Viv's Civ Pro Outline.doc

8/18/2019 Viv's Civ Pro Outline.doc

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I. Personal Jurisdictiona. Power of a court to enter a judgment against a person or thingb. Courts can only assert personal jurisdiction IF:

i. Power is authorized by statute ANii. Power is consistent with ue Process Clause

c. !raditional bases for jurisdictioni. Pennoyer ". Ne# $ %.C. &'((

1. )urisdiction is limited to person or property within state boundaries2. Natural person is subject to a court*s jurisdiction if he+she:

a. Appears in court ,without ma-ing a motion to dismiss the action for lac- ofpersonal jurisdiction /0: special appearance1

b. Is found within the statec. Is a resident of the stated. 2as property therein:

i. If a nonresident owns property in the forum3 the forum state only has jurisdiction o"er the property but only to the e4tent if property is attached atthe beginning of the lawsuit

ii. Attachment: legal proceeding that s a seizure of property can sometimes beon personal property ,mo"eable thing that can be seized by an order of thecourt1 or real property li-e land ,lien placed on property so it can*t be sold ortransferred to anyone else during that time1

ii. i#erent types of jurisdictions ,old way11. In personam : a court*s jurisdiction o"er a person judgment is not limited by "alue of

any property since a P5 can e4ecute in personam judgment against any or alldefendant*s assets until amount of judgment is satis6ed

a. Always preferable because you can ta-e judgment into any state and e4ecute judgment

2. In rem : a court*s jurisdiction e4tends only o"er the property attacheda. In rem : proceeding decides ownership of all attached propertyb. 7uasi8in8rem &: title attached to property is at issue3 but dispute between

identi6ed litigants with claims to propertyc. 7uasi8in8rem 9: wnership or title to attached property is not an issue in action3

but non8resident*s property within Forum state attached as a means for Forumcourt to e4ercise jurisdiction

i. !his was later found to be in "iolation of ue Process in most cases in%ha#er ". 2eitner b+c it was being used as a means to get / in court andsubject to jurisdiction

d. /4panding bases of personal jurisdictioni. !echnological ad"ances a#ected doctrine of personal jurisdiction $ states had to de"elop

strategies to subject out of state defendants to jurisdiction automobiles lead to increasedinterstate tra"els ; injuries and car crashes with out of state defendants

ii. 2ess ". Pawlos-i $ %.Ct


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a. A corporation e4ercises pri"ileges by protection of statef. %peci6c )urisdiction ,Gesults from International %hoe1

i. THREE PRONG TEST1. oes / ha"e minimum contacts with forumH

a. Purposeful a"ailmenti. /#ects test

2. oes P5*s claim,s1 arise out of+relate to /*s contact with ForumH3. ould it be reasonable ,comport with fair play and substantial justice1 for the forum

court to e4ercise jurisdiction o"er the /Ha. urden on defendantb. Plainti#*s interest in litigating in Forumc. %tate*s interest in ha"ing jurisdiction

From Brennan’s dissent in WWVW:d. the interstate judicial systems interest in obtaining the most eJcient resolution

of contro"ersiese. the shared interest of se"eral states in furthering fundamental social policies

,really big umbrella $ e4: states are interested in being able to pro"ide forthemsel"es1

4. Policy rationale for using Bminimum contacts reKuirement for %)Ha. Protects / from burden of litigating in a distant or incon"enient forumb. /nsures that the %tates3 through their courts3 do not reach beyond limits

imposed on them by their status as coeKual so"ereigns in a federal systemii. e"elopment of 5ong8Arm 5aws

1. Lray ". American Gadiator M %tandard %anitary Corporation.8 Illinois %.Ct &= &a. If a manufacturer decided to sell its products for use in other states through

middle8man distributors3 the manufacturer could be subject to personal jurisdiction $ stream of commerce

b. !his is not bindin ut this case is often cited by %upreme Courtiii. ue Process and 5ong8Arm %tatutes

1. !on "#r$ Statutes : authorize the e4ercise of power o"er nonresidents who cannotbe found or ser"ed in the state

a. %ome states ha"e a laundry list of acti"ities that gi"e rise to jurisdiction o"er anonresident3 while other states li-e CA say that a state can e4ercise jurisdictionto the full e4tent of Constitution

b. /4ercise of jurisdiction in these cases based on:i. Nonresident /*s general acti"ity in the state

ii. Commission of any one of a series of enumerated acts within the jurisdictioniii. Commission of a certain act outside the jurisdiction causing conseKuences

within it2. )ust because a state has a long8arm statute allowing Forum to ha"e personal

jurisdiction o"er a non8resident3 a state may not e4ecute personal jurisdiction,speci6c1 if it is not consistent with the ue Process Clause of the Constitution

a. >ust comport with fair play and substantial justicei. cLee tried to enforce judgment in !0 court !0 refused

ii. %.C. ruled in fa"or of >cLee $ said !0 co -new they were dealing with CAresident and purposefully a"ailed itself thus it was N ! a "iolation of ueProcess

c. 2anson ". enc-la $ %.Ct


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ii. %.C. says F5 court did N ! ha"e jurisdiction because onner*s unilateral act,only connection trustee has with Forum was that onner mo"ed there afterha"ing est. her trust1 not enough to est. minimum contacts

iii. Contrast from >cLee $ !0 corporation -new the person they were insuringwas in CA / trustee 6rst started encounters with onner when she was aPA resident and the only way we got the F5 connection is that she mo"edthere

d. orld8 ide Ool-swagen Corporation ". oodson $ %.Ct agazine $ %.Ct


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c. !erms of contractd. Parties* actual course of dealing

e. Asahi >etal Industry Co ". %uperior Court 8 $ %.Ct /!2INL > G/ than just mere awarenessstream of commerce S -nowledge

i. /0: ad"ertise3 design products for state3 etc.ii. >ere forseeability N ! suJcient

b. Asahi just put product into stream of commerce3 no e"idence ofsomething more under *Connors* test

2. ,rennan Test : %tream of commerce and awareness of stream issuJcient

a. if you put your product in the stream of commerce and are awareit could end up in the forum state3 that is enough for minimumcontacts

b. Asahi was aware of "al"es being sold because they didn*t deny itin aJda"it of President

3. ther considerations:a. Ste0ens says shouldn*t come up with a new rule for stream of

commerce cases $ no reason to articulate *Connors test since weall thin- subjecting them to P) is unreasonable

b. enned& : target with the intent to be in the state demandingsomething more than Bsomething more to satisfy >C ,).>cIntyre1

i. /mphasizes state so"ereigntyc. ,re&ers : says no need for new rule one sale is not enough for

stream of commerce and it doesn*t constitute something more,).>cIntyre1

4. 5ST 6a0e *ur*oseful a0ail$ent for $ini$u$ contacts 3 the justices ha"e di#erent "iews on what constitutes purposeful a"ailment

f. ). >cIntyre >achinery ". Nicastro$ %.Ct. cIntyre1. Rou can tell an independent distributor to mar-et to ar-eted to


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a. Indi"idual $ domiciliary3 where you are a citizenb. Corporation $ place of incorporation or primary place of businessc. ,this prong hasn*t been ruled out by %C but there hasn*t been as case to

illustrate this1 Against a nonresident defendant whose:i. Continuous corporate operations are so substantial and of such nature to

justify suit against it on causes of action arising from dealings entirelydistinct from those acti"ities ,basically enough call nonresident at home1

iii. Loodyear unlop !ires perations3 %.A. ". rown$ %.Ct anufacturing ". Tippo ot Com3 Inc $ Pennsyl"ania &==(a. /arly case3 no presidential "alue $ &==(3 but discusses personal jurisdiction in

conte4t of the internetb. istrict court opinion $ inDuenced analysis of many other courts3 but its also

been criticizedi. %liding scale analysis

1. ebsite that does business 88888888888888888888passi"e websitea. /0: Amazon 888888888888888888888restaurant menu

2. !he middle of sliding scale is interacti"ec. In deciding Tippo3 district court went through classic Int*l %hoe analysis for %)

i. )urisdiction ased


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3. 2olding: %.C. holds that $ini$u$ contacts a**lies to all in rem and thin-s just b+c something is an ancient form doesn*t

mean it comports with ue Process $ thin-s we should lea"e open possibility thatthis can be e4amined indi"idual bases on facts

i. In this situation he agrees / purposefully a"ailed himself b+c there"oluntarily

e. Ste0ens says he sees "irtues to either side@. Consent $ another basis of jurisdiction

i. A / consents to the Forum %tate*s jurisdiction by appearing in court3 prior agreement3 orby not challenging in a timely manner

1. onsent b& a**earance in court : show up and don*t reject jurisdiction at beginningof litigation

a. Insurance Corporation. of Ireland ". Compagnie des au4ites de Lunee$ %.Ct


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1. B%pecial appearance $ procedure at common law where / challenges court*se4ercise of personal jurisdiction without submitting to the court*s jurisdiction for anyother purpose

a. !raditionally3 if the / argued the merits is any other way ,did anything butKuestion jurisdiction1 would*"e made a Bgeneral appearance and thus"oluntarily submitting himself to court*s jurisdiction

ii. Collateral attac- on personal jurisdiction1. / who objects to personal jurisdiction can ignore original suit entirely3 results in

default judgment for P5 who will try to enforce judgment in /*s home state mostli-ely

a. /4ception to a state*s duty to gi"e full faith and credit to a judgment of anotherstate as stated in Const. is:

i. enforcing court may always inKuire as to whether rendering state has jurisdiction in original action and refuse enforcement if it did not

b. / can oppose enforcement of that judgment by asserting in enforcing courtthat rendering court lac-ed personal jurisdiction

i. If judgment enforceable ,as determined by state where P5 trying to e4ecute judgment1 / loses suit without e"er ha"ing a chance to defend it

iii. 5imited8appearance problem1. Blimited appearance allows a / in an action commenced on Kuasi in rem basis to

appear for limited purpose of defending his interest in attached property withoutsubmitting to full personam jurisdiction

II. Notice and an pportunity to be 2earda. efore a court can enter a "alid judgment3 9 conditions must be met to satisfy ue Process:

i. Parties $ust recei0e adeust comply with due process and statutory means of notice2. >ust be reasonably calculated ,>ullane1

a. All that matters is where method was reasonable3 not whether it actuallyreached them or not

ii. Parties $ust 6a0e an ade


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1. Notice comports with due process if it is reasonably calculated under allcircumstances to apprise interested parties of pending action and aJrm them anopportunity to be heard

a. >ullane2. If form of notice reasonably calculated under all circumstances to apprise interested

parties of pending action3 but interested parties nonetheless don*t get actual notice3Notice may still be constitutionally suJcient

3. %tate*s notice statute may be unconstitutional3 e"en if the state actually pro"idesinterested parties with notice of pending action if state*s notice statute doesn*treKuire that the interest party recei"e notice of the action

a. utcher4. %tate notice statute may be reasonably calculated to apprise interested parties in

most circumstances3 but if the sender -nows in ad"ance that it is unli-ely theinterested parties in pending action will recei"e notice3 such notice is not suJcient3and other means of gi"ing notice are reKuired

a. LreeneB. A method of gi"ing notice may be reasonably calculated to apprise interested parties

of pending action but if the sender subseKuently learns that recipient didn*t recei"enotice3 additional steps are reKuired

a. )onesC. Posting notice on property and publication are traditional means of are traditional3 but

if you*re tal-ing about nonresident with prop within the state3 that notice wouldn*treach them $ mail may be reKuired

c. %tatutory Noticei. In short $ a copy of summons and complaint must be ser"ed by a person at least &' who is

not a party to the case and ser"ice must be e#ected by:1. Indi"iduals:

a. Following state law of the state where district court is located or where ser"ice ismade

b. eli"ering a copy of the summons and complaint to the / personallyc. 5ea"ing a copy of summons and complaint with a person of suitable age and

discretion residing at /*s dwelling or usual place of abode ord. eli"ering a copy of summons and complaint upon an agent authorized by

appointment or law to recei"e ser"ice of process2. omestic Corporation or other entities

a. Following state law of the state where district court is located or where ser"ice ismade

b. eli"ering a copy of summons and complaint to an oJcer3 a managing orgeneral agent3 or any other agent authorized by appointment or by law to acceptser"ice of process

3. ai"er of %er"icea. >ailing a notice and reKuest along with a copy of complaint3 wai"er forms3

noti6cation of the procedure and its conseKuences3 and a prepaid means forreturning the wai"er

b. If a domestic party fails to sign and return a wai"er form3 the court must imposeon / e4penses incurred in ma-ing ser"ice and reasonable e4penses if motion isreKuired

ii. Federal Gule ? implements a uniform form of summons to be used in all federal courts1. !ypes of ser"ice:

a. Personal %er"ice: Copies of summons and complaint are handed to /b. %ubstituted %er"ice: 5ea"ing a copy of summons and complaint upon Ba person

of suitable age and discretion at / Bdwelling or usual place of abode2. >aid to Perfection Llobal ". /nsor $>aryland istrict Court 9 &

a. Court upheld ser"ice by reg. mail emphasizing &1 / didn*t dispute recei"ingnotice e"en though not properly ser"ed 91P5 hadnUt sought entry of default

judgmentb. 2eld: hen there is actual notice3 e"ery technical "iolation of the rule or failure

of strict compliance may not in"alidate ser"ice of processd. %peci6c Applications of the %er"ice Pro"isions

i. %ederal Rule 4=a> 7 ontentsD #$end$ents

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1. Contents: A summons must:a. Name the courts and the partiesb. e directed to the /c. %tate the name and address of P5 attorney or $ if unrepresented $ of the P5d. %tate the time within which the / must APP/AG and /F/Ne. Notify / that failure to appear and defend will result in default judgment

against the / for the relief demanded in the complaintf. e signed by the cler- and

. ear the court*s seal2. Amendments: could can allow summons to be amended

ii. Federal Gule ?,b1 Issuance1. 2a"e to ha"e 6led complaint 6rst or concurrently to get cler- to sign and summons

and issue to P5 for ser"ice on /a. >ust ha"e summons or copy of summons issued for each / to be ser"ed

iii. %ederal Rule 4=c> Ser0ice1. In eneral

a. Su$$ons $ust be ser0ed )it6 a co*& of co$*laint2. ,& ?6o$

a. #n& *erson at least 1 &ears of a e and not a *art& $a& ser0esu$$ons and co$*laint

3. ,& a ars6al or So$eone S*eciall& #**ointeda. ,& P! re 7 9?ai0in Ser0ice:

1. GeKuesting a ai"er $ an indi"idual3 corporation3 association subject to ser"ice hasduty to a"oid unnecessary e4penses $ P5 may notify / that action commenced andas- / to wai"e ser"ice of summons. !he notice and reKuest must:

a. e in writing and addressed:i. !o indi"idual /

ii. r an oJcer3 managing agent authorized by appointmentb. Name the court where complaint 6ledc. e accompanied with co*& of co$*laintA t)o co*ies of )ai0er for$A and

*re*aid $eans for returnin t6e for$d. Inform the /3 using te4t prescribed in Form @ of conseKuences of wai"ing and

not wai"ing ser"icee. %tate the date when reKuest is sentf. Gi0e E reasonable ti$e 7 3F # S after re


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them personally was hard and e4pensi"e1 and instead of ser"ing /3 canser"e under Gule ? $ someone of reasonable age and discretion

iii. yman ". Newhouse1. Concluded F5 judgment against / was "oid b+c he was induced into

state due to fraud ,e4: LF said she was mo"ing to /urope to care fordying mom and wanted to see him before she left1

2. Court said we don*t honor a state*s jurisdiction when he*s tric-ed intostate

2. %er"ice of Process and Statutes of !i$itationsa. 5egal limitation on how long after cause of action you can sue

i. In CA state court and federal courts with respect to federal claims3 as longas you get complaint on 6le before statute of limitations on 6le3 you*re in theclear

ii. %ome states reKuire you get !2 complaint AN summons on 6le beforestatute of limitations e4pires1. &st duty of lawyer is to determine latest possible day for commencing an

actionIII. 8enue

a. ef: refers to the place within a so"ereign jurisdiction in which a gi"en action is to be broughtand only matters if jurisdiction o"er the parties has been established

b. %tate actioni. At state trial3 "enue is determined by statute and the states are free to set up any "enue

rules they wish without worrying about the federal constitutionii. asis for

1. Oenue is authorized based on the county or city where / resides2. >any states also allow "enue based on where cause of action arose3 where / does

business3 etc.iii. Forum non con#eniens

1. %tate may use its discretion not to hear the case in a county where there is statutory"enue sometimes this in"ol"es shifting a case to di#erent place within the state ornot hearing case within state at all

2. Normally / mo"es to ha"e case dismissed or transferred under orum noncon#eniens M court considers E factors:

a. hether P5 is a state resident ,if so3 he has stronger claim to ha"e case heard inhis home state1

b. hether the witnesses and sources of proof are more a"ailable in a di#erentstate or county and

c. hether the forum*s own state laws will go"ern the action ,transfer is moreli-ely if a di#erent state*s law controls1

c. Oenue in federal actions $ controlled by 9'


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1. Is a resident of any district where it has its principal place of business and its state ofincorporation

2. A corporation is a resident for "enue purposes in any district where the corporationwould ha"e Bminimum contacts necessary to support P) if that district were aseparate state

a. 2owe"er3 just b+c a corporation does business somewhere in the state does notma-e it a resident of all districts in that state

d. !ransfer of Oenuei. Federal orum non con#eniens ,not con"enient1

1. Court transfers a case to another district rather than dismissing it under 9'


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e. Forum %election Clausesi. Atlantic >arine Construction Co. %C held that motions under &? and Gule &9,b1,E1 >otion

to dismiss for improper "enue3 are only appropriate when "enue is wrong or improper under9' ) it must I%>I%% the case2. Note: the court must ha"e !2 subject8matter jurisdiction and personal jurisdiction

in order to be able to hear the caseb. %>) of %tate Courts

i. road general jurisdiction $ often has specialized court to hear certain types of claims1. %tate courts CANN ! hear claims arising out of:

a. an-ruptcy3 federal securities lawb. Patentc. Copyrightd. Federal antitrust lawe. Admiralty and maritime cases

i. If Congress has gi"en federal courts e4clusi"e jurisdiction li-e thesecategories3 state court cannot adjudicate and must dismiss claim

c. %>) of Federal Courtsi. Article III3 %ection & of the Constitution mandates Congress est. a %upreme Court and ga"e

them the power to est. lower courts which they didii. Federal courts are of li$ited +urisdiction

1. Congress can limit power of judicial power of federal courts but can*t enlargeiii. 2a"e jurisdiction o"er cases:

1. Arising from federal law and federal Constitution G2. ith claims o"er X(@3 in"ol"ing di"ersity:

a. between di#erent statesb. citizens from di#erent statesc. citizens and foreign citizens

i. /0C/P!: when foreign citizens permanently admitted and domiciled in samestate

d. Citizens of additional states and foreign citizens of additional partiese. Foreign state as plainti# and


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1. Person:a. Person domiciled in a state with the intent to stay permanently

2. Corporation:a. Place of incorporation Gb. Principal place of business

i. In 2ertz Corporation ". Friend3 the %upreme Court decided a corporation*sprincipal place of business for determining di"ersity is the Bner"e center $where C/ and major oJcers are ma-ing decisions

3. Noncorporate entity ,li-e a charitable org3 union3 etc.1:a. y its indi"iduals

4. >as ". Perry Court of Appeals3 @ th Circuit &=(?a. Creeper landlord put a two8way mirror in newlywed couples apartment while

they were 6nishing grad school in 5ouisianab. Argued federal court didn*t ha"e %>) $ tried to say >rs. was a citizen of

5ouisiana3 but didn*t Kuestions >r. since he was a citizen of Francec. %he was a resident of >ississippi but admitted she didn*t intend to go bac-3 but

court concluded:i. %he was a resident of >ississippi because while she didn*t intend to go bac-

to >ississippi as her domicile3 she didn*t -now where she and husbandmo"ing after degrees

ii. Gule: for a person to change his+her domicile must ha"e:1. Intent to change domicile2. >ust actually get to new domicile

0ii. Jurisdictional #$ount1. !o litigate in federal court3 jurisdictional amount must be o"er X(@3

a. If P5 see-s only non8monetary relief li-e permanent injunction3 a court mayconsider whether the "alue of relief to the P5 e4ceeds X(@3 ,or the cost to the

/12. If Plainti# reco"ers less than that amount the court can impose a Bpenalty on the

plainti# a. Court may deny P5*s costs and may charge them /*s costs ,li-e 6ling3 copies3

etc. but not attorney*s fees13. Aggregation of claims

a. y a single plainti#i. If a single P5 has a claim in e4cess of X(@Q he may add any other claims of

his against the same / e"en if other claims less than X(@Q ii. If no single claim e4ceeds X(@Q he can A A55 C5AI>% against a single /

as long as they total more than X(@Q this is o-ay tooiii. Additional /s: a P5 who has aggregated claims against one / usually may

N ! join claims against other /s for less than X(@Q b. y multiple plainti#s

i. If at least & P5 meets o"er X(@Q3 other P5 may join their related claimsagainst the same /1. !his is allowed b+c of supplemental jurisdiction

ii. If no single P5 has a claim or claims meeting jurisdictional amount3aggregation is normally not allowed3 but an e4ception when two or more P5sunite to enforce a single title or right in which they ha"e a common andundi"ided interest

4. Counterclaims ,jurisdictional amount1a. %uit initially brought in federal court

i. If P5 sues in federal court for less than X(@Q and / counterclaims for anamount ,either by itself or added to P5*s claim1 e4ceeds juris amount3 theamount in contro"ersy reKuirement is not bet

b. Gemo"al by /i. If P sues in state court for less than X(@Q and tries to remo"e to federal

court3 amount in contro"ersy problems li-ely wor- out li-e:1. P5 may N/O/G G/> O/ e"en if counterclaims against him for more

than X(@Q 2. / Gemo"al: if / counterclaims for more than X(@Q but P5 original

claim less than X(@Q result depends:

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2. /0: P5 from N) sues / from NR for X& Q in N) state court on an automobilenegligence case. / may remo"e case to a federal district court in N)

ii. !iming1. Notice of remo"al must be 6led within E days of the complaint or3 if the original

complaint isn*t remo"able3 within E days of the amended pleading3 motion3 or orderthat is remo"able

a. All /s must join in rem o"al2. A / only gets Bone bite at the apple and must remo"e the action the 6rst time the

action is remo"ableiii. i"ersity limitation

1. G/>/> /G: In di0ersit& casesA t6e case $a& be re$o0ed onl& if NO E is aciti en of t6e state in )6ic6 t6e action is *endin KKK

a. !his reason a / can remo"e a case to federal court is to a"oid discriminationand bias that state court may ha"e towards its citizens3 but if the / is a citizenof the forum and the case is a di"ersity case3 then no bias would e4ist

b. /0: P from N) brings a negligence claim against from NR in NR state courtsystem. may N ! remo"e case to federal court for NR because he is a citizenof the state where the action is pending

2. 2owe"er3 if there was a federal 73 a -ind of suit that can be brought in either state orfederal court3 li-e trademar- infringement3 and there was di"ersity3 would be able toremo"e to a federal district court in NR because di"ersity is not the sole basis forremo"al

a. /4ception: class actions can be remo"ed e"en though one or more /s arecitizens of forum

3. If basis for remo"al is di"ersity3 the action may not be remo"ed more than & year aftercommencement of the action unless the court 6nds that P5 acted in bad faith topre"ent remo"al

a. P5 deliberate failure to disclose actual amount in contro"ersy to pre"ent remo"alis deemed Bbad faith

i". here a suit goes when remo"ed1. hen remo"ed it passes to the federal district court for the district and di"ision

embracing the pace where the state cause of action is pending2. /0: if suit brought in %an iego state court3 remo"al would be the federal district court

in %outhern istrict of California encompassing %". nly a / may remo"e a P5 may N ! remo"e

1. A P5 defending a counterclaim cannot remo"ea. /0: P brings a suit for products liability against and counterclaims for libel in

an amount of X& Q. P5 is from hio is from Indiana and suit pending in>ichigan sate court. /"en though P is not a resident of the state where action ispending3 P may not remo"e3 b+c the right of remo"al is limited to defendants

i. Gationale for this because the P5 is the master of her claims and shechooses the forum

2. Gight to remo"al based from face of pleadingsa. /0: P badly injured in car crash caused by *s negligence. hile P*s medical bills

total X' Q3 P only sues for X Q for the purpose of thwarting *s right to remo"e. !he jurisdictional allegations of P complaint control3 so that may not remo"ee"en though more than X(@- is Breally at sta-e

"i. Gemo"al of multiple claims1. here P asserts against in state court two claims3 one of which could be remo"ed if

sued upon alone3 and the other could not3 complications arise:a. i"ersity case

i. If di"ersity claim gi"es rise to federal jurisdiction3 if there is a second claim,that is neither a federal 7 or di"ersity1 it defeats the /*s right to remo"alentirely $ the whole case >ARremo"e the whole case as allowed by 9'


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c. /0: P and & both citizens of Qentuc-y. P sues in Q! state court alleging federalantitrust "iolations by &. P also adds another claim against & and 9 also fromQentuc-y3 asserting both /s ha"e "iolated Q! state unfair competition laws. 9'%3 e"en the properly8remo"ed federal claim $ if state lawpredominates the whole contro"ersy

4. Compulsory Gemanda. If federal judge concludes remo"al did not satisfy that statutory reKuirements3

she >


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i. Nonmonetary directi"esii. Paying a penalty to the court

iii. Paying the mo"ing party*s e4penses including attorney*s feesc. A court may not impose monetary sanctions on a represented party for asserting

fri"olous claims3 defenses3 or other legal contentions3. Safe 6arbor

a. A party against whom a Gule && motion is made3 has a 21"da& Bsafe harborperiod in which she can withdraw or modify the challenged pleading and therebya"oid any sanction

i. ecause the motion for sanctions must be ser"ed on the other party at least9& days before 6ling it with the court

b. !he o$*lainti. Is the initial pleading in a lawsuit and is 6led by the P5

ii. Commences the action1. !he date of 6ling the complaint is what counts for statute of limitation purposes in

federal Kuestion suits ,Bcommencement in di"ersity suits for statute of limitationpurposes depends on how state law de6nes commencement1

iii. 3 Ele$ents of t6e co$*laint FGCP ',a1:1. )urisdiction

a. # s6ort and *lain state$ent of t6e rounds u*on )6ic6 t6e court-s +urisdiction de*ends

2. %tatement of the claima. S6ort and *lain state$ent of t6e clai$ s6o)in t6at t6e *leader is

entitled to reliefD andi. Court accepts all factual allegations as true

ii. Claim must state plausible entitlement to relief 3. Gelief

a. # de$and for +ud $ent for t6e relief =e. . $one&A da$a esA in+unctionAetc> )6ic6 t6e *leader see@s

i. Court accepts all factual allegations as trueii. Claim must state plausible entitlement to relief ,plausibility determined by

judge based on e4perience and common sense1iii. 5/LA5 C NC5


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B. Certain s*ecial $atters that must be pleaded with particularity if they are to beraised at trial

a. Gule = lists special matters ,fraud or mista-e3 special damages1:i. enial of a party*s legal capacity to sue or be sued

ii. !he circumstances gi"ing rise to an allegation of fraud or mista-eiii. Any denial of performance or occurrence of a condition precedenti0. !he e4istence of judgments or oJcial documents on which pleader plans to

rely0. >aterial facts of the time and place

0i. %pecial damages and0ii. Certain aspects of admiralty and maritime jurisdictions

b. Gationale for special pleading reKuirements$ fraud $ higher ris-+defamation $ aperson*s name could be "ery damaging e"en if false3 so want to ma-e sure theyare real claims

i. Note: special pleading reKuirements apply to the answer as well as to thecomplaint

c. Failure to pleadi. Pleader ta-es the full ris- of failure to plead any special matter

ii. /0: P5 brings di"ersity claim for breach of contract against /. P5 hassu#ered unusual conseKuential damages3 but fails to plead these specialdamages are reKuired by Gule =,g1. /"en if P pro"es these items at trial3 P5may not reco"er these damages unless court agrees to specially permit thisB"ariance between proof and pleadings

i". Plausibilit& standard1.


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. )ustice %outer*s issenti. Agrees with majority that 9 allegations in complaint did not state a plausible

entitlement to relief for unconstitutional discrimination3 but said we $ustread t6e entire co$*laint as a )6ole1. !here are all -inds of factual allegations3 we can*t just loo- at some -ind

of conclusory statementsc. Gule &9 >otions ,can be made in lieu of ser"ing an answer within 9& days of being ser"ed with

summons and complaint3 a counterclaim3 crossclaim3 etc1i. Gule &9,b1 >otion to ismiss for

1. 5ac- of subject matter jurisdiction2. 5ac- of personal jurisdiction3. Improper "enue4. InsuJciency of processB. InsuJciency of ser"ice of processC. Failure to state a claim upon which relief may be granted and

. Failure to join a necessary party under Gule &=a. /0: If P5*s complaint is barred by statute of limitations3 should mo"e under

&9,b1, 1 for failure to state a "alid claim. If court is con"inced that under thefacts alleged by P53 any cause of action would be time barred the court willdismiss

. If a court denies &9,b1 motion to dismiss3 the / has 14 da&s to 6le an answerii. Gule &9,c1 >otion for )udgment on the Pleadings

1. >ade after pleadings are closed but early enough not to delay trial2. /Kui"alent to &9,b1, 1 motion to dismiss on ground that P5 failed to state a claim upon

which relief can be grated.iii. i#erence is timing as motion for judgment on pleadings is brought after all parties ha"e

responded to pleadingsi". Gule &9,e1 >otion for >ore e6nite %tatement if complaint so B"ague or ambiguous that the

/ cannot reasonably prepare a response". Gule &9,f1 >otion to %tri-e may be made by / if P5 has included Bredundant3 immaterial3

impertinent or scandalous material in the complaint"i. Rule 12 = > and =6>=1> ?ai0able defenses $ wai"ed if not asserted in party*s Gule &9

motion or its answer3 which e"er is 6led 6rst:1. lac@ of *ersonal +urisdiction2. i$*ro*er ser0ice3. insu'cient *rocess4. i$*ro*er 0enue

a. /0: is sued by P5 in !0 in federal court in a di"ersity action. has noconnection with !0. / brings &9,b1, 1 motion to ha"e complaint dismissed forfailure to state a claim on which relief can be granted. y bringing this &9,b1motion and not including a &9,b1,91 motion to dismiss for lac- of personal

jurisdiction3 / has wai"ed his right to ha"e the cased dismissed for lac- of P)b+c that defense was Ba"ailable to him at the time he brought the &9,b1, 1motion

"ii. If / omitted a defense3 he has 9& days to amend his answer to add defense includingwai"able defenses Gule &9,h1,&1,b1

"iii. ther defenses:1. Failure to state a claim Gule &9,b1, 1 and failure to join a reKuired party pursuant to

Gule &= may be asserted up to and including triali4. %ubject >atter )urisdiction:

1. A court must dismiss at any time it determines it lac-s %>)d. I /A5 /0A> 7


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e. !he #ns)er Gule ',b1 and &9,a1i. /*s response to complaint is an Banswer )it6in 21 da&s of being ser"ed with a

summons and complaint3 counterclaim3 or a crossclaim the party $ust1. State its defenses to eac6 clai$ asserted a ainst it2. #d$it or den& t6e alle ations of t6e o**osin *art&A or state t6at t6e *art&

lac@s @no)led e or infor$ation su'cient to for$ a belief about t6e trut6 ofan alle ationD in )6ic6 caseA t6e state$ent 6as t6e e/ect of a denialD and

3. #'r$ati0el& state an& a0oidance or a'r$ati0e defensesii. %igned by /*s attorney is a must because li-e with the complaint3 it certi6es that attorney

has read the pleading3 belie"es it is well8founded3 and that it is not interposed for delayGule &&

iii. !ypes of enials1. Gule ',b1, 1 8 clai$s not denied in t6e ans)er are dee$ed ad$itted 2. Qinds of denials

a. Leneral denial $ he denies each and e"ery allegation in P5*s complainti. Not "ery common

b. %peci6c denial $ denies all allegations of a particular paragraph or count of thecomplaint

c. 7uali6ed denial $ denial of a particular portion of a particular allegationd. enial of -nowledge or information $ / says he doesn*t ha"e enough

-nowledge or suJcient information to form a beliefs to the truth of P5*scomplaint ,but / must do this in good faith1

i. If the matter is public record and you should*"e -nown3 you do not lac--nowledge

e. enial based on information and belief $ / says BI don*t -now I*m sure3 but Ireasonably belie"e that P5*s allegation is false

i. !his is often used by large corporationorate /si". #'r$ati0e defenses

1. >ust be e4plicitly pleaded in the answer if / is to raise them at trial sometimes hardto e4plain Be"en if P5 were to pro"e this against me3 I can show I*m not liable

a. Gules ',c1 and &= list speci6c aJrmati"e defensei. contributor& ne li ence

ii. fraudiii. res +udicatai0. state of li$itations0. ille alit&

0i. assu$*tion of ris@ 0ii. accord and satisfaction arbitration and award duress estoppel failure of

consideration injury by fellow ser"ant license payment wai"er laches2. Any defense which relies on the facts *articularl& )it6in t6e E-s @no)led e is

li-ely to be found an aJrmati"e defense". Alternati"e pleading

1. efenses3 li-e claims may pleaded in the alternati"e ,/0: in breach of contract suit3 can in count & of his answer state that no contract e"er e4isted3 and in count 9 statethat if such contract did e4ist3 it was breached by P5 not /1

"i. Counterclaim1. If / has claim against P53 he may ,in all cases1 and must ,in some cases1 plead that

claim as a counterclaim ,in addition to asserting aJrmati"e defenses1a. o$*ulsor& counterclai$

i. If / is reKuired to plead counterclaimii. Compulsory if it 9arises out of t6e sa$e transaction or occurrence

t6at is t6e sub+ect $atter of t6e P!-s clai$: as stated by Gule &E,a1b. Per$issi0e counterclai$

i. If / has option of pleading or notf. !ime frames for pleadings

1. Complainta. Filing of complaint usually occurs before it is ser"ed ser"ice must them normally

occur within &9 days Gule ?,m12. Answer $ Gule &9

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a. nce ser"ed with summons and complaint3 a party must 6le an answer within 9&days

3. Geply to a counterclaim $ Gule &9a. P5 must ser"e his reply within 9& days after ser"ice of answer

. %reebie #$end$ent of Pleadin s without written consent of opposing party or lea"e ofcourt

i. Complaint1. >ay amend complaint once as a matter of course once within 21 da&s after ser"ice

of an answer or Gule &9,b13 ,e13 or ,f1 motionii. Answer

1. Party may amend an answer once as a matter of course within 21 da&s after ser"ingit.

a. >ay include omitted aJrmati"e defensesb. >ay include omitted wai"able defenses under Gule &9,b1 but onl& if party had

not pre"iously ser"ed a Gule &9,b1 motion omitting those defenses see Gule&9,h1,&1, 1,ii1

i. If answer is the 6rst thing you 6le3 you can also put in wai"able defensesyou didn*t include in original answer

ii. If you made a Gule &9 motion to dismiss and didn*t ha"e wai"able defensesin there3 you can*t put them in your answer at all whether you amend it ornot

iii. ther Amendments1. In all other cases a party may amend its pleading only:

a. y stipulationi. with the opposing party*s written consent or the court*s lea"e

b. y the Courti. Court should freely gi"e lea"e when justice so reKuires

ii. Court considers mo"ing party*s undue delay3 bad faith3 dilatory moti"e3repeated failure to cure de6ciencies by amendment3 the futility ofamendment3 and prejudice of the opposing party

i". !ime to Gespond to Amended Pleadings1. ight be doing something to add e4pense or ma-ing it diJcult for other side topro"e

B. %utilit& of a$end$enti". Relation ,ac@ and New Claims Gule &@,c1,&1

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1. Gelation bac- problems arise when a party see-s to amend a pleading after statute oflimitations has e4pired on the claim

a. an amendment relates bac- to original 6ling date if the new claim or defensearises out of the same conduct or occurrence set out in the original pleadingsuJcient to gi"e opposing party notice Gule &@,c1,&1, 1

2. An amendment to a pleading relates bac- when:a. 5aw pro"iding statute of limitations allows relation bac-b. Proposed amendment asserts a claim or defense that arose out of conduct3

transaction or occurrence set out $ or attempted to be set out $ in the originalpleading

c. 5inchpin to Gule &@,c1 is Bnotice [to the opposing party\ before the limitationsperiod e4pires >arsh ". Coleman

3. An amendment changing the party or naming party against whom claim is assertedsatis6es Gule &@,c1 if:

a. 5aw that pro"ides applicable statute of limitations allows relation bac- orb. ithin &9 days of 6ling complaint ,the Bperiod pro"ided by Gule ?,m13 the party

to be brought in by amendment:i. Gecei"ed such notice of the action that it will not be prejudiced by defending

on the merits andii. Qnew or should ha"e -nown that the action would ha"e been brought

against it but for a mista-e concerning the proper party*s identityc. A party*s delay in amending to change the party or whether the party should

ha"e -nown the identity of the proper / are not factors in determining whetherthe amendment relates bac- Qrups-i ". Costa Crocierie


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2.


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ii. A party or any person from whom disco"ery is sought may 6le a motion for a protecti"eorder limiting or prohibiting disco"ery of information Gule 9 ,c1

1. hen more than a few Kuestions are at sta-e Gule 9 allows judge to ma-e Ban orderto protect a party or person from annoyance$ em%arrassment$ oppression$ or undue%urden or expense&

a. Prohibition of public disclosure $ is a protecti"e order that allows trade secrets orother info to be disco"ered3 but then bars the public disclosure of information bydisco"ering litigant

e. %cope of isco"eryi. Bany nonpri"ileged matter that is rele"ant to any party*s claim or defenseWGele"ant

information need not be admissible at the trial if the disco"ery appears reasonablycalculated to lead to the disco"ery of admissible e"idence Gule 9 ,b1,&1

f. e*ositions i. Gule E $ may be ta-en by any party of any person thought to ha"e information within the

scope of disco"eryii. %ubpoena

1. If a nonparty is to be deposed3 disco"ering party can N5R force the deponent toattend by issuing a subpoena

a. %ubpoena must reKuire the depo to be held no more than & miles from placewhere deponent resides3 is employed3 or regularly transacts business in personGule ?@,c1,E1,A1,ii1

b. if a party is being deposed3 no subpoena is used non8compliance can befollowed up with a court order $ motion to compel disco"ery or to imposesanctions under Gule E(

2. Gule E? reKuest to produce may also be attached to subpoena if person beingdeposed is a party and the person see-ing disco"ery want documents held bydeponent

iii. /ach side is limited to 1F de*ositions and one da& of 6ours $a& be ta@en b& eac6*art&

1. ethod of recording Gule E ,b1,E1,A11. %tenographer ,court reporter12. Audio tape recorder3. Oideo recorder

". eposition on written Kuestions Gule E&1. Any party may ta-e oral responses to written Kuestions from any person ,party or

non8party1 thought to ha"e disco"erable information2. ay only be address to a partyiii. >a4 of 9@ Kuestions unless parties or court order says otherwise

6. GeKuests for Admission Gule Ei. %tatements of the truth of any disco"erable matters a matter is admitted if the party fails

to ser"e a written answer admitting3 denying3 or objecting to the reKuestsii. Co"erage includes:

1. %tatements or opinions of fact2. Application of law to fact3. Lenuineness of any documents

iii. /4penses for failure to admit1. If party fails to admit the truth of any matter reKuested for admission under Gule E ,a1

and party ma-ing reKuest pro"es truth the court may reKuire party who refused toadmit to pay reasonable e4penses Gule E(,c1

i. GeKuests to produce documents or to inspect land Gule E?

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i. Party may ser"e written reKuest upon another party to produce speci6cally describedinformation3 electronically stored info3 tangible things3 or to permit entry onto designatedproperty

1. any papers3 photos3 objects rele"ant to subject matter of case may be obtainedii. other party must respond within E days of being ser"ed3 stating its objections to the

reKuest and what inspection will be allowediii. Party may be reKuired to produce only those documents and other objects in her

Bpossession3 custody3 or controli". Nonparties may be compelled to produce documents and tangible things or to permit an

inspection in response to a subpoena ser"ed pursuant to Gule ?@ +. Physical and >ental /4amination Gule E@

i. hen the mental or physical condition of a party in Kuestion3 court may order them tophysical+mental e4am by licensed or certi6ed e4aminer

1. perates ON! b& court order which must specify the time and date3 e4aminer3 andthe conditions of conducting the e4am

2. >ental or physical condition of party $ust be in contro0ers& $ not enough thatcondition would be somehow rele"ant li-e other disco"ery

ii. Actual medical report from Gule E@ e4amination is disco"erable1. A person e4amined may reKuest3 from the party causing the e4am to be made3 a copy

of e4aminer*s written report2.

2. isco"eree can 6ght bac- by:a. bjectingb. Protecti"e order

iii. >otion for an rder Compelling isco"ery or isclosure Gule E(,a11. After conferring or ma-ing a good faith attempt to confer with resisting person or

party3 the party see-ing disco"ery may 6le motion with court compelling disclosure ordisco"ery based upon resisting person party*s failure to comply with disco"eryreKuests or e"asi"e and incomplete responses or disclosure

2. order compelling disco"ery if disco"eree fails to:a. Answer the written or oral depo 7b. Answer the interrogatoryc. Produce documents or allow an inspectiond. esignate an oJcer to answer deposition Kuestions if the disco"eree is a

corporationorationi0. %ailure to co$*l& )it6 a *rior court order or a *art&-s failure to co$*l& )it6

disco0er& re


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l. ay be used by an ad"erse party for any purpose2. Not binding

a. 5i-e depos are not binding upon ma-er $ he may contradict them in court ,thewitness* credibility will su#er3 but witness not legally bound to prior statement1

iii. Admissions1. Conclusi"ely establish the matter admitted

i". Physical and >ental /4ams1. Almost always admissible in trial

I0. )oinder of Parties and Claimsa. 7uestions to as-:

i. Is there a rule allowing joinderH1. !here must be a federal rule that allows the type of joinder desired

ii. FGCP &' and 9 liberally allow the joinder of claims and parties but there $ust be eit6erS J or su**le$ental +urisdiction

iii. Gemember that assertion of a claim by the opposing party may gi"e rise to the need toassert a compulsory counterclaim

i". Preclusion rules3 depending on the jurisdiction3 may also dictate that a party bring alltransactionally8related claims that the party has against the opposing party

b. Gule &': )oinder of Claims:i. If a party asserting a claim3 counterclaim3 crossclaim3 or third8party claim ,impleader13 the

party may join as may other claims as it has against an opposing partyii. Gemember the 9anc6or: clai$ rule

1. nce a claim satis6es a particular type of joinder3 additional claims may be added to itpursuant to Gule &'

2. a0eatsa. !here has to be an inde*endent basis for sub+ect $atter +urisdiction or

su**le$ental +urisdiction o"er claims

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b. And preclusion rules may mandate that a party assert all transactionally8relatedclaims

c. Gule 9 $ Permissi"e )oinder of Partiesi. Parties that may be joined under permissi"e joinder under FGCP 9 ,a1

1. Sin le transaction :a. !he party*s rights or liabilities must stem from the same transaction or

occurrence and2. o$$on


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1. hether an appropriate remedy may be rendered in the outsider*spresence

i0. Gesult of dismissal1. hether the P5 will ha"e an adeKuate remedy if the action is dismissed

,court should consider whether P5 could sue e#ecti"ely in anotherforum where better joinder possible1

b. Note: joint tortfeasors are N ! subject to compulsory joinderc. If a court dismisses a case due to inability to join an indispensable party3 this is

N ! adjudication on the merits it has no res judicata e#ect and the P5 maybring a new suit on the same claim

i". o$*ulsor& +oinder is NOT sub+ect to su**le$ental +urisdiction in di0ersit& cases 9' A!!/G ))

iii. /4amples of the problem:1. sues A and both are from the same state his 6rst claim is a federal claim where

jurisdiction is proper3 but he also joins a state law claim related to the federal claim,this claim is properly joined under Gule &',a11

i. !here is no basis for %>) o"er the state law claim2. sues A and both are from the same state his 6rst claim is a federal claim where

jurisdiction is proper. A counterclaims a state law claim that arises from the sameoccurrence as *s claim ,this is a compulsory counterclaim under Gule &E,a11

i. !here is no basis for %>) o"er the state law claim3. sues A and both are from the same state his 6rst claim is a federal claim where

jurisdiction is proper. A impleads a third party C3 who he claims is negligent and canbe liable to him for contribution under Gule &?,a1,&1

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i. !his is proper under the rues and e4istence of common issues but noindependent basis for %>) b+c impleader claim is a state law claim betweentwo citizens of the same state

b. 5nited ine ?or@ers 0. Gibbsi. P5 asserted jurisdictionally proper claim in federal court against a nondi"erse party and

added on a related state law claimii. 2olding: Article III grants jurisdiction o"er entire Bcases not just o"er particular claims or

issues in a case if a case includes a claim that is jurisdictionally proper under Article III3 thecourt has the constitutional *o)er to hear the entire dispute

1. As long as P5 asserts proper claim based on federal law3 di"ersity3 or some otherfederal ground3 the federal court has the constitutional power to hear other claimsarising out of the same 9co$$on nucleus of o*erati0e facts:

a. Federal courts ha"e the power to hear claims that arise from same nucleus offacts3 but courts N ! G/7) arise out of the 9co$$on nucleus of

o*erati0e facts:ii. Ste* 2 : Court must determine whether there is a statutory grant of jurisdiction o"er related

claim1. In most cases V&E ( pro"ides this

a. V&E (,a1 grants juris o"er all related claims part of the same Bcase as Qrogerand broadly grants statutory authority

b. &E (,b1 certain claims in di"ersity cases that would brea- di"ersity are notaccepted

iii. Ste* 3 : once judge ascertains he has the constitutional and statutory power to hear therelated claim3 he must determine whether it ma-es sense to e4ercise that jurisdiction. 2econsiders:

1. hether state law claim predominates2. hether it would reKuire the court to decide sensiti"e or no"el issues of state law3. hether hearing the claims together might confuse the jury4. hether the federal issues are resol"ed early in the case lea"ing only a state claw

claim for decisioni". !hese factors might lead a court to conclude that while the 6rst part of Libbs test ga"e

them the power to hear related claims3 it should refuse if it declines jurisdiction o"er statelaw claims and dismisses them3 these claims may be brought in state court

". Notes:1. A "alid crossclai$ )ill al)a&s et in because it necessarily follows that it arose

out of t6e sa$e transaction or occurrencea. !his is also true of co$*ulsor& counterclai$sb. !hese are the anc6or clai$s you need before you can join any unrelated claim

2. !hen once there is an anchor you can join unrelated claims butMa. T6ere $ust be inde*endent basis for S J ,e"erything else li-e P) and

ser"ice3 "enue3 must be satis6ed too3 but if facts don*t mention anything aboutthem which they li-ely won*t3 we do not need to mention them in our answer1

0I. >otion for %ummary )udgment Gule @a. Party may mo"e for %) on a claim or defense or part of oneb. %tandard

i. Court must grant %) if mo"ing party demonstrates that there is no genuine dispute as to thematerial fact and the mo"ant is entitled to judgment as a matter of law

ii. If mo"ing party for %) on a claim doesn*t bear the burden of proof at trial3 party doesn*tneed to dispro"e claim

1. >o"ing party satis6es its initial burden by showing opposing party doesn*t ha"esuJcient e"idence for a reasonable jury to 6nd in its fa"or

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a. Celote4 Corporation ". Catrettiii. In determining whether party opposing %) has suJcient e"idence in support of its claims for

the case to go to jury3 court must consider opposing party*s e"idence in light of burden ofproof that party bears at trial

1. Anderson ". liberty 5obbyi". %upport:

1. %) motions and oppositions to %) motions may be supported by aJda"its ordeclarations as well as other e"idence including materials in the record and+orproduced during disco"ery

". )udge*s Gole1. A judge is objecti"e and doesn*t weigh e"idence or ma-e credibility determinations2. Non8mo"ing party*s e"idence is to be belie"ed and all justi6able inferences are to be

drawn in her fa"or

0II. !rial and Post !rial >otions Gule @a. )udgment as a >atter of 5aw

i. nce a party has been heard on an issue during a jury trial3 opposing party may mo"e for judgment as a matter of law on ground that party lac-s suJcient e"idence for a reasonable jury to 6nd in that party*s fa"or

ii. otion $a& be $ade an&ti$e before case sub$itted to +ur&b. Genewed >otion for )udgment as a >atter of 5aw

i. After trial and no later than 9' days after entry of judgment3 party may 6le a renewedmotion for judgment as a matter of law and may alternati"ely 6le a motion for a new trial

c. Note:i. In ruling on motion for judgment as a matter of law during trial or a renewed motion after

judgment3 the judge does not weigh e"idence or consider the credibility of witnessesd. >otion for a New !rial Gule @=

i. !iming1. Party may 6le motion for new trail no more than 9' days after entry of judgment

ii. ho:1. Party may 6le motion G court on its own may order a new trial

iii. Lrounds:1. Bfor any reason which a new trial has heretofore been granted in an action at law in

federal court Gule @=a. %ize of jury*s "erdict contrary to weight of the e"idenceb. )ury*s "erdict is contrary to the weight of the e"idencec. Improper inDuence o"er a jurord. Newly disco"ered e"idencee. Improper jury instructionsf. /"identiary errors

2. )udge*s Golea. !he judge >AR weigh the e"idence and consider her belief 1or disbelief1 in the

witnesses when deciding whether to grant a new trial

0III. lai$ Preclusion =Res Judicata>a. 7uestions to As-:

i. Is a Bclaim barred by an earlier adjudicationHii. as there a "alid3 6nal judgment in the 6rst actionH

1. A "alid 6nal judgment includes dismissals for failure to state a claim and default judgments3 but not dismissals or lac- of personal or subject8matter jurisdiction3improper "enue3 or failure to join a necessary party

iii. Are the same parties ,or those in pri"ity1 in both actionsH1. Is there a Bsubstanti"e legal relationship between the partiesH

i". Is the same claim in"ol"ed in both actionsH1. >ost jurisdictions consider a Bclaim to consist of all transactionally8related claims

a.-.a. the transaction testa. ther tests used include the same8e"idence test and the same legal rights test

b. Transaction Testi. >ost common test to determine de6nition of Bcause of action

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ii. Pro"ides that any act or series of occurrences out of which the action arose ; one cause ofaction

c. A prior judgment will not be "alid when:i. !he 6rst court clearly lac-ed subject matter jurisdiction

ii. !here were defects in notice oriii. !he 6rst court lac-ed personal jurisdiction o"er the defending parties

d. !erminology:i. A claim is $er ed if P5 won in the 6rst suit

ii. A claim is barred if P5 lost in the 6rst suite. Ges judicata:

i. Precludes claim8splitting and mandates that once any part of a cause of action has beenadjudicated on the merits3 no part of it can be litigated ,or re8litigated1 between the sameparties

1. oth portions of the claim that could ha"e been raised and those that were raise areprecluded

ii. ho is precluded:1. nly the parties and their pri"ities

iii. As to the /:1. Ges judicata co"ers any claim the / actually asseted ,including counterclaims3

cross8claims3 and third8party claims1 and for claims / failed to assert that he wasstatutorily reKuired to assert ,e.g. compulsory counterclaim1

i". Note:1. A judgment3 once entered is B6nal e"en if an appeal is pending. 2owe"er3 in practice3

the case usually will be abated pending conclusion of the appeal in most state courtsan appeal automatically postpones 6nality of judgment until appeal is concluded sores judicata has no e#ect until then

I8. Issue Preclusion = ollateral Esto**el>a. 7uestion to as-:

i. as same issue litigated and determined in 6rst caseHii. as the issue essential to the judgment in 6rst caseH

iii. as the holding on that issue embodied in "alid 6nal judgment on meritsHi". Against whom may issue preclusion be assertedH". y whom may issue preclusions be asserted

b. Collateral /stoppeli. Pre"ents re8litigations of issues

ii. GeKuirements:1. Issue must be identical to one pre"iously litigated2. !he issue must ha"e been actually litigated and unambiguously decided3. !he issue must ha"e been essential to the 6rst judgment

a. /asiest way to determine this is as- whether the prior judgment could bereached without determining the issue in Kuestion $ do this by changing theresult on the issue in Kuestion

i. If changing the result doesn*t change who wins the judgment3 the issue wasnot essential if it does change who wins and loses3 the issue was essentialand preclusion will apply ,assuming all other reKuirements are met1

iii. Gecent trend: to reKuire that the second action be reasonably foreseeable at time of initiallitigation

i". istinguishing from res judicata1. Issue preclusion loo-s at indi"idual issues within a claim3 regardless of scope of the

claim claim preclusion loo-s at the scope of the whole claim and precludes re8litigating e"en issues that weren*t asserted or litigated

". Issue preclusion arises when claim preclusion is una"ailable i.e.3 when either the cause ofaction in the second suit is di#erent from the one pre"iously adjudicated3 or where theparties ha"e changed

1. Issue preclusion is asserted by a / only when the / cannot successfully barlitigation of the entire cause of action through the doctrine of res judicata

"i. Collateral estoppel is narro)er than res judicata becauseW1. it does not preclude all possible issues that might ha"e been raised in a prior action

but only those actually decided in that action

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"ii. Collateral estoppel is broader than res judicata becauseW1. It can foreclose litigation of a particular issue in an entirely new conte4t

c. Nonmutual Collateral /stoppeli. Allows a new party to in"o-e collateral estoppel against a party who litigated and lost on an

issue in a prior action1. >utuality rule was abandoned in many jurisdictions since erhard ". an- of America

,CA %.Ct.3 &=?91a. !raynor emphasized that ernhard3 the party against whom the estoppel was

asserted3 had been a party to the Lrst action and 6ad 6ad a full and fairo**ortunit& to liti ate t6e issue t6ere $ the court saw no reason to allowher to relitigate the issue by switching ad"ersaries

2. londer8!ongue $ the 1. ccurs when a / see-s to pre"ent a P5 from asserting a claim the P5 has pre"iously

litigated and lost against another /a. ernhard and londer8!ongue

2. /4ample:a. %uit &: P 888888 & ,P5 loses on Issue A1b. %uit 9: P 888888 9 ,New / pleads collateral estoppel tp bar P5 from relitigating

issue A13. !he party being estopped was usually the P5 in the original suit and chose the forum

and the / against whom to litigate the issueiii. O/ensi0e Non$utual Issue Preclusion =Esto**el>

1. ccurs when a P5 see-s to foreclose the / from litigating an issue the / haspre"iously litigated unsuccessfully in an action with another party

a.


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2. !he burden of proof on the party see-ing to apply collateral estoppel in the secondcase was higher in the 6rst case than in the second ,/0: 6rst case was criminal3 thesecond ci"il1

3. !he issue arises the second time in a substantially di#erent conte4t or4. A Bcatch8all $ there*s some other3 compelling reason

e. %ettlements are not entitled to collateral estoppeli. ecause it generally isn*t possible in a settlement to determine which issues were

Bdecided1. most settlements are embodied in "ery general terms in stipulations either in writing

or on the record and do not deal with indi"idual cases that were raised by thepleadings

ii. In contrast settlements are generally considered judgments on the merits unless partiesagree otherwise @&

f. Collateral estoppel does not reKuire an issue in Kuestion ha"e gone to triali. hile going to trial is normally the way an issue is litigated3 it*s not the only way

1. An issue is subject to preclusion if it was subject to ad"ersary presentation andconseKuent determination e"en if not litigated at trial

2. Bdetermination can result on a motion to dismiss for failure to state a cause of action3a motion for summary judgment3 motion for a directed "erdict3 or a judgmentnotwithstanding "erdict

ii. efault +ud $ents do not *reclude liti ation of an& issues t6at $a& 6a0e beenin0ol0ed in t6e Lrst suit

0O. Loal of Ges )udicata and Collateral /stoppela. !o ensure that judgments are absolutely 6nal and to pre"ent a cause of action from being re8

litigated between the same parties ,res judicata1 or the re8litigation of the same issue in adi#erent cause of action between the same parties ,collateral estoppel1

b. ene6ts of absolute 6nality:i. Pre"ents entry of inconsistent judgments

ii. Pre"ents harassment from multiple suits on the same claimiii. It promotes judicial economy by resol"ing a dispute or an issue in one lawsuit

c. 2ow to analyze these problems:i. Is there res judicata ,claim preclusion1H

1. Always loo- at claim preclusion 6rst because if it applies then the entire cause ofaction is precluded from litigation

ii. Is there collateral estoppel ,issue preclusion1H1. Issue preclusion can only be in"o-ed when claim preclusion is una"ailable ,where

there was not a 6nal adjudication on the merits by a court of competent jurisdiction1iii. ho is boundH

d. Pri"ies of partiesi. Are boun by prior judgments to the same e4tent as the parties themsel"es

ii. Common pri"y relationships:1. !rustee+bene6ciary2. Luardian+ward3. an-rupt+trustee4. ecedent+successors in interestB. ailor+baileeC. Principal+agent

. Indemnitor+indemniteeiii. !he connecting principle is that the identity of interests between the party and pri"y is so

signi6cant that there*s a presumption that the party would ha"e fully and adeKuatelyrepresented and protected the pri"y*s interests

e. Full faith and credit clausei. Comes into play when successi"e litigations in"ol"e two state or one state and the federal

courtsii. It is the reKuirement that each state gi"e the judgment of another state the same e#ect as

the judgment would ha"e in the stat that rendered it and that the federal courts gi"e fullfaith and credit to the judgment of state courts

0OI. etermining Federal )urisdiction at a Llance

34


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a. Is there subject matter jurisdiction ,either di"ersity or federal Kuestion1Hb. Is there personal jurisdiction o"er each /Hc. as each / ser"ed properlyHd. oes the district where the case is pending satisfy the "enue reKuirementHe. id / recei"e notice and an opportunity to be heardHZZZZZZZZZZZZZ!2/ AN% /G ! A55 F !2/%/ 7s >)2. Amount in contro"ersy3. Personal )urisdiction4. Oenue

a. )uris in the district court based on common residence in same state and if nonparty doesn*t

JurisdictionASSUME FOR THE PURPOSE OF THESE PROBLEMS THAT ALL JURISDICTIONS DISCUSSED HAVE LONG ARMSTATUTES THAT AUTHORI!E THE E"ERCISE OF JURISDICTION TO THE FULL E"TENT OF THE DUE PROCESSCLAUSE#Question 1:D$%&' ( C()&*+,-&( .&/& $-' ( ,& &- $, (- /+ ( + + &- D$- $,' C+)+,( +' $- $ +/ &-/+ (- (..& $-/ &- S()&-(' U/(A /, . ,& $- : P( )' ( U/( .&/& $-' ,(- ( ,$ )& / (- .,( $ &-/+ $, (-# T+ D$%&; ,


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← hy is it irrele"ant Paul could ha"e sued emi in CAH• 7 as-s is there juris in


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/+ & %& ' (, &- / (/ &/ ( -+ +**&.$ ' /+,$ ' +, $% ?OU THIN@ THE COURT >ILL RULE ON DELANE?;S MOTION TO DISMISS#

Question 4:P( )' ( .&/& $- +* C()&*+,-&(' ( ,& &- +- (.(/&+- &- O,$ +- $- ( %+/+,.:.)$ &- *,+-/ +* &% ,( $ &/ -+ (,-&- ' (- &

$ &.)$ )& /): /( : :+ ;,$ &- @$-/ . : ,& / -+ # T $ (% )(-.$

,+ / :+ $,$# >&/ ( )&//)$ &- $ /& (/&+-' D( & )$(,-$ / (/ P$,.: ( ( +./+, (- / (/ $ ( $$- /,(-


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= ,& &./&+- + $, &%#DISCUSS HO> ?OU THIN@ THE COURT >ILL RULE ON DAVID;S MOTION TO DISMISS#← ould it be possible for forum to ha"e jurisH

• Possibly because if you*re ser"ed within the state it may gi"e rise to being sued within anytype of claim

• urnham type problem ,plurality opinion1o 2e wasn*t "oluntarily in stateo rennan*s analysis

%aid tradition is a factor to consider

ut you ha"e to see if its fair or not to / to see if you can e4ercise P)In general in state ser"ice probably satis6es due process is / is there-nowingly and "oluntarily

o hite agreed with %calia $ he cant thin- of a situation where this wouldn*t comportwith due process as long as / is intentionally in stat

o !al- about how there*s N majority agreement3 and generally its fair bc / bene6tedfrom being in the state -nowingly and intentionally3 but there may be a factualproblem with -nowingly and intentionally being in state

Flesh out facts on both sides← hy is the fact that a"id ser"ed with summons and complaint in Q! most sig fact you need toaddress 6rstH

• c it wont ma-e a di#erence if claims are related]• Pennoyer $ if you*re present within the state when ser"ed then state has juris o"er you

← hy does the statement W..juris based on physical presence along Wcontinuing traditions onlegal systemH

• %aid by %calia← ould there be speci6c jurisH

• 2ad contact with hospital• In terms of claim3 the claim does not arise of relate to contacts because negligence occurred

in hio• Q! not huge interest bc accident occurred in 2• urden on / $ probably not large but in relationship to claim he hasn*t had acti"ities

whatsoe"erQuestion 6:P(%' ( .&/& $- +* C()&*+,-&(' .+))$./ &-/( $ /$,$+ $ &


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Leneral juris• No because isc isnt at home in CA bc its not incorp nor ha"e principal place of business

there← %peci6c )uris

• Not a stream of commerce case bc it was a direct sale arranged by /• !hin- of >cLee and urger Qing $ both are breach of contact cases• Is there minimum contactsH

o No $ one time saleo Res $ solicited business directly in CA through catalog3 its purposeful a"ailment $

you*"e got some -ind of list of addresses $ if you don*t want to get CA residentsbusiness you wouldn*t send catalog

Additional negotiation ,gets into urger Qing1 says you would loo- into priornegotiations%igni6cant amount for a small business

• Geasonableo ould there be a burden on /H

Res. ut there would be a bigger burden on P5 an indi"idual3 than / a smallbusiness

!here is a burden on / but in light of contemporary communicationsand it*s a business3 their burden is outweighed

ut lets also loo- at burden on P5 on this case because she*s already out a lot

of money and she would ha"e to litigate in another state and be out moremoney if she couldn*t litigate in her home stateo oes P5 claim relate out of acti"ity with state

Reso %tate*s interest

Aggrie"ed citizen claiming breach of contracto P5 interest in suing in CAH

%ome e"idence in I5 but most in CA bc she has products pertaining to contractQuestion 7:P+)): (- D$ +- $- $ < $(/$ -$ / /+ $(. +/ $, (/ ( L( V$ ( .+-.$,/' ()/ + / $: ( -$ $, %$/ $*+,$# T ,+ + / / $.+-.$,/' / $: &- )/$ $(. +/ $,' / $&, &- /(-/ (-&%+ &/: -+ + / * $)$ : $ .$ & $ .+- % $- / $: $,$ )$( &- / $ .+-.$,/' P+)): (..& $-/()): /$


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← Is there general jursH• epends on what you consider to be you permanent residence and he considered

o Court has suggested that he can only be domiciled in one state• 7uasi in rem 9 hereH

o In order to argue this you would ha"e to attach property at o#seto If it had been attached3 could it be Kuasi in rem

%ha#er ". 2ietner would say that although property within Forum3 you dealwith same -ind of min contact as int*l shoe

oes property relate to claimH No← %peci6c jurisH

• Contact is property but property in CA is unrelated to claim bc claim in"ol"es assault anddefamation

• CA would not realy ha"e interest in assault and defamation that occurred in NO• Plainti# interest

o In suing CA only minimum• urden on /H

o No bc she has a home here and spends part of year hereNOTICEQuestion 1:P(/ : *&)$ (- (./&+- ( (&- / D(- &- / $ *$ $,() & /,&./ .+ ,/ &- / $ S+ / $,- D& /,&./ +* C()&*+,-&(# P(/ : / + / &/ ( /++$


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.+%


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• as this "alid ser"iceHo It*s not enough to send her that stu#3 she has to sign and return it $ this is why this

isnt considered "alid wai"er of ser"iceo If she doesn*t mail it bac- he needs to try other ways to ser"e hero 2e should"e had to ha"e shown courts that she had been ser"ed+returned wai"er she

hasn*t wai"ed ser"iceo Problem he might ha"e if court "acates defaulto Rou don*t want to do this when coming up to &9 day limit

• If the court "acates the defaultH• FGCP ?,d1 $ s P5 may reKuest that a person3 corp3 or assoc wai"e ser"ice of summons by

sending / written notice and reKuest addressed to / name court where complaint 6lecontain copy of complaintW

o !he / has E days to return wai"er• CCP?&@.@• Could as- court for an e4tension3 but if you tried ai"er of %er"ice ,better when you do it

right at outset of litigation1• If / doesn*t sign wai"er of ser"ice3 may ha"e to pay for costs of P5 $ li-e the process ser"e3

attorneys feeso Incenti"e for P5 to do it typically you ha"e 9& days in federal court to 6le an answer

and E in CA courtQuestion 5:P$--: *&)$ (- (./&+- ( (&- / D+-() B , $, ' ( %$ ( *( / *++ . (&-' &- / $ *$ $,() & /,&./ .+ ,/ &- / $ S+ / $,- D& /,&./ +*C()&*+,-&(# T $


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• Could ha"e been 6led in federal court bc di"ersity $ court would ha"e %>)• Is there time to remo"eH

o Res3 plenty of time for / to remo"e to federal court by 6ling

2 P' ( .&/& $- +* M& + ,&' $ D' ( .&/& $- +* C()&*+,-&(' *+, 100'000 &- /+,/ (%( $ &- ( /(/$ .+ ,/ &- C()&*+,-&(# P $&/ / $ .+%arch &3 9 &E $ so it would*"e had to ha"ebeen done by Feb. 9' th 9 &? latest

7 P' ( .&/& $- +* M& + ,&' $ D' ( .&/& $- +* C()&*+,-&(' *+, 100'000 &- /+,/ (%( $ &- ( /(/$ .+ ,/ &- M& + ,& +- M(2013# A) o"er3 state court has to dismiss claim

9 P' ( .&/& $- +* M& + ,&' $ D' ( .&/& $- +* C()&*+,-&(' *+, /+,/ (%( $ +* 100'000 (- *+, 25'000 *+, &+)(/&+- +* / $ADA &- ( /(/$ .+ ,/ &- C()&*+,-&(# P $, $ D &/ / $ .+%


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• di"ersity bc citizens of di#erent states and claim o"er (@-• also separate basis to remo"e bc claim is about federal 7• Can / remo"eH

o It could be remo"able $ the fact our / is citizen of forum state it doesn*t matter bcit*s a federal K

1 P' ( .&/& $- +* M& + ,&' $ D' ( .&/& $- +* C()&*+,-&( *+, 100'000 &- /+,/ (%( $ &- ( /(/$ .+ ,/ &- M& + , P $/ $ .+%)

o If a court 6nds out that a citizen remo"ed solely in a di"ersity actiono >ore courts would say there*s nothing in di"ersity action that says this

Aissouri. P ser"es with the complaint on )uly &@3 9 &?. remo"es the action to the federaldistrict court in >issouri on August & 3 9 &?. n %eptember &3 9 &?3 P 6les a motion to remand the

case to state court. n ctober &3 9 &?3 the federal court grants P*s motion and remands the case tothe >issouri state court. !he federal rules pro"ide that a party has thirty days to 6le an appeal. isconsidering an appeal of the district court*s remand order. hat would you ad"ise H

• If a judge remands a case to a state court3 no right to appeal to remand• If a fed judge denies a right to remand3 you can appeal

8enueASSUME THE STATES OF ARI!ONA' DELA>ARE' HA>AII' MONTANA' NEVADA' OREGON' AND UTAH HAVE ASINGLE JUDICIAL DISTRICT#TO ANS>ER THE UESTIONS' ?OU NEED TO BE FAMILIAR >ITH 28 U#S#C# 1391 ( . (- Q 1404Q (- 1406#A) + $$< &- %&- / (/ FRCP 12 3


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• why is Bfall8bac- pro"ision of section &E=&,b1,E1 irrele"ant3 which pro"ides for "enue in adistrict in which any / is subject to P) Bif there is no other district where action mayotherwise be brought H

o because there are other actions where "enue is propero A5> %! A5 AR% district where "enue is proper

• hy is it incorrect to say conclude that "enue is proper in CAHo not enough to say CA $ we are tal-ing about speci6c district And since we*re in % 3 it

must be southern districto we*re 6ne honing it so if you ha"e a state with more than one district3 you must be

speci6c as to which oneuestion 2

P(% & &- +) $ &- ( .(, (..& $-/ &/ D( $ / (/ +.. , &- N$ ( (# P(% & ( .&/& $- +* O,$ +-# D( $ & ( .&/& $- +* C()&*+,-&A)/ + D( $; + ) $- $ $


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U#S# T $ .(, ( ,& $- : D+-' ( .&/& $- +* C()&*+,-&( + )& $ &- S(- D&$ +# P$/$; .)(&% ( (&- / $(. D$ /&-: (- D+-$ .$$ 75'000# I* P$/$ (-/ /+ $ +/ D$ /&-: (- D+- &- ( &- )$ )( &/ &- ( *$ $,() & /,&./ .+ ,/' $,$ + ) $- $ $


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,+ - /+ ,$ $ / ( /,(- *$, /+ U/( I* +' + ) $ *&)$ / $ %+/&+- - $, $./&+- 1404 +, 1406• &? ? depend on whether "enue is proper• &? depends on if "enue improper• "enue is proper in central district of CA bc its his home state

o why might he want to transfer to ) hereH

o R/% Citizens from di#erent states3 and you can aggregate all claims together againstopposing party to meet jurisdictional amount

• Could also loo- at this $ Gule &' $ a party asserting a claim+counterclaimo nce there is a compulsory counterclaim3 you could also join any other claimso Counterclaim another word for complaint3 but we gi"e special name to party in

defensi"e position $ you would put out claims in counterclaim just as you would acomplaint $ ha"e to meet rules of IKbal+!wombly $ the other side >) if there is no compulsory counterclaim

o %o either federal Kuestion or di"ersity• !his has some eJciencies because conducting disco"ery one time3 one depo ,& for both

claims3 not each14# P' ( .&/& $- +* C()&*+,-&(' $ D1' ( .&/& $- +* N$ ( (' (- D2' ( .&/& $- +* N$ ( (' *+, -$ )& $-.$ $.( $ +* ( .(, (..& $-/(%+- / $ / ,$$ +* / $%# P $ D1 (- D2 $(. *+, 100'000 &- (%( $ # D1 + ) )& $ /+ ,&- ( .)(&% *+, 100'000 ( (&- /D2*+, -$ )& $-.$ &- .( &- D1 &-= ,&$ &- / $ (%$ (..& $-/# C+ ) D1 ,&- / $ -$ )& $-.$ .)(&% ( (&- / D2 &- / $


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• !his is crossclaim de6ned as arising out of same transaction or occurrence as the P5*s action• o we ha"e an independent basis for %>) $ N no di"ersity because both from same state3

no federal claim• /N!A5 ))

7# P' ( .&/& $- +* C()&*+,-&(' $ D C+,


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&- ( $/ G


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• ! could ne"er learn about & st action and he would be no worse o# • still has title to house and transfer to house e"en if he was forced to pay damages to P• Gule &= almost ne"er arises

o P5 always has option to sue as many or few tortfeasors as he wants• Gare situation and most of time is in situation where there is no damages3 but P5 as-ing or

eKuitable relief So$e eclarator& Jud $ent H&*os← GG granted lifetime free pass as settlement agreement with >ottleys. Congress enacts statutesma-ing it illegal to honor free passes. >ottleys angry and GG anticipates >ottleys will 6le an actionagainst it. GG 6les decl. judgment against > in federal court. As-s court to declare that in light of recentfederal statute3 the GG no longer has to honor > free pass. !he GG and > are from same state. ouldfed court ha"e %>) o"er GG declaratory judgment actionH

• N• GG 8 e don*t ha"e to honor free pass bc new fed statute enacted says we cannot do it

anymore• 2owe"er3 they*re raising this issue of federal but they thin- > will sue for breach of contract

which is a state claim• Asserting defense if > sues for breach of contract• #l)a&s loo@ at )6at t6e clai$ is

← Pro4y corp sent cease8and desist letter to elta Corp in demanding elta stop selling certainproducts. According to Pro4y3 products elta selling infringe one of Pro4y patents. elta doesn*t thin- itsproducts infringe Pro4y*s patent but is worried that Pro4y will sue it. 6les declaratory judgment actionagainst P in federal court. It as-s court to declare that its products do not infringe P*s patent. P and are from same state. ould a federal court ha"e %>) juris o"er *s declaratory judgment actionH

• e*re going to ha"e a federal 7 for court to ha"e %>) bc no chance for di"ersity• R/% ecause anticipating a case arising out of patent infringement which is federal court %>)• nce as-s for decl judgment that it doesn*t infringe patent3 under rules of counter claims3 P

has to assert any compulsory claim it has arising out of same factso If it doesn*t raise it here3 it couldn*t raise it later on

• If court doesn*t ha"e %>) it cant ma-e a decl. judgment at allC&'I( )REC&*+ION )RO,&E(+'ssume t-at t-e .transactiona / test a00 ies Is c aim 0rec usion a00ro0riate int-e "o o in 0ro ems

Is T-ere a ina #a id Jud ment on t-e (erits

1 B+ *&)$ (- (./&+- ( (&- / A%: &- *$ $,() .+ ,/# T $ .+ ,/ & %& $ / $ (./&+- +-/ $ ,+ - / (/ &/ & -+/ ( $ =$./ = ,& &./&+-# B+ *&)$ ( $.+- (./&+-( (&- / A%: &- /(/$ .+ ,/ +- / $ (%$ .)(&%# A%: ())$ $ .)(&%


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Is there is a "alid 6nal judgment on the meritsH → Not reKuired to go to small claims court: notthe only court a"ailable to you in state court system. 5oo-s li-e e4ception applies but it doesn*t.she just opted for a court within same court system with jurisdictional limit of X@3

ob can assert claim preclusion're t-e )arties Identica1 D(-' / $ /, /$$ +* / $ B+ .+ /, /' $.+%$ & $-. (-/$ &/ D$))(' (- (//+,-$: $ ( &,$ /+ (- )$ ( %(//$, *+, / $ B+ .+/, /# D(- $ D$))( *+, %()


52/53

/ $: $ $. /$ $


53/53

← &. Pam sued a"e for trespassing on her property on )anuary &3 9 &?. As a defense3 a"easserted that he hadn*t trespassed and that Pam didn*t own the property. n )une &3 9 &?3 the juryrendered a "erdict in a"e*s fa"or. n ctober &3 9 &?3 Pam sued a"e for trespassing on her propertyon %eptember &@3 9 &?. As an aJrmati"e defense3 a"e has alleged that Pam is precluded by bothclaim preclusion and issue preclusion from pursuing the second action. Is a"e correctH

• No because this is a new issue $ he trespassed again after the conclusion of the 6rst "erdict• No claim preclusion $ each trespass gi"es rise for second claim when she sued 6rst time3 he

hadn*t trespassed a second timeo Rou can bring separate actions on di#erent claims

• No issue preclusion $ jury found he hadn*t trespassed G Pam didn*t own propertyo It could be that P didn*t own property $ we don*t -now so she can relitigate issue

← 9. hile out sailing one day3 Pat*s boat was suddenly hit by a speedboat piloted by a"id. Pat*sboat did not recei"e much damage3 so she sued a"id for negligence in small claims court to reco"erX@ for the damage to her boat. !he court rendered a "erdict for Pat3 6nding a"id negligent3 andawarding Pat the entire X@ . >i-e3 a passenger in Pat*s sailboat3 had been thrown from Pat*s boat when

a"id*s speedboat collided with it. >i-e su#ered substantial injuries. >i-e sues a"id in district court forX@ 3 in damages. >i-e contends that a"id is precluded from relitigating the issue of hisnegligence because of the earlier judgment in Pat*s fa"or. oes issue preclusion bar >i-e fromrelitigating the issue of whether his negligence caused the accidentH

• !rying to raise o#ensi"e nonmutual collateral estoppelo i#erent P5 trying to coast o# issue / has already litigated in pre"ious

• Court will probably say not precluded whether negligent bco di#erent procedures

%mall claims $ no lawyero i#erence in second is that may not ha"e much incenti"e in 6rst one to litigate $ ha"e

huge incenti"e in second>ay not ha"e fully issued

← E. After spending the e"ening drin-ing in a bar3 ebbie ran into Patric-*s "ehicle while dri"inghome to her apartment. !he istrict Attorney commenced a criminal action against ebbie. ebbie wascon"icted of drun- dri"ing. Patric- subseKuently 6led a negligence action against ebbie to reco"erdamages for the personal injuries he su#ered when ebbie*s car ran into him. Can Patric- assert issuepreclusion in his ci"il action against ebbie on the Kuestion of whether ebbie was drun- when theaccident occurredH

• Res

• o#ensi"e nonmutual issue preclusiono she has more incenti"e to litigate in criminal $ higher standard3 may be subject to

prison← ?. on was indicted by the district attorney for stealing computer eKuipment from Patsy3 hisemployer. !he jury in on*s criminal trial rendered a "erdict of not guilty. Patsy subseKuently sued onin a ci"il action to reco"er damages for the "alue of the stolen eKuipment. As an aJrmati"e defense3can on assert preclusion on the issue of whether he too- the computer eKuipment based upon hisacKuittal in the criminal actionH

• #ensi"e collateral estoppel← @. Pat sued a"id for infringement of Claim & of her patent. As a defense3 a"id asserted thatClaim & was in"alid for lac- of no"elty. !he court rendered a judgment infa"or of Pat3 awarding herX@ 3 for patent infringement. Pat then sued >i-e for infringement of Claim & of the same patent.>i-e asserted as an aJrmati"e defense that Claim & of the patent is in"alid for lac- of no"elty. Patcontends that >i-e is precluded from relitigating the issue of Claim &Us "alidity because of the fa"orableoutcome in her action against a"id. oes issue preclusion bar >i-e from litigating the issue of Claim&Us "alidityH

• No $ defensi"e collateral estoppel $ >i-e has not had his day in court

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