Rule Topic Rule Notes Cases, Holdings

Governs civil suits in federal court - the goal is speedy and just legal determination
1: Scope / Purpose
2: Form of Action Law & Equity merged - All actions are a civil action 14
Clock starts when the complaint 14
3: Commencement of Filing a complaint with the court starts the action. Need to serve a summons with it - See
is filed
Action R. 4(a)
Contents: court, paties, attorneys info, time and date of required appearance; warn D that failure to appear results in default 14-18
judgment; clerk’s signature, court seal
Service:
• 4(c) serve summons with a complaint, by anyone not in case or marshal

4: Summons
• 4(d) waiving service; in which case D has 60 days to answer from time request sent
• 4(e) serve personally, leaving at dwelling with suitable person, or by certified mail
• 4(h) serving corporation: same as individual or delivering copy to authorized agent or mailing
• 4(m): Must be served within 120 days of complaint; otherwise dismissed w/o prejudice
• When other party is US government- they have 90 days to respond (instead of normal 20)
• 4(k)Serving a summons effectively establishes personal jurisdiction over D
5(a) Unless you have good reason otherwise - Serve everyone everything upon their 18-19
attorneys in person or by mail.
• Serving person by: handing it, leaving at office, or dwelling, leaving it with
clerk, mailing it to last address No need to file interrogatories,
requests for documents, expert
• Also, file everything in court from complaint forward, except for Discovery
5: Serving / Filing reports, and other discovery info,
requests and initial disclosures 26(a)(1) and Expert Disclosures 26(a)(2)
either UNLESS court orders or
• No need to serve party who loses by default judgment used in court proceedings
• Anything required to be served also generally required to be filed w/in
reasonable time

If time period is 0-10 days, then

If service deadline falls on Sat, Sun, or court holiday, then it is moved to the next work
6: Time don't count non-work days. For
day that the court is open.
11+, count all days.
Motions not = pleadings. Must
file a reply if the answer
7: Pleadings Allowed / Only 6 types of pleading: 7(a) - Complaint, Answer, Reply to counter-claim, answer to contained a counter-claim. Main
Motions cross-claim, 3rd party complaint, 3rd party answer purposes: framing the issue in
dispute and giving the other
party notice
Requests for court order must be made by motion; in writing unless during hearing or trial
7(b) Motions • Must state with particularity grounds for seeking order, state relief sought
• Must be signed in accordance with Rule 11
 Complaint must state: 1) Jurisdictional Grounds for the claim; 2) Statement of the Claim Haddle v. Garrison: TCno relief could
showing entitlement to relief; 3) Demand for relief. Can do multiple claims - or plead be granted at will employee. SCnot
alternatives; 8(a)(3) shows P must demand a particular form of relief (e.g. actual, Can include more if you want… injured by conspiracy but on retaliation
consequential, statutory) but modern practice is to leave it so he has claim.
8(a): Claims for Relief
• Claims and defenses can be inconsistent with one another to "Notice Pleading" - Short plain Jones v. Block: exhaustion of remedies
• #2: Short and plain statement of claims include: facts, legal theory (body of statement of the claim must not be plead it is an affirmative
law), application to facts defense. Only short plain statement.(370).

Δ must provide Δs to each claim and admit, deny, or say "I don't have the info" for each Gen. denial not a good idea.
averment. Can deny specifically (in part) or generally.; Must be in good faith in Looks lazy, doesn’t lead to good
accordance with Rule 11 – must only deny those allegations in dispute aff. Δ. Some facts will inevitably
8(b): Δs; Admissions and
• 8(b)(4) If denying part of allegation- must state specifically which part deny and be true. ‘Don’t have info to
Denials
which part admit answer’ counts denial, unless
• 8(b)(5)- lack of knowledge to deny or not- state so. patently untrue and Δ had the
• 8(b)(6)Failing to deny is to admit info.
Must provide affirmative Δs in the answer. These allow that even if the π is correct, there
is a legal reason for the Δ's action. If you do not plead in the answer, you may lose chance AD: Arbitration and award,
later if amendment is denied. R15; Test: whether D intends to rest his case on some assumption of risk, Contrib. Neg,
fact not included in the allegation necessary to support the plaintiff’s case (additional Discharge in bankruptcy, duress,
facts absolve D from liability) estoppel, no consideration, fraud,
8(c): Affirmative Δs
illegality, injury by servant,
• List not conclusive, you can state other affirmative defense not on list
laches, license, payment, release,
• In essense, the “Yes it’s true, but…” defense
res judicata, S/F, Stat. Limit,
• If mistaken designation occurs- court can if justice requires treat as though it Waiver
were correct
8(d) Concise, alternative Multiple Claims Can be stated in the alternative regardless of consistency; must be
statements, inconsistency stated clear and concise terms
Twombly Iqbal (359) immunity, fraud,
costly discovery
9(b): FRAUD or MISTAKE must be plead with particularity (with factual specificity). If not plead specifically, you can Stratford v.Zurich(364); must name time,
9: Pleading Special
Conditions of mind (Malice and intent) can be plead generally. lose the right to use later, if place, and nature of alleged
Matters; Fraud, Mistake
• Remember the who, what, why, where, when, and how amendment is not allowed. misrepresentations for fraud.
“strong inference” pleading
requirement.(369)
Separate any distinct claims or Δs Form 11
10: What Pleadings (a) Caption (Name of ct, title of case, case #, title of pleading); (b) each claim should be so that the pleading is clearly
Should Look Like made in a separate numbered paragraph; (c) adoption by reference/analogy presented

Imposes ethical obligation; acts as Rule 11

11(a): Signature Pleading must be signed by at least one attorney, if the party has one. acknowledgment of factual and
legal research requirements
 Must represent that the pleading or motion is (1) Not for harassment; (2) warranted and
not frivolous; (3) allegations have evidentiary support; (4) denials either have support or
legitimately do not know or believe it to be true Be certain of truth of what you
11(b): Misrepresentation • Attorneys have legal obligation to do at least minimal and reasonable research in plead. Be ready to justify.
regards to client’s allegations and claims; claiming belief alone do not always
relief you of responsibility.
• Must be supported by EXISTING law
If 11(b) is violated, then court can sanction; 11(c)(1) initiated by motion (21 days to Safe harbor Provision 21 days
withdraw) or by court’s initiative (no withdrawal); 11(c)(2) – limited to what is Walker v. Norwest: plaintiff failed to
sufficient to deter conduct (limits: monetary sanctions may not be awarded against a amend complaint it filed for diversity that
represented party) was incorrect. Court dismissed case
• Sanction may be imposed if 11(b) is violated if: Sanction should be limited to provided attorney fee’s(377).
11(c): Sanctions • Party served with motion but does not rectify conduct within 21 days what deters future similar conduct Christian v. Mattell (381).
(withdrawal), or upon court order party failed to show cause of why conduct did Zielinski v. Phil. Piers: denial made in
not violate 11(b) bad faith, 8(b)denials
• 11(c)(5)- limits on sanctions- cannot impose monetary sanction on represented
party or order voluntary dismissal without order to show cause first
• Fees cannot be imposed on party in suit, only attorneys
11(d) Inapplicability to Rules and sanctions here do NOT apply to discovery procedures including disclosure, NO RULE 11 for discovery
Discovery requests, responses, etc. under rules 26-37
Δ has 21 days to answer if regular service 12(a)(1)(A) - or 60 days if waived service -
12(a)(1)(B)
12(a)(1): Deadline for • Serving a motion under this rules may extend time period: Different if suing the government
Answer
• If denying motion or granting motion for more definite statement- parties have
21 days until responsive pleading must be served
12(b)(1) Lack of subject matter jurisdiction; (2) Lack of personal jurisdiction; (3) Rule 26 broaden discovery b/c less
Improper Venue; (4) Insufficient Process; (5) Insufficient Service; (6) Failure to state a (1) Any time (2-5) In first 12(b)6 granted.
12(b): Pre-Answer
claim for which relief can be granted; (7) Failure to join a necessary party under R19 response or waived; (6-7) Up to Haddle v. G(352)
Motions as Δs
• Defenses that must be asserted by motion the end of the trial. See 12(h). Bell Atlantic v. Twombly(359)
conceivable to plausible.
Motion for SJ on pleadings alone - Viewed in light most favorable to the non-moving party Can raise SJ ALREADY!!!
12(c): Judgment on • Allows for judgment on pleadings alone
Pleadings
• If matters outside pleadings must be considered- must be made under Rule 56 for SJ
12(d): Preliminary
Moving party can ask for hearings on 12(b) motions; given reasonable opportunity to present all material pertinent to the motion
Hearings
If the pleading is so vague or ambiguous that the party cannot properly reply, then make a
12(e): Motion for a more motion for more definite statement. If so ordered, other side has 14 days to do so.
RARELY granted
definite statement Otherwise, they can be thrown out.
• This motion must be made before responsive pleading
 Case can go on based on whatever
Ct. can strike any material deemed to be scandalous, insufficient, redundant, irrelevant,
12(f): Motion to Strike is left…this does not necessarily
immaterial, or impertinent from pleadings.
end the case
A party who makes a Rule 12 motion can consolidate it with any Rule 12 motion; if make a Rule 12 motion and do not
12(g): Consolidation of Δs include the other Rule 12 motions available to them they cannot raise them late except in accordance with 12(h)
• If any defenses under rule 12 can be consolidated, MUST do so
12(h) - 12(b)(1) Can be made at any time; 12(b)(6-7) Can be made any time before close of trial; 12(b)(2-5) Must be brought in
first response otherwise waived in accordance with 12(g); 12(h)(3) – court can dismiss the action at any time due to 12(b)
12(h): Waiving or (1).
Preserving Certain Δs • Lack of subject matter jurisdiction can be raised at anytime throughout the trial
• 12(h)- any defense may be heard and decided before trial, motion under 12(c) for summary judgment MUST be heard
before trial before granted
13(a): Compulsory If the counter-claim is related to the same transaction or occurrence that is the subject of Closely related claims - Bring it
Counterclaims the other side's claim, then it must be included in this action or the chance is lost forever! now - no reason not to, really
13(b): Permissive Any actions may be joined - So as long as your claim is against the same party, you can Not arising from the same
Counterclaims join it now. situation dif. Facts, etc.
These are for actions between
Can sue a co-party for something that arises from what is in a counterclaim or having to
13(g): Cross-Claim CO-PARTIES - Joinder of 3rd
do with the original claim
parties is 13(h)
Defendant, as third party plaintiff, may bring in third party known as third party defendant
into suit
-if done within 10 days after serving answer, no need to obtain leave on motion by court
-otherwise- must notify other parties and obtain leave from court
14: Third Party Practice
-in defense- may assert any claim arising out of same transaction or occurrence
-may sue either party, any party may motion court for separate trial
-when D sues P under counterclaim, P may sue third party under same rules

Amending is modifying or adding to. 2 ways to amend: 1) By right - automatically OK to Beeck v. Aquaslide N Dive Corp: wrong
amend if the other party has not replied yet, or if no response required, must be within 21 manufacturer could have been easily
Leave shall be freely given as
days of the original pleading; 2) By leave - If the judge says it is ok to amend (if justice so discovered by both sides. J rules that no
15(a): Amendments justice requires. Judges tend to be
requires) or if the other party agrees in writing. 3) If a pleading is amended, the deadline bad faith so amend. Leaves P without
lenient with permission to amend.
for response is 14 days after amendment or original deadline - whichever is longer. recourse due to SoL. (403).

Upon motion of a party or the court may permit the party to serve a supplemental
21 days after pleading or
15(b): Amendments to pleading setting forth transactions or occurrences or events which have happened
responsive pleading or whichever
conform to the Evidence since the date of the original pleading. Unlike an amended pleading, a supplemental
is earlier.
pleading is not supposed to alter or modify the original pleading but only ADD to it.
 CANNOT RELATE BACK TO
SOMETHING THAT WAS FILED
LATE IN THE FIRST PLACE.
Moore v. Baker: “amendment relates
Relation Back of an amendment applies to the original date of pleading if: 1) Stat of
back to original finding when the
Limitations is still running; 2) SoL has run out, but the amendment arises out of same
If amendment is related back, amendment asserts a claim or defense
conduct, transaction or occurrence set forth in the pleadings (test here is ADEQUATE
15(c): Relation Back then it is treated as though it were that arose out of the conduct, transaction,
NOTICE); 3) Just changing name of party and 2) is satisfied (New party had notice of
in the original pleading. or occurrence set out—or attempted to be
action within 120 days of original service – Rule 4(m))
set out—in original pleading.”
Bonerb v. Richard J. Caron. Relation
back works! Same transaction no need to
do extensive research. Stage of discovery.
(411)
15(d): Supplemental
Pleadings
Several pre-trial conferences - 16(a) and pre-trial orders - 16(e) but only ONE final pre-trial conference 16(d). 16(b):
Scheduling order made by the court within 120 days after complaint served on Δ - this sets dates. 16(c) Pre-Trial Conferences
16(a)-(e): Pre-Trial
can be used to simplify issues/claims/Δs, figure out what is going to happen in discovery and with evidence, deal with motions,
Conferences / Orders
settlement, etc. Organize and handle issues. 12(c) judge must issue the scheduling order as soon as practicable, but in any event
within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared.
Sanctions - If a party or attorney fails to obey an order, does not show up at a meeting, or shows up unprepared, he can be
16(f): Sanctions for Pre-
sanctioned.
Trial Conferences /
Orders
Party asserting any sort of claims against one D may join all independent or alternative claims as they have
18: Joinder of Claims • Fraudulent conveyance- suit only cognizable after other suit commences

As long as subject matter jurisdiction present and proper venue, parties may be brought into suit if remedy not sufficient to
spread over Ds already in suit; as either a D or an involuntary P
• 19(b) Should party above cannot be joined- court will determine if suit can still proceed; considers equity factors such
19: Compulsory Joinders
as prejudice to parties already in suit, how prejudice can be lessened, and whether adequate alternative available should
action dismissed
• Pleadings for non-joinder must state name of party and reasons for not joining
Any P may join in suit if claims arise out of same transaction or series of occurrences AND same question of law of fact will be
at issue for all Ps
• Under same rule- any D may be joined for same reasons
20: Permissive Joinders
• Relief may be given separately by P and D
• Court may order separate trials for reasons of delay, embarrassment, at expense of person whom party asserts no
claim or asserts no claims themself
23(f) A court of appeals may permit an appeal from an order granting or denying class action certification under this rule if a petition INTERLOCUTORY APPEAL W/O d
 for permission to appeal is filed with the circuit clerk within 10 days after the order is entered. The district court need not agree DISTRICT COURT PERMISSION
All this should be disclosed
MUST disclose in initial disclosure: (A) Name, address and Phone# of every person likely
within 14 days after the discovery
to have discoverable info that disclosing party may use to support claims or Δs; (B) Copy
conference 26(f) unless ct says
26(a)(1): Automatic or description (category & location) of all documents in possession of party that may be
otherwise. Do not wait to be
Disclosure used to support claims/Δs; (C) Computation of damages claimed - making available any
asked - this is a self-executed
supporting docs (D) Any insurance agreement that may pay part of the judgment.
procedure
-must disclose all info that you will use to support your claim
26(a)(2): Expert 26(a)(2)(A) Parties must disclose names of experts likely to be used at trial; 26(a)(2)(B) - Experts should prepare written reports
Testimony of their opinions and these should be disclosed at least 90 days before trial - or as directed by the court.
(A) Names, addresses and Phone# for all witnesses to be called and (C) Exhibits to be
26(a)(3): Pre-Trial Serve all parties and file with the
used
Disclosures court
26(a)(4): Forms of Only pre-trial must be filed with
In writing, signed, and served
Disclosures the court
Oral Depositions R30, Written Depositions R31, Interrogatories R33, Production of
26(a)(5): How to get Ct tries to stay out of this - Only
Documents (& inspection of property) R34, Mental/Physical exam R35, and requests for
more info get involved in disputes.
Admissions R36
Davis v. Precoat Metals: “reasonably
calculated to lead to discovery of
admissible evidence.” Not limited to what
Intended to be lenient. Context to
26(b)(1): Scope of is admissible at trial (417).
Anything relevant and not privileged is discoverable. All privileges can be waived by the determine relevancy. Work
Discovery Steffan v. Cheney: AC says that DC fails
person invoking the privilege. Anything that can reasonably lead to admissible product not discoverable unless it
in that the claim he admitting to homo
evidence at trial. is impossible for other side to
actions while in service are not relevant
obtain information.
to reasons because he was released based
admission of homosexuality not actual
misconduct.
Hickman v. Taylor: “in anticipation of
litigation/work productlimited
Forbids discovery that is abusive privilege. Also opposing party could have
Ct can limit Discovery if (i) Unreasonably cumulative, duplicitive; or obtainable in a more or harassing. gotten the information very easily. Also
convenient, easier, or cheaper way; (ii) Party seeking discovery has had ample opportunity 1) Was information sought free to examine public testimony. Where
26(b)(2): Limits on
to get this info already; (iii) The burden or expense of the proposed discovery outweighs 2) Was it relevant relevant and non-privileged material
Discovery
its likely benefit. Ct. can decide on its own to limit discovery, with reasonable notice, or 3) Was it privileged facts remain hidden in an attorney’s
parties can file for a 26(c) protective order. 4) Why wasn’t it work file and where production of
discoverable those facts is essential to eh
preparation of one’s case, discovery
may be properly had.(442)
26(b)(4): Trial Prep: Party can depose expert witnesses who may testify at trial. If an expert report is required, then it must be provided before the 1) non testifying
Experts deposition. 26(a)(2) 90 days before trial or 130 days before rebuttal of testimony. 2)Testifying(pre-trial depo)
 3)Non expert Fact witnessMUST
INCLUDE IN DISCLOSURE LIST

Thompson v. Haskell: Non-testifying

expert took mental diagnostic of P ten
days after incident. Usually can’t
discover question unless as provided by
-if not testifying, other side can’t depose
35(b) or exceptional circumstances. Ct
say she places mental state into question
Work product doctrine for testifying experts. NOT FORCED TO keep him cloistered off. Testifying submit report and depo but
and the mental diagnostic is highly
does not have to talk about discussion, must talk about assumptions of attorney.
probative of condition so discoverable.
Can’t hide work product behind non-testifying
(451).
Chiquita v. M/V Bolero: Chiq sent a
26(b)4(d)
expert to check out why the bananas were
left on the dock and examine loading
Stalnaker v. Kmart: Cannot depose parties that are not relevant to the scope of the investigation. Especially when the
crane. Bolero wants everything from him.
depositions may involve sensitive material that may cause annoyance. She is still allowed to depose Donald Graves the
Crt says NO DEPOSING him but you
principle.
can have documents and NOT work
product that came from trip. Exceptional
circumstances doesn’t have much merit
because nothing precluded them from
sending expert He must give up
underlying facts even though he is a non-
testifying .(453).
CLAWBACK!!! If you accidentally give other side privileged info…they must destroy the
26(b)5(B)
info.
28(a) In the US, need a person who is authorized to take an oath to be present at time of
28: Depositions deposition. (b) In a foreign country- may be taken in request to letter under oath by officer This person should be neutral
of court (c) Disqualification for interest in case, by relative, or financial interest
29: Stipulations re Parties can agree among themselves on terms of discovery unless it deals with deadlines, Parties set times, places, notice,
Discovery Procedure hearings, or trial - then they need the court's approval etc for depositions
Expensive, since at least 2
30(a) - Can take a deposition of party or non-party when 1. It takes more than 10 days for
attorneys will be there. Can ask
deposition, already deposed, or unavailable at the time. NP can be compelled via
30: Oral Depositions follow up questions immediately,
subpoena; 30(b): (1) Give notice of time and place to all parties; (2) Have a court reporter
however, and also observe the
present to record testimony.
demeanor of the witness
31(a) Any party may take depos by serving written questions, which are asked by
Rarely used. Cheaper than oral
31: Written Depositions stenographer and answered orally by witness. 14 days for cross questions and 7 days to
deposition
redirect questions
32: Use of Depositions 32(a) Depos can be used in court: (1) To impeach testimony (2) Testimony of an adverse Need verbatim record if you Without seeking permission, the total
party; (3) As testimony of non-party if witness unavailable for good reason (e.g. Dead) impeach number of depositions may not exceed
 ten, no deposition may exceed a day of
Almost all Objections to usage of depositions are waived if not brought up right after the seven hours and no person may be
taking of depositions before this point deposed a second time without
permission of the court
33(a) Up to 25 questions, including sub-parts, served in writing on another party for Only on parties. Inexpensive for
33: Interrogatories answering. Court can grant leave for more; can be used for any matter relating under rule asker-can be expensive for
26(b)(1) answerer
Zubalake v.s UBS: Requests ubs to
restore backups, adverse inference with
Can get documents from non-
respect to backup tapes missing, cost of
parties using a R45 subpoena.
re-deposing certain individuals. Rule.
R34 covers inspection of
Obligation to preserve evidence arises
property; can only be used against
when the party has notice that the
34: Request for parties
evidence is relevant to litigation or when
Production of 34(a): Can request party to produce any document or information in its custody per rule
a party should have known that the
Documents 26(b); 34(b): Request must state each item or category with particularity and separately. + Ct doesn’t want expensive
evidence may be relevant to litigation.
Describe manner of inspection of the documents + request reasonable time and place. precedent so only gives cost of
Must preserve what you know or
-Rule 45- subpoena for non parties, to produce document, testify, etc. new depositions 
reasonably should knowis relevant in the
action, is reasonably calculated to lead to
Must prove 1) gross
the discovery of admissible evidence, and
negligence/recklessness 2) spoiled
is reasonably likely to be requested
evidence contained relevant
during discovery or the subject of
information(I hate this case)
pending discovery request once you are
“in anticipation of litigation.” (467)
35(a): Must obtain a court order (through motion); show good cause for the exam; show VERY TESTABLE
Courts want a strong reason to
that it is material to the matter in controversy. Notify all parties of: Examiner, time, place
35: Physical / Mental allow - This is a serious invasion
and scope of exam. 35(b) Report of Exam: (1) Adverse party can request copy; (2) by
Exams of privacy…in controversy, good
requesting a copy of the testimony, the examined party waives privilege re: their medical
cause.
exams.
A matter is admitted unless within 30 days a response is given, if denied must state why in
Rule 36 Request for
good faith, and if one part admitted or denied must state specifically which one is denied.
admissions
The answering party may assert lack of knowledge as a reason for failing to admit
37(a): Motion to Compel disclosure or cooperate in discovery - a party, upon reasonable
Must make a good faith effort to
37: Motion to Compel notice, can apply for order to compel a party or non-party to participate in discovery.
get the target to accede to
Discovery 37(a)(2)(A): Can compel disclosure. (B): Can compel answers to interrogatories. 37(a)(3):
requests.
Evasive or incomplete answers are a failure to comply.
37(a)(4)(A): If Motion to Compel granted: Ct. can compel delinquent party/attorney to pay
37: Motion to Compel for the reasonable expenses of moving party. Moving party must prove g.faith effort Expenses can include reasonable
GRANTED before turning to the court. If delinquent party complies after motion, but before ruling, Ct attorney's fees.
can still assess expenses. Delinquent still has chance to be heard by Ct. before being fined.

37: Motion to Compel
DENIED
37(f) spoliation
37: Failure to Comply
with Order to Compel
38(a): Right to a Jury Trial
Preserved
38(b): Demand for Jury
Trial
38(c): Issues for Jury
38(d): Waiver of Right to
Jury
39(a): Trial by Jury
39(b): Trial by Judge
39(c): Trial by Consent
41(a): Voluntary
Dismissal of Action
37(a)(4)(B): If motion to compel is denied: Court can enter a rule 26(c) protective order Can include Attorney's fees.
and require that the moving party pay the expenses of the non-moving party in opposing 26(c) permits protection from
the motion. Ct. can decide not to assess fees if the motion was substantially justifiable. annoyance/embarrassment
Silvestri v. General Motors: S did his
own testing on a design defect claim w/o
informing other party. Car was fixed so
Party must in good faith participate in submitting and developing a discovery plan as required by rule 26(f). attny fees?
other party could do no discovery. Court
dismisses for spoliation.
Zublake v. UBS
Jury can be informed that the
Court can levy all kinds of sanctions for failure to comply. See rule 37(b) on 166-167 in
party deliberately concealed
FRCP.
evidence
1)legal/equitable claims 2)legal/equitable
Right is guaranteed by the 7th Amendment of Constitution
remedies …legal claims
Exceptions: ejectment, replevin,
assumpsit.
Beacon Theaters holding: the jury trial should precede any hearing on the equitable claim and that the jury’s findings would
Chauffeurs, Teamsters & Helpers local
control as to any “common factual issues” –disputed issues that might arise both in the legal and equitable claims. Equitable
No. 391 v. Terry: (561)
claims in which there are not “common issues” are not subject to a jury trial; they will still be decided by the judge alone.
Amaco v Tarcomian: compulsory legal
counterclaims allow jury trial. Main
Parklane Hosiery v. Shore: Court rules that an equitable judgment determined by a judge can bind a second case. Issue
issues are questions of credibility then
preclusion!!!!
jury trial.
Party can demand a jury trial on any issue protected by Constitution or US Statute or rule. (e.g. Rule 57 declaratory judgment is
jury) 1) Serve written demand on parties AND 2) filing demand no later than 14 days from service of last pleading. Must file
demand in accordance with 5(d)
Parties may specify in demand which issues they want the jury to decide - then the other party has 14 days to serve a demand
for any other issues. Otherwise, trial by jury on all issues.
WAIVER - Failure to serve and file demand WAIVES the right to a jury. Once demand has been made, it can only be MAKE SURE TO FILE FOR JURY
withdrawn if both parties consent. TRIAL!!!!
If demand for jury trial, should get one unless: (1) both parties consent on record (written or orally in hearing) otherwise; OR
(2) Court finds there is no constitutional or statutory right on all or some issues.
If no jury demand, then case will be tried by the judge. (BENCH TRIAL); - However, if party neglects to demand a jury trial,
but had the right to do so, then court has the discretion to allow one.
If statute says no jury then one can be had if both parties agree.
41(a)(1)(i) Π can voluntarily end case by filing notice of dismissal any time before the If the case is brought again and
answer or motion for SJ is served - OR 41(a)(1)(ii): If parties all agree in writing and file dismissed, then it is considered w/
in court. This is considered dismissal without prejudice. Can only do this once for a prejudice. No third refile.
particular claim. Otherwise 41(a)(2) the court decides whether to allow the voluntary
dismissal. Also if Δ filed counterclaim that it wants to keep, then the court decides
 whether to allow the dismissal w/o prejudice on original claim and leave the counterclaim
pending.
•
If Π fails to prosecute or comply with the rules, Δ can move for a dismissal of the action or any claim in it. Unless for
jurisdiction, venue or joinder or if court decides otherwise, this dismissal is considered with prejudice.
41(b): Involuntary
• Involuntary dismissal comes from failure to prosecute
Dismissal
• Court can dismiss case for anything under this rule

41(c): Dismissing
Counterclaim, cross claim, Must be made before responsive pleading is served or before evidence is introduced
third party claim
41(d): Cost of previously
If P brings
dismissed action
42(a) Actions involving common questions of law or fact can be consolidated by court into joint hearing or trial; 42(b) - Court
42: Consolidated /
can split any claims, as long as right to jury trial is preserved, in order to expedite, make more convenient or economic, or avoid
Separated Trials
prejudice.
A judge cannot serve where he Re Boston Children’s First: ex parte
has been a lawyer in a certain conversation construed as biased. Writ of
issue, served as a governmental mandamus granted by SC. “appearance of
employee and expressed opinion partiality compromised.(584).
EACH SIDE CAN CHALLENGE BIAS OF JUDGE ONCE IN CONCLUSORY
on merits, financial interests, Thompson v Altheimer & Gray: Judge
USC 144, 455(b) TERMS. Jury must be screened carefully both sides and judge are in control of this
455(b) “any judge of the U.S should have asked, “whether her beliefs
process.
shall disqualify himself in any would have somehow impede her in
proceeding in which his giving due weight to the evidence and
impartiality may be reasonably following the judge’s instructions.”
questioned.
47(a) Examination of jurors - Court may permit party or its attorney to examine prospective jurors or court can do it with 28 USC 1863-1864, 1868
47: Selection of Jurors parties' imput. 47(b): Peremptory challenges are allowed. Challenges 1867(c)

48: #of Jurors 6-12 Jurors - Must be unanimous unless otherwise stipulated by parties. Not less than 6
Court can require a jury to return only a Special Verdict. SV must be in the form of
49(a): Special Verdict
special written findings upon each issue of fact
Court may submit forms for general verdict along with written interrogatories on issues of
fact necessary to decide GV. When GV and the written answers are harmonious,
judgment is appropriate. When there are inconsistencies among answers and the GV, the Make sure to object to these
judge will send jury back for more consideration or order new trial. If there are issues when they come back…
49(b): General Verdict
inconsistencies only between answers and GV (answers are consistent) then the judge otherwise, you may lose your
MAY affirm the verdict OR enter judgment according to the answers (against the GV) OR chance later.
send for more deliberation OR order a new trial.
 Pennsylvania RR v Chamberlain:
50(a)(1): If party is done presenting side and there is no legally sufficient basis for a reasonable jury to make a favorable finding
TCjmol, APreverse SCreverse
for that party, then the court may determine the issue against that party a grant a motion for JML. 50(a)(2): Motions for JML
50(a): Judgment as a back to jmol. Court rules no real
can be made at any time before the case goes to jury. Should specify judgment sought and the law and facts which entitle party
Matter of Law (Motion contradiction of facts/evidence produced
to JML. Party with burden of production at trial has failed to carry that burden. 1) Take inference in favor of non
for a Directed Verdict) Bainbridge does not deny collision only
moving party 2) Don’t judge on issues of credibility 3) Don’t weigh the evidence.
infers from an inference it did not occur .

50(b): Renewed Motion If, for any reason, JML is denied after all evidence is presented at trial, the moving party can renew its request for JML by filing YOU WAIVE RENEWED JMOL IF
for Judgment as a its request within 28 days of the judgment. It can also ask for a new trial under rule 59. If verdict is in, then the court can 1) Let YOU DO NOT RAISE JMOL!!
Matter of Law (JNOV); judgment stand; 2) Order new trial; or 3) Direct verdict as a matter of law. If verdict not in, the court can 1) Order a new trial or
Alternative Motion for 2) Direct verdict as JML
new Trial

50(c) Granting the 1) If the courts grants a renewed JMOL, it must conditionally rule on any motion for a new trial by determining whether
renewed motion; a new trial should be granted if the judgment is later vacated or reversed. 2) Granting of a new trial does not effect
conditional ruling on a jmol’s finality. If judgment is reversed new trial must go on unless appellate courts says otherwise. If motion for new
Motion for a New trial trial is denied apellee may assert error, if the judgment is reversed, case must proceed as appellate court orders
51; Instructions to Jury; 1) Before or at the close of evidence party may provide written request for
Objections; Preserving a jury instruction. (C) must make an objection on the record if you want
claim of error to appeal on that objection.
Anderson v. Bessemer City:
Findings shall not be set aside unless clearly erroneous an due regard
TCPlaintiff, AC D reversed de
shall be given to the opportunity of the trial court to judge the credibility of
Rule 52(a)(6) De novo: Redo the entire case novo...SC said trial court judge was in
the witnesses. Finding is erroneous when there is no evidence to support it.
Impossible to find jury’s fact finding clearly erroneous. a better position to make decisions based
on the testimony since he was present.
55(b)(1) - By the clerk for sum certain (computable amount) claims - 55(b)(2) by the Court for all other cases (uncertain
amounts), party asks court for default judgment. If defaulting party has already appeared in the case, then entitled to written
notice of application for default judgment hearing at least 3 days before the hearing.
• When with clerk as opposed to by court- when you know the exact sum, no additional evidence needed to prove
55(b): Procedure for
amount of damages.
Default Judgment
• Party can appear (by filing pre answer motion) but didn’t contest with answer- must be given 3 days notice to them
• Court may conduct hearings to determine amount of damages and investigate truth of allegations >> default
essentially means that you are not there to dispute allegations, not necessarily always ruled against you

Court can set aside default judgment if good cause is found

55(c): Setting Aside
• Good fault includes a whole list of scenarios under 60(d) such as (fraud, mistake, new evidence, judgment satisfied)
Default Judgment
• Setting aside default judgment not likely and doesn’t happen very often
55(d) Judgment against US gets a free pass almost- no default judgment against them unless the court is satisfied that evidence establishes a right to
the United States relief- essentially trying the case and so, really, no judgment at all
 (a) A party may move for summary judgment, identifying each claim or defense Celotex v. Catrett - (SC) Π sued ∆
— or the part of each claim or defense — on which summary judgment is asbestos manufacturer, alleging asbestos
sought. The court shall grant summary judgment if the movant shows that killed husband. ∆ moves for SJ, saying
there is no genuine dispute as to any material fact and the movant is entitled no evidence husband came into contact
to judgment as a matter of law. The court should state on the record the with ∆ ‘s asbestos to prove causation. SJ
reasons for granting or denying the motion. b) Unless a different time is set upheld. ∆ ‘s met its burden under 56(c)
by local rule or the court orders otherwise, a party may file a motion for basing motion on its unresponded- to-
summary judgment at any time until 30 days after the close of all discovery interrogs. ∆ need only show absence of
c) (1)Supporting Factual Positions. A party asserting that a fact cannot be
or is genuinely disputed must support the assertion by:(A) citing to
particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or(B) showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.
3 issues for SJ: 1) Factual; 2)
Objection That a Fact Is Not Supported by Admissible Evidence. A party
Statutory interpretation; 3) No
may object that the material cited to support or dispute a fact cannot be
disputed issue of material fact
presented in a form that would be admissible in evidence.
since party fails to properly
(3) Materials Not Cited. The court need consider only the cited materials, but it
56: Summary Judgment provide evidence. If SJ is
may consider other materials in the record.
granted, then it is final judgment.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
Same as a 12(c) motion pre-trial if
would be admissible in evidence, and show that the affiant or declarant is
evidence is attached.
competent to testify on the matters stated. d) When Facts Are Unavailable
to the Nonmovant. If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1)defer considering the motion or deny it;
(2)allow time to obtain affidavits or declarations or to take discovery; or(3)
issue any other appropriate order. (e)Failing to Properly Support or
Address a Fact. If a party fails to properly support an assertion of fact or
fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may:(1) give an opportunity to properly support or
address the fact;(2)consider the fact undisputed for purposes of the motion
(3)grant summary judgment if the motion and supporting materials —
including the facts considered undisputed — show that the movant is
entitled to it; or(4)issue any other appropriate order.

57: Declaratory Relief

 Lind v Schenley DC rules jnov and in the
alternative, a new trial. SC says he
substituted his judgment of the facts and
Most Common grounds for new the credibility of the witnesses for that of
trial: 1) Verdict is contrary to the jury because the case was easy for
weight of evidence; 2) Verdict is them to understand. Hastie Dissent:
May grant a trial on some or all issues for: 59(a)(1): Jury trial; 59(a)(2): Bench Trial Judge was there why are we taking
excessive or inadequate; 3) Newly
59(a): Grounds for New STANDARD: Abuse of discretion lower than Renewed JMOL. If appellate court reverses away his first hand knowledge and
discovered evidence; 4) Improper
Trial a jmol then a new trial must be ordered. If the appellate court reverses a jnov then no new substituting it for our second hand.
Conduct by Counsel, Judge or
trial jury verdict stands.
Jury 5)contrary to law 6) a result Peterson v. Wilson: TCP, APPD
of error in the admission of SupremeP, Judge in ex parte
evidence. conversation with the jury hear that they
did not follow law. He then granted new
trial. NOT OK. The jury is a black box
cannot impeach jury verdict!
59(b): When to File
Motion must be served no more than 28 days after judgment is entered.
Motion for New Trial
59(c): Court-Ordered New Court can order a new trial on its own initiative. If they want to, then must be done within 10 days after judgment
Trial
59(d): Alter or Amend File motion to amend judgment within 10 days
Judgment
U.S v. Beggerly: Sought to get a piece of
land it believed the gov’t had sold its
60(b) Getting around
family years before. Lost when no
claim preclusion when the
Very rare, not an alternative to appeal only applicable if there is foul play. information proving it could be found.
other side isn’t playing
Got info later from gov/t archives could
fair
have gotten it before. Court will not grant
60(b). No grave miscarriage of justice.
Hayden v. Jayco: A statement was
Errors in admission/exclusion of evidence or in ruling or order in anything done or not attached to the summary judgment wasn’t
Merely acknowledges error - with
done by court or any party is not valid grounds for granting appeal unless it goes against in affidavit form so opposing attorney
61: Harmless Error; USC no repercussions. If the error
substantial justice. At every stage of proceeding, court must disregard any error which said it wasn’t admissible. Court ruled that
2111 made no difference, then no
does not affect the substantial rights of the parties. if remanded he would just put it in
reason to allow appeal on it.
affidavit form wasting time so harmless
error.
4 tests Cts apply: All 4 MUST be
proven: 1) Irreparable injury; 2)
65(a): Preliminary
Judge hears both sides and decides merits of granting Likely to prevail on merits; 3) Δ
Injunctions
not more harmed than Π; 4) Grant
of injunction is in public interest.
65(b): Temporary RO - Sworn affidavits filed by both sides and decision is made upon those. Ex parte TRO - One party files and order is given
Restraining Order without notice to the other party.
Any time at least 10 days before trial starts, Δ can serve offer of judgment to the other side
of money or property with costs accrued thus far. If accepted in writing within 10 days,
then either party can file it with the clerk to enter judgment. If not accepted, then the offer Costs do not usually include
68: Offer of Judgment
is deemed to be withdrawn (And cannot be used in trial). If Final Judgment is not more $$ attorney's fees.
than the offer, then the Π has to pay his own costs, plus the costs of the Δ's costs since the
offer was made. If turned down, then the Δ can offer 68 again.
Liberty Mutual v. Wetzel: Cannot appeal
Appeals court will hear all appeals on all final decisions of district courts. May only partial summary judgment where no relief
appeal adverse judgments “judgments granting relief different from the one is granted. Perhaps could construe lack of
28 USC 1291: Appeals of What is "final" can be up in the
requested.” Must object with specificity (grounds or for the request or objection granting injunction a final judgment and
Final Verdicts air. “is one which ends in
must be stated) if you wish to bring an appeal. no sandbagging with vague do an interlocutory appeal but have 10
NO SANDBAGGING litigation on the merits and leaves
objections. day window this passed.
YOU SON OF A nothing for the court to do but
2) Frcp 4(a)4: since it is hard to judge when an appeal is final you can file (636). MUST FILE NOTICE OF
BITCH execute the judgment.” Rule 54
as a place holder and it goes into effect whenever final judgment is APPEAL!!!30 or 10 days? Partial
made. summary judgments are not summary
judgments.
Exceptions to the final judgment Rule:
10 days to file or lose (335
-1292 injunctions
28 USC 1292: Declaratory judgments are appealable 1292(a), partial summary judgments on liability are FCRP) Rule 54(b) on
-Collateral order doctrine
Interlocutory Appeals not. INJUNCTIONS are appealable as are all things on page (649) note 6. interlocutory appeals multiple
-Mandamus
claims rule.
-Appeals certified by court
28 USC 1292(a):
Interlocutory Appeals by The appeals court must hear appeals base on Receivers, Admiralty and Injunctions.
Right
You may appeal a decision in an interlocutory fashion if: 1) The DC judge certifies it; 2) Lauro Lines s.r.l v. Chasser: Court rules
28 USC 1292(b): The AC accepts it. In order to be certified(only 300), the issue must be: A) Have that appeal to a 12(b)6 concerning
D) if the matter is controlling as
Discretionary substantial grounds for differing interpretations; B) Involves a controlling question of law arbitration legality is not a final judgment
to the rest of the litigation
Interlocutory Appeals C) An immediate appeal will materially advance the litigation. D) collateral order under 1291 nor can it be 1292(b)
doctrine
Standard of review: Abdication of the judicial function; Requires a public official to
WRIT OF MANDAMUS perform an act required by law. Beacon theater v. Westover denial of jury trial also
granted writ.
SCOPE OF REVIEW

Claim Preclusion Claim preclusion forbids a party from litigating a claim that was, or could and should have Efficiency and finality
been raised, in former litigation. Decision on the merits: 12(b)6 is on the merits. No “Transaction or occurrence
final judgment is made if case is not tried in correct jurisdiction. test”.claims need not to have
actually been litigated to be
barred if they should have been
Frier v. Vandalia: Federal court must use
state court claim preclusion doctrines
because of Erie, “one suit precludes
another where causes of action are
identical. Causes of action are identical

Must be a privy to a party to be claim precluded. If subsequent suit involves different
Collateral Estoppel
parties, those parties cannot be bound by a prior judgment.
Issue Preclusion 1)
brought
1) Could have brought it
up
2) Privity of parties(Same
legal right or one whose
interests have been
litigated at the time).
3) Opportunity to litigate
4) Decision on the merits
Exceptions: Substantive legal
relationships i.e buying property
with easement already litigated
2)Express agreement to be bound
by a decision to which one is not
a party 3)Instances of procedural
representation guardians/class
actions
The issue of fact or law is 2)actually litigated and determined by 3) a valid and Civil and Criminal burdens are
where the evidence necessary to sustain a
second verdict would sustain the first…
core operative fact even if different legal
theories more narrow than Federal.
Dissent replevin and due process
theories are out of different
transactions.(668)
Martino v. Mcdonalds: Settled out of
court in which was considered a final
judgment. Mcd’s claimed that he couldn’t
raise more claims due to 13(a). However
13(a) refers to pleading and none were
made. He brings a new claim but 13 years
later. Court says although claim is ok rule
is not absolute. Can’t bring something 13
years later after mcd’s has relied on final
judgment.(680).
Gargallo v Merrill lynch, Pierce, Fenner
& Smith: Federal court exclusion a final
judgment in a court without jurisdiction is
not final. Also since he was sanctioned
nothing was litigated on for issue
preclusion(690).
Searle Bro’s v Searle: Father brought suit
claiming he owned half of house. Brother
then brought another suit claiming
partnership. Dissent knew of litigation
and participated at trial. (681).
Parklane Hosiery v Shore: offensive
collateral estoppel works. They had
already been sued by SEC and found to
guilty on some claims. The next suit
alleged some of the same claims so they
were bound by previous litigation…they
had incentive to litigate as hard as
possible in SEC suit. Also they could not
have joined claims with SEC claims and
no new procedural opportunities
(703).
Illinois RR v. Parks: Wife sues and

different!
1) Comment i: if two
issues are at hand and
TC rules in favor of one
side on both then issues
are not precluded
2) Comment o: Effect of
appeal: if two are cited
final judgment 4)the determination is essential to the judgment in a subsequent as independently
action between parties, whether or not the same or different claim sufficient then they are
conclusive. If one is
cited as sufficient but
not the other the first is
conclusive. If one is
cited as sufficient and
the other is not
commented on the first
is cited as conclusive
Full faith and credit even as to
jurisdiction especially when it has
been tried twice. Missouri
Full Faith and Credit Respect for judgment from sister states Article 4 appellate only had right to inquire
as to whether facts were
concerning smj were fully
adjudicated.
Forum non Conviens and
Qualified immunity
De-novo purely legal, Kovach can’t be claim preclusion then they are totally wrong  did you get the law right de novo
PRECLUSION What is the legal effect of a final judgment on future cases?
Doctrine of effect of judgments on subsequent litigation.
Stare decisis = rule of law, once a judge has ruled on an issue, won’t revisit it within a case (=mini-preclusion)
husband sues only for consortium. Wife
gets money and court determines RR
negligent. Negligence is issue precluded.
Husband sues for damages court rules.
RR says he is issue precluded to litigate
on his contributory negligence because
court has done this in not giving him
consortium. SC says no it could have
been a variety of reasons. So this has not
been litigated.
State Farm v Casualty Co v. Century
Home: if the results from multiple similar
claims are inconsistent not likely to get
offensive collateral estoppel. (710)
Exceptions(714) .(717)
Kovach v District of Columbia: Can’t be
claim precluded even if new suit arises
out of same transaction or occurrence of
grounds for suit occurred at a later date;
They consider his payment to BTA
litigation because he had the opportunity
to pay or litigate and he paid so the
decision is final and based on facts
already litigated.(720).
Durfee v. Duke: Litigated the case in
Nebraska and fully litigated subject
matter SC in Nebraska full litigated it
again de novo. Went to Missouri to re-
litigate Fed DC said they had no res-
judicata applied, AC reversed SC,
reversed and remanded saying that issue
had been litigated twice and thus was
precluded.
 • Basic requirement of a final judgment on the merits
• EX: tried before judge/jury, directed verdict, SJ, 12(b)(6) motion to dismiss
BUT: Technical failures like motion to dismiss, sanctions, wrong jurisdiction, are less likely to be counted as a final judgment on the merits
Claim Doesn’t appear in FRCP—from common law
• If P wins against D, claim and all related are
Preclusion merged and cannot be rebrought
• Same Claim • If P loses against D, claim and all related are
barred and cannot be re-brought
• Arises as an issue when Action II is brought— •
need to look at results from Action I
Test:
1. Is there a final judgment from Action I?
2. Is it the same transaction as Action I?
(transaction test)
a. Transaction defined through common time,
space, origin, or motivation, “same nucleus of
operative facts”
b. Modified by “primary right” in California—
Bundy sees as arbitrary
3. Would efficiency have been served by bringing
the claim in Action I? (pragmatic test)
Allowed to split a claim if:
1. parties agree
2. court agrees
3. 1st court didn’t have juris. over all issues
Claim Judgment’s binding only on parties &
Preclusion those in privy w/ them
• Same • A party brings the claim or is
Parties named to defend an action.
(Privity) • Privity- closely connected enough
to action or party that would
choose to be represented the same
way the party would
• Need to control (shared
enterprise is not enough—look
Policy:
• There should only be one lawsuit about a particular transaction
—promotes efficiency/judicial economy
• Helps explain why pleadings are important—define the scope
of the litigation—lot of pressure on lawyer
Greater due process concerns than issue preclusion b/c don’t
want to shut out in full w/o good cause
• file all the claims you can when you can in the first claim, but
should not be precluded for claims you did not know about
(use freedom to amend or add claims when you can)
• Avoids inconsistent judgments
RES JUDICATA “the thing that has been decided”
Estoppel by judgment
• forbids a party from relitigating a claim that s/h been raised in
former litigation
• “Under what circumstances does a decision in an earlier action
permit or prevent you from raising a theory or action that could
have been raised earlier?”
Would violate due process if held non-privity
parties bound to a judgment
Parties have special rights/abilities:
• Choose to control/cede control of litigation
• Whether to bring suit/defend suit
• What lawyer to use/how much money to
spend/if lawyer must consult before acting
• Whether to settle/appeal a judgment
 at when 2nd group tried to get
involved in the suit or an
agreement)
• Need to represent (not
enough that both groups had
same interest in outcome; need
for notice and assurance of
adequate representation OR a
special relationship)
Protects defendants from multiple lawsuits
Examples of those in privity:
1. Insured D has right to defense paid for by
insurance co.; insurance co. can control the
litigation
2. Child/incompetent and guardian
3. Ill people w/ power-of-attorney docs

Issue Preclusion “When an issue has been decided COLLATERAL ESTOPPEL

earlier, when is a later ct required to
decide the issue the same way?”
(Doesn’t bar claim itself)
When an issue of fact or law is
1) the same
2) actually litigated (both parties
contested) and determined by
3) essential to the judgment, and
4) full and fair opportunity to litigate
(equivalent formality and procedural
safeguards)
• formal hearing
• ability to appeal
• ability to conduct discovery
Policy: Avoid embarrassment with differing
decisions
Alternative Grounds:
• Court reaches decision on two or more
alternative holdings—modern view is that none
are precluded
• Concern about accuracy—fear that didn’t
consider every issue very closely, so quality of
litigating & finding go down
• Decisionmakers only care there’s 1 good
reason why Π should lose, may use alternate
findings to nail in coffin
• May reduce incentive to appeal b/c would need
appellate court to rule on both (all) grounds

• Nonmutal Mutuality (historical) did not allow parties Policy:

Issue to be bound by previous actions involving a • Radically increases stakes of litigation
Preclusion diff. party - must have been party to the first • Most important in products liability
 suit and also bound by the judgment. But
Mutuality now ...
Defensive Defensive Nonmutal Issue Preclusion:
Nonmutual Shield
• Ds switch, P stays the same
Offensive • Second D can use finding for first D to
Nonmutual preclude P from relitigating issue IF
• Actually litigated,
determined, essential, full and fair
opportunity to litigate
• Would have been barred
under mutuality b/c second D not a
party in Action I
• Real issue is whether person who is
suing has had a full and fair opportunity
to litigate
• Reasoning: Why should P get another
chance?
Offensive Nonmutual Issue Preclusion:
Sword
• Ps switch, D stays the same
• Second P wants to use favorable ruling
for first P although second P would not
have been bound by an unfavorable
ruling for first P
1. Ask: could Π have joined in 1st
action?
2. Did ∆ have every incentive to
• Shift from mutuality allows a second P
to take advantage of an unfavorable
result for same D
• Gives person one opportunity to fully
and fairly litigate
• Judicial economy and avoid inconsistent
judgments
• Cannot be bound by an unfavorable
ruling if weren’t a party in first suit
• Defensive creates disincentives for
inefficient litigation (if you lose the first
action, you lose against all comers, so Π
has incentive to sue everyone all at once,
so then there is a 50-50 chance of
winning either way)
• Offensive creates incentives for
inefficient litigation (joining in first case
is disadvantageous b/c its best for Π to
hang back and see if 1st Π win or not; if
they do win, they Π ‘s win outright,
otherwise they then can sue themselves,
with a 50-50 chance of winning)
Cons to Defensive:
• P may not have tried very hard in first
action—maybe for significantly less
stakes
• Action may be on appeal; don’t want to
preclude
 vigorously litigate the 1st action?
3. Were procedural opportunities
unavailable to ∆ in 1st action
that will be available in the 2nd?
• P seeks to estop D from relitigating
issues which D previously lost to another
P available in 2nd suit (judge v. jury not
Exceptions to Offensive
• Second P could easily have joined 1st suit
—no reward for “wait and see”
• D may not have defended first suit very
vigorously—difference in stakes
• Different procedural opportunities
good enough)
• Inconsistent judgments from previous
suits (Action I for P, Action 2 for D, etc.
—Action 4 cannot use NMIP)