Critical Studies I

Writing Effective Bar Exam Essay &

Performance Test Answers
Today’s Agenda

• Review/Clarification
• Preclusion
• Joinder of Claims
• Joinder of Parties

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Review/Clarification
• Personal Jurisdiction: Whether a court may exercise its authority over
the particular defendants.
• Determined by quality and nature of defendant’s contacts with the state in which
the court sits.
• Subject Matter Jurisdiction: Whether a court may exercise its authority
over the particular claims.
• Determined by what the claims are (FQ), who the parties are (diversity), or what
other claims are being heard (SuppJ).
• Venue: Whether the court in a particular district is an appropriate court
to resolve the dispute.
• Determined by the district of “residence” of the defendants or the location of the
events giving rise to the claim (as long as it arose in the US).

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Notes on Assignment 7

• Consent versus Waiver

• What is a contact?
• Some substantive misunderstandings
• ”Common undivided interest”
• SMJ as to each claim
• Exceptions to supplemental jurisdiction
• General jurisdiction as “all-purpose” jurisdiction
• Go to the rule

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Preclusion

• It is generally impermissible for litigants to re-litigate claims

and issues that have previously been litigated and resolved in
prior lawsuits.
• Claim preclusion (res judicata)
• Issue preclusion (collateral estoppel)
Claim Preclusion (Res Judicata)
A plaintiff who prosecuted an action against a defendant and obtained a valid final
judgment is not able to initiate another action versus the same defendant where:
1. The claim is based on the same transaction that was at issue in the first action and was
raised or could have been raised;
2. The party invoking preclusion and the party against whom preclusion is being invoked
must both have been parties to the original action (or in privity with original parties);
• “Privity” means the interests of one party were represented by the other in the prior action, e.g., co-owners of property
3. Only claims that have been reduced to final judgments on the merits can have a
preclusive effect on subsequent claims.
• Any type of judgment favoring a plaintiff is considered a final judgment on the merits.
• Preliminary dismissals that do not reach the merits are generally not final judgments.
• E.g., dismissals for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.
Claim Preclusion Example
Paul Hollywood sues Mary Berry for intentional infliction of
emotional distress after she serves him a Bakewell tart with a
soggy bottom. In her defense, Mary Berry argues that she did
not intend to cause him distress, and the court finds her
argument persuasive, entering judgment in her favor.
Paul Hollywood seeks to sue Mary Berry again for the soggy
bottom, but this time on a theory of negligent infliction of
emotional distress.
• Res judicata prevents Paul from filing the second suit.

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Issue Preclusion (Collateral Estoppel)
• Issues that were actually litigated in a prior action, provided the adjudication of
those issues was essential to the judgment, are barred from relitigation, so long
as:
1. Parties are identical (or in privity with) those involved in the prior action;
• Offensive nonmutual collateral estoppel allows a non-party to invoke issue preclusion if:
1. The invoking party did not adopt a “wait and see” approach to the prior litigation
2. The party to be bound was sufficiently motivated to litigate in the first case
3. There are not prior inconsistent determinations of the issue
2. The issue must be identical to issue raised in prior action;
3. The issue must have been actually litigated in the prior action; and
4. Resolution of the issue must have been necessary to the judgment in the prior action.
Issue Preclusion Example
Paul sues Mary for negligently causing salmonella poisoning by
allowing to eat uncooked dough as she was preparing her bake. The
court ruled against Paul, finding that in his employment contract, he
had waived his right to sue Mary for negligence that occurred during
the show. Later, Paul encountered a cherry pit in a soufflé that Mary
made and sought to sue her for the resulting broken tooth.
• Paul’s second action arises out of a different transaction, but the
issue of his right to sue was already litigated and was necessary to
the judgment in the prior action. Thus Mary can invoke issue
preclusion.

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Key Differences
Claim Preclusion
• Claims need not be identical,
as long as same T/O
• Claims that could have been
raised are subject to preclusive
effect
• Same parties or parties in
privity
Issue Preclusion
• Issues must be identical; same
T/O not necessary OR sufficient
• Issues must have been actually
litigated to be subject to
preclusive effect
• Nonparty to the earlier action
may invoke issue preclusion if
their adversary fully litigated and
lost on that issue previously
Preclusion on the Bar Exam
Claim Preclusion
• Same claim? (identical or
same T/O)
• Same parties? (identical or
parties in privity)
• Final judgment on the
merits?
Issue Preclusion
• Same parties? (identical or
parties in privity)
• If not, does the party seeking to
invoke meet requirements for
offensive nonmutual collateral
estoppel?
• Same issue?
• Actually litigated?
• Necessary to judgment?
Exercise on PJ and Preclusion

Personal Jurisdiction Preclusion

• [Intro] • [Intro]
• Waiver
• Claim Preclusion (same T/O,
• Long-Arm Statute same parties, final judgment
• Constitutional Analysis on merits)
• Traditional Bases
• International Shoe • Issue Preclusion (same
• Minimum Contacts (purposeful party/parties, same issue,
availment, foreseeability, relatedness)
• Reasonableness (burdens and interests) actually litigated, necessary to
• Conclusion judgment)

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How I Was Taught Joinder
Joinder of Claims and Parties, Generally

• Joinder as permission; Jurisdiction as power

• Rules may permit, encourage, or require joinder of parties or
claims
• But that doesn’t necessarily mean the court can exercise
jurisdiction over those claims or persons

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Joinder of Claims and Parties
Claim Joinder
• Rule 18 [basic claim joinder]
• Rule 13(a) [compulsory
counterclaims]
• Rule 13(b) [permissive
counterclaims]
• Rule 13(g) [crossclaims]
Party Joinder
• Rule 20 [permissive party joinder]
• Rule 19 [compulsory party joinder]
• Rule 24(a)(2) [intervention of right]
• Rule 24(b) [permissive intervention]
• Rule 14(a) [impleader]
• Rule 22 [interpleader]
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Examples of Joinder Questions on the Bar
Exam
• May Buyer join claims for fraud and breach of contract in the
same suit against Seller?
• Did the district court rule correctly on Paul’s motion to
dismiss Corporation’s counterclaim?
• Was the federal court correct in dismissing the action on the
ground of the impossibility of proper joinder of Corporation?

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Joinder of Claims, Generally
• There are three types of claims subject to joinder rules: claims,
counterclaims, and crossclaims.
• There are two broad categories of claims: permissive and
compulsory.
• For each type of joinder, you should know:
• What type of claims are covered
• Who may make the claim
• Against whom
• Jurisdictional requirements or limitations
• Preclusive effect of not joining the claim
Rule 18: (Permissive) Joinder of Claims
• Rule 18 permits the plaintiff to assert
multiple claims against the defendant
in a single action.
• Made By: Any party who successfully
asserts a claim against another party.
• Against: Any opposing party.
• Requirements:
1. Already one valid claim.
2. SMJ and venue for each additional claim.
• Preclusive Effect: None, unless claim is
closely related to original claim.
Rule 13: Counterclaims
• Counterclaims are claims made by
defending parties against parties
who bring claims against them.
• There are two types of
counterclaims:
• Compulsory (Rule 13(a)): A claim that a
defending party has that arises out of
the same transaction or occurrence that
is the subject matter of the opposing
party’s claim
• Permissive (Rule 13(b)): A claim a
defending party has against an
opponent that does not arise out of the
same transaction or occurrence
Rule 13(a): Compulsory Counterclaims
• Rule 13(a) compulsory counterclaims arise
out of the same transaction or occurrence as
the opposing party’s claim.
• Made By: Any defending party.
• Against: Any opposing party.
• Requirements:
1. Same transaction or occurrence that is the subject
matter of the opposing party’s claim
2. [Same T/O requirement means court will have
SuppJ over them if no independent jx]
• Preclusive Effect: Failure to raise waives the
right to assert that claim against the
opposing party in the future and the party
will be estopped from asserting it in any
subsequent action.
Rule 13(b): Permissive Counterclaims
• Rule 13(b) permissive counterclaims
do not arise out of the same
transaction or occurrence as the
opposing party’s claim.
• Made By: Any defending party.
• Against: Any opposing party.
• Requirements:
1. Court usually does NOT have SuppJ
over them, so must independently
meet SMJ and venue requirements.
• Preclusive Effect: None.
Crossclaims
• Rule 13(g) crossclaims are claims brought by
one co-party against another co-party that
arise out of the same T/O as original action or
of a counterclaim.
• Made By: Any co-party.
• Against: Any co-party.
• Requirements:
• Same T/O as original action or any counterclaim; or
• Asserts contingent or derivative liability based on
claims against the cross-claimant; or
• Asserts a claim that relates to any property that is
the subject matter of the original action
• [Same T/O requirement means court will have
SuppJ over them if no independent jx]
• Preclusive Effect: None*
Crossclaims and Counterclaims
• Once a co-party asserts a
crossclaim against another co-
party, the latter party is placed
in an adversarial relationship
with the cross-claimant.
• This means the party against
whom a crossclaim is asserted
must assert all transactionally
related claims available as
compulsory counterclaims
under Rule 13(a) or they will be
waived.
Joinder of Parties, Generally
• Permissive Joinder of Parties (Rule 20)
• Compulsory Joinder of Parties (Rule 19)
• Third-Party Practice / Impleader (Rule 14)
• D can assert a claim against 3PD that 3PD is liable to D (3PP) for all or part of the claim
being asserted against 3PP.
• Intervention (Rule 24)
• Intervention of right
• Permissive Intervention
• Interpleader (Rule 22)
Remember: Claims by and against parties joined under these rules (except 22)
must independently meet SMJ.
Rule 20: Permissive Joinder of Parties
• Under Rule 20, plaintiffs may join together in
one action if they assert claims arising out of
the same transaction and occurrence
involving common questions of law or fact.
• Similarly, parties may be joined together as
defendants if the claims brought against
them arise out of same transaction and
occurrence and involve common questions of
law or fact.
• Requirements:
• Same T/O and at least one common question
• Personal jurisdiction, subject matter jurisdiction,
and venue must be met with respect to each party
joined as a defendant and the claims associated
with them.
Rule 19: Compulsory Joinder of Parties
• A party is a “necessary party” if:
• The court cannot provide complete relief without the party,
• The absent party’s interest will be harmed if she is not joined, or
• The absent party is subject to multiple inconsistent obligations
• A necessary party must be joined if
1. Court has PJ over her
2. Court has SMJ over claim (i.e., joinder does not destroy diversity, if diversity is the basis of SMJ)
3. Court has proper venue over claim
• If a necessary party cannot be joined, the court should consider: (1) to what extent a person’s
absence might be prejudicial to the person or parties, (2) whether the judgment can be tailored to
avoid or lessen the prejudice, (3) whether judgment without the person is adequate for the parties
before the court, and (4) whether the plaintiff can get an adequate remedy from another court if
the case is dismissed. The court may either:
• Dismiss the case, or
• Proceed with the case without the necessary party
Necessary Versus Unnecessary Parties

Necessary Permissive
• Joint obligors • Joint tortfeasors
• Joint obligees • Original parties to a contract
• Partial assignees and when third-party
subrogees beneficiarcy sues
• Co-owners of property (if case
involves interest of all) • Third-party beneficiary
• Corporation in a shareholder’s when original party to a
derivative action contract sues
Joinder of Parties Exercises
Annie owns 1,000 shares of stock in Corporation in her own name.
Peter claims that he and Annie bought the stock together and that
the stock was supposed to have issued in both names as joint
owners. Peter sues Corporation, seeking to have Annie’s stock
canceled and the shares reissued in the joint names of Peter and
Annie. Is Annie a necessary party?
Paul represents the estate of a decedent who was killed in the crash
of a chartered airplane. Paul sues the manufacturer of the airplane.
Are any of these absentee parties necessary: (1) the company that
owned and operated the plane, (2) the company that serviced the
plan, (3) the estate of the pilot?
Party Joinder on the Bar Exam
• Is joinder of the party permissible? [same T/O and common Q]
• Is joinder feasible? [SMJ, PJ, and venue]
• Is the party necessary? [complete relief, interests harmed if not joined,
or multiple inconsistent obligations]
• If joinder not feasible, the court should consider these four factors in
deciding whether to proceed with the case without the necessary party
or dismiss the case:
• To what extent a person’s absence might be prejudicial to the person or parties,
• Whether the judgment can be tailored to avoid or lessen the prejudice,
• Whether judgment without the person is adequate for the parties before the court,
• Whether the plaintiff can get an adequate remedy from another court if the case is dismissed.

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Rule 24: Intervention
• Intervention involves
nonparties intervening in an
action and making
themselves parties.
• Rule 24 governs
intervention and provides
both for “Intervention of
Right” and “Permissive
Intervention.”
Intervention of Right
• Under Rule 24(a)(2), a nonparty has a right to intervene in an action
when
1. It claims an “significantly protectable interest” in the subject of the action,
2. The nonparty is so situated that disposition of the action would impair its
ability to protect that interest, and
3. The nonparty’s interest is not adequately represented by existing parties
in the action.
• The unconditional right to intervene may also be created by statute
(e.g., 28 U.S.C. § 2403—intervention by United States is a matter of
right in any suit in which the constitutionality of an Act of Congress
is in question)
Permissive Intervention
• Under Rule 24(b), timely intervention is permitted when the
absentee’s claim or defense shares a question of law or fact with
the main action.
• The purpose of permissive intervention is to promote judicial
economy (as opposed to risk of impairment of intervenor’s
interests).
• Claims asserted by intervenors must independently qualify for
subject matter jurisdiction and satisfy federal venue requirements.
• The court has discretion to permit or deny intervention.
Rule 14: Third-Party Practice / Impleader
• Under Rule 14, impleader is a mechanism of
a defending party to add a third-party
defendant (TPD) to seek indemnity,
subrogation, or contribution. The original
defending party becomes the third-party
plaintiff (TPP) with respect to this claim.
• Joined By: Any defending party
• Requirements:
• Claim must be that TPD is liable for all or part of
the claim against the defendant (TPP)
• Court must have PJ over TPD
• Once a third-party claim is properly asserted,
the TPP may join additional claims against
the third-party defendant under Rule 18(a).
Rule 22: Interpleader
• Interpleader is an action where one holding property (“stakeholder”)
forces all potential claimants into a single lawsuit to avoid multiple
and inconsistent litigation.
• If sued by one claimant, or fewer than all claimants, the stakeholder
may invoke interpleader by filing a counterclaim naming all
claimants as counterclaim defendants.
• E.g., a life-insurance company, upon the death of the insured, may,
if the policy proceeds are claimed by both the named beneficiary
and some third person, interplead the various claimants.
Joinder Exercise

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