law school essentials federal civil...

LAW SCHOOL ESSENTIALS – FEDERAL CIVIL PROCEDURE PROFESSOR JOHN C. JEFFRIES, JR.

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

INTRODUCTION TO FEDERAL JURISDICTION AND PROCEDURE

A. Success on an Exam

1. Learn the Subject Matter

2. Prepare for the Exam

B. Overview

Note 1: There are several topics that are covered in most (but not all) Civil Procedure courses. Adapt these lectures as appropriate for your specific course.

1. Personal Jurisdiction

2. Subject Matter Jurisdiction

3. Erie Railroad and State Law in Federal Court

4. Pleadings and Amendments to Pleadings

5. Joinder of Claims and Parties

6. Discovery

7. Motions Practice

8. Preclusion

C. Procedural Due Process

All procedural rules must satisfy Procedural Due Process

Basically, this requires notice and the opportunity to be heard

Issues regarding the timing of hearings and the adequacy of notice are governed by the

balancing test:

o The individual interests at stake and the value of the procedure v. the government’s interest

in efficiency

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BASIC PERSONAL JURISDICTION—GENERAL IN PERSONAM JURISDICTION

A. Personal Jurisdiction (PJ)

1. In General

o Concerns the court's power to adjudicate the rights and liabilities of this defendant

Sometimes referred to as “territorial authority to adjudicate”

o Questions of PJ always concern the _____________________________________________.

Court always has power over defendants in its territory

Example 1: A defendant served in State X can generally be sued in State X.

PJ becomes an issue when dealing with an out‐of‐state defendant.

o PJ is an issue in any court, whether state or federal

Generally, state courts and federal courts follow the same rules for personal jurisdiction.

Federal courts typically use the long‐arm statutes of the states ____________________

__________________________________.

o Overview: Every PJ issue involves two questions (both must be addressed):

1) Has the particular basis for exercising personal jurisdiction over an out‐of‐state

defendant been ________________________________________________ by statute

or by rule of court?

2) Is the particular basis for exercising personal jurisdiction permitted by the ___________

_______________________________________________________________________?

2. Types of Personal Jurisdiction

o _______________________________________________: against the person

o _______________________________________________: against the thing

o _______________________________________________: “sort of” against the thing

B. In Personam Jurisdiction

1. Grounds for Asserting General In Personam Jurisdiction

a. ___________________________________________________________________________

Service of process on the defendant while physically present in the state—PJ over the

defendant for any claim whatsoever

Exceptions:

Presence procured by ______________________ or _______________________; or

Defendant came into the state ONLY in obedience to a summons

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b. ___________________________________________________________________________

Permanent residence

Suffices even if the defendant is not in state when served

c. For Corporations

Can always be sued in the state or states in which it is

________________________________________________________________________

Can always be sued in the state of its _________________________________________

________________________________________________________________________

The "nerve center" of the company or the executive offices

2. General In Personam Jurisdiction

o Under the above grounds for PJ, a defendant can be sued in the state on any claim, even

one that arose from activities elsewhere.

o Called _____________________________________________ personal jurisdiction

C. Specific In Personam Jurisdiction

Based on the _________________________________________ statute

o Gives courts in personam jurisdiction over out‐of‐state defendants who have some

incidental contact with the state

Claim must arise from the contact with the forum state

Every state has a long‐arm statute.

Many states say that their long‐arm statutes extend as far as the

___________________________________________________________________________.

Other states enumerate particular activities that subject the defendant to PJ. For example:

o Any act or omission in the state causing injury to either person or property here or

elsewhere

o Any act or omission __________________________________ the state causing injury to

person or property here, provided that the defendant conducted some activities here

o Any claim arising out of a contract to perform _____________________________________

in this state or to pay someone in this state to perform services elsewhere

o Any claim arising out of a contract to ________________________________________ to or

from this state, or arising out of the shipment of such goods

o Any claim regarding local property

o Any action against a director or officer of a domestic corporation

o Any contract of insurance where the plaintiff is a resident of this state where the claim arose

or the event giving rise to the claim took place

Exam Tip 1: Almost everything is covered by a state's long‐arm statute, so long as the claim arises out of the transaction involving that state.


D. Constitutional Aspect

Due Process Clause—International Shoe—personal jurisdiction over an out‐of‐state defendant

requires _______________________________________________________________ between

the defendant and the forum state.

o Ask whether it would be ___________________________ to sue the defendant in the state?

o Sufficient minimum contacts such that it is consistent with traditional notions of fair play

and substantial justice to sue the defendant here.

In assessing minimum contacts, courts look for a _______________________________________

________________________________ by the defendant of the protections of the forum's laws.

o Contacts between the forum and the _______________________________ do NOT suffice.

Even when minimum contacts exist, jurisdiction must be reasonable and fair.

Exam Tip 2: The minimum contacts Due Process test is not always clear. Usually, there will be good arguments on both sides of whether the exercise of personal jurisdiction complies with Due Process.

The analysis usually beings with International Shoes. But, there are other important cases: World Wide Volkswagen, Burger King, Asahi, and McIntyre Machinery v. Nicastro.

E. Important Cases

1. McIntyre Machinery v. Nicastro (2011)

o Products liability case involving a machine manufactured in the United Kingdom that injured

someone in NJ. Manufacturer had no activity or contact with NJ other than the fact that

one of the machines it manufactured ended up in NJ.

o Question: Does putting a good into the stream of commerce make the manufacturer

amenable to suit wherever the good foreseeably shows up?

Or, in addition to foreseeability, does the defendant have to do something to

purposefully avail itself of the protection of the state’s laws?

o Holding: (Split decision) Merely introducing goods into the stream of commerce does not

make you liable wherever the good foreseeably shows up.

The defendant must have done something more—however slight—to purposefully avail

itself of the protection of the forum’s laws.

Purposeful availment includes: sending a ______________________________________

into the jurisdiction, soliciting business in that jurisdiction, ________________________

the goods in that jurisdiction, and delivering goods to users in that jurisdiction.

2. Daimler v. Bauman (2014)

o Limited the reach of general in personam jurisdiction


o Plaintiff purchased a Mercedes from a Mercedes subsidiary in Argentina. Plaintiff sued

Daimler in CA, claiming that the parent company was “at home” in CA, so was subject to

general jurisdiction there.

o Holding: The connection between the U.S. subsidiary and the subsidiary in Argentina was

too remote to exercise PJ over the parent corporation without violating Due Process.

Note that it is unclear how much Daimler limited general jurisdiction; it at least applies

to international issues.

Exam Tip 3: 1) Remember to discuss TWO key questions: (i) Is this assertion of jurisdiction authorized by statute or rule of court? (ii) Is it permitted by the federal Constitution?

2) Keep in mind the distinction between general and specific in personam jurisdiction. Specific jurisdiction under the long‐arm statute reaches only claims arising out of a contact with the state. General jurisdiction is based on presence, domicile, state of incorporation, or principal place of business, and allows suit on any claim whatever, regardless of where it arose.

3) In analyzing whether personal jurisdiction is consistent with the “minimum contacts” test and is reasonable, remember to refer to the major cases you studied in class by name. Additionally, refer to any theory mentioned by your professor as to how such questions should be analyzed.

4) If you get an essay question about personal jurisdiction, make sure to look for other issues raised by the same facts (such as subject matter jurisdiction or multi‐party litigation).

ADVANCED PERSONAL JURISDICTION—IN REM, QUASI IN REM, AND NOTICE

A. In Personam Jurisdiction (cont'd)

1. Consent

o Defendant can consent by _____________________________________________________

in defense.

o Consent can also be given in advance by _____________________________________.

o Consent can be based on appointment of ______________________________________ for

receiving service of process.

2. Waiver

o An out‐of‐state defendant cannot come into the state, litigate, and then object to personal

jurisdiction.

o Voluntarily litigating on the merits ___________________________________ any objection

to lack of personal jurisdiction (i.e., a general appearance).

o A defendant waives any objection to lack of personal jurisdiction by ____________________

___________________________________________________________________________

on the merits before raising that claim.


o Federal Rules: A defect in personal jurisdiction must be raised at the ___________________

__________________________________________ or it is waived.

"First opportunity"—a motion to ________________________ if the defendant chooses

to file one, OR the ________________________________, if the defendant chooses not

to file a motion to dismiss (whichever is filed first).

3. Federal Exceptions

o Generally, federal courts follow the personal jurisdiction law (long‐arm statute) of the states

in which they sit.

o Special federal rules that extend personal jurisdiction beyond state boundaries:

Federal Interpleader Act ("statutory interpleader")—authorizes nationwide service of

process; and

Multiple claimants to a single property

The “Bulge Provision” of the Federal Rules—authorizes service anywhere within

__________ miles of the federal courthouse, even if in another state, in two situations:

Impleading third‐party defendants under Rule 14; and

Joining ______________________________________________________________

under Rule 19.

B. In Rem Jurisdiction

Suit against a thing (the res), rather than a person

Applies against any kind of property, real or personal, so long as the property is located in _____

_______________________________ (i.e., the court has territorial authority over the property)

C. Quasi In Rem Jurisdiction

Seizes in‐state property to force an out‐of‐state defendant to litigate an unrelated claim

Shaffer v. Heitner—quasi in rem is subject to the same constitutional concept of

_________________________________________________________________ applicable to in

personam jurisdiction

Not an important source of jurisdiction today

D. Notice and Service of Process

1. In General

o Personal service on the defendant in the forum state does two things:

1) Establishes the defendant's _________________________________________________

in the state; and

2) Gives the defendant __________________________________.


2. Personal Service

o Used to assert _____________________________________________________ jurisdiction

o Should also be used for in rem or quasi in rem actions when the _______________________

of an interested party is known.

3. Methods of Service

o Three main methods:

_________________________________________________________ to the defendant;

Leaving the summons at the defendant’s __________________________________ with

a person of suitable age and discretion; or

Delivery to an authorized ____________________________, if one has been appointed.

o In addition, service may be made by any method authorized by _______________________

_________________ where the federal court sits.

4. Service for In Rem Actions

o Must make __________________________________ effort to locate all the claimants to the

property and serve them personally

o If you cannot locate or identify claimants, then you can rely on notice by

____________________________________________________________.

BASIC SUBJECT MATTER JURISDICTION—FEDERAL QUESTION AND DIVERSITY JURISDICTION

A. Federal Subject Matter Jurisdiction (SMJ)

1. In General

o Concerns the power of the court to decide ________________________________________

o Generally, the personal jurisdiction of federal and state courts is the same, but it is

completely different for subject matter jurisdiction.

o Federal courts have limited subject matter jurisdiction.

State courts are generally courts of _______________________________________ SMJ.

The general jurisdiction of state courts extends to claims based on federal law.

State and federal courts generally have _____________________________ jurisdiction.

o Federal courts are courts of ________________________________________________ SMJ.

o The basis for SMJ must be affirmatively ______________________________ in every case

and if challenged, must be ___________________________.

2. Waiver

o There is no ________________________________ of lack of SMJ.


o Lack of SMJ cannot be cured by the defendant’s _________________________ or failure to

object

3. Objection to SMJ

o Lack of SMJ can be raised by any party, including the party who _______________________

__________________________________.

o Lack of jurisdiction can be raised at any time, including for the first time

___________________________________.

4. Two Main Categories of SMJ

1) ________________________________________________________________________

2) ________________________________________________

B. Federal Question Jurisdiction

1. Basis

Exists if the claim arises under _____________________________________________________

2. Well‐pleaded Complaint

o _____________________________________________ claim must be based on federal law.

o Look to the “well pleaded complaint”—a complaint that says all it needs to say and no more

o Louisville & Nashville R.R. v. Mottley

The Mottleys were injured on the railroad line; gave up their claim to sue in exchange

for unlimited rides on the train

The railroad stopped honoring the passes, claiming that a change in the federal law

made the lifetime passes invalid.

The Mottleys sued for specific performance to compel the railroad to honor their

lifetime passes; in their complaint, the Mottleys stated that the railroad was claiming a

federal law prevented them from honoring the passes.

Holding—The court did not have federal question SMJ; the Mottleys’ case involved

specific performance of a contract, which arises under state law

The railroad had an argument under federal law, but this was a defense

C. Diversity Jurisdiction

1. Basis

o Covers disputes between citizens of different states or citizens of a state and a foreign

country, if the amount in controversy exceeds _____________________________, exclusive

of interest and costs.

o Exceptions: ____________________________ and _________________________________

_____________________________________ actions.


2. Diversity of Parties

a. General rule

Requires complete diversity

Every citizenship on the plaintiff’s side must be different from every citizenship on the

defendant’s side of the case.

Example 2: Plaintiff 1 from PA and Plaintiff 2 from PA sue Defendant from NY

= complete diversity.

Example 3: Plaintiff 1 from PA and Plaintiff 2 from NY sue Defendant from NY

= lacks complete diversity.

b. Minimal diversity (exception to complete diversity requirement)

Special statutes allow minimal diversity (any plaintiff is diverse from any defendant),

including:

Cases brought under the Federal Interpleader Act;

Class actions with more than $_________________________________ at stake; and

Certain interstate mass torts

c. Time for determination of diversity

Diversity must exist when the _______________________________________ was filed.

It does not matter whether there was diversity when the cause of action arose.

3. Citizenship of the Parties

a. Individuals

Every individual is a citizen of the state of _____________________________________.

Domicile—residence with the intention to remain (permanent residence)

A person can have only one domicile at a time

Aliens are citizens of the country of their citizenship

b. Representative Parties

The citizenship of a representative party, such as a trustee, usually controls.

Exception: For the legal representative of an estate (e.g., executor), the citizenship of

the ______________________________________________ controls.

Exception: For the legal representative of an infant or an incompetent person (e.g.,

guardian), the citizenship of the _____________________________________ or the

________________________________________________________________ controls.

c. Class Actions

The citizenship of the named parties control.


There must be complete diversity for all the named parties, but not for the other class

members.

d. Corporations

Corporations can have several citizenships at once:

1. State(s) in which it is ______________________________________________; and

2. State where it has its ___________________________________________________

____________________________________________________________________.

e. Unincorporated Associations

Citizenship of every partner or every member of the union counts.

It is very difficult to bring a diversity action against these entities.

4. Devices to Create or Destroy Diversity

o There are several actions that can create or defeat diversity. For example:

Moving from one state to another

A company could be acquired by another company

Selling or assigning a claim

o These actions are permitted, so long as they are not done solely for that purpose (i.e., shams

or fraud).

The partial assignment of a claim for purposes of debt collection ___________________

count for diversity.

5. Amount in Controversy

a. Rule

Jurisdictional amount for diversity generally must exceed ________________________.

Test: the plaintiff’s _____________________________________ allegation is sufficient.

Only when there is a legal certainty that the amount will not be met will the case be

dismissed for lack of jurisdictional amount.

b. Aggregation

When can smaller claims be heard (AIC under $75,000+)?

When one plaintiff sues one defendant and the aggregated claims exceed $75,000; or

When multiple plaintiffs enforce a single right or title against one defendant and the

aggregated claims exceed $75,000; or

c. Counterclaims

Does a counterclaim in a diversity case have to satisfy the jurisdictional amount?

No, if the counterclaim is __________________________________________________.


Yes, if the counterclaim is __________________________________________________.

ADVANCED SUBJECT MATTER JURISDICTION—SUPPLEMENTAL AND REMOVAL

A. Supplemental Jurisdiction (Pendent and Ancillary Jurisdiction)

1. In General

o Generally, a federal court with subject matter jurisdiction over one claim can hear additional

claims (over which the court would not have had subject matter jurisdiction) if all claims

constitute the same __________________________________________________________.

o The claims must share a common nucleus of operative fact.

o Permitted under 28 U.S.C. § 1367

2. Federal Question

o Issue: whether a federal court can hear state‐law claims

Example 4: Federal and state claims against defendant A, arising out of the

same transaction or occurrence. The federal court may hear both claims if the

two claims share a common nucleus of operative fact.

Example 5: Federal claim against defendant A and a related state claim

against defendant B. The federal court may join defendant B and hear both

claims because of pendent or supplemental jurisdiction arising from the federal

claim against defendant A.

o Note: supplemental jurisdiction is a question of power. Whether to exercise that power is

______________________________________________________.

3. Diversity Jurisdiction

o Issue: whether a federal court can hear additional claims that do not satisfy the

jurisdictional amount or claims against additional parties that do not satisfy complete

diversity.

a. Counterclaims

A federal court sitting in diversity has supplemental jurisdiction over

___________________________________________________________ counterclaims.

A compulsory counterclaim arises out of the same transaction or occurrence as the

main claim (it shares a common nucleus of operative fact).

A compulsory counterclaim can be heard regardless of ________________________

A federal court sitting in diversity can hear a ___________________________________

counterclaim only if it satisfies the jurisdictional requirements:

1. There must be complete diversity; and


2. There must be more than __________________________ in controversy

b. Cross‐claims

A federal court may exercise supplemental jurisdiction over a cross‐claim (a claim by a

plaintiff against a co‐plaintiff, or by a defendant against a co‐defendant) so long as the

cross‐claim and the main claim share a ________________________________________

_______________________________________________________________________.

It does not matter that the co‐plaintiffs or co‐defendants are not diverse or that the

cross‐claim is less than $75,000.

c. Permissive joinder

If one diverse plaintiff satisfies the jurisdictional amount, other diverse plaintiffs with

claims against the same defendant can be heard under supplemental jurisdiction if their

claims share a common nucleus of operative fact, regardless of amount.

Example 6: Class Actions: If there is a class action with five named parties, all

of whom are diverse from the defendant, but only one of whom suffered injuries

exceeding $75,000, the claims of all the others can be heard as well if all claims

arose from the same common nucleus of operative fact. (This is in addition to

the jurisdictional provision regarding class actions where the total amount in

controversy exceeds $5 million).

The same is true even if the plaintiffs do not join as a class, but merely permissively join

as plaintiffs in the same action.

If one plaintiff meets the jurisdictional minimum, and all plaintiffs meet complete

diversity, the court can hear all the claims with the same common nucleus of

operative fact.

4. Exceptions to Supplemental Jurisdiction in Diversity Cases

o Most additional claims and parties can be brought into a diversity action only if complete

diversity is maintained and the additional claims exceed $75,000.

Claims by plaintiffs against __________________________________________________

___________________________________________________________ under Rule 14;

Claims by plaintiffs against additional _________________________________________

joined as necessary parties under Rules 19 and 20;

Claims by __________________________________________________________ under

Rule 24, as well as claims against such ____________________________________; and

Claims by plaintiffs joined involuntarily under Rule 19.

5. Summary

Supplemental jurisdiction works for federal question cases across the board and in diversity

cases in three situations:


1. ___________________________________________________________________________;

2. _______________________________________________________; and

3. Voluntary joinder of plaintiffs when there is complete diversity with all named plaintiffs, one

of them has a claim exceeding $75,000, and all claims share a common nucleus of operative

fact.

B. Removal

1. Introduction

o Moves case from _________________________ to ____________________________ court

o There is no mechanism for transferring a case from _________________________________

to ___________________________ court.

2. General Rule

o Removal is proper ONLY if the case could have originally been brought in

___________________________________________________________.

o Only _______________________________ can remove.

3. Federal Question

Removal based on federal question jurisdiction is proper only if the plaintiff’s claim is based on

federal law.

Example 7: The Motleys filed an action in state court for specific performance

of a contract involving lifetime passes. The railroad asserts a defense based on

a federal statute, and tries to remove to federal court. There cannot be removal

because the plaintiff’s case is based on state law.

4. Diversity

o Removal based on diversity jurisdiction is proper only if:

There is complete diversity;

The amount in controversy exceeds $75,000;

The case is brought in a state of which no ______________________________________

is a citizen; and

Removal must be within ________________________________ of the commencement

of the action in state court (unless the plaintiff acted in bad faith to prevent removal).

o Diversity must exist when the complaint is filed and when the case is removed.

5. Removal Procedures

o Notice of removal is filed in the _____________________________________ court, copy to

the _______________________________ court.

o Case is removed automatically—the authority of the state court ceases


o If the case was removed improperly, the plaintiff can file a petition for _________________

in the federal court.

A hearing is held on the petition

Exam Tip 4: Removal is an attractive topic to law school professors. A removal question allows your professor to test several subjects at once: the law of removal, the subject matter jurisdiction of federal courts (either whether the plaintiff’s claim is a question of federal law or diversity jurisdiction), and supplemental jurisdiction.

ERIE RAILROAD AND CHOICE OF LAW

A. Choice of Law—The Erie Doctrine

1. Federal Law in State Court

o State courts adjudicate federal law unless Congress makes federal jurisdiction exclusive.

o State courts follow federal substantive law when adjudicating federal questions.

o Generally, state courts follow state procedural laws, even if a federal claim is being litigated.

2. State Law in Federal Court

o Federal courts most commonly adjudicate state law in diversity cases

Also through supplemental jurisdiction, state law compulsory counterclaims, state law

cross‐claims, or third‐party claims as they arise in federal cases.

o Federal courts apply state __________________________________________ law (per Erie).

o Federal courts almost always adjudicate state issues using ___________________________

procedures.

3. State Substantive Law v. Federal Procedural Law

o Erie is a rule of issues not cases; it does not depend on the basis of federal jurisdiction.

o The key is when state law applies to the issue.

o State substantive law: substantive law creates ___________________________ and

imposes obligations.

Erie includes statutes of ________________________________________________ and

________________________________________________________ as substantive law.

o Federal procedures: federal courts almost always follow federal procedure for adjudication

of state‐law claims.

Federal procedures include anything covered by the Federal Rules of Civil Procedure.


B. Substance/Procedure Distinction under Erie

1. History

o In the past, federal courts adjudicating state law claims had to apply state procedural law if

it was ____________________________________________ determinative.

However, any rule, no matter how blatantly procedural, could be seen as outcome

determinative, so this test was abandoned.

o Courts then took a balancing approach, balancing the federal and state interests

In application, this balancing test produced too much uncertainty.

2. Hanna v. Plumer (1965)

o The Federal Rules of Civil Procedure apply in federal court, no matter whether the claim is

based on state or federal law.

Limitation: In order to use a federal rule, the rule must be valid

o First, ask whether there is a federal procedural rule governing the issue. If so, apply the

federal rule.

o Second, if there is no federal procedural rule governing the issue, engage in the

_____________________________________________ between federal and state interests.

This test should consider the twin aims of Erie:

To avoid _________________________________________________________; and

To avoid the inequitable administration of justice.

3. Gasperini v. Center for Humanities (1996)

o The court purported to follow Hanna, but it read the federal procedural rule very narrowly

in order to protect a state interest.

o This approach seemed to combine steps 1 and 2 discussed above, rather than using the

mechanical approach of applying the federal procedural rule.

4. Analysis

Exam Tip 5: The key is not to reach a particular conclusion, but in the analysis.

o Erie applies in federal court when an issue might be procedural (NOT statutes of limitations

or burdens of proof) and requires a two‐step analysis:

First, consider whether there is a Federal Rule of Civil Procedure on point—if so, it

applies.

Second, if not, balance the state and federal interests at stake, and the risk of promoting

forum shopping and the inequitable administration of justice.


C. Interstate Application of Erie:

Erie deals with federal courts following ________________________ law (vertical choice

between federal and state law).

Law of conflicts (or choice of law) deals with state courts following state law (horizontal choice

between the forum state and another state’s law).

Klaxon v. Stentor Electric. Mfg. Co. (1941):

o Holding: a federal court adjudicating state law under Erie must follow the conflicts rules

(choice‐of‐law rules) of the state in which it sits.

o In other words, if Erie compels the federal court to apply state law, and there is some doubt

about which state’s laws should govern, the federal court should apply the ______________

_____________________________ rules of the _______________________________ state.

Klaxon— The question was whether a successful plaintiff in a state law contract

action was entitled to pre‐judgment interest. The contract was made and

apparently was to be performed in New York and New York authorized pre‐

judgment interest. But the case was brought in a federal court situated in

Delaware. Delaware did not authorize pre‐judgment interest.

The Supreme Court said that the law of the forum state (Delaware) governs the

choice of which state’s law should apply. In other words, the federal court must

use Delaware’s choice‐of‐law rules to determine whether Delaware or New York

law would apply to the issue of pre‐judgment interest.

Erie tried to eliminate forum shopping between state court and federal courts by making federal

courts apply state law.

o However, Erie expanded opportunities for forum shopping among states.

Editor's Note 1: The Professor misspoke when summarizing the impact of Erie and Klaxon. Erie was the case that eliminated intrastate forum shopping, but expanded forum shopping among federal courts sitting in different states. Klaxon attempted to remedy that by requiring federal courts to use the state’s choice‐of‐law rules.

D. Substance vs. Procedure in the Law of Conflicts (State‐State Law)

Under a state’s choice‐of‐law rules, a state court might be required to apply the substantive law

of another state, but the state court always follows its own procedures.

The substance/procedure distinction in federal‐state choice of law under Erie is different from

the substance/procedure distinction in state‐state choice of law under conflicts.

Example 8: There is an automobile accident in Maine, and one driver sues the

other in federal court in Massachusetts, based on diversity jurisdiction. Maine

and Massachusetts have different rules regarding the burden of proof regarding

contributory negligence. Maine requires that the defendant prove that the

plaintiff was contributorily negligent, while Massachusetts requires the plaintiff


to disprove contributory negligence. Because the accident occurred in Maine,

the Massachusetts court would follow Maine law as to substantive issues (i.e.,

what is negligence). However, the Massachusetts court would treat the burden

of proof as procedural, and would therefore follow its own rule requiring the

plaintiff to disprove contributory negligence.

The federal district court sitting in Massachusetts follows Massachusetts law as

to burden of proof because, under Erie, burden of proof is substantive (state law

created the underlying tort claim), and Massachusetts is the forum state.

Massachusetts state law treats burden of proof as procedural under its choice‐

of‐law rules. Because burden of proof is procedural, Massachusetts applies its

own rule. So, the federal court follows Massachusetts law regarding

contributory negligence.

PLEADING

A. Notice Pleading

1. In General

o Historically, pleading was difficult because each kind of claim had its own rules of pleading.

o One of the chief aims of the Federal Rules of Civil Procedure was to standardize and simplify

civil pleading.

2. Pleadings

a. Complaint

States a claim for ______________________________________

Either the plaintiff or the defendant may file a complaint against a co‐party (a

__________________________________________complaint).

The defendant can use a _________________________________________ complaint to

_____________________________ a third‐party defendant.

b. Answer

Filed by the opposing party to respond to the complaint

Must contain responses to the allegations of the complaint

May also contain _________________________________________________________,

and in some cases, ________________________________________________________

c. Reply

An answer to a counterclaim

3. Claim for Relief

Recovery is not limited by the claim for relief, except for default judgments.


4. Notice Pleading

o Pleadings need not detail all the evidence nor spell out the legal theory

o Pleadings need only give _________________________________________ of the pleader’s

contention.

o A _____________________________________________ statement of the claim will suffice.

o Most things can be alleged generally, but some things must be specially pleaded.

5. Special Pleading

o Special pleading matters must be pleaded with some particularity, detail, and specificity.

o Matters that must be specially pleaded include:

Fraud or _____________________________________________; and

Special damages, i.e., damages that do not ordinarily flow from the wrong alleged.

Example 9: You are hit by an automobile and you claim medical expenses,

personal injury, pain and suffering, and lost wages—all those things may be

alleged generally. But let’s say you allege in your complaint that you missed

your closing session, you couldn’t sign your closing documents, and you have

enormous economic damages. That is not the type of damages to ordinarily

flow from the accident, so those damages must be specially pleaded.

6. Answer (cont'd)

o Must contain responses; may contain affirmative defenses and counter‐claims

o Responses: Admit, deny, or lack of sufficient knowledge

Failure to respond is an ____________________________________________________.

o Affirmative defense —defenses which require _____________________________________.

Include: assumption of risk, contributory negligence, _______________________, fraud,

release, _____________________________________________________________, and

statute of limitations.

Basically, any defense that has a name is likely an affirmative defense and must be

pleaded in the defendant’s answer.

B. Amendments to Pleadings

1. As of Right

May be had ___________________ within 21 days of service of that pleading, unless that time

is cut short by the defendant’s response.

2. By Leave of Court

o After the 21‐day period, leave to amend can be sought from the court

o Leave to amend should be _____________________________________________________.

o Leave to amend can be denied for any good reason, for example:


Repeated amendments, or the defendant has relied on the prior complaint and would

be unfairly impacted by the amendment.

3. Amended Pleadings and Relation Back

o In some circumstances, an amended pleading is deemed to __________________________

______________ to the date of the original pleading.

If the statute of limitations has not yet run, the date does not matter.

If the statute of limitations has run, then relation back determines whether the

amended pleading is timely.

o An amendment that adds a claim or defense relates back to the date of the original filing if it

concerns the same conduct, transaction, or occurrence as the original pleading.

The key is ______________________________________.

4. Amendment to Add a Party

o An amendment to add or change a party must concern the same ______________________

______________________________________________________________________ as the

original pleading, AND

o The party to be added must have ________________________ or had reason to know that

the action should have been brought against him.

Example 10: Parent Company and Subsidiary: Suppose a suit is filed against a

corporate subsidiary, and the pleading subsequently is amended to name the

parent company. Meanwhile, the statute of limitations runs. Is the action time

barred? ________. The action is not barred, the amendment concerned the

same transaction and the originally filed suit gave the parent ______________.

Example 11: Changing Capacity of Plaintiff: Suppose suit is filed by the head of

a small business who realizes he cannot file suit without board approval. The

board does ratify, but by then the statute of limitations has run. The action is

not barred.

Example 12: Correcting Mistake as to Identify of Defendant: Suppose a plaintiff

slips and falls on a sidewalk in a shopping area but mistakenly sues the wrong

store. After the statute of limitations has run, the plaintiff realizes the mistake

and tries to amend the complaint to sue the correct store. The action is barred;

the new defendant had no reason to know, no notice, of the original action. The

amended pleading is time‐barred. No relation back.

C. Recent Decisions

1. Possible Change in Notice Pleading

o Notice pleading allowed almost any complaint to be sufficient to initiate discovery, which is

time‐consuming, expensive, and burdensome to the defendant.


o Two recent cases have tried to cut back on notice pleading by requiring that the complaint

state a __________________________________________ case for recovery.

2. Bell Atlantic Co. v. Twombly (2007)

o An anti‐trust case where the plaintiffs alleged that the defendants had made agreements in

restraint of trade

o The plaintiffs had no evidence that the defendants made such an agreement; they merely

had evidence that the defendants had the opportunity to make such an agreement.

The main purpose of the complaint was to initiate discovery

o Supreme Court: the complaint should be dismissed because the allegations as stated were

not sufficiently plausible.

A trial court should ask whether the complaint was sufficiently

______________________________________________ to allow the suit to go forward.

3. Ashcroft v. Iqbal (2009)

o Plaintiffs sued the Attorney General and various members of the FBI, but the allegations

were exceedingly thing.

o The court ruled that the complaint should not go forward because it did not convey a

plausible case that the plaintiffs would win.

4. Importance of the Two Cases

o Curtail notice pleading

Allow district judges to dismiss, before discovery, complaints that they think are

obviously unfounded.

o Objections:

The Supreme Court essentially changed the federal rules on pleading without using the

formal process for changing the rules.

Requiring plausible allegations before discovery will result in the dismissal of some

complaints that have merit.

Exam Tip 6: The most likely way you would be tested on these cases is in an issue‐spotting context. If your professor has had a strong reaction to these cases one way or another, keep that in mind and discuss it on your exam.

D. Verification and Certification

1. Verification

o Most pleadings are not verified

o They are not sworn and are not required to be


2. Certification

o Pleadings (and all other litigation documents) must be _________________________ by the

___________________________________________________________________________

o This signature certifies that there is an appropriate ________________ and

___________________________ basis for filing that paper.

o The attorney certifies that, to the best of his or her knowledge, after

_________________________________ inquiry:

There is no improper purpose;

The legal contentions are warranted by existing law or by a _______________________

argument for a change in the law;

The factual allegations have ________________________________________________

___________________________, or if noted, are likely to have support after discovery;

Denials of factual allegations have ____________________________________________

___________________________, or if noted, are reasonably based on lack of

information or belief

o Improper certification can be raised by the court or a party, and can lead to dismissal or

sanctions (usually the costs for responding are imposed on the attorney)

DISCOVERY

A. Mandatory Disclosures (Three Stages)

1. Initial Disclosures

o __________________________, _________________________________________, and

contact information of persons with discoverable information;

o Copies or descriptions of __________________________________________ and things;

o Computation of ______________________________________________; and

o ____________________________________________________________ agreement(s).

2. Experts

Disclosure of all ____________________________________________________________, with

their qualifications, publications, information on which they based their opinions, and

compensation

3. 30‐Days before Trial

List of all witnesses and exhibits to be used __________________________________________.

Note 2: Mandatory disclosures are not followed in all state courts, nor in some U.S. district courts. No national consensus on mandatory disclosure.


B. Scope of Discovery

1. General Rule

o Relevance—can discover anything that might be ___________________________________

at trial or that might lead to something that might be admissible at trial.

o Discovery is NOT limited to admissible evidence.

2. Exception #1: Evidentiary Privilege

o Anything covered by an evidentiary privilege is NOT discoverable (e.g., attorney‐client

privilege).

o Evidentiary privilege refers to an affirmative protection against disclosure; it does not apply

to simple objections to admissibility.

Hearsay is not a true evidentiary privilege and is subject to discovery because it might

lead to admissible evidence.

3. Exception #2: Work Product Rule

o The attorney work‐product rule protects:

________________________________________________ and things (not information);

Prepared ________________________________________________________________

_________________________________________________ (not pre‐existing materials);

By or for ________________________________________________________________.

o Creates a ___________________________________________ immunity from discovery

(not absolute). It can be overcome if the party seeking discovery can show:

1. _______________________________ for the document or thing; and

2. Cannot get it elsewhere.

A simple showing that it will cost money is not sufficient.

o Two special cases:

You can always get a copy of your own _______________________________________,

whether you are a party or a mere witness.

You can never discover the _________________________________________________

_______________________________________________________________________.

4. Experts

a. Expert who will testify at trial

Final report is discoverable; draft reports usually are not

Communications between expert and counsel are generally not discoverable, except for:

The final report of the expert;

_________________________________________________ paid to the expert; and


The facts and assumptions provided by the lawyer as the basis for the expert’s

opinion.

b. Experts who will not testify at trial

Almost no discovery can be had.

5. Protective Orders

o For ____________________________________________ shown, a court can do whatever is

necessary to prevent discovery from being excessively burdensome or expensive.

o Courts have broad authority to issue protective orders, although they prefer not to.

C. Discovery Devices

1. Oral Deposition

o Questions asked and answered orally and under ____________________________.

o A party is limited to 10 depositions, unless the court allows more.

o A deposition is limited to one day of seven hours, unless the court allows more.

o To depose a party, must give ______________________________ stating when and where.

o To depose a mere witness, must have a __________________________________________.

o A subpoena duces tecum requires the deponent to bring documents or things.

o Depositions may be taken before any notary public who is not disqualified for having some

interest. Almost always, the notary public is also the stenographer before whom the

deposition is taken.

2. Written deposition

o Questions given in writing to a hearing officer who asks them orally

o Rarely used

3. Written Interrogatories

o Questions asked and answered under oath _______________________________________.

o Usually limited to _____________ interrogatories, unless the court allows more.

o Parties can provide access to records in response to interrogatories, so long as not unduly

burdensome.

4. Discovery and Inspection of Documents and Land

o Request to produce and permit inspection of things under the control of ________________

If a witness has documents or land, must use a subpoena duces tecum

o Request must be described with particularity

5. Physical and Mental Examination

1) Available only against a ___________________________


2) Only permitted when the party’s physical or mental condition is

______________________________________________________________________

3) Only for ____________________________________________ shown.

6. Admissions

o A request for admissions is useful for streamlining trial.

o Failure to respond within 30 days is an ___________________________________________.

o Certification: responses to requests for admissions (and all other documents) must be

signed by the _______________________________________________________________.

Signature certifies that there is a reasonable basis and good faith

o Admissions have no _____________________________________________________ effect.

Binding in the current case, but cannot be used in any future proceeding.

D. Use of Discovery at Trial

The admissibility of discoverable evidence is governed by the rules of evidence.

Depositions:

o The deposition of an adverse party is almost always admissible as an admission against

interest

o The deposition of a mere witness may be used to impeach the testimony of the witness at

trial (prior inconsistent statement)

o The deposition of a witness who does not testify at trial generally cannot come in because it

is hearsay. However, there are exceptions to the hearsay rule, for example:

The deponent is dead;

The deponent is beyond the court’s subpoena power;

The deponent has lost the ability to remember;

The deponent is more than 100 miles from the trial

E. Enforcement Sanctions

Court has wide power and discretion to enforce discovery orders.

Discovery defaults resulting in immediate sanctions:

o Failure to attend one’s own deposition

o Failure to respond to interrogatories

o Failure to respond to a request for documents or things

In all other cases, the party seeking discovery must seek an order compelling discovery from the

court.


MULTI‐CLAIM LITIGATION

A. Same Plaintiff and Same Defendant

No limitation on joinder of claims between the same plaintiff and same defendant.

In a diversity action, a plaintiff can _______________________________ all claims against the

same defendant to exceed $75,000.

B. Counterclaims

1. Compulsory Counterclaims

o Compulsory counterclaims must be pleaded now or will be lost forever.

o A counterclaim is compulsory if it arises out of the __________________________________

___________________________________________________________________________

as the original claim.

o No independent jurisdictional base is required, and the statute of limitations is not a

problem if the plaintiff’s claim is timely when it is filed.

2. Permissive Counterclaims

o Unrelated to the original claim

o Do not arise out of the same transaction or occurrence

o Independent jurisdiction is required.

o MUST satisfy the jurisdictional minimum in diversity cases.

o A permissive counterclaim must comply with the statute of limitations.

C. Cross‐claims

Claims against co‐parties

Must arise out of the same ________________________________________________________

______________________________________ as the main claim

Cross‐claims _____________________________________ compulsory.

Exam Tip 7: Counterclaims are highly testable because they allow professors to test two issues at once. First, you need to know the difference between a compulsory and a permissive counterclaim. Second, in federal court, you need to know the effect on the jurisdictional rules. A compulsory counterclaim comes under supplemental jurisdiction. A permissive counterclaim requires an independent jurisdictional base (federal question or diversity).

MULTI‐PARTY LITIGATION

A. Joinder

1. Permissive Joinder of Parties

o Any number of plaintiffs may join if they assert claims arising out of the same transaction or

occurrence and there is a ______________________________________________________

of law or fact.


o Any number of defendants may be joined in the same suit if the claims asserted against

them arise out of the same transaction or occurrence and there is a common question of

law or fact.

o NO party can be joined whose presence would destroy ______________________________.

Every plaintiff must be diverse from every defendant.

o If complete diversity is maintained, and if one plaintiff claims more than $75,000, other

plaintiffs with smaller claims can come in through supplemental jurisdiction.

2. Compulsory Joinder of Parties (by defendants)

o A necessary party is a person who is not a party yet, but whose presence is necessary for a

___________________________________________________________________________.

o No party can be joined whose presence would destroy ______________________________.

o No party can be joined without personal jurisdiction.

“Bulge provision”: a necessary party may be served within ________________ miles of

the courthouse.

o If a necessary party cannot be joined, the court decides whether the party is truly

__________________________________________________.

The court can dismiss the suit, or

The court can continue the suit without the necessary party.

B. Intervention (primarily by plaintiffs)

Note 3: Joinder deals with who may and who must be joined as a party, and the issue is almost always with joinder of defendants. Intervention deals with outside persons who volunteer to enter a lawsuit, and chiefly concerns plaintiffs.

Intervention as of right may be had when the outsider claims an interest in the subject matter

of the lawsuit that may be ___________________________________________________ by the

disposition of the pending action.

Permissive intervention may be allowed by the court whenever there is a __________________

_________________________ of law or fact between the main claim and the intervener’s claim.

NO supplemental jurisdiction for either kind of intervention.

o An intervenor must maintain ___________________________________________________

and must have a claim worth more than _______________________________.

C. Interpleader

1. In General

o Purpose is to avoid multiple liabilities on competing claims to the same property

o Property is called the ________________________, and may be real or personal, tangible or

intangible.


o The party possessing such property is the ________________________________________.

o The parties who claim an interest in the property are the

______________________________________________.

o Offensive Interpleader—when the stakeholder claims an interest in the property, he is

called a stakeholder‐plaintiff and interpleads all claimants as defendants.

o Defensive Interpleader—when the stakeholder‐defendant has been sued by a claimant, he

interpleads other claimants as plaintiffs.

2. Rule Interpleader (Rule 22)

o Establishes a remedy in a lawsuit that is otherwise within the court’s jurisdiction

o Often ineffective because the court cannot exercise personal jurisdiction over all the

claimants

3. Statutory Interpleader—Federal Interpleader Act

o Special jurisdictional minimum of only $________________________;

o Allows ______________________________________________ service of process to obtain

personal jurisdiction over all the claimants;

o Venue is proper in any district where _____________________________________________

resides; and

o Subject matter jurisdiction is based on ___________________________________ diversity.

Exists when any two claimants are from _______________________________________

________________________________

D. Impleader (Third‐Party Practice)

Allows a defendant to bring into the suit someone who is or may be liable to the

__________________________________________ for all or part of the

__________________________________________ claim against him.

The impleaded party—____________________________________________________________

The original defendant—defendant as against the plaintiff, and ___________________________

_______________________________________ as against the third‐party impleaded defendant.

Example 13: Contribution Among Joint Tortfeasors. Two tortfeasors injure the

plaintiff. The plaintiff sues one but not the other. The sued defendant can

implead the other tortfeasor, not because the other tortfeasor may be liable to

the plaintiff, but, given the right of contribution, because she is or may be liable

to the defendant for part of plaintiff’s claim.

Example 14: Contract Indemnification. A general contractor makes contracts

with sub‐contractors. Each contract requires the sub‐contractor to reimburse

(indemnify) the general contractor for any defect in that sub‐contractor’s work.

If the owner sues the general contractor, the general contractor can implead the


sub‐contractor, who may be liable to the general contractor for all or part of the

owner’s claim against him.

1. Jurisdiction

o In diversity actions, impleader falls under the court’s

_________________________________________________________________ jurisdiction

The citizenship of the impleaded third‐party and the amount of the claim do not matter

o However, supplemental jurisdiction does not extend to new claims by the original plaintiff

against the third‐party defendant

In order for the original plaintiff to bring a claim against the impleaded third‐party, the

claim must have an independent jurisdictional basis

o Impleader triggers the “bulge” provision for personal jurisdiction

In addition to all other grounds of personal jurisdiction, a third‐party defendant may be

served within _____________ miles of the courthouse.

E. Class Actions

Exam Tip 8: Keep in mind whether your professor discussed class actions as a means of dispute resolution, or from a more public‐policy standpoint.

1. Prerequisites

o ________________________________________________________ of parties;

o __________________________________ questions of law or fact;

o _________________________________________ of claims by the class representative; and

o Adequacy of representation by the representatives’ lawyer.

2. Dismissal or Compromise

Requires _______________________________________________________________________

3. Diversity Jurisdiction

Exists if the ________________________________________________________ are completely

diverse from all defendants and if at least _____________________ has a claim worth $75,000+.

4. Class Action Fairness Act

Allows very large class actions, involving more than _____________ members and more than

__________________________ at stake to be based on ________________________________

diversity (meaning any plaintiff is diverse from any defendant).


MOTIONS PRACTICE

A. Termination without Trial

Devices for terminating litigation without trial:

1. Motion to dismiss for failure to state a claim on which relief can be granted (Rule 12(b)(6));

Challenges the legal sufficiency of the _________________________________________

2. Judgment __________________________________________________________________;

Only used if the pleadings agree on the facts—rare

3. ___________________________________________________________________________;

Either the defendant or the plaintiff does not appear

4. Voluntary dismissal;

5. Involuntary dismissal; and

6. ___________________________________________________________________________.

B. Voluntary Dismissal

Ordinarily ______________________________________________________________________

A plaintiff has a right to a voluntary dismissal (taking a “nonsuit”) ONCE, at any time prior to the

defendant’s serving an answer or a motion for summary judgment.

C. Involuntary Dismissal

Usually a dismissal _______________________________________________________________

o “With prejudice” bars re‐litigation because it operates as a judgment on the merits

Exceptions:

o There is a lack of ____________________________________________________________;

o Improper venue; or

o Failure to join an ________________________________________________________ party.

These are dismissed without prejudice.

May be imposed for:

o Failure to prosecute, failure to comply with the Rules of Civil Procedure, or failure to comply

with a court order

D. Summary Judgment

1. Relation to Failure to State a Claim

o A motion for failure to state a claim under Rule 12(b)(6) tests only the legal sufficiency of the

plaintiff’s claim.

o Summary judgment tests ______________________________________________________.


o Summary judgment is appropriate when the facts alleged would support recovery if true,

but it is obvious that they are not true. Summary judgment is appropriate in the absence of

factual support.

2. Partial Summary Judgment

o Summary Judgment can be granted for the whole case or any part of it. That is, it can be

granted:

Only for or against ________________________________________________________;

Only on certain claims;

Only against ___________________________________________________________; or

Only on particular issues.

3. Standard for Granting Summary Judgment

o No ________________________________________________________________ as to any

material fact and that the moving party is therefore entitled to judgment as a matter of law.

o This means that no ___________________________________________________________

could find the other way.

4. Supporting a Motion for Summary Judgment

o Must point to particular parts of materials and evidence that would be admissible at trial

o Generally, statements must be _______________________________:

Affidavits;

Responses in a ____________________________________________;

Answers to interrogatories;

Documents;

Stipulations

o Pleadings are not ordinarily sworn statements.

Thus, mere assertions and denials in the pleadings do not create a genuine dispute;

there must be some admissible evidence

o The sworn statements must be based on _________________________________________

_________________________________________ (not hearsay).

Example 15: Ethel sues Fred for injuries suffered during an automobile

accident. Ethel moves for summary judgment, which she supports with an

affidavit stating that she was walking down the street when Fred ran over the

curb and hit her with his Buick. If Ethel’s allegations are taken as true, Fred

loses. So, Fred must defeat the motion by creating a genuine issue of material

fact. He cannot simply point to his answer. Fred also cannot say he will call a

witness who will say Ethel is lying (that’s hearsay). He must make a sworn


statement based on personal knowledge raising a genuine issue of material fact

(e.g., he was in Philadelphia at the time).

E. Trial by Jury

Issues traditionally tried at law still carry a right to jury trial.

Issues traditionally tried in equity generally do not carry a right to jury trial.

o There is no right to a jury trial for issues tried in _________________________ or admiralty.

o Equity includes ________________________________________________ and requests for

specific performance

If equity issues and legal issues overlap, try legal issues first to preserve the right of jury trial.

Example 16: Plaintiff sues Defendant seeking an injunction to stop his conduct.

Defendant counterclaims for damages. The suit is for equity and the

counterclaim is at law.

F. Motion for Judgment as a Matter of Law (formerly—Directed Verdict)

In essence, this is a motion for summary judgment made after a jury trial has begun.

Standard: If, viewed in the light most favorable to the opposing party, the evidence cannot

support a ____________________________________________________________, the movant

is entitled to judgment as a matter of law (no reasonable juror could find the other way).

o If the case turns on the credibility of a witness, it must go to a jury.

Made by the defendant at the closing of the __________________________________________

evidence, and then again at the closing of all the evidence.

G. Renewed Motion for Judgment as a Matter of Law after the Verdict (formerly—JNOV)

A motion made after ____________________________________________________________.

Standard is the same

A prior motion is required—a motion for judgment as a matter of law must have been made at

the close of all the evidence.

H. Motion for a New Trial

Can be made at the same time as a renewed motion for judgment as a matter of law.

Judgment as a matter of law is a ____________________________________________________

determination.

A new trial, however, may be granted in the sound discretion of the district court for various

reasons, including:

o An error rendered the judgment _______________________;

o There was __________________________________________________________________

that could not with ordinary diligence have been found earlier;

o There was prejudicial misconduct by a lawyer, party, or juror; or


o The verdict was _____________________________________ and the winning party refused

remittitur.

Court must state its reasons on the record to facilitate appellate review.

PRECLUSION

A. Introduction

Preclusion involves the effect of former adjudication on a later lawsuit.

Determined by two doctrines: claim preclusion (res judicata) and issue preclusion (collateral

estoppel)

When you look for the effect of prior adjudication, ask two questions separately and in this

order:

1. Ask first whether the ________________________ is precluded by prior adjudication. If so,

that’s the end of it.

2. If not, then ask whether the________________________ is precluded by prior adjudication.

B. Claim Preclusion

1. In General

o A final judgment on the merits bars re‐litigation of that claim by the ___________________

_____________________________ or those in privity with them.

o This bar operates to prevent re‐litigation of every issue that was raised, or should have been

raised in the litigation of that claim.

o Claim preclusion has three requirements:

1) There must have been a __________________ judgment on the ___________________

in the first suit;

2) The second suit must be between the _________________________________________

or their successors in interest; and

3) The second suit must involve the same ________________________ or cause of action.

2. Final Judgment on the Merits

o Includes a _________________________ judgment, ________________________________

judgment, and dismissal with prejudice

o For claim preclusion, it is not necessary that there be a trial

3. Same Parties

o Re‐litigation between the same parties or their successors in interest.

o Both parties in the second suit must have been parties to the first suit.


Example 17: Child Support. Father is criminally prosecuted for failing to

provide child support and is acquitted. Mother then brings a civil action for

child support against the same defendant. Is the second suit barred by claim

preclusion? Answer: _______________. The first action was a criminal action

brought by the government, and the second was a civil action brought by the

mother. Different plaintiffs have different claims – no claim preclusion.

Example 18: Defective Vehicle. Person injured by a defective vehicle sues the

dealer and the dealer wins. Subsequently, the injured person sues the vehicle

manufacturer for the same defect. Is the second suit barred by claim

preclusion? Answer: ___________. The first suit was against the dealer, and

the second was against the manufacturer.

o Exception: when re‐litigation involves successors in interest to the parties in the first suit.

The successor in interest stands in the shoes of the party to the first suit.

Examples of successor‐ in‐interest include:

The assignor and assignee of a claim;

The executor of the estate of a decedent who litigated a claim and then died; and

The executor of an estate and persons who claim under the will.

o Class actions: each member of a class is bound by judgment because there was adequate

representation of all interests.

4. Same Claims

o All legal theories (whether contract or tort) for harm arising out of the same

___________________________________________________________________________

are one claim, unless local law specifically provides otherwise.

o A tricky case: Installment Sales

In installment contracts, the creditor must sue for all that is due at the time of the suit.

All accrued debt or obligation is one claim. Future debts or obligations are future claims

(unless the contract provides that the entire debt becomes due upon default).

Example 19: Rent Due #1: A tenant is in default for rent for three months—

January, February, and March. On April 1, the landlord sues for only the January

rent, and wins. The landlord then brings a second suit for February and March

rent. All rent due and owing at the time of the first suit was a single claim, and

the landlord had to sue for the entire claim or lose it.

Example 20: Rent Due #2: The same landlord sued the tenant for all rent due

and owing and gets a default judgment. That’s a final judgment on the merits,

and it bars re‐litigation of that claim and all issues related to it (e.g., whether

the lease was valid, whether the tenant paid the rent, whether the premises

were habitable, etc.). The next month, the dispute arises again and the landlord


sues again. Can the landlord seek claim preclusion against the tenant in regard

to these defenses? _________. The conditions of the property during the

current month were not litigated in the earlier suit.

C. Issue Preclusion

1. Three Requirements

1. The same ________________________________________________ must arise in two suits;

2. That issue must have been actually and necessarily decided in the first suit; and

3. The party ____________________________________________________ must have been a

party to the first suit.

2. Same Issue of Fact

o It does not matter if the two suits involve entirely different claims, so long as they have a

factual issue in common.

Example 21: Defective Vehicle. Assume that the person injured by a defective

motor vehicle sues the dealer and loses. The jury found that the vehicle was not

defective. Then the injured person sues the manufacturer for the same defect.

Is there claim preclusion? Answer: ___________. The second suit involved a

different defendant and therefore a different claim. Is there issue preclusion?

Answer: __________. The same issue (Was the car defective?) was presented in

both suits.

3. Actually and Necessarily Litigated and Decided

o The issue must have been actually and necessarily decided in the first suit.

o A default judgment is a final judgment on the merits and has full ______________________

preclusive effect

o But, a default judgment does not involve actual litigation of factual issues. Thus, a default

judgment has no ____________________________ preclusive effect.

4. Party to be Precluded (no mutuality required)

o The party to be precluded must have been a party to the first suit.

o The party invoking preclusion need not have been a party to the prior action (no

requirement of mutuality of estoppel).

Example 1: Fred and Ethel were in an auto accident with Mort and Myrtle.

Fred and Mort were the drivers of their respective vehicles. Fred sued Mort and

the jury found that Mort’s vehicle was not operated negligently.

Variation #1. Fred then sues Myrtle, the passenger in Mort’s car, claiming that

her conduct caused the vehicle to be operated negligently. Can Myrtle assert

issue preclusion to bar re‐litigation of Fred’s negligence claim? Answer:


___________. Fred was a party to the first suit. Fred had the opportunity to

prove negligence and the jury ruled against him.

Variation #2. Ethel then sues Mort for her injuries. Can Mort invoke issue

preclusion to bar re‐litigation of negligence? Answer: ___________. Ethel was

not a party to the prior action and preclusion cannot be asserted against her.

D. Summary of Preclusion

Claim preclusion and issue preclusion are separate doctrines that must be addressed separately

and in order.

Ask first whether claim preclusion bars the second suit. If so, the question is at an end.

If not, ask whether issue preclusion bars the second suit.

[END OF HANDOUT]