases:
o Twombli and Ickbol (together, Twickbol) gave us the following Rules:
The court ignores conclusions of law, and looks only at alleged facts
The plaintiff must plead facts supporting a plausible (not just possible)
claim
The court will use its experience and common sense to decide if the claim
is plausible (this is very subjective)
Some Exceptions where you have to give even more detail:
o Rules 9B and 9G

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If youre going to allege fraud or mistake (9B), or special damages (9G);

you have to give detail and particularity/specificity (Chapter & Verse,
how, why, when)
o The best example of this is fraud (you must give detail). You
cannot simply say, the defendant defrauded me.

Section B. The Defendants Response

Rule 12:
o When you get sued, you must respond within 21 days after service of process
If you do not do this, you risk default.
o How do you respond? Either by Motion, or by Answer:
By Motion
A request for a Court Order (This is NOT a pleading)
Rule 12 flags certain Motions:
12E Motion for more definite statement
12F Motion to strike (Asks to strike out parts of the pleading)
12B Lists 7 defenses (These can be raised by Motion or Answer)
12B(1) S.M.J.
12B(2) P.J.
12B(3) Venue
12B(4) Insufficient Process (problem with a document)
12B(5) Insufficient Service of Process
12B(6) Failure to state a claim
12B(7) Failure to Join an Indispensible Party
12G&H Impose strict rules about waiver
12B 2,3,4, and 5 MUST be put in your FIRST rule 12 response
(the waive-able defenses)
12B 6 and 7 can be raised for the first time any time through
trial (Cannot be raised on appeal though)
12B(1) can be raised any time in the case (even on appeal)
Hypo:
P sues D
o Defendant files motion for insufficient service of
process 12(B)(5)
Court Denies
o Defendant now has to file an answer
In her answer, she says there is no personal
jurisdiction
12B(2) P.J. needs to be raised in the
FIRST Rule 12 response!
She waved her right to challenge this
By Answer
A pleading
Always do two things in the answer:
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 Rule 8B You must respond to the complaint. Three possible

responses:
Admit
Deny (failure to deny is an admission, on anything except
damages)
Say you do not know
o Rule 8(b)(5)
o You need to be careful with this third response
o You cannot say that you do not know, if it is a matter
that you control
You cannot say, I dont know, but the answer is
in that filing cabinet.
It cant be in your control
Raise affirmative defenses
Rule 8C(1) List of affirmative defenses
An affirmative defense injects a new fact. The defendant is
raising something new (a denial does not raise a new fact. A
denial simply denies what has been said).
o Affirmative Defenses Examples:
Statute of Limitations
Statute of Frauds
Race Judicata
You must plead affirmative defenses. If you dont raise your
affirmative defense, youre going to waive them.

VII. Joinder

Determine the scope of the litigation

How big can a case be? How many parties, how many claims?
These are rules that are important not only on their own, but they are also a way to
test S.M.J. because every single claim in Court must be tested for S.M.J.

Section A. Claim Joinder by the Plaintiff

Rule 18A The plaintiff can assert ANY claims against the defendant
o You can raise as many claims as you want in a single case. They dont have to
be related at all.
o After bringing up the claims, you have to assess S.M.J. (Diversity, F.Q.,
Supplemental)
Section B. Claim Joinder by the Defendant
Here the defendant is asserting a claim
Two claims here:
o Subsection 1 Counter Claim
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Rules 13A&B A claim against an opposing party (a claim against

someone who sued you).
File the counter claim with the Answer
Two kinds of counter claims:
Compulsory Counter Claim Rule 13A(1)
Arises from the same transaction or occurrence (T/O) as the
plaintiffs claim
It MUST be asserted in this pending case. If you dont assert it
here, you have waived it forever!!!
This is the only compulsory claim in the world that you must assert
in the pending case
Permissive Counter Claim Rule 13B
Does not arise from the same T/O as the plaintiffs claim
You may assert it here, but you do not have to
For every claim, we must assess S.M.J.!
o Diversity
Must exceed $75,000
o Federal Question
o If neither of these work, we assess for supplemental jurisdiction
HYPO:
P(NY) and D(FL) - $100,000 claim
D asserts a compulsory counter claim back at P, for $90,000
o SMJ
Does this Compulsory counterclaim invoke diversity?
Yes, the Compulsory Counter claim has
diversity! (Its by a FL vs. NY citizen, and
exceeds $75,000)
Another HYPO
P(NY) and D(FL) - $100,000 claim
D asserts a compulsory counter claim back at P for $45,000
o Compulsory counter claim fails to invoke diversity (it does not
exceed $75,000). It also fails to invoke FQ (nothing federal
about a car wreck).
We must try Supplemental Jurisdiction.
Does 1367A grant Supplemental Jurisdiction over this
claim? Yes, as long as it meets the Common Nucleus of
Operative Fact (Gibbs). Transaction or Occurrence
(Compulsory Counterclaim) always meets 1367A
A Compulsory Counter Claim ALWAYS
invokes Supplemental Jurisdiction!
Does 1367B take away supplemental jurisdiction? No,
because it only takes claims away from plaintiffs!
1367B never kills supplemental jurisdiction
with defendants!
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o Subsection 2 Cross Claim Rule 13G

A claim against a co-party
It must arise from the same transaction or occurrence as the underlying
case
These are never compulsory! No such thing as a compulsory cross claim!
(You may assert it here, but you do not have to).
Hypo:
Plaintiff A(AL) and two defendants B(NY) and C(NY)
o It was a three way car wreck
o Every claim exceeds $75,000
o No federal question (its a car wreck)
Invokes Diversity Jurisdiction (AL vs. NY, and exceeds 75,000)
We represent C
C must file a compulsory counter claim against A! (Have to then
address S.M.J. It invokes Diversity NY vs. AL, and 75,000.)
C may file a cross claim against B. Must address S.M.J. In this
cross claim, theres no diversity (NY v. NY) and there is no FQ.
Supplemental Jurisdiction: Yes, cross claims always meets
supplemental jurisdiction (Same transaction or occurrence). Does
1367B take away supplemental jurisdiction? No, only takes away
claims from the plaintiff!
Section C. Proper Parties
Rule 20A
Question of who may be joined
Rule 20 is a tool for the plaintiff
o The plaintiff may decide he wants multiple parties
o Rule 20A(1) The Test for Co-Plaintiffs
We can have co-plaintiffs if:
Our claims arise from the same transaction or occurrence (t/o), and
Our claims raise at least one common question
o Rule 20A(2) The Test for Co-Defendants
We can have co-defendants if:
Claims arise from same T/O
At least one common question
Look at S.M.J. Does it invoke Diversity or FQ? Supplemental?
Section D. Necessary and Indispensible Parties
Rule 19
This is who MUST be joined
Sometime the court will force the joinder of the Absentee (A) Party
Three Steps to Rule 19:
o Is A (absentee) necessary (required)? Rule 19A(1)

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Yes, if he meets any of three tests:

Rule 19A(1)(a) Without A, the court cannot accord complete relief
among the parties. This is to avoid multiple litigation
Rule 19A(1)(b)(1) As interest may be harmed if she is not joined
(this is the most important test).
Rule 19A(1)(b)(2) As interest may subject the defendant to multiple
or inconsistent obligations. This is looking at the defendant, not the
absentee.
o Is Joinder of the Absentee feasible?
Two Tests:
Do we have Personal Jurisdiction over her?
Subject Matter Jurisdiction? Does bringing her in mess up Diversity?
o What if the absentee is necessary, but it is not feasible: Rule 19B
The court either:
Proceeds without the absentee, or
The court dismisses the case
Rarely dismiss, unless there is some court where everyone can sue
o If the court dismisses, will the plaintiff have an adequate
remedy?
If we do dismiss, we call the absentee INDISPENSIBLE
o Rule 12B(7)

Section E. Impleader
Rule 14A
o Where the defending party joins somebody new (The Third Party Defendant)
o The TBD may be liable to the defendant for the plaintiffs claim
o Third Party Defendant (TPD)
You bring in the TPD because she may be liable to you for the plaintiffs
claim against you
o Hypo:
P vs. D
Defendant says he shouldnt have to pay for it all so he impleads a T.B.D.
This is not a Cross Claim because the T.B.D. is not a co-party yet!
Defendant says, hey, Im going to deflect my liability towards you.
o Two other Claims under Rule 14A
Rule 14A(3) The Plaintiff can bring a claim back against the T.B.D.
Rule 14A(2d) The T.B.D. can assert a claim down against the plaintiff as
well.
o These both must arise from the same transaction or occurrence
o ALWAYS assess S.M.J.!
Diversity (citizenship and 75,000)
F.Q.
If neither of those works, then go to Supplemental

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Section F. Intervention
Rule 24
The absentee (non-party) is joining herself and intervening
o This rule is identical to Rule 19. Only difference is who raises it.
Two types of Intervention:
o Rule 24A(2) - Intervention of Right
The absentee has a right to enter the case if:
His interest may be harmed if he doesnt join
This is the same thing as with Necessary Parties
o Rule 24B(2) Permissive Intervention
Your claim or your defense and the pending case have at least one
common question
This is totally discretionary with the court
When you intervene, you choose whether you want to be on the defendant or
plaintiffs side
At the end, ONCE AGAIN, assess S.M.J.!
o Diversity
o Federal Question
o Supplemental
Section G. The Class Action
Rule 23
This is where a representative (rep) sues on behalf of a class
7 Points to make about a Class Action:
1. The Prerequisites There are 4 Prerequisites in Rule 23A and you must meet
each and every one of them:
o Numberosity
You have to show that there are too many people to be practical coplaintiffs
o Commonality
A question that is in common with the entire class
o Typicality
The representatives claim must be typical of the class
o The Rep will fairly and adequately protect the interest of the class
This is important because youre going to bind this class
2. The Types of Class Rule 23B Three Types of class actions. You only need to
meet one of these.
o 23B(1)
o 23B(2)
o 23B(3) A Damages Class
Usually suing for money
Must show:
Common questions predominate over individual questions

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3.
4.

5.

6.
7.

The class action is the superior way to resolve the case

Motion to Certify A case is not a Class Action until the Court certifies it.
o When the Court certifies, it must define the class and appoint class council.
The judge has to pick the lawyer.
Notice of Pendency
o In the 23B(3) Class Action, the Court must give individual notice to all
members reasonably identifiable. The representative pays for this.
o 23C(2)(b) tells what needs to be included in the Notice
Most important thing is to tell them that they can opt out
o This notice is only necessary in the B(3)
Who is bound by a class judgment?
o All members except those who opt out of a B(3)
o There is no right to opt out of a B(1) or a B(2)
Settlement or Dismissal of a Certified Class
o This must be approved by the court Rule 23E
S.M.J.
o You still must have S.M.J.
o A lot of class actions are Federal Questions
o The big-ticket item is going to be Diversity. How do you invoke Diversity?
For citizenship, you look only at the Representative
For citizenship, the Rep must be diverse from all defendants
The class members citizenship doesnt matter
For Amount in Controversy, the Reps claim must exceed $75,000
We dont care about the class members claims

VIII. Discovery

Federal Rules are very liberal about allowing us to find out what the other side
knows
The idea is that we should have no surprises at trial
The rules were amended in 2006 to allow for special provisions for finding out
about electronically stored information (ESI).

Section A. Required Disclosures

Rule 26A
o This rule tells us we must produce information for the other parties, even if
they dont ask for it!
o You have to do this at three different times:
26A(1) Initial Disclosures
Very early in the case
You must identify people with discoverable info that you might use to
support your case at trial

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You must identify documents and ESI that you also plan to use to
support your case at trial
The plaintiff must give a calculation of damages
The defendant has to tell about insurance that might cover all or some
of the claims
All the stuff we would have been asked about anyways
26A(2) Expert Witnesses
26A(3) Pre-Trial Exposures
Basically tell everything were going to raise at trial, so there are no
surprises
Have to provide them with witness lists

Section B. Discovery Tools

Five Tools:
o Depositions Rules 30 (oral) & 31 (written)
The deponent testifies under oath
Live oral testimony in response to questions
Basically the same as at trial, except its usually in a lawyers office
instead of in the courthouse
You can depose parties, or non-parties
A non-party must be subpoenaed. If you dont subpoena a non-party, she
doesnt have to show up.
o Interrogatories Rule 33
Written questions answered in writing under oath
Usually helpful to get background information
The responding party has 30 days to respond
These can only be sent to parties. There is no such thing as an
interrogatory to a non-party.
o Request to Produce Rule 34
Written request that someone give you access to something
It could be access to documents, ESI, tangible stuff, access to the property,
etc.
Rule 34C allows you to use these to get info from non-parties, but these
non-parties should still be subpoenaed
o Medical Exam Rule 35
You must have a court order
These can only be ordered of a party, or of somebody in the partys
custody or legal control. This does not include employees. Its very
narrow. Legal Control is basically about children.
o The Request for Admission Rule 36
Can only be sent to parties
Require you to admit or deny any discoverable matter. If they fail to deny,
they have admitted

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Section C. Scope of Discovery

Sub-Section 1 The Standard Rule 26B(1)
o We can discover anything relevant to a claim or defense
o This rule makes it clear that you can discover stuff even though it would not
be admissible at trial.
o We can discover stuff reasonably calculated to lead to admissible evidence
Sub-section 2 Privileged matter is not discoverable.
o Attorney-Client information
o Spousal privilege
o Protects confidential communications
Sub-Section 3 Work Product Rule 26B(3)
o Federal Rule calls it trial preparation materials
o This is material prepared in anticipation of litigation
o This does not apply to routine stuff
o Anything that falls under Work Product is not discoverable by the other party.
The starting point is that it is protected from discovery
o This makes you pay for your own discovery
o If we let the other party get this, then why would they hire their own
people?
o Work Product can be overridden. You can overcome my work product if you
show substantial need, and the info is not otherwise available
o Mental impressions, conclusions, opinions, and legal theories, are never
discoverable
o This does not have to be generated by a lawyer
o It is not attorney work product.
o It could end up being from an attorney, but it can come from any
representative of a party.
IX. Pre-Trial Adjudication
12B(6) and Summary Judgment (56) are the biggest ways to pre-trial adjudication
Section A. Motion to Dismiss for Failure to State a Claim Rule 12B(6)
The court cannot look at evidence for 12B(6)
The court only looks at the face of the complaint (the facts alleged) and
determines, if everything the plaintiff said were true, would she win?
Do the facts alleged state a plausible claim?
o If the answer to this is no, then it makes no sense to move forward
o Even if you prove what you pleaded, youre not going to win
o If the plaintiff messes up here, sometimes well give them another shot
Section B. Motion for Summary Judgment Rule 56
The court can look at evidence
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The motion for summary judgment is because the case does not need to go to trial
o The only reason to go to trial is to resolve disputes of fact
If there is no dispute of fact, then we do not need a trial, and we
can enter summary judgment
Rule 56A:
o Two Elements the moving party must show:
There is no genuine dispute on a material fact, and
You are entitled to judgment as a matter of law
In summary judgment, we are looking at evidence, and the evidence shows there
is no dispute of fact; meaning we dont need a trial
o The only reason to go to trial is to resolve disputes of fact
The evidence comes from the parties
When talking about evidence, we are talking about things that are under oath
In 1986 there were three cases that loosened courts up on summary judgments:
o Matsusheta, Anderson, Celotex
Together they say we should not be overly cautious here
We can grant summary judgment even if the defendant doesnt provide
evidence. The defendant can move for summary judgment by showing that
the plaintiff lacks evidence.
Summary Judgment is always discretionary
It is rare to see a plaintiff win on summary judgment
HYPO:
o P is a pedestrian
P is walking across the street and is hit by a car driven by D
o P sues D
In the complaint, the plaintiff alleges he was in the crosswalk and
had the right of way
D files answer and denies all this stuff
D files a motion for summary judgment and provides affidavits
from three great people, who all tell the same story under oath that
they saw the whole thing and the defendant had the green light
The plaintiff gave us no evidence here! The complaint is
not evidence, unless the defendant failed to deny (admitted)
to one of the allegations
P responds to motion for summary judgment and provides
evidence from a terrible person who testifies in favor of plaintiff
The summary judgment must be denied! There is an issue
of material fact! Doesnt matter the quality of witnesses
Scott v. Harris
o A video tape can show that there is no dispute of material fact

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X. Trial

Used to resolve disputes of fact

Jury trial
o Jury resolves disputes of fact
o Jury determines damages (fact question as well)
Bench Trial
o Judge resolves disputes of fact

Section A. The Right to a Jury Trial

7th Amendment
o Applies only in Federal Civil Cases
o Jury Trial
o Two points to make:
It preserves the right to a jury trial (it does not grant or create)
It does so only in cases at law (not for cases at equity)
o Whether we get a jury today depends on whether we would have a jury 1791
with the common law of England
o We are stuck with this historical test because of the fact that the 7th
Amendment PRESERVES the right.
o Two Parts to the Historical Test:
Terry Case Is there a 1791 analogue to this claim? (Not a big part of the
test). Did this claim or at least an analogous claim exist in 1791? (Judge
basically always grants this part of the test).
Look at the remedy sought (what is the plaintiff after). We need to know
the difference of remedies of law and remedies of equity
o Remedies
Remedy at Law Compensatory Damages (Money)
Remedy of Equity Equitable Remedies: Injunction, Specific
Performance, Rescission, Reformation
o Back in the day you would get a jury in a Remedy at Law court,
but you wouldnt get a jury in a Remedy at Equity court
Today we have one court for both. We can have a case that involves both
types of remedies. What do we do?
o Hypo
Lets say you own some property with a great backyard and somebody
trespasses across the yard back and forth. This drives you nuts
You sue someone who trespasses day after day on your land
o If you sue for Remedy at Law, youll get damages (Youre not
going to get a whole lot of money for something like this)
o What you really want is an injunction (saying to STOP trespassing)
You sue for both compensatory damages and an injunction (you really
want the injunction, so this guy is stopped from trespassing).
Do you get a jury?
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o We used to say No Jury. Because the courts would say that you
really want the injunction (the important part of the case).
o This is no longer the case
o Beacon Theaters and Dairy Queen cases state 3 RULES:
We determine the jury right issue by issue (not by center of gravity). We
no longer go with all-or-nothing.
o We may get a jury on one issue, but not another
If an issue of fact underlies both your Law Claim and Equity Claim, you
get a jury.
Generally, we try the Jury Issues first.
o BACK TO THE HYPO
We now get a jury on the trespassing claim (because this underlies your
claim at law for damages)
We now get a jury also on how much damages we get, because this is
relevant to the trespassing claim for damages.
Third issue: do we meet the requirements for an injunction. No jury on this
because its pure equity.
o Well try the first two issues first with the jury, and then try the last
one with the judge
Section B. Motions
In a civil case the judge has some control over a jury. This doesnt happen in
criminal cases.
In a civil case, you have to present enough evidence to convince the judge to let it
get to the jury
o The judge is a gate keeper to get to the jury
There will be three motions:
o Motion for Judgment as a Matter of Law (JMOL)
Rule 50A
The judge takes the case away from the jury and says Im going to decide
this. Rule 50A(1)
Rule 50A(1) We are going to grant this motion if reasonable people
could not disagree on the result
o One of the parties has to bring this motion. The court can never do
this on its own
Rule 50A(2) You can only make this motion after the other side has
been heard at trial. The defendant moves for motion after the plaintiffs
side has been heard, or the plaintiff moves once the defendant has been
heard.
This is basically the same thing as Summary Judgment. It just comes up at
a different time (during trial rather than before trial).
Courts usually deny JMOL and let it go to jury
o Renewed Motion for Judgment as a Matter of Law (RJMOL)

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Rule 50B
Same thing as JMOL except it comes later on (after the jury comes back
with a verdict)
The defendant moves for the Renewed JMOL later, once the jury has made
a decision
Renewed JMOL says the jury has reached a decision that reasonable
people would not have reached
This motion has to be made within 28 days after the entry of judgment
In order to move for Renewed JMOL, you must have moved for JMOL at
a proper time during trial
If you didnt make that JMOL motion earlier, youve waved your
Renewed JMOL right
o Motion for New Trial
Rule 59A(1)
Timing is the same as Renewed JMOL Within 28 days after judgment
The point of this is that the judge is convinced that something was wrong
in the case that affected the outcome, so we should start over
The Motion for New Trial basically is a mulligan that allows everyone to
start over
The court CAN do this on its own!
The biggest difference is that this is less drastic. A new trial simply results
in starting over. Renewed JMOL takes the victory away from someone and
gives it to the other party (much more drastic and radical).

XI. Appeals

Two main things to know:

Section A. The Final Judgment Rule (FJR)

You cannot appeal until the trial court enters a final judgment
o This means a decision on the merits of the entire case
o To find out if something is appealable, ask this question: After making this
order, does the trial judge have anything left to do on the merits of this case?
If yes, then it is not final.
o If it is not final, we call it interlocutory
Section B. Interlocutory Review
Exceptions to appeals even though its not final judgment
o Statutes:
1292A and 1292B
o Two statutes that allow for interlocutory review under certain
circumstances
o Federal Rules of Civil Procedure (FRCP)
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o Two federals rules that will allow you to ask for interlocutory review
23F Allowing the court of appeals discretion to take the case
Orders on class certification
54B Only available for cases about multiple claims or
multiple parties
The trial judge can expressly treat a ruling as final on
that party or that claim
o Judge Made (Common Law)
Collateral Order Doctrine The trial court ruled on a certain issue that is
collateral to the remaining issues. Allows the Court of Appeals to hear
certain interlocutory issues
o Totally in the Court of Appeals discretion
o Extraordinary Writ
Technically not an appeal
This is an independent proceeding in the court of appeals, so you actually
sue in the court of appeals, asking the court of appeals to tell the district
court what to do
These are very rare and very limited

XII. Claim and Issue Preclusion

Race Judicata and Collateral Estoppel
o This is always the story of two cases
Case one has gone to judgment and is finished. Case two is pending.
o Question we must ask: Does the judgment in case one precludes us from
litigating in case two?
o RULE for Jurisdiction: We apply the preclusion law of the system that
decided Case 1
o Two ways that it can preclude us from proceeding in case two:
Claim Preclusion or Issue Preclusion
Section A. Claim Preclusion Race Judicata
Doctrine that says that you get one case to vindicate one claim (You cannot sue
twice on the same claim)
If you have a claim, you only get to sue on that claim one time
When does this apply?
Three Elements:
1. You have to show that both cases were brought by the same claimant against the
same defendant (same parties in the same configuration)
2. Case one must have ended in a valid final judgment on the merits
o Rule 41(b) Everything is considered on the merits unless based on
jurisdiction, venue, or indispensible parties
3. Case one and Case two must involve the same claim
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o Two definitions for Claim:

Majority View: The Claim is the transaction or occurrence
o This means you get one lawsuit to sue for everything
Minority View: Primary Rights Says that you get a different claim for
each right invaded. So if one accident hurts your body, and hurts your
property, you have two claims.
Hypo:
o Lois and Meg were out driving around and collide
o Both suffer personal injuries and property damage
o Case 1:
Lois sues Meg for property damage from the crash
We litigate the case, final judgment on the merits is entered
o Case 2:
Lois sued Meg for personal injury from the crash
Do we dismiss case two under the doctrine of Claim Preclusion?
Element 1 is met
Element 2 is met
Element 3 Under the majority view this is met. Under the minority
view (Primary Rights) it is not met, because she has two claims under
the primary rights view!
Hypo 2:
o Lois and Meg are out driving and crash again totaling their cars
o Case 1:
Lois sues Meg seeking property damage, personal injury, everything
We litigate, go to judgment, its over
o Case 2: Meg sues Lois
Seeks to recover her damage and injuries
Do we dismiss?
Element 1 is not met
We dismiss, but not because of Race Judicata
We dismiss because of Rule 13(a), compulsory country claim

Section B. Issue Preclusion Collateral Estoppel

This is narrower than claim preclusion
Issue Preclusion focuses on an issue
There was an issue in case one that got decided, and then the same issue comes
up in case two
o If we apply Issue Preclusion, that issue is deemed established in case two.
We do not re litigate that issue.
Five Mechanical Requirements:
1. Case one ended in a valid final judgment on the merits
2. You have to show that the same issue was actually litigated and decided in case
one (notice that this means something actually had to have been litigated in case
one).
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3. We have to show that the issue is essential to the judgment in case one (this issue
is why the judgment came out the way it did).
4. Ask against whom is issue preclusion used
o It can only be used against somebody who was a party to case one
5. By whom is issue preclusion asserted
o The starting point is called mutuality
o Mutuality says that it can only be used by somebody who was a party
to case one
o This used to mean that you can only use it in case two if you were a
party in case one
o The movement lately has gone towards non-mutual issue preclusion
This just means that its being used by somebody in case two, who was not
a party in case one
It can come up in two ways:
Non-mutual defensive
This means it is being used by somebody who was not a party to
case one, and is the defendant in case two
The majority rule today is that this is fine as long as the person
against whom your using it had a full chance to litigate in case one
Non-mutual offensive
Used by somebody who was not a party to case one, and is the
plaintiff in case two
Most courts reject non-mutual offensive, but the trend is found in
the case of Park Lane Hosery: Says that non-mutual offensive is
fine as long as its fair. Fairness Factors:
The person against whom youre using it had a fair chance to
litigate it in case one
The person against whom youre using it could foresee
multiple suits, giving him an incentive to litigate really hard
I could not have joined easily in case one
There are no inconsistent judgments

30