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Civ Pro Outlines

Civ Pro Test Outline
		Civil Procedure:  Cases and Materials 6th Edition
	John C. Cound, Jack H. Friedenthal, Arthur R. Miller, John E. Sexton

Rush v. City of Maple Heights
      Res Judicata--final & binding dec.
      Issue of Preclusion
      Claim of Preclusion
    Stare Decis 4 lower cts
      Leg. v. Jud
        1) Leg.
            1. Det. the jxn. of cts
            2. Can overrule any C/L
        2) Jud.
            1. Follow statutes as long as Const.
            2. Dec. Const.
            3. Defer D in C/L 2 leg. usually
Pennoyer v. Neff
      Terr. sov. of state & ct.
      In Personam Jxn--FF&CC, Res Judicata, Preclusions (issue & claim)
      In Rem--No Res Judicata, & Preclusions (issue & claim)
      Quasi In Rem--No Res Judicata
      Dir. Appeal
      Collateral Appeal
Grace v. MacArthur
      P. 74 Nt 4
      Served notice in plane which is valid b/c terr. land up
Milliken v. Meyer
      P. 73 Nt 5
      Cant take irreconciliable difs collaterally
      Persons Home is basis 4 jxn
Gen Jxn
      Domicile (Milliken v. Meyer)
      Presence (Grace v. MacArthur)
      Sys & Cont. (Int. Shoe)
Specif. Jxn
      Specif. issue like car (Hess) / tax (Int. Shoe)
Hess v. Pawloski
      Specif. Jxn
      Spec. Appearance
      Appeal both jxn & merit
      Implied consent 2 reach jxn 2 non-residents (agent 4 serv. w/in state)
      Statutory construction issue--Statute giving rise 2 C/A
      PA statute giving jxn over auto accident
Int. Shoe Co. v. Wash.
      Statutory construction issue--statute giving rise 2 C/A
      Const. Issue--due process
      Jud. Jxn
        1. Jxn 2 adjudicate
        2. Rendering binding dec
      Leg. Jxn
         Subst. law jxn
      L-A Statute--only need 14th amend. arg. 2 go as far as Const. permits
      Min Contact
        1.  Trad. notions of fair play & subst. justice
        2.  Rsblness 2 subj. D & notice
        3.  Basis 4 specif. jxn but eventually 4 gen
        4.  Purposefully comes in contact w/the state
      Facts
        1. Salesmen resided in Wash.
        2. Their activities in state where commissioned
        3. Supplied them w/line of samples 2 display 2 purchasers
        4. Rented perm sample rooms
        5. Merchandise shipped into Wash.
        6. Systematic solicitation of orders
McGee v. International Life Insurance Co.
      Statute 4 C/A
      No need 4 serving in state
      Rsbl stand. b/c subst. dealing in state CA although just 1 busi.
      Purposeful Availment
      Options of D
        1. Default
        2. Spec. Appearance--preserve jxn pt in dir. appeal
      Facts of Contacts
        1.  One policy w/McGee in CA
        2.  K delivered in CA, premiums mailed there
        3.  Resident of CA
        4.  CAs int.
Hanson v. Denckla
      Collateral Attack
      NO prop., min. contact, / purposeful availment so no jxn by FL
      Limit the reach of states
      Facts
        1. Trust in DL
        2. Moved 2 FL
        3. Ded beneficiaries in FL
        4. DL Co. not present in FL
World-Wide Volkswagen Corp. v. Woodson
      No jxn. b/c no purposeful availment, no min. contact
        1. Fair play & subst. justice 2 D
        2. Terr.
      Manufacturers should anticipate but Distributors dont 4 prod. liability
      Specif. Jxn
        1.  Arise out of the contacts 2 purposefully avail or related 2 the 
            contacts / axns
        2.  Axns/contacts R dired @ the forum state
      Brennans Dissent that look @ all parties, choice of law relev.
      Unilateral activity by P isnt enough 2 find jxn over D
      Facts
        1. Bought in NY
        2. Accident in OK
        3. No contacts of sales, servs,advertise, /purposefully avail 
           themselves 2 the law
Keeton Case
      Statute gave rise 2 C/A
      Multi-state jxn b/c arise out of more than 1 state
      Potential of Specif. Jxn.
      Hussler & megazines
Burger King Corp. v. Rudzewicz
      Fed. Ct. proceedings
      Choice of law provision which is dif. from selection of forum
      Purposefully Avil 2 the law b/c contractually agree 2 the law of FL
      Sliding Scale of Brennan
        1. Purposeful availment & Min. Contact v. Fairness,
Subst. Justice,
        Rsblness
        2. If really fair, not need as much of purposeful availment & 
           min. contact
        3. If really unfair, doesnt matter if lots of min.  contact ested
      5 factors of fairness
        1.  The burden on the D
        2.  Forum states int. in adjudicating the dispute
        3.  Ps int. in obtaining convenient & effective relief
        4.  Interstate jud. syss int. in efficient resolution of controversies
        5.  Shared int. of the several states in furthering fund.
subst. soc. policies
     Burdens of Proof
        1.  P has burden 2 prove jxn & contact
        2.  D has burden 2 prove a compelling case of unfairness
      Accomodation of unfairness by D of venue
      Facts
        1. BK in FL while franchisee in Mich.
        2. Choice of law, benefit, K of subst cnxn w/FL, reached deliberately
        beyond Mich., negotiations, vol. acceptance, mail & telephone
Asahi Metal Ind Co. v. Superior Ct.
      Stream of Commerce
        1. Manufacturer & Importer put the prod dirly into stream of commerce
        2. Five justices said its enough & should anticipate b/c purposeful
           availment
        3. Four justices said need more
      Additional activities D dired purposefully @ the forum state 2 stream of
      commerce 2 est. jxn
        1.  Designing the prod. 4 the mkt in the forum state
        2.  Advertising in the forum state
        3.  Esting channels 4 providing regular advice 2 customers in the 
            forum state
        4.  Mkting the prod. through a distributor who has agreed 2 serve as 
            the sale agent in the forum state
      Brennans Sliding Scale
        1.  Compelling case of unfairness
        2.  Foreign element
      Consistency in indemnification
      Facts
        1. Asahi manufactures 2 Cheng Shin
        2. Aware that valve sold 2 Cheng Shin will B sold 2 US
Perkins v. Benguet Consolidated Mining Co.
      Gen. Jxn--unrel. 2 cause of axn / not arising out of that state
        1. Pres maintained an office on behalf of the Co.
        2. Office files maintained
        3. Correspondence reling 2 the busi. of the Co.
        4. Drew & distributed salary checks
        5. Used banks in OH 4 balancing Co. funds
        6. Meetings held @ home
        7. Supervised policies of the Co.
      Cont. & Sys
Helicopteros Nacionales de Colombia v. Hall
      Gen. Jxn not enough
      Foreign element
      4 pts failing gen jxn
        1. No place of busi. in TX
        2. One trip by chief executive officer 2 Houston
        3. Acceptance from Consorcio/WSH of checks drawn on a TX bank
        4. Purchases & the reled training trips of helicopter
Jxn over Prop.
      No limited appearance
      In personam immly upon enter
      Issue preclusion
      Prop incls movables like horses & debtors
Harris v. Balk
      Respect FF&CC so debtors can B seized
Ontario & Vermont
      Attached the obligation 2 defend by ins. co.
Shaffer v. Heitner
      Overrule quasi-in-rem
      Subst. law application doesnt translate into jud. jxn
      Est. Min. Contact of Int. Shoe requirement
      Due Process Clause used 2 overturn whats been accepted b/c not follow
      w/the notions of modern socs view
      Del. stocks were attached 2 get the directors
Burnham v. Superior Ct.
      Due Process
        1. Scalia claims that wont thrown out historically feasible things
        2. Brennan claims that evolves w/the era so the stands can D so apply
           Int. Shoe stand w/Ding X
      Physical Presence still good 4 jxn
      Accidental/Transitory Presence
        1.  Scalia--o.k.
        2.  Brennan--no P.A. b/c no choie & unilateral activity of someone not
            connected 2 D so no jxn.
      Facts
        1. Busi. trip then visit children for the weekend where served
Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee
      Consent by D that ct. in PA will have jxn 2 det. if have jxn
      Discovery Issue
M/S Bremen v. Zapata Off-Shore Co.
      Consent in K 2 use London Ct.
      Admiralty isnt binding on state ct.
      Amer. cts cant B 2 parochial in international law
Carnival Cruise Lines v. Shute
      K w/selected forum
        1. FL has int.
        2. Cost lowered=AF by it
      Admiralty isnt binding on state ct.
Omni Capital international, Ltd. v. Rudolf Wolff & Co.
      Const Issue
        1. Fifth Amend.
        2. Contact w/entire US
      Statute
        Need it 4 the ability 2 serve process
      Rule 4(k)
        1.  Lec. 16
        2.  Serv. of summons effective
        3.  Jxn of gen jx of state ct--meet state statute req.
        4.  Impleader Rule of 100 miles
        5.  Authed by fed. law
        6.  Sub 2 addresses contact, pers. jxn, fed law, & not subj. 2 gen 
            jxn of state
      Fairness
        1.  Change in venue
        2.  Not pertinent 2 5th Amend. so less imp in fed. law
      Facts
        1. CEA act used
Rule 12
    Lec. 17
Mullane v. Central Hanover Bank & Trust Co.
      Const.
        1. Suff of Notice under 14th Amend.
        2. Test--Rsbly calculated under all circs 2 afford them theopp. 2
           present objs
      Binding req. 4 min. notice 4 all states
Subj. Matter Jxn
      Dismiss any X ct lacks subj. matter jxn Rule 12)h)3
      Imp. 2 systemic rts of fed. govt & jud. pwr cant B waived by indiv.
      Diversity
        1. Art. III Sec. 2
        2. Suits btwn cit of dif. states, btwn cit. of state & alien
        3. Cong. Act of 1789--min. jxnal amt
        4. No incompl. diversity by Strawbridge v. Curtiss--=A71332
      Removal
        By =A71441 must have had orig. jxn
      Manufacturing Fed. Jxn
        Not allowed by =A71359--no improper collusive 2 manufacture
      Defeating Fed. Jxn--o.k.
      Cit of Fictitious names R disregarded by =A71441(a)
      Corporation
        By =A71332 c)1), its a cit. of any state where incorp & where it has 
        princ.  place of busi.
      Limited Partnership
        All cit. of partners count
Mas v. Perry
      Domicile
        Orig. b/c no intent 2 stay in LA
      Supplemental Jxn
        1. By =A71367 take other cases & sweep in
        2. Common nucleus of fact
        3. One person must @ least have orig. jxn
      Last paragraph of =A71332a--alien perm res., cit of the state
      Det of cit.--@ filing
      Burden of Proof--person who brings suit
      Min. Jxnal Amt
        1.  Appear 2 a legal certainty that the claim is really 4 less than 
            the jxnal amt 2 justify a dismissal
        2.  By =A71332b, Ct can deny costs 2 P & impose costs if P gets less 
            than jxnal amt
AFA Tours Inc v. Whitchurch
      Test 2 det. min. jxnal amt--unless legal certainty its less
      Ct. takes the active role in subj. matter jxn
      Injunction
        Both P & Ds values taken into acct
Backgrounds 2 Osborn
      Art III =A71--inferior cts
      Art III=A72--jud pwr 2 extend 2 law & equity arise under Const.  laws, & 
      treaties
      Specif. Jxnal Statutes--open up Dist. Cts
      28 USC =A71331--Gen Fed Quest Jxn; same lang. of Const
      28 USC =A71441--Removal Statute
Osborn v. Bank of the US
      Statute--gave C/A
     Const Issue--arise under meaning of Art III
      Orig. Ingredient 2 form a creature of fed. govt
Louisville & Nashville Co. v. Mottley
      28 USC =A71331--1875 gen fed.
      Well Pleaded
        1. Not really about Art III
        2. K case injecting fed. issues
      Sep. Statute--review states decs on fed. quests
      Restrictive Reading of =A71331
Skelly & Franchise Tax Case
      Declaratory Judgment Act of 1935--no good against well pleaded cases

^ back to top

Civ Pro Outline2: Subj. Matter Jxn, Venue, State Law in Fed Ct., Fed. Law in State Ct, Modern Pleadings

Backgrounds 2 Osborn
  	Art III §1--inferior cts
  	Art III§2--jud pwr 2 extend 2 law & equity arise under Const. 
laws, & treaties
  	Specif. Jxnal Statutes--open up Dist. Cts
  	28 USC §1331--Gen Fed Quest Jxn; same lang. of Const
  	28 USC §1441--Removal Statute
Osborn v. Bank of the US
  	Statute--gave C/A
  	Const Issue--arise under meaning of Art III
  	Orig. Ingredient 2 form a creature of fed. govt
  	2 arise under Art III, there must B fed. ingredient
Louisville & Nashville Co. v. Mottley
  	28 USC §1331--1875 gen fed.
  	If P's claim arises from state law, matter can't B heard in fed. ct
  	Well Pleaded--P's complaint must show that essential element of 
	claim & suit arises under fed. law not from Ds defense
		1. Not really about Art III
		2. K case injecting fed. issues
  	Sep. Statute--rev states decs on fed. quests
  	Restrictive Reading of §1331
Skelly & Franchise Tax Case
  	Declaratory Judgment Act of 1935--no good against well pleaded cases

Bases 4 fed. jxns
  	Cong. specif'ly open up in a statute
  	Well pleaded complaint
  	Art. III giving rise 2 subst. of fed. quest.
Merrel Dow Pharmaceutical Inc. v. Thompson
  	Facts
		1. State claims w/1 violation of fed. state axnable by 
		state (FDCA)
		2. Ct. of Appeals said that if only 1 fed claim against 5 
		state, then no fed. quest.
		3. Sup. ct. said if truly 1 fed. claim, then can use 
§1367 4 suppl jxn.
 		If there's no express/implied C/A in fed. statute, then	 
		Cong. didn't intend 2 open up so no remedy
  	4 removal, see if there was orig. jxn
  	If stand. incorp'ed in state based C/A, Cong. didn't intend 2 
	create priv. C/A so can't open up fed. ct.
  	Novelty of issue is insuff. 2 confer fed. jxn
Cort v. Ash
  	4 part test 4 priv. C/A implied
		1. P in class of statute
		2. Leg. intent
		3. Purposes consistent
		4. Trad. in state law
  	Not a good law except 4 Const. & old Cong. statute
Bivens v. 6 Unknown Named Agents of the Fed. Bureau of Narcotics
  	Implied C/A in Const. Amend.
Smith Case Rule
  	Holmes Dissent--case arises under the law that creates it
  	Can arise under more than 1 sov.'s
  	Shoshone case was an exception by statutory construction
  	If state incorporates fed. provision, then theres fed. jxn
  	Moore Case distinguishable b/c didn't allege fed. statute
  	Merrel Dow Case distinguishable b/c Cong. didnt intent 2 create remedy
Suppl Jxn
UMW of Amer. v. Gibbs
  	Common nucleus of facts test
  	2 step analysis
		1. Jud. pwr 2 hear by Art. III
		2. Discretion
  	Factors of discretion
		3. Needless dec. of state law avoided/novel state quests
		4. If fed. claim dismissed, should dismiss state claims
		5. If state issues predominates, may dismiss
		6. If indep of jxnal issues, jury R confused
  	Not deal w/C/A v. grounds as set by Hurns v. Oursler
Pendant parties
Aldinger v. Howard
  	Fact
		1. P sued county under state & police under fed
  	Distinguished pendant parties v. claims
  	3 step analysis
		2. Art III of pwr.
		3. Fed. statutes
		4. Discretion
Owen Equipment & Erection Co. v. Kroger
  	Still a good law
  	No suppl. jxn 4 impleading which results in incompl. diversity
Finley v. US
  	Changed the test of fed. statute negating 2 actively affirming 
	the jxn
§1367
  	Overruled Finley v. US
  	Sub a)--Unless express exception, axn w/in such orig. jxn that 
	form same case; joinders & interventions R also o.k.
  	Sub b)--In diversity, can't have suppl jxn over claims against 
	parties under 
	Rule 14, 19, 20, 24; Ps of Rule 19; & intervene as Ps under Rule 
	24 if incompl. diversity created (all joinders after orig. parties)
  	Sub c)--Discretion factors:  novel claims, state claims 
	dominates, fed claim 
	dismissed, & exceptional circs
  	Sub d)--State statute tolled 4 30 days
§1441
  	Removal statute
  	Sub a)--if orig. was able 2 bring, remove 2 where axn pending
  	Sub b)--dont care about ress/cits except in diversity in which 
	case can only 
	remove if none of the parties in D is a citizen of the state its brought
  	Sub c)--sep. & indep. claim w/in §1331 joined by non-removable 
`	claims, then 
	entire case may B removed
  	Sub d)--if any civil axn brought against for. state, removed 
	where axn pending
  	Removal only by D
Zahn v. Int. Paper Co.
  	Facts
		1. Same waterfront residents bring suit 4 water pollution
		2. No diversity case
  	By §1367)a, can satisfy joinder req.
Subj. matter defects
  	Rule 12)h)3--can throw out whenever lack subj. matter jxn (Mottley)
  	B/c of Const. /Statute dimension unlike pers & venue jxns
DiFrischia v. NY Central R. Co.
  	Only suppl jxn addresses staute of lim. in states
  	Diversity cases must rely on states 2 toll
US v. United Mine Workers
  	Even when ct. lacks subj. matter jxn, follow judges orders
Willy v. Coastal Corp.
  	Ct. can do a lot of stuff even if lack subj. matter
Collateral Attack
  	Pers. Jxn
		1. No limited/spec. appearance--waive
		2. Default--attack later collaterally
		3. Defend jxn pt.--cant walk away
  	Res judicata v. policy that cts can't go beyond their boundaries
 	 Rest 1
		4. Collateral attack w/balancing factors
		5. Clear lack subj. matter
		6. Quest. of law & det. of jxn
		7. Limited ct.
		8. Jxn quest. not litigated
		9. Policy strong against cts acting beyond
  	Rest 2
		10. Default--can collaterally attack subj. & pers. jxn
		11. Contested then can attack if no justifiable int.s of 
		reliance +
		12. Subj. matter plainly beyond or
		13. Infringe on auth. of another tribunal/agency of govt 
		(Kalb) or
		14. No pwr 2 subpeona witnesses 4 fair proced.
Durfee v. Duke
  	Can't collaterally attack on factual basis
Kalb v. Feuerstein
  	In bankruptcy area, Cong. wanted state cts 2 stay out 
  	Lack of subj. matter jxn so subj. 2 collateral attack
§1391
  	Venue may B waived if not set up like pers. jxn by Rule 12)b)3
  	Sub a)1--in diversity, venue where D resides; if all D's in same 
	state, can choose
  	Sub a)2--venue where sub. events/ommissions giving rise 2 the claim
  	Sub a)3--venue where Ds R subj. 2 pers. jxn only if no other 
	dist. exists
  	Venue can no longer B brought where P resides
  	Sub d)--an alien may B SUED in any dist.
Transfer of Venue
  	§1404a)
		1. Transfer of venue where it could've been orig'ly brought 
		(Hoffman Case)
		2. Justice & Conv.
		3. If P & D consent, then doesnt matter
		4. Use this statute if there was orig. jxn over venue & 
		pers. jxn
		5. Transferors law holds in transferees forum
		6. Transfer is discretionary
  	§1406 a)
		7. If improper venue, then has the option of transferring 
		cases where it could've been brought 
		8. Apply the law of transferees instead of transferors

  	§1631
		1. Can transfer 2 cure pers. jxn defect
		2. Apply the law of transferees instead of transferors
  	Factors 4 transfer
		3. Witnesses
		4. Ease of Proof
		5. P's choice
  	Little occasion 4 forum non conveniens since can transfer
Forum Non Conveniens
Piper Aircraft Co. v. Reyno
  	Facts
		1. Accident, witnesses, plane, pilot in Scot / Eng.
		2. Reyno is CA res. who brought suit 4 prod. liability
  	Removed by §1441)a in CA dist ct.; diversity & axn pending, then 
	go 2 embracing
  	Does §1332)c)2--does it apply 4 legal rep. of the estate of 
	decedent deemes 2 B a cit. of the same state? no b/c Scot not a state
  	Found pers jxn over Piper by §1391 a)3; transferred 2 PA
  	Ct. of Appeals
		3. Replaced their judgment b/c of abuse of discretion
		4. If det. that outcome is less favorable, can't dismiss
  		Sup. Ct.
		5. Only 1 of the factors, not det. factor, is that if 
		outcome is less favorable
		6. Burdensome is the def. of forum non conv.
  	Stay v. dismissal v. injunction
		7. Stay the axn so if Eng. won't take, can retake the case
		8. If dismiss, no res judicata so can go elsewhere but 
		can't take back
		9. If injunction, prob. of national, fed, & counterinjunctions
  		Not carry Const. weight of min. contact (14th Amend.) so 
		not binding on state cts
  	Don't want people elsewhere 2 litigate in Amer.
  	Choice of law is through conflict of law provisions
  	Can exercise rt. 2 remove w/o waiving pers. jxn
Gulf Oil Corp. v. Gilbert
  	Cited factors 4 forum non conv.
		1. Private int. of the litigant--ease of access 2 proof, 
		cost of witnesses, view of premises, other practical probs
		2. Enforceability of a judgment
		3. P's choice of forum shouldn't B disturbed unless by 
		choice vex, harass, / oppress D
		4. Pub. int.--adm. difficulty (congestion), jury duty
  	Not good 4 inter dist. 
Choice of Law
  	Conflict of law rules usually through C/L
  	There's some restraint on states through 14th Amend. 2 use the law 
	that had some contact
  	Dif. facets of trxns can B gov'ed by dif. laws which R goved by 
	conflict of law rules
Swift v. Tyson
  	Gen Fed C/L should govern where not bound by any state dec. if 
	there's no state statute
  	Interprete §1652 that laws of the sev. states don't incl. 
	unwritten law
  	Forum shopping encouraged
  	This era looked 2 states 4 proced. rules
Erie R. Co. v. Tompkins (1938)
  	Overrule Swift b/c
		1. Cong. couldn't leg. in this area by Art I so illogical 
		that ct. could
		2. Diversity can B created 2 get around the state law
		3. Polit., Soc., & benefits didn't come
  	Probs of Swift
		4. State cts didn't follow fed. cts dec's b/c not binding 
		so no uniformity
		5. No equal protection of the law b/c of diversity 
		6. State pwrs R eroded
		7. Invites state leg. 2 D the law so fed. would follow 
		the state law
		8. Classification prob. of local laws v. gen. laws
		9. Took over huge area of law by Gen Fed C/L
  	Promotes uniformity w/in the state not btwn Fed. Cts
  	Subst law incl's conflict of law rules
  	Dist ct. must apply the local subst law where it sits
		10. Doesn't address the proced. laws
  	Twin Aims 2 B used when no Fed. proced. rule on pt.
		11. Discourage forum shopping
		12. Avoid inequitable adm. of law
  	Same yr., Fed Rules of Civ Pro was promulgated so that instead of 
	applying state proced rule w/fed subst law, now apply fed proced rule 
	w/state subst law
Guaranty Trust Co. v. York (1945)
  	Apply subst state law & proced. fed. law
  	Since Erie was about whether the fed ct can entertain axn when 
	state ct. can't, subst means outcome determinative
Erie York Doctrine
  	Uniformity w/in state is an imp. princ.
  	Proced. is det'ed by outcome
  	No Gen Fed C/L & not allow manufacture of diversity
Byrd v. Blue Ridge Rural electric Coop. Inc.
  	Balancing Test
		1. If proced. rule & mode of trial is bound up 2 state 
		created rts, must apply state law (must B specif. rts)
		2. By policy of uniform enforcement, where state rts Rnt 
		bound up, if state rule disrupts fed. sys. even when outcome det., 
		then not follow the state rule
		3. Apply if there's no Rule/statue of fed. (in combination 
		w/Erie twin aim test)
Hanna v. Plumer (1965)
  	Test
		1. As long as Rules cover the sit. textually, then trumps 
		any contrary state rules, laws
		2. Fed. Ct. must apply Fed. Rules unless Adv. Committee, 
		Sup. Ct, & Cong. erred prima facie by Enabling Act/const. Restriction
		3. If Const Rule, must apply 
Stewart Case Org. Inc. v. Ricoh Corp.
  	Embellished Hanna:  extended 2 fed. statute
  	Enabling Act is where Statute/Rule is promulgated by Sup Ct. 
	persuant 2 Cong. not vetoing in 6 months
  	Look 2 Eries twin aims if no statute/Rule
Klaxon Co. v. Stentor Electric Mfg. Co.
  	Apply states conflict of law provision when fed. ct. applies the 
	law of state
  	Want uniformity w/in state
Mason v. American Emery Wheel Works
  	If Fed dont know, can abstain / certify a quest. 2 the highest ct. 
	of the state
  	Unusual that the Circ. Ct. would overrule the state law
  	If Circ. Ct. was wrong, still res judicata which is the dang. of 
	fed. ct. opining on state law
  	De Novo Rev.--no deference 2 what the dist. ct. says; encourages appeal



Spec'ed Fed C/L in State Ct.
  	Todays speced Fed. C/L is binding on state cts
  	Uniformity among speced fed. C/L
  	Req. speced fed C/L when fed. int. is imp.
Clearfield Trust Co. v. US
  	Erie Rule not applicable b/c its not a diversity case where fed. 
	ct. sits like state ct.
  	Cong. can change fed. dec's but if Erie Rule gov'ed, Cong. couldn't 
	change state laws
  	Cong. is silent on how fed. cts should fashion law so fed cts 
	have choices
  	Fed. subst. law apply here b/c want 2 see nationwide uniformity
  	Sources that det. fed. law is case law so look @ cases from Swift 
	4 spec'ed fed C/L
  	Automatic push toward uniformity
  	Facts
		1. JC Penny guaranteed check 2 Clearfield & Clearfield 
g		guaranteed 2 US
		2. Clearfield wanted PA law 2 apply
US v. Kimbell Foods Inc.
  	Deemphasis of uniformity
  	Erie still does not control but fed. int. doesn't nec.'ly mean fed. 
	subst rule gov's the case
  	Weigh & balance policies:  Need 4 uniformity v. Fed. Rules dont 
	disrupt commercial rel.'s of state law
  	This is maj. now, not Clearfield
Miree v. DeKalb County
  	No automatic Fed subst. law
  	Must look @ part. issue 2 dec. application of fed. v. state law
  	State law govs here b/c really about breaching K
  	Fed. reg. rules about trash cans doesn't translate 2 US as 
	beneficiary 
  	Fed law govs the meaning of K but not the case
Bank of Amer. Nat. Trust & Savings Assn v. Parnell
  	Priv. indiv's suing so not a Clearfield case
  	Bonds R imp. 4 treasury but should look @ the issues not the outcomes
  	There's no need 2 resolve the entire case by 1 law
Fed Law in Suppl. Jxn
  	If implead by §1367, entire trxn should B gov'ed by fed. law 
	(Clearfield Ex.)
  	If dec'ed 2 bring sep. axn as in Clearfield v. JC Penny, then by 
	Supremacy Clause, state cts must still follow Fed. C/L
Fed Law in §1331
  	4 purposes of fed. law arising under the Fed. Const. & Law, fed. 
	C/L is incl'ed in the Fed. Law
  	Cases under Fed. C/L can B brought under §1331 w/o diversity / 
suppl. jxn
Fed Law in State Cts
  	State cts must take fed quests & apply fed. law
  	If any mistakes, US Sup. Ct. can review @ appropriate Xs
  	Dif. from when fed. cts make mistakes of state law--res judicata
Testa v. Katt
  	Still good law
  	Application of Penal law
  	US isn't sep. state but co-exists w/other states
  	Sup. Clause does not allow state ct. 2 not enforce fed. law
  	Must enforce fed. axn except in valid excuse
		1. Forum non conveniens--must B nondiscriminatory forum 
		non conveniens
		2. If state ct. doesn't have jxn conformable 2 subst. of 
		the case
Dice v. Akron, Canton & Youngstown R. Co. 
  	Fed. C/A so cant bring in subst. state law defenses 
  	If letting state law control alter fed. law / uniformity, then 
	apply fed.
  	Jury trial was found 2 B fundamental 2 FELA act; bound up rt. of 
	the act
  	Hence, no mere local rule of proced. should B used
  	Cong. can force proced. in state ct. by Nec. & proper clause; 
	should write statutes superseding state proced. in clear & 
	unmistakeable lang. in concurrent jxns
  	Exception --usually state proced. govs the case
Brown v. Western Ry. of Ala.
  	Fed. rt. cant B denied by local practice
  	Seventh Amend. is NOT binding on states

Modern Pleading
Gillispie v. Goodyr. Service Stores NC
  	State Case
  	Dif. view of purpose of pleading from fed. notice pleading
Rule 8
  	Sub a)1--Short & plain statement of the grounds
  	Sub a)3--Demand 4 judgment 4 the relief
  	Sub a)2--Short & plain statement of the claim; dif. from 
	statement of facts
  	Rule meant 2 overturn Code States pleading facts
  	Allegations would suffice under Fed. Rule
Rule 9
  	Rule 8)a guides unless this Rule which trumps general pleading
  	Exception 2 Federal Rules of Civ Pro's tendency 4 notice pleading
Form 9
  	X & place is imp. 4 pleading
  	As long as pass Form 9, o.k.
Diogouardi v. Durning
  	Only need suff. of statement of claim not facts
  	Only dismiss if fail 2 state a claim upon which relief can B granted
  	Fact--P filed complaint w/o an atty 4 injury of not auctioning @ 
	the rt. price
Lodge Int. Ass'n of Machinists v. united Aircraft Corp
 	Motion 4 more def. statement by Rule 12)e
 	Still need 2 claim that Ps pleading so vague that D cant frame a response
  	Not asking 4 dismissal
  	Rule 12)e is read restrictvely 2 not undermine Rule 8)a)2
  	Although granted motion, P didn't need 2 ans. any part of the 
	motion until its own discovery phase
  	Not a good auth. on Rule 12)e
	Probs of Descriptive Pleading
  	If dif. later, unfair notice 2 D
  	More particular the pleading, more problematic
Conley v. Gibson
  	Notice Pleading
Leatherman Case
  	Code states wanted 2 plead ultimate fact but not evid. facts
  	Cts differ on these interps
  	Feds moved away from this
McCaughey v. Schuette
  	Ds demur denied & P won
  	State sup. ct. said should've affirmed dismissal b/c pleaded evid. facts
  	Remanded 4 new trial
Rules 4 Notice Pleading
  	Main Rule is 8)a)2
  	Rule 12)b)6--move 4 dismissal b/c of failure 2 state claim; subj. 
	2 Rule 56; like a demur; it's a summary judgment
  	Rule 12)e--used very rarely; req. more definite statement; If 
	look @ Rule 8)b, party w/o knowledge / info suff, can state that & that 
	would B denial
  	Rule 12)f--pwr of ct. 2 dismiss & strike certain allegation as 
	redundant, scandalous, irrelev.
  	Rule 10)b--put sep. counts in; D ans's each sep'ly
Rule 9
  	Sub b--malice, intent, S/M of fraud/mistake then plead part.'ly; 
	exception 2 Rule 8
  	Sub f--X & place suff. of pleading; venue & stat. of lim. concerns
  	Sub g--spec. damage rule so plead w/specificity
Rule 8)e)2
  	Can make 2 / more statements of alt. / hypothetically
  	Subj. 2 Rule 11
Rule 11
  	Sub a--All papers must have attys sig. except discovery; 
	continuous duty 
	that papers R correct; every X U rely afterwards, must B correct
  	Sub b--any papers 2 the ct, U R reping 2 the best of Ur 
	knowledge; rsbl inquiry under circs; obj. stand
  	Sub b)1--Not improper
  	Sub b)2--Law allow/extension allow
  	Sub b)3--Alleg. & other factual contentions should have facts 
	supported / ID those that R likely 2 have support after rsbl opp. 4 
	further investigation
  	Sub b)4--Denials of factual contentions R warranted on evid. / ID 
	rsbly based on lack of info / belief
  	Sub c)--Sanctions may B imposed 2 law firm not just atty
  	Sub c)1)a--By motion; 21 days 2 correct & end matter
  	Sub c)1)b--Ct. takes own initiative so more serious & no 21 days rule
  	Sub c)2--Punish by nonmonetary nat., penalty 2 ct. / dir'ing 
	payment 2 movant of rsbly attys fees / other expenses
  	Sub c)2)a--No $ sanction against reped party
  	Sub c)2)b--If ct. starts initiative, then can't have $ sanction if 
	the parties settles / disposed the case
  	Sub c)3--Ct. describes conduct violation & explain so will B 
	honest & Appeal Cts can look 
Ziervogetl v. Royal Packing Co.
  	Rule 9)g violated b/c didn't specif'ly state spec. damages
  	Spec. damages when ord'ly doesn't occur
  	Unfair if not give notice; no surprises
  	Missouri Ct. of Appeals Case
Rule 15
  	Sub b--issues not raised by pleadings can B tried by 
	express/implied consent
  	If D doesn't obj. then implied consent during trial 
  	If D obj's then Rule 15 allows pleading 2 amend unless obj'ing 
	party can show that would prejudice the party; obj'ing party has burden 
	2 prove
  	Wide latitude 2 discourage reliance on pleading
Bail v. Cunningham Bros Inc.
  	Rule 54)c--P is bound by lim. of ad damnum clause only when D defaults
  	Again, deaccentuates role of pleading
  	Can show prejudice, otherwise no limit 2 damages
Haney v. Burgin
  	Raised the amt. each X
  	Rule 54)c should B the goal
Rule 6)b
  	Ct. can enlarge
  	Discretion
Rule 12)a & Extension
  	X per.
  	When ask 4 extension, ask 4 what U want; extension in 1 count 	
	doesn't mean extension 4 other counts
Zelinski v. Phil. Piers, Inc.
  	Rule 15)c--Can add Carload as D notwithstanding stat. of lim.; 
	can amend pleadings; stat. of lim. tolled if satisfy sub 1, 2, / 3
  	Sub 1--Rel. back 2 orig. pleading permitted by law prov. of stat. 
	of lim.
  	Sub 2--Claim same from con., trxn, / occurrence
  	Sub 3--If change the party in the same case w/in per. of Rule 4)m 
	of 120 days + cts add'al amt, o.k.
  	Sub 3)a--D received notice so won't B prejudiced in maintaining defense
  	Sub 3)b--D knew/should've known that axn would've been brought if 
n	not 4 mistake
  	Even in aff. defense, admission takes precedence over gen. denial
  	Facts
		1. Z hit by a fork truck; thought had rt. D PPI but 
		actually Carload operated it
		2. PPI & C. had same insurance co.
Rule 8)c
  	Aff. defense must B pleaded by D / waived
  	Burden of pleading & proving on D
  	If not plead aff. defense, which U have, probably can't present 
	evid. in trial
  	If take on aff. defense & didn't need 2, then burden of sustaining
Ingraham v. US
  	US party like priv. indiv. so can have defense by the statute 
	limiting tort damages
  	US didn't raise aff'ly
  	Ct. said 2 late 2 raise 
Taylor Case
  	Allowed govt 2 come back @ late state
  	Better rule than Ingraham b/c taxpayers $ was spent
Reply
  	Unimp. in Fed; deaccentuate pleading
  	If counterclaim specif'ly laid out & denominated, then P has 
	obligation 2 reply
Moore v. Moore
  	Rule 15--implied consent 2 try issues not raised in pleadings; 
	custody case
^ back to top

Civ Pro Joinders, Class Axn, & Sep. Test Outline

 

 
Joinders
  	Rule 18:  Joinder of Claims
		1) Claims listed
			1. Orig. claim
			2. Counterclaim
			3. Cross claim
			4. Third party claim
		2) No trxnal nexus
		3) May throw in as many claims as like as long as 
		"opposing parties"
		4) Jxn
			1. Still need 2 run through subj. matter jxn, 
			venue, & pers. 
			2. If 2 claims like SEC & auto collision truly 
			arises under the common nucleus of operative facts then must go 
			through §1367)a
			3. If no common nucleus of fact, then look 4 diversity
		5) Permissive Assertion w/ Res Judicata
			1. Not reqed by the Rule 2 assert
			2. Res judicata prob. where trnxal claims barred 
			whether asserted / not
			3. Hence, people assert b/c of res judicata
  	Harris v. Avery (State Claim)
		1) Code case
		2) Same trxn
		3) D can sue 4 any claims
  	Sporn v. Hudson
		1) Neg. & malicious prosecution
		2) Concerns
			1. Jurys bias by malicious prosecution
			2. Might give punitive instead of compensatory damages
			3. Since prejud., best 2 go forward sep'ly
  	Rule 13:  Counterclaim
		1) Counterclaims
			1. Must rel. 2 subj. matter of the opposing 
			party's claim
			2. Trxnal threshold 2 det. compulsory v. permissive
			3. Any claims against the "opposing party" not P 
			v. D
			4. Cross claims may become counterclaims since 
			co-parties may become "opposing parties"
		2) Compulsory Counterlclaim: Rule 13)a
			1. Must state if arises under the 
			trxn/occurrence; Rule 13)a
			2. Incl's prop. damage 2 (Rush Case)
			3. In diversity & §1367)b--prevents P from doing 
			things so D must assert counterclaims
			4. Preclusive conseq's--Must assert counterclaim 
			in state ct. otherwise can't assert in fed. 
			5. If axn commenced / in another axn, pleader 
			needn't state the claim--Rule 13)a)1
		3) Reply
			1. If denominated as counterclaim, P must reply 
			2. If not reply, then defaults
		4) Omitted Counterclaims
			[1] Discovery
				1. Rule 13)f & Rule 15--May amend when 
				just. req's
			[2] After Trial
				1. Rule 13)e--Claim matured / acquired by 
				the pleader after serving a pleading
				2. Can B counterclaim by suppl. pleading
				3. Discretion of the ct.
			[3] Rule 15)c
				1. If rel's back 2 the orig. pleading the 
				claim/def. asserted in the amended pleading arose out of the 
				cont., trxn/occurrence
				2. If trxnally rel. back, o.k.
			[4] S/L
				1. Erie & state law
				2. State law seems 2 gov. if state 
				provides S/L
  	Cross Claim
		1) State Subst. & Fed. Proced. Law
			1. If diversity / suppl. claims, then must go 
			through Erie 2 see if state allows subst. law such as contrib. / indem.
			2. Just b/c Fed. proced. doesn't mean have C/A
			3. If no state subst. rt 4 indem., then can ask 4 
			dismissal 4 failure 2 state a claim:  Rule 12
			4. Rule 13)g, Rule 13)h, & Rule 14 4 proced. of 
			cross claims & impleading
		2) Jxn
			1. Always go through jxnal analysis again
			2. Most subj. matter jxn probably from suppl. 
			through same trxn
		3) Rule 13)g
			1. Claim against co-party
			2. Must arise out of the trxn
			3. May incl. a claim that's the suit
			4. May state not must so permissive
		4) Rule 13)h
			1. Join parties by Rule 19 / 20 if counter claim 
			/ cross claim
  	Goodhart v. US Lines Co.
		1) Not really a good law
		2) Gen'ly ct. doesn't have the discretion 2 not allow party 
		2 come in by Rule 14
		3) Rules allow regardless of prejud.
		4) When it's a good law
			1. If go over the X limit & ask the ct. 2 use discretion
			2. D can still sue ee (employee) indep'ly
  	Impleader
		1) Rule 14
			1. P can bring claim against the person impleaded
			2. P may not must assert trxnally rel'ed claim 
			against 3PD (3rd party D)
			3. Again Erie 4 state & fed if fed. claim 4 subj. 
			matter jxn
		2) §1367:  Suppl. Jxn
			1. No suppl. jxn over P's claims against persons 
			made parties by Rule 14 (§1367)b) destroying diversity
			2. 3PD may assert trxnally rel'ed claims b/c was 
			dragged in
			3. The statute covers P not 3PD & 3PD not 
			considered P's 4 this statute
			4. Once 3PD sues P, open quest. whether P can sue 3PD
				[1] Apply plain meaning of statute, P 
				can't counterclaim against 3PD
				[2] Cong. didn't mean 2 incl. counterclaim 
				in suppl. jxn b/c there's sep. statute of counterclaim so P 
				can counterclaim
  	Joinder of Parties
		1) Continuum of Joinders
			1. No joinder possible b/c not w/in Rule 20; no 
			trxnal nexus
			2. Joinder permissible by Rule 20; trxnal nexus
			3. Ct. trumps P's choice & strangers (S) must B 
			joined by Rule 19)a; S may B P / D
			4. Cases where must join but can't by Rule 19)b 
			can cont. w/o joinder / dismiss; if dismiss case, then S called 
			indispensable party
		2) Ryder v. Jefferson Hotel Co. (SC Case)
			1. Husb. & wife as guests so by Rule 20 wouldve allowed
			2. Was a state case
		3) Tanbro Fabrics Corp. v. Beaunit Mills, Inc. (NY, Yarn case)
			1. Ideal case 4 joinder 2 sue both mfgr. & processor
			2. Won't get inconsistent jury verdict
		4) Sun-X Glass Tinting of Mid-Wisconsin, Inc. v. Sun-X 
		Intl Inc.
			1. Eight people joined but sep. b/c defraud indep'ly
			2. Couldn't join b/c didn't state commonality
		5) Akely v. Kinnicutt 
			1. Probably should've been class axn case since 
			193 P's
			2. Still satisfy same commonality by same fraud
		6) Rule 20 v. Rule 42)a
			1. Joinder of parties harder than consolidation
			2. Joinder req's trxnal nexus & commonality of law/fact
			3. Consolidation req's only commonality of law/fact
		7) Rule 20 v. Rule 19
			1. Rule 20 only permissive b/c "may" & subj. 2 
			ct's discretionary
			2. Rule 19 is mandatory joinder
			3. If reinterp. 19, would swallow up 20 joinders 
			but ct. not do that 
			4. Joint & sev. not 19)a case
			5. Rule 20 guides but subj. 2 how interp. Rule 19
		8) Rule 19)a
			1. Sub 1--Join if relief can't B accorded but not 
			usually fit this b/c P won't complain of no relief if orig'ly not want 
			joinder
			2. Sub 2)ii--join if subst. risk of multiple 
			oblgn but if P didn't care, then ct. shouldn't care; care more 4 D but 
			they could've joined by Rule 13)h, Rule 14, etc.
			3. Sub 2)i--Imp. category:  absence as a pract. 
			matter may impair/impede persons ability 2 protect int.; not 
			res judicata but pract. matter such as stare decisis; if broad 
			interp, can incl lot
		9) Rule 19)b Sits
			1. If fit 19)a but can't join, then nec. party; 
			jxnal prob's usually
			2. Consider 4 factors 4 dismissing / cont'ing w/o 
			joinder in equity & good consc.
			3. Imp. factor--if another forum, then go there; 
			adeq. remedy if dismissed
			4. Others --lesson prejud., adeq. judgment w/o 
			join, & prejud. 2 orig. parties
		10) Provident Tradesmens Bank & Trust Co. v. Patterson 
		(Sup. Ct.)
			1. If Ductcher joins, subj. matter diversity destroyed
			2. Since can't go anywhere if dismiss (S/L run), 
			can det. lesson prejud. in equity & good consc. so not dismiss
			3. Pragmatic approach & called Dutcher nec. party
		11) Dismissal of Nonjoinder Proced.:  Rule 12)b)7
			1. Failure 2 join a party under Rule 19
			2. Not waived if didn't set this up 1st X
  	Interpleader
		1) Def.
			1. Usual case, when owe but don't know who 2 give 
			$ 2, then interplead 2 parties & give $ 2 ct.
			2. Solves no res judicata prob. b/c w/both 
			parties in 1 trial, won't need 2 pay twice
		2) Rule 22
			1. Proced. 4 interpleading but still subj. 2 			
			jxnal probs
			2. More problematic w/diversity b/c need compl. 		
			diversity, min. contact, & amt.
			3. Last resort
			4. Use only if claimants in same state / fed. 
			quest. jxn
		3) Statutory Interpleader:  §1335, 1397, & 2361
			1. Min. diversity req'ed by §1335 inc's jxnal amt. 
			of $500 & if 2/more claimants from dif. states
			2. Min. diversity Const. by Tashire Case
			3. Specif. venue so look @ §1397 not §1391; 
			anywhere claimants reside
			4. Nationwide jxn & serv. by marshall by §2361	 
			but no subst. law
			5. Restraining order 2 enjoin any state/fed. proceedings
			6. Can get rsbl attys fee
			7. Can only use the statutes 4 §1335, min. 
			diversity stat. interpleading not w/Rule 22
		4) X Frame
			1. If @ trial interplead, o.k.
			2. If after trial, probs w/res judicata so can't
  	Intervention:  Rule 24
		1) Sub a
			1. As of rt. if X'ly & not adeq. rep. &
			2. Statute gives rt. / int. rel'ing 2 the 
			prop./trxn which is the subj. of axn & pract. matter impair/impede
		2) Sub b
			1. Permissive intervention
			2. No need 4 inadeq. rep.
			3. Discretion 2 consider delay: unduly delay / 
			prejud. party's rt.
			4. Need same quest. of law / fact OR statute
			5. B/c discretion, hard 2 appeal
		3) Atlantis Devt Corp v. US
			1. Res judicata not essential 4 intervention but 
			if find it, ez'est case
			2. Stare decisis cause pract. impairment; en banc 
			rare & can't go 2 another circuit
			3. Not dec. merits 4 intervention hearing
			4. Need precise int.:  same piece of prop, int. 
			in very trxn b/c not want lots of suits
		4) Rule 19 & 24
			1. Usually 19)a then 24)a
			2. Before 1966, had 2 care about jural rel. but 
			now only care about trial strategy & pract. stuff
			3. Same lang.'s but dif. 
				[1] 24 req's adeq. rep. but not 19)a
				[2] Someone else wants 2 come in but 
				forced in 19)a 
		5) Smuck v. Hobson (class axn black kids; parents wanted 
		2 intervene)
			1. Allowed but limited 2 appealing issues that 
			affect parents
		6) Provident Case Sugg.
			1. If had rt. 2 intervene, not come in later
			2. Case in 1989 w/black firefighters & consent decree
				[1] Cong. unhappy that strangers could 
				intervene so passed statute; if title 7 case, 		
				judgment, & S had actual knowledge but not intervene, then bound
				[2] Even if no actual knowledge, 2nd 
				case, orig. party fight 2nd X loses, orig. dec. holds

Class Axn
  	Ethics
		1) Attys duty 2 Class not 2 Client so should inform 
		client before dec.
		2) Judges Resp.
			1. Unsually not care if people fail 2 make motion 
			/ stipulate wrong facts b/c of jud. eff.
			2. Since bind absent people, dif.
			3. Care about what other judges say
			4. Can dismiss atty & get another
  	Rule 23)a:  Prereq. of Class
		1) Sub 1:  Numerosity
			1. Joinder impract.
			2. Over 40 good, under 25 not good--gen'ly good reqt
		2) Sub 2:  Commonality
			1. Common quest. of law / fact 2 the class
			2. Not that the application of the law is the same
		3) Sub 3:  Typicality
			1. Diffictul criteria b/c merges 1,2,& 4
			2. Claims of rep. typical 2 class
			3. If suppl. state claim (allowed usually) & req's 
			lots of dif. state laws, then may not B typical
		4) Sub 4:  Adeq. Rep.
			1. Indiv. rep. adeq'ly & member of class
			2. No conflict of class
			3. Adeq. atty rep. b/c bind strangers who didn't 
			reach out 2 the atty
  	Collateral Attack
		1) Strangers Not Bound
			1. Not frowned upon
			2. S's can always attack in later suits
  	Trial Strategies
		1) D tries 2 kill the class 
			1. Indiv's won't file
			2. S/L would run
		2) If can't kill, try 2 broaden & use the class
			1. If win, can get res judicata of everybody
			2. If lose, most cases will B settled
  	Tacking 3 mo's if dismissal
		1) S/L runs, but if class axn improperly brought, tack 3 mo's
  	Rule 23)b:  Class Axn Categories
		1) Not mutually excl. & no jural rel.
		2) b)3 (practitioners case)
			1. Common law / fact predominates & class axn 
			superior vehicle 4 eff. adjudication
			2. Manageability
			3. Rule 20, trxnal nexus rel.
			4. Only $ damage
			5. Discretionary class
			6. Rsbl notice & Indiv. notice if rsbly id'able by 
			Rule 23)c)2
			7. Option of opting out
				[1] If not opt out, then bound unless 
				collateral attack
				[2] If 2 many people opt out, then look @ 
				numerosity & superior vehicle again
		3) b)2 (civil rts cases)
			1. Injunctive
			2. Little $ o.k. but if a lot turn 2 b)3
		4) b)1)a
			1. Focus on prejud. 2 those opposing the class
			2. Only $ damage, then can't B this class
			3. Incompatible stand. of cond. results from 
			indiv. cases
			4. All bound & no notice
		5) b)1)b (limited fund case)
			1. Seldom used
			2. Indiv. members as pract. matter B hurt
			3. Ex. of punitive damages where 1st people would 
			eat up $ so can't pay next people
			4. No notice
  	Certification of Class
		1) Ct. certif. order
			1. Rule 23)c)1 says as soon as practic., ct. 
			shall det.
			2. No merit heraing
			3. Conditional order so not appealable @ this X
  	Res Judicata:  Rule 23)c)3
  	Sub Classes:  Rule 23)c)4
  	Dismissal w/Cts Approval:  Rule 23)e
		1) Cant dismiss w/o approval
		2) Must look @ fairness
		3) All notified in such manner as ct dir's
  	Attys Fee
		1) Amer. Rule of Class Axn
			1. If big $ damage, ct. will grant fee b/c rep'ed 
			people not client
			2. Probs in calculation like hrs, multipliers, etc.
  	Hansberry v. Lee (IL State Case)
		1) Not Binding Strangers
			1. Hansberry (H) not bound b/c int. not rep'ed in 
			1st case
			2. Can't bind strangers 2 stipulations if not rep'ed
		2) Bound People
			1. Parties 2 litigation
			2. Adeqly rep'ed by parties who R present
			3. Actually participated in the conduct of the 
			litigation so vitual parties
			4. If joint so jural rel.
			5. Present but absent cases where legally 
			entitled the former 2 stand in judgment 4 the latter
		3) Const. Consideration
			1. Fourteenth Amend. of due process 4 min. stand. 
			of decency of fairness, trial, etc.
			2. Can't bind people not adeq'ly repe'd
			3. Can't rep. people antagonistic 2 U
  	Gonzales v. Cassidy
		1) Collateral Attack
			1. S attacked the judgement in 2nd suit
			2. In 2nd suit, S has rt. 2 det. if class axn met 
			& Const.
			3. But pract'ly, usually give deference
  	Eisner Case
		1) Unmanageable Notices
			1. Class b)3 axn but couldn't give serv. 2 3/4 
			mill. people
  	Wetzel v. Liberty Mutual Ins. Co. (Ct. of Appeals)
		1) b)2 Class w/o injunction
			1. First certified as b)2 but didn't need injunction
			2. Can't D 2 b)3 class axn b/c of unilateral 
			activity of D
  	Gen. Telephone Co. v. Falcon (Sup. Ct.)
		1) Probs
			1. Looks like promotion case not hiring case
			2. Can't go into EEOC, rt. 2 sue, sue, & then 
			broaden 2 incl. hiring 
			3. No factual allegations
			4. Hiring means apply & then not hired so wrong 2 
			put "would've applied" in class definition
		2) Art III won't allow promotion & hiring as same class 
		3) Subclasses
			1. Sep. into subclasses w/rep. 4 each 
			2. Can join them by Rule 20 & trxnal nexus
			3. Need dif. attys
			4. Can't rep. the world b/c everybody has own int.
		4) Holding
			1. Indiv. case won but not class 4 promotion
		5) Indiv. Suits After Class Axn
			1. A member of class can sue after 4 indiv. but 
			not gen. (Cooper Case)
  	Diversity Probs
		1) Art III allows U 2 pick & choose class rep. 2 have 
		dif. cit.
		2) Can't add up min. jxnal amt. where rts. R sev. & jural rel.
		3) Opposite effects on cit. & min. jxnal amt.
		4) Zahn Case
			1. Can't have pendant jxn over those who don't
			2. Policy of not want a lot of diversity cases
			3. Can't add up min. jxnal amt. 
			4. Not overruled by sec. 1367 when sep. parties; 
			can argue sub b didn't carve out Zahn
		5) Snyder Case
			1. Don't want 2 aggregate min. jxnal amt.
  	Phillips Petroleum Co. v. Shutts (state ct)
		1) Absent P's Min. Contact
			1. D raised jxnal pt. b/c wanted res judicata
			2. Not req. P's min. contact b/c not same as D 
			having min. contact
			3. Not req. opt in & aff. opt out b/c FRCP also 
			has it so can't declare state opt out unConst.
			4. This holding only 4 P class axn & $ damage; 
			not 4 equity relief & not D class axn b/c of grave due process prob.
		2) Choice of Law
			1. Apply law where int. start 2 run & what the 
			rate is
			2. Assumed that Kansas law dif. from OK, TX, etc. 
			4 conflict of law
			3. Kansas can't apply Kansa law 2 trxns not rel'ing 
			2 Kansas
			4. Law may B dif. 4 each trxn
			5. States have a lot of latitude b/c not dev'ed much
		3) Const'al Underpinnings of Choice of Law
			1. Due process clause:  can't deprive life, etc. 
			if no contact whatsoever, & apply law, then violates
			2. FF & CC:  must apply in some case of other 	
			states law

Separation
  	Rule 42)b:  Sep. Trials
		1) Rsns 4 sep. trials
			1. In furtherance of conv. / 2 avoid prejud.
			2. Econ. / expedite
		2) Still jury trial 
		3) Claims list same as Rule 18
		4) Sep. of State Claims
			1. If violate subj. matter jxn, state claims 
			should go 2 state after sever
			2. If diversity, sever, then keep in fed ct.
			3. If suppl., sever, then 2 state ct.
			4. Issue preclusion prob.; Sup. Clause says state 
			must give issue precl.
  	Rule 21:  Misjoinder & Non-joinder
		1) Improper joinder severed not dismissed
^ back to top

Discovery and Motions 2 End Before Trial Test Outline

Discovery (discov.)

  1. Background
    1. Slow Appreciation
      1. Thought @ 1st fishing expedition & intrusive
      2. Then enthusiastically embrace b/c reach just dec. by no surprises
      3. Then sick of discov. b/c used 2 bludgeon opponent into settling
    2. Stand. Interrog. Quest's Lead 2 Disclosure
      1. Stand. interrog. quest's R list of people who know the case, relev. doc's, & experts but before disclosure, hassled about whether req'ed 2 give
      2. Disclosure req'ed once litigation, must give cert. things in cert. X per.
      3. Still have depo, interrog, etc. but also disclosure
  2. Rules 4 Discov.
    1. Main Rule: Rule 26
      1. Most imp.
      2. Gen. rule of discov. unless trumped by specif. local rule/more specif. fed. rule which were stipulated, / dir'ed by order
    2. Mech. Proced: Rules 27-36
      1. Rule 30: deposition (depo)
      2. Rule 33: interrogatories (interrog) where write out quest.
      3. Rule 34: prod. of doc's
      4. Rule 35: phys. & med. exam
      5. Rule 36: req. 4 admission (adm)
      6. Prof. Berch only wants passing familiarity of specif. but focus on adv. & disadv. of the mech's
    3. Sanctions: Rule 37 & Rule 26)g
      1. Sanctions & sig.
      2. Like Rule 11, Rule 26)g has rsbl belief & rsbl inquiry
    4. Structure of Rules
      1. Local Rule can trump
      2. Fed. rules gen'ly 4 uniformity but here opposite
      3. Do your part even if opponent doesn't b/c ct. will take care
  3. Rule 26: Main Rule
    1. Disclosure before Discov.
      1. Sub a)1-3 disclose names, dates, addresses, etc.
      2. After disclosure then discov.
    2. Sub a)1: Initial Disclosure
      1. ID all who has relev. info
      2. ID all doc.'s & where located but not mean they R discov'able
    3. Sub a)2: Disclosure of Expert Testimony
      1. ID expert testimony & if not tell, then sanction of no expert witness
    4. Sub a)3: Pretrial Disclosure
      1. Initial disclosure wanted simple knowledge but want more now
      2. ID witnesses expected 2 call, depo, / expect 2 call if need 2
      3. ID docs expected 2 present / present if need 2
      4. Name of experts
    5. Sub a)4: Form of Disclosure
      1. Writing, signed, served, & promptly filed
      2. Unless otherwise dir'ed by order / local rule
      3. If mistake & neg. which rsbl person wouldn't, then sanctioned
    6. Sub b: Discov. Scope & Limit
      1. Imp. that sub 1 says discov. only 4 relev. nonprivileged matter
      2. Sub 1: relev is rsbly calculated 2 lead 2 discov. of adm'able evid.
      3. Discov'able not mean adm'able
      4. Lindberger v. Gen. Motors Corp def's priv.
      5. Sub 2: ct. can limit by order/local rule on # of depo & interrog.'s, lengthof dep, & # of req's
    7. Sub b)3: Work Prod.
      1. See Hickman v. Taylor def'ed priv. where if write something on memo
      2. Disclosure not trump this rule
    8. Sub c: Protective Order
      1. Gen'ly if get discov. req., do it otherwise sanctioned
      2. Sub c compels 2 give up
      3. Move by party who doesn't want discov. 4 protective order
      4. Must make prima facie case
      5. Gen. lang. but Marresse Case def'ed
      6. Someone initiates & ct. can do in camera, seq'ing, redacting, order P's atty not 2 tell client, etc. so lot of discretion
    9. Sub d: X'ing & Seq'ing of Discov.
      1. Entitled 2 info but not now so not give discov.
    10. Sub e: Suppl. of Disclosure & Responses
      1. If something then duty 2 suppl. it
      2. If expert added, amend seasonably otherwise no expert
      3. Other party can't B surprised & will B sanctioned
    11. Sub f: Mtng of Parties; Planning 4 Discov.
      1. Parties meet 4 discov. & plan
      2. Scheduling conference 14 days before schedule
      3. Shouldn't discov. before mtng
    12. Sub g: Signing & Sanctions
      1. All Rules subj. 2 this providing that signing disclosure, response, etc. has serious conseq's if wrong
      2. Sub 2 Sig. of atty certifies that 2 best of signer's knowledge, it's after rsbl inquiry the req., response/obj. is
      3. Sub 2)a: consistent w/Rules & law
      4. Sub 2)b: No improper purpose
      5. Sub 2)c: Not unrsbl/unduly burdensome by needs, discov. already made, amt in controv., & imp. of issue
      6. Sub 3: if no subst'l justification then sanction
  4. Marrese v. Amer. Academy of Orthopaedic Surgeons
    1. Facts
      1. Fraud in state axn before going 2 fed.
    2. Issue & Claim Preclusion & Res Judicata
      1. No res judicata b/c in state, state claim but anti-trust fed. claim in fed. ct.
      2. Claim subj. 2 claim precl. even if unasserted but jxn'al bar so would think res judicata not apply
      3. Sup. Ct. said claim precl. b/c Forum 1(F1) even if no jxn b/c could've split axn but still no res judicata by jxnal bar
    3. Contempt Not Appealable Until Final
    4. Appeal & Scope of Rev.
      1. Appeal must B X'ly & scope of rev., cite latest cases, & get 2 merits
      2. Dissent thought abuse of discretion was the stand.
      3. Can't B de novo stand. b/c then lots would B overturned
      4. Posner only mentions erroneous but never say the stand.
    5. Divulgence v. Privacy
      1. Legit aspects of institution that should B protected so need 2 balance
      2. Civil Rts cases where death if reveal names b/c of racial prob. but may need info b/c highly relev. so 1st Amend. concerns both ways
    6. Posner's View that Predatory Discov.
      1. But gen'ly don't come 2 fed until thrown out of state so not really predatory discov.
    7. Ordering Discov.: Rule 26)c
      1. For merits, can redact, cut the names out & put dif. names 2 make a case
      2. Do noncontroversial discov. 1st
      3. In camera where judges look @ the paper
      4. Gag order (not mentioned here) where P's counsel sees discov. but not tell P
    8. Class Axn Observation
      1. Not matter if class b/c wouldn't save this case
  5. Seattle Times Co. v. Rhinehart
    1. Facts
      1. Wanted list of relig. members
      2. Prob's b/c may B inflammatory
      3. Free speech, pub. v. not wanting the list 2 come out
    2. Protective Order
      1. Limited 2 pretrial civil trial stuff not 4 other sources
      2. Not offend 1st amend.
      3. Wash Ct. wouldn't allow pub. but Sup. ct. allowed but limited
      4. D got the info b/c of Rule, also has protective order
  6. Deposition: Rule 30
    1. Proced.
      1. Oral quest's & ans's of witness of party & party so imp. b/c can get non-party
      2. Like trial w/transcript & oath
    2. Purpose
      1. Discover info under oath
      2. Can impeach if change story by locking witnesses 2 their story
      3. More spontaneous than interrog.
      4. When witness unavailable, can record testimony & read as evid. in trial
      5. Can read admissions 2 jury by Rule 32 w/o impeaching
      6. Uncontroverted so no issue of fact in depo
    3. X'ing
      1. Rule 26)d & f which has pretrial conf. but ct. can trump everything
    4. Notice
      1. If party, only need notice
      2. If non-party & want cert, then notice & subpoena 2 compel b/c then could B in contempt of ct. but not req'ed 2 subpoena
    5. Corporation Officers: Rule 30)b)5 & 6
      1. Depo org. but not know who in org. knows relev. info, then org. designate those who can testify, gen'ly those who will B good 4 org.
    6. Failure 2 Show Up: Rule 37)d (party), Rule 30)g)2 (nonparty only notice), Rule 45 (nonparty w/subpoena)
      1. Party not show after notice, then could charge atty fee / in egregious violation get sanctions, default, precl., etc. & try 2 get case dismissed
      2. Nonparty not show & no subpoena, then charge the party giving notice 2 pay the other party
      3. Nonparty not show & was subpoenaed, then sanction against witness
    7. Obj's & Priv's: Rule 30)c
      1. Can obj. & save priv's of sustaining the obj's
      2. If fail 2 obj., then waive priv's
      3. Can seek order term'ing depo
  7. Interrogatories: Rule 33
    1. Stand.
      1. List of all people, doc's, etc. of potential stuff
      2. Disclosure so no real need 4 interrog's
    2. Rule 33 Applies Only 2 Parties
      1. Party prep. ans.'s w/atty
    3. Purpose
      1. Get detailed info unlike depo b/c party would prep. ans. w/the atty
      2. Can't get smoking gun though
    4. Quest's That May B Priv'ed
      1. Can not ans. quest. & obj. w/specificity by Rule 33)b)4
      2. Atty sign the obj. by Rule 33)b)2
      3. If other atty didn't think is priv'ed then can go 2 ct. 2 compel by Rule 37)a)2)b
      4. Can also ask 4 protective order but %'ly burdensome & could B wrong
    5. Record Handover: Rule 33)d
      1. If ans. in record, can give it 2 other party if no more burdensome
      2. Unwise b/c may B giving smoking gun if give everything
  8. Prod. of Doc's: Rule 34
    1. Prob's of Good Cause Before
      1. Had 2 make motion & show good cause 2 get doc's before
      2. Motion thrown out if no good cause / couldn't i.d. doc's
    2. Notice & Disclosure
      1. Rule 26)a now so disclose all relev. doc's w/o motion
      2. Notice o.k. & no good cause reqt as long as relev. & unpriv'ed
      3. Subj. 2 work prod. doc, disclose doc's
    3. Nonparty
      1. Nonparty compelled 2 prod. doc's by Rule 34)c, subpoena, & Rule 45
      2. Notice 4 dir'ly getting doc's from nonparty & if not prod, sanctions
  9. Phys. & Mental Exam: Rule 35
    1. Party, Under Custody, / Legal Control Only
    2. Reqt's
      1. Controv.
        1. Look @ pleading 2 know what's in controv.
      2. Good cause
        1. If P suing, good cause as matter of law but harder w/D 2 set up b/c of Const. dimension
    3. Reciprocity Rule: Rule 35)b
      1. P complies w/D's Dr's exam & it's priv'ed but P asks 4 it then waives priv's
      2. If D supplies b/c of req., then D can get P's exam of all like report before & after w/o req. even though may have been priv'ed before
      3. If D supplies w/o P's req, then still priv'ed so long as didn't ask 4 it
  10. Schalgenhauf v. Holder
    1. Facts
      1. Dist ct. ordered 9 med. exam when D only wanted 4
      2. Sued airline & named pilot 2 can fit under Rule 35 2 get med. exam
    2. Phys & Med Exam Not Subst. Rt. w/in Hanna's Rule
  11. Benning v. Phelps
    1. Ct.order isn't same as req'ing med. report so priv'ed
  12. Request 2 Admit: Rule 36
    1. Admission of Fact
      1. If fail 2 ans. w/in 30 days, consid'ed 2 have admitted
      2. If denies truth, then sanctions by Rule 37)c)2 4 rsbl expenses of making proof & atty's fee 4 not admitting genuineness but must have rsbl ground 2 believe party might prevail
      3. If iffy ans, can compel ans. by Rule 36)a 2 det. suff'cy of the ans./obj's & can't obj. on ground of triable issue
      4. If admit, then concl'ly est'ed unless ct. o.k.'s w/drawl unlike other interrog. / depo where can undermine in trial
    2. Scope of Use
      1. Things under oath like depo can B used against you in any other cases
      2. Admission is 4 the case/pending axn only & not 4 others
    3. Rsbl Investigation
      1. Rsbl inquiry not just obj.
      2. As is available 2 the party not the person signing
  13. Privileges
    1. Three Categories
      1. Work Prod. Rule
      2. Claims of Priv's
      3. Atty-Client Priv's
    2. Waiving Priv's
      1. If show witness work prod, then no longer work prod. b/c witness can B cross examined on what he saw
      2. If show client work prod, then destroys atty client priv.
      3. Work prod. probably more limited waiver
  14. Work Prod. Rule: Rule 26)b)3
    1. Rule 26)b)3
      1. Must B in anticipation & show need, prejud. like Hickman but party / nonparty can get own statement w/o showing so takes out of work prod. 4 signed doc's
      2. Ct. protects against disclosure of mental impressions, concl's, opinions / legal theories concerning litigation 4 memo b/c ct. not want 2 redact forever / discourage memos
    2. Disclosure
      1. By Rule 26)a req. disclosure of existence of work prod.
      2. Admit have it not mean other party can get it
      3. Admit b/c ct. must rule on it
    3. Facts Not Part of Work Prod.
      1. Only insulates notes, memos but not facts so can't cite work prod. in interrog. 2 avoid fact
      2. Facts never priv'ed
      3. Finding fact not make fact priv'ed only doc's U work on is priv'ed
  15. Hickman v. Taylor
    1. Facts
      1. Tried 2 get D's atty's material who refused
    2. Categories of Info Rel'ing 2 Witnesses
      1. Written & /signed statements
      2. Memo but no witnesses' sig's
      3. Note / recollection of communication
    3. Mistakes
      1. Can't use Rule 33, interrog's, against atty only 4 parties but can use Rule 34
      2. Didn't do depo & then demand
    4. Atty Client Priv. Not Apply b/c Not Clients
    5. C/L Work Prod. Rule
      1. Not had Rule 26)b)3
      2. Not priv'ed w/in meaning of Rule 26)b)1 b/c atty not thought about it but outisde the arena of discov. by custom
      3. Doc's not discov'able unless nec. & w/o prod. would unduly prejud. prep. of petitioner's case cuasing hardship/injustice b/c mental impression in file
      4. Need 2 show good cause like witnesses died not checking prep.
      5. Must B in anticipation of litigation not in ord. course of busi.
      6. No showing of any nec. can B made under the circ. of the case 2 prod. oral statements & rare sit. justifying such prod. b/c hard 2 make somebody remember & conflict of int's
    6. Atty Work Prod. Rule v. Rule's Gen. Work Prod.
      1. Read only as atty work prod. so 4 atty's econ. adv. since only 1 insulated
      2. Not true by Rule 26)b)3 which incl's other party's atty, consultant, surety, indemnitor, insurer, / agent
      3. Ins. co. by def. is in anticipation of litigation
    7. Case v. Rule
      1. All written/signed must show good cause v. show some good cause, etc. so basically same thing
    8. Hard Part of Hickman
      1. Full & fair ans's in interrog. so not need the doc's anyway
  16. Claims of Privilege: Rule 26)b)5
    1. Used 2 not ans.
      1. When party w/hold info otherwise discov'able b/c of priv. / subj. 2 protection, then make claim expressly
      2. Also tell there's such doc's w/o revealing the content
  17. Atty Client Privilege
    1. Only Communication Priv'ed Not Facts
  18. Upjohn Co. v. US
    1. Facts
      1. Co. took bribery & got caught
      2. Cooperated b/c was scared but not turn over doc's of interviews
    2. Atty Client Priv. of Corporation
      1. Control group is any indiv. w/facts should B insulated 2 insulate communication since corp. is the client
      2. Any conversation w/present employee (ee) w/info subj. 2 priv.
      3. Past ee's not subj.
    3. Corp's Atty
      1. When atty talks 2 any people, subj. 2 priv. b/c of corp. but each indiv. not priv'ed b/c atty not rep. them
      2. Client always corp.
      3. Atty's gen'ly not rep. both corp. & indiv's
    4. Precedent Quest.
      1. Not binding on state b/c not Const'al dec. of due process
      2. Diversity in fed. ct, Erie & Hanna would've said binding but Fed. Rules of Evid. say in diverisity, look @ state law 4 rule of priv.
      3. Binding only 4 fed. quest. in fed. ct.
    5. Work Prod.
      1. Must show stronger showing of nec. & unavailability by other means
      2. Priv. only protects disclosure of communication not disclosure of underlying facts
  19. Perry v. W.S. Darley & Co
    1. Dist. Ct. Opinion That's O.K. Rule
      1. Not req. name & id experts that R basically retained/spec'ly employed
      2. But must still disclose trial expert
      3. Can always label experts disfav'able as nontrial expert
    2. Rule 26 Not Overturn This Case
      1. Sub a)1)a: discov'able info
      2. Sub a)3: discloses only experts 2 B used as witnesses in trial
      3. Sub a)2)a: disclose name & id of witnesses used in trial
      4. Sub b)4)b: trial prep. experts, then work prod. & need 2 show exceptional circ's which is gen'ly not possible
  20. Sanctions: Rule 37 & Rule 26)g
    1. Interrog's Unans'ed
      1. Rule 37)d imm'ly sanctions if fail 2 ans.
      2. Can get sanctions of Rule 37)b but not contempt b/c contempt only when fail order
      3. Can also ask ct. 2 compel, then Rule 37)b 4 failing order but indir. way
    2. Rule 26)g
      1. Disclosure & discov. a little dif.
      2. Not quite same sanctions b/c not get $ 2 ct. sys.
      3. Like Rule 11 of rsbl inquiry that correct but harder b/c sig. of atty certifying 2 best knowledge, after rsbl inquiry the response/obj. is by Rule 26)g)2
        1. Sub a: consistent w/Rules & law
        2. Sub b: nothing improper like delay
        3. Sub c: not unrsbl / unduly burdensome/ expensive given the needs of the case, amt. in controv., imp. of issue
      4. Sub c prob. b/c not know where the line is but ct. recog. & not penalize 2 much
      5. Sub 3: if no subst'l justification then sanction
    3. If Client Lies on Stand, Must Tell Ct.

Motions 2 End the Trial

  1. Summary Judgment (Sum Jgmt): Rule 56 & Rule 54)b
    1. Dif. from Motion 2 Dismiss
      1. Motion 2 dismiss b/c even if facts correct, no legal ground
      2. Sum jgmt is when facts not support even if legal claim
    2. Burden 2 Prove Triable Issue of Fact by Party Opposing: Rule 56)e
      1. Can't rest on mere allegation/pleading if moving party met the burden
      2. Affidavit so long as pers. knowledge of facts admissible in evid. & affiant would testify
      3. Can also get depo
      4. Only need 2 show triable issue of fact not jgmt (same test w/dir'ed verdict)
      5. If do nothing 2 oppose, then over b/c not show triable issue of fact
    3. Deposition 2 Oppose: Rule 56)f
      1. If affidavits of party opposition the motion can't show facts essential 2 justify denying sum. jgmt then ct. can refuse the application / order a continuance 2 permit ffidavits, depo's / discov.
      2. If Celotex gov'ed, where sum jgmt w/o any affidavit, then more need 2 get depos 2 oppose
    4. Bad Faith: Rule 56)g
      1. If affidavit by moving party in bad faith, then movant must pay expenses & atty may B disbarred so serious
      2. Gen'ly not invoke this 1st
    5. Discov. Tool
      1. If move 4 sum jgmt, must come up w/lots 4 issue of material fact so can B a tool 2 know the theories of D's, witnesses, proof, etc.
    6. Create Issue of Fact v. Jury Consid.
      1. As long as create issue of fact, go 2 trial 2 jury
      2. Jury may consid. stuff other than issue of fact though
      3. Ct. recog's jury may say something dif. but still grant sum jgmt by issue of fact b/c if not, no mech. 2 control lwr ct.
    7. Sum Jgmt Denied
      1. Not a jgmt but go 2 discov. & trial
    8. Sum Jgmt Granted
      1. May not B final jgmt, not appealable, & subj. 2 revision any X before entry of jgmt dep'ing on judge's lang. in order
    9. Final Sum Jgmt: Rule 54)b
      1. In multiple claims/parties, ct. MAY, not must, dir. the entry of final jgmt
      2. Can dir. 4 1 / more but fewer than all claims
      3. Final only if meet 2 criterias
        1. Express det. that no just rsn 4 delay
        2. Express dir. upon entry of jgmt
      4. Other form, SHALL NOT term. the axn of any claims/parties & subj. 2 revision before the entry of jgmt adjudicating
    10. Characteristics of Non-Final Jgmt
      1. Can't get damages on sum. jgmt claim until other claims all judged
      2. If law changes, then judge can change sum jgmt
      3. If sum jgmt finalized, then res judicata & can't reopen if Sup. Ct. announces new rule but if not finalized then must reopen since Sup. Ct. retroactive effect unless good rsn
    11. Disadv's of Final Sum Jgmt
      1. Have 2 fight the case on appeal if opposing party appeals
      2. S.t's they appeal just 2 harrass
    12. Inconsistency of Rule 54)b v. Rule 56)d
      1. Last sentence of Rule 56)d provides facts so specif'ed SHALL, not may, B deemed est'ed 4 purposes of trial
      2. But Rule 54)b that unless ct. expressly det. & dir, subj. 2 revision
      3. Can't harmonize that sum jgmt on claims can B rev'ed but not sum jgmt on facts
      4. Read shall as should in Rule 56)d
    13. Liab. Sum Jgmt: Rule 56)c
      1. Sum Jgmt interlocutory in character 4 liab. alone even though genuine issue on amt of damages
      2. Means not final, not appealable, & probably subj. 2 revision
    14. Split of Auth: Error in Denying Sum Jgmt then Opposing Party Wins
      1. Arg. that should reverse jgmt & grant sum jgmt b/c abuse of discretion tolerated if not recog. sum jgmt
      2. Other arg. that won so harmless mistake
    15. Obj'ing 2 Affidavits
      1. Can obj. 2 affidavits b/c not comply w/Rule 56)e as admi'able evid.
      2. Can obj. that affiant can't testify in trial
      3. Can move 2 strike such affidavits
      4. Can't just arg. law b/c failure 2 obj. = 2 allowing affidavit
  2. Lundeen v. Cordner
    1. Facts
      1. Two wives fighting over ins. $ w/interpleader by ins. co. & intervention by wife
    2. Posture of Case by Sum Jgmt
      1. If no sum jgmt, then Lundeen would win b/c beneficiary is Lundeen & can't get affidavit in trial so get dir'ed verdict
      2. Here sum jgmt so can intro. affidavit by Burke
    3. Lundeen's Mistake
      1. Should've asked 4 depo 2 get past sum jgmt 2 jury trial
  3. Dyre v. MacDougall
    1. Facts
      1. P said slandered but D had affidavits of people who said no
    2. Sum Jgmt Despite Jury Factor
      1. Ct. recog. that rational people can take x 2 mean non-x but grant sum jgmt b/c can't ever rev. if never grant sum jgmt
      2. Only need issue of fact 2 impress judge not jury by Rule 56 2 deny sum jgmt
  4. Cross v. US
    1. Facts
      1. Prof. Cross claimed busi. expense on for. travel in IRS income tax
      2. Dist Ct. said all expenses deductable
    2. Motivation & Intent Critical
      1. Subj. so not bound by what P says is fact
      2. Cases not open 4 sum jgmt when involve intent, motivation, / other subj.
      3. Govt not do anything & won b/c subj.
  5. Adickes v. SH Kress Co.
    1. Civil Rts Case Not 4 Sum Jgmt
      1. Can't B bound by liars so overturn sum jgmt
      2. Not est'ed absence of genuine issue
      3. Dang. of seeing things the way U want 2 so no sum jgmt in Civil Rts / IRS Cases
  6. Anderson v. Liberty Lobby
    1. Fraud: Clear & Convincing Stand. of Proof Case
      1. Burden of proof of clear & convincing stand. is btwn beyond rsbl & preponderance of evid.
      2. Must put more evid. then preponderance 2 convince judge 2 go 2 trial
      3. Also no sum jgmt if jury can find as preponderance but not as clear & convincing
  7. Celotex Corp. v. Catrett (asbestos case)
    1. Shifting Burden of Proof
      1. After moving party meets the burden that there's no issue, then opposing party must bear the burden of coming up w/issue of triable fact
      2. This makes it ez'er 2 grant sum jgmt
    2. Congestion
      1. Rule 56 transformed sum jgmt from disfavored motion 2 something integrated into our modern proced.
      2. Get rid of cases b/c 2 congested
    3. Remand: Failing 2 Obj.
      1. If fail 2 obj. inadmissiable evid, then has allowed 4 sum jgmt
  8. Dismissal: Rule 41
    1. Vol. Dismissal: Rule 41)a
      1. Must B dismissed before adverse party ans/motion 4 sum. jgmt
      2. Motion 2 dismiss not consid'ed sum jgmt gen'ly
      3. If motion 2 dismiss incl's affidavits, then consid'ed sum jgmt
    2. Second Dismissal w/Prejud. on Merit
      1. If dismissed before in any ct, fed./state, on axn on/incl'ing same claim, then 2nd dismissal will B w/prejud. on merits
      2. Can ask judge 2 stay, dismiss by Rule 41)a)2 since that's w/o prejud., / stipulation
    3. Class Axn
      1. Rule 41)a)1 says look 2 Rule 23)e where can't dismiss w/o ct. approval
    4. Invol. Dismissal: Rule 41)b
      1. All Dismissal W/Prejud. Unless Says W/O Prejud.
  9. Adcox v. Souterhn Ry Co.: Tenn State Case
    1. Not Given Lot of Wt.
      1. Fed. dismissed on merit by Rule 41)b but state ct. allowed
      2. Can't do that by Sup. Clause, res judicata, & FF&CC
      3. If dismiss w/prejud. in fed. sys, then w/prejud. everywhere & res judicata binding
  10. Default Jgmt: Rule 55
    1. Entry: Sub a
      1. Failure 2 plead / defend which wouldn't incl. asking 4 extensions
      2. Clerk enter party's default in record so D can't file ans.
    2. Jgmt by Clerk: Sub b)1
      1. Must B sum cert. so like K, penalty, promissory note, etc.
      2. Default 4 failing 2 appear prob. b/c not know what appear means
      3. All agre that any submission 2 ct. is appear but not know if asking 4 extension 2 other party's atty incl's as appear
      4. If thrown out b/c of failure 2 amend ans, that's still plea
      5. If not appear, then can't enter
    3. Jgmt by Ct.: Sub b)2
      1. If appeared, need 3 day notice of hearing
      2. Can't have damage in default higher than pleaded
      3. Rule 54)c limits Rule 55 jgmt's 2 what P claimed
      4. If D default, then may not mind paying the amt but prob. if make him pay more
    4. Options 1 Yr. After Default: Rule 60
      1. Rule 55)c says can set aside jgmt if good cause
      2. Rule 60)b says may relieve party from final jgmts but sub 1-3 can't B invoked after 1 yr.
      3. Sub 4 of void jgmt: can invoke 4 violating Rule but not 4 pers / subj. matter jxn
      4. Sub 6 of any other rsn: not construe as X constraints of sub 1-3 so rsn must B outside of those rsns
      5. Ct. gen'ly not like sub 6
    5. Pleading Default
      1. If not ans. interrog. then default which isn't Rule 55 jgmt so not trigger Rule 54)c so anything can happen
      2. Rule 55 on limited pleading stuff
    6. Options After Notice
      1. Can try 2 get entry aside if can show any excusable neglect / mistake
      2. Can also show that damages R nothing even though default in liab. in trial before judge (no jury)
  11. Coulas v. Smith
    1. Not Showing Up in Trial
      1. Not default w/in the meaning of Rule 55

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Jury Trial, Motions 4 New Trial, Appellate Review, Claim Precl, & Issue Precl.

 

Jury Trial

  1. Seventh Amend. Rt 2 Jury
    1. Not binding on states
    2. Only Const. Rt. that's ez 2 waive
    3. Might want 2 discard jury trial b/c can't understand complex material
    4. FRCP b/c not trust jury
  2. C/L & Equity
    1. Suits @ law always had jury trial, $ damage, & statutory C/A incl'ed as well
    2. Equity involved injunction, admiralty, ecclesiastical, etc. & no jury trial
  3. Fusion of C/L & Equity in 1938
    1. 7th Amend. only allows jury trial 4 C/L not equity, so couldn't compl'ly fuse
    2. Prob's when case rep. both C/L & equity / didn't know which it was
  4. Beacon Theatres, Inc. v. Westover
    1. Jury Trial 4 Facts Common 2 Both Legal & Equity
      1. Jury's dec. binds the judge but judge doesn't have 2 give injunction if jury finds guilty
      2. Jury's dec. is issue precl. 4 purposes of equitable part of the case
    2. C/L
      1. Decl. jgmt (only a preemptive strike)
      2. Compulsory counterclaim (against equit. as well)
    3. Equity
      1. Injunction
      2. Judge can grant temp. injunction which R'nt final
    4. If P seeks alt. relief of either equit. / leg., then rt. 2 jury unless abs. election
  5. Dairy Queen, Inc. v. Wood
    1. Rt 2 Jury Trial If Any Aspect of Leg. Remedy
      1. P arg'ed leg. claim incidental b/c really ask 4 injunction & acct'ing
    2. X Can Change Equit. Remedy 2 C/L Remedy
      1. Acct'ing consid'ed C/L now b/c not as complicated 2 understand 4 the jury although was equit. before b/c was 2 complex
  6. Ross v. Bernhard
    1. Expand Scope of C/L by Decr'ing Equity
      1. Class & derivative axns where sue on behalf of somebody else were equity
      2. Initial proced. of bringing axns is still equit. but det'ing merit is C/L so jury trial
      3. Jury trial being preserved doesn't mean exact proced. from 1791
    2. Equity only when no adeq. remedy @ law
    3. Footnote Test: Leg. Nat. of Issue Dec'ed by
      1. Pre-merger custom: not really relev.
      2. Remedy sought: really imp. (Tull, Nordberg)
      3. Pract. abilities & limitation of jury: confused everybody
    4. Const'al Rt v. Fairness
      1. Since Const'al rt., not matter if unfair
      2. Yr. 1791 still does control which isn't fund'ly fair 4 today's issues
  7. Curtis v. Loether (civil rts case)
    1. Statutory Rt of Jury Broader than Const'al Rt. 2 Jury
      1. B/c 7th amend. not bind on state, Cong'al statutory rt of jury in concurr. jxn has more impact
    2. Stand.: 7th amend. 4 axns enforcing statutory rts & req. jury trial on demand if statute creates legal rts & remedies enforceable in axn 4 damages in ord. cts of law
      1. Ord. cts of law is dist ct. not state, Sup Ct / tribunal
  8. Atlas Roofing Co. v. OSHA Commmission
    1. Pub. Rt Exception
      1. Narrow exception where US is party, gen'ly P
      2. If sue govt as sov, then 7th amend. not give rt unless govt waives
      3. Tribunal case & suit 4 safety & pub. rt.
      4. At times, Cong. can take cases from ord. ct & put 2 legislative, Cong., / adm. cts where 7th amend. not matter (Curtis) but limited 2 involving govt
  9. Tull v. US
    1. Bifurcation: Jury Dec's Liab. but Judge Dec. Damages
    2. Punitive Damages & Cong'al Latitude
      1. Remedies like penalty which was trad'ly dec'ed by jury
      2. But Ct said Cong. delegated 2 judge of det'ing civil penalties in statute & jury 2 det. liab.
      3. Not an essential fn. of jury & not req'ed 2 have jury trial 2 det. damage
  10. Katchen v. Landy (bankruptcy)
    1. Bankruptcy is like equity (maybe)
    2. Creditor filed claim so waived 7th amend.
  11. Granfinanciera v. Nordberg (bankruptcy)
    1. Can't Read All Bankruptcy as Equity: Jury Trial In Bankruptcy
      1. Here, creditor didn't want 2 B in trial b/c trustee's fraud so rt 2 jury trial
      2. This is suit 4 fraud not figuring out prorata share like Katchen
  12. Chauffeurs Teamsters & Helpers Local 391 v. Terry
    1. Not Binding on State Case
    2. Remedy 4 C/L
      1. Punitive / compensatory then jury trial but NOT restitution
  13. Some States Have Const'al Rt 2 Judge in Equity But Not in Fed
  14. Galloway v. US
    1. No Const'al Rt 2 Jury 4 Suing US as Sov.
    2. Dir'ed Verdict & Jury Trial
      1. Dif. from 1791 where demurrer 2 evid. & getting new trial had stand. of not taking cases away unless no evid.
      2. But ct uses dif. stand. 2 say real substance preserved, not proced.
    3. Rule 50: Dir'ed Verdict & Sum Jgmt
      1. Stand. similar 2 sum jgmt (suff. evid. 2 go forward) b/c see if suff. evid. 4 jury
      2. Sum jgmt is pretrial, affidavit but dir'ed verdict is trial, evid. motion
    4. Strategy of Dir'ed Verdict
      1. Want 2 lose b/c want 2 go through trial & if lose in trial, then appeal 2 say should've won dir'ed verdict
      2. If win, other side can appeal

Motions 4 New Trial

  1. Rule 59: Motion 4 New Trial
    1. Discretionary Motion in Fed
      1. But if in state which req's, then if not make the motion & appeal, can't raise the pt b/c statute says must raise issues by motion 4 new trial
      2. In fed, b/c discretionary, can waive
    2. X Per.
      1. Sub b says 10 days after jgmt, not when verdict
      2. Rule 6)b says can't extend by ct even 4 good cause
      3. If not X'ly motion, can't appeal / get new trial
      4. Can go 2 Rule 60 if can't do it w/in 10 days
    3. Strategy
      1. Two opp's b/c if deny motion, then can still appeal
      2. But may B better 2 appeal b/c if new trial denied, may influence appellate ct b/c judges explain their denial
    4. Nonfinality of Jgmt 2 Grant New Trial Motion
      1. D can't appeal b/c not final
      2. If D loses in new trial, ct. probably would not disrupt the error b/c looking from hindsight
      3. Motion 4 new trial suspends the finality of jgmt 4 purposes of appealing
    5. Judge's Discretion 4 New Trial
  2. Magnani v. Trogi (Berch dislikes the case)
    1. Harmless Error Then No New Trial
    2. Not Rely on This Case
      1. Rare that ct wouldn't assist P's
      2. If obj. 2 verdict form, would req. specificity gen'ly & would consid. the matter waived by failing 2 ask
  3. Aetna Casualty & Surety Co. v. Yeatts
    1. Rule 50 v. Rule 59: Motion 4 Dir'ed Verdict v. New Trial
      1. If P has low evid., then Rule 50's dir'ed verdict as matter of law
      2. In motion 4 new trial, little more evid. b/c enough 2 go 2 jury so Rule 59 & not jgmt as matter of law
      3. Judge is like another juror in new trial motion so weigh testimonies but in dir'ed verdict, must assume witnesses R truthful
    2. Deference 2 Trial Judge
      1. Gen'ly appellate not overrule denial of new trial if enough evid. 2 go 2 jury b/c can't say denial is abuse of discretion
  4. Fisch v. Manger
    1. Additur & Remittitur
      1. Condition grant of new trial on getting approval of 1 party 2 lwr / incr. the jgmt amt
      2. Additur adds the amt & remittitur remits the amt
      3. Fed allows remittitur but not additur
      4. Remittitur tells P that P won but not enter jgmt on that amt & make P accept lwr amt w/consent then enter
      5. D can still appeal but goes back 2 orig. amt then & if P not accept, then new trial
    2. Jury Compromise Probably In This Case But Allowed Trial On Damages Only
      1. Allowed additur in this case
    3. Gen'ly Not Give Dir'ed Verdict in PI
  5. Pwr v. Allstate Ins. Co.
    1. Arist Mean Stand. Adopted 4 Remittitur
      1. What judge thinks is rsbl jury would've given
      2. Overruled Heimlich v. Tabor which placed lwest amt jury would give as stand.
      3. 3rd possibility that give highest amt that jury would've given (Berch likes this)
  6. Rule 60: Relief from Jgmt / Order
    1. Final Jgmt
      1. Must B final jgmt 2 invoke this rule
    2. Six Categories
      1. First 3 limited 2 X per. of 1 yr.
        1. Sub 1: Mistake, inadvertence, surprise: gen'ly default sit
        2. Sub 2: Newly discov'ed evid.
        3. Sub 3: Fraud, misrep, / miscond. & fraud can B intrinsic / extrinsic
      2. Exceptions 2 X Per. Limitation
        1. Hazel Atlas Glass Co v. Hartford Empire Co.: Fraud upon ct so not limited 2 1 yr.
        2. Equitable Axn: Permit indep. axn in equity 2 set aside jgmt
      3. Last 3 Not Limited 2 X Per
        1. Sub 4: Jgmt void: default / subj matter jxn stuff
        2. Sub 5: Jgmt release, satisfied, discharged / prior jgmt based on reversed
          1. When P takes F1 jgmt 2 F2 2 collect but F1 jgmt gets reversed, then can invoke this rule
          2. Can also move 2 vacate if no longer equit. that jgmt should have prosp. application like injunction b/c can't go dir'ly 2 appellate w/o vacating old jgmts
        3. Sub 6: Any other rsn: must B more than 1st 3 categories
  7. Hulson v. Atchison, Topeka & Santa Fe Ry
    1. Rule 6 Violation B/C Ct Ext they did but now they can
    2. Jurors still can't testify 2 their thoughts b/c can't prove
  • McDonough Pwr Equipment v. Greenwood
    1. Juror's Response as Grounds 4 Impeachment
      1. Lied
      2. Affected partiaility

    Appellate Review

    1. Rules & Statutes
      1. Statute §1291 & 1292
      2. Rule 54)b
      3. Rule 4)a of Fed Rules of Appellate Proced.
    2. Sum Jgmt & Appealability
      1. Denied
        1. Can't appeal b/c interlocutory & not final since not on merit by §1291
        2. Can appeal after trial, but another hindsight prob.
        3. Could appeal by §1292)b & certify 2 ct of appeals in 10 days so escape final jgmt rule
          1. Only on controlling quest. of law
          2. Dist ct agrees w/U
          3. Ct of appeals willing 2 take
      2. Granted
        1. Can appeal b/c final by Rule 58
        2. Rule 4)a of fed rules of appel. proced. says 30 days 2 appeal & if don't, can never appeal
        3. If multiple party & 1 party's sum jgmt granted, can appeal if express lang. of Rule 54)b
    3. Liberty Mutual Ins. Co. v. Wetzel
      1. Can't Use Rule 54)b 4 Single Claim Relief
        1. If pled decl. jgmt, then would work b/c sep. claim
      2. Can't Use §1292)a 4 Liab.
        1. This statute only 4 injunction
    4. Rule 4)a of Appellate Rule of Proced.
      1. Sub a)4 Gives 30 days 4 X'ly motion
        1. If deny new trial motion, then 30 days from X when denied
      2. Sub a)5 says another 30 days 4 negligible excuse from the expiration
    5. Rule 6: On How 2 Count Days
    6. Final Jgmt & 1 Appeal
      1. Only 1 appellate rev. 4 everything so not have 2 go back & forth
    7. Suspension 4 Purposes of Appeal
      1. Rule 60 doesn't suspend anything so must appeal by 30 days
      2. Rule 59 suspends everything
    8. X'ing of File
      1. Rule 4)a)2 of appellate proced. says if notice of appeal after ct announces dec. but before jgmt entered, treat as filed on date of & after entry so early filing o.k.
    9. Cohen Exception
      1. Main goal 2 prevent irreparable harm
      2. Reqt's
        1. Not subj 2 revision by Dist Ct / disposes of something
        2. Not enmeshed in the merit of the case
        3. Unreviewable later on
      3. Subj. Matter Jxn
        1. Not final & appealable after so fails 3rd prong of Cohen
      4. Any lack of Jxn
        1. Not final in any of them so not Cohen Rule
      5. Qualified Immunity & Abs. Immunity 4 Cohen Rule
        1. Imm'ly appealable b/c meet all 3 prongs of Cohen
      6. Class Axn: Denial of Class (Copper Lybrand v. Livesay)
        1. For yrs said was appealable
        2. But Rule 23)c)1 says cond'al order & reviewable later on so not Cohen exception
      7. Counsel's Disqualification
        1. Four possibilities w/crim v. civil & motion granted v. motion denied
        2. Not appealabe order b/c not final & subj. 2 rev. later on theoretically
        3. Practically, hard 2 appeal later when 2nd atty probably is better than 1st so hindsight prob.
        4. Practical rsn that not want lots of cases so trust trial judges
    10. Jury Trial
      1. Can appeal by §1292)b 4 writ of mandamus 4 quest. of law
      2. Seventh amend. jury trial can't B harmless error so can appeal if denied jury trial
    11. Rule 54)b Jgmt
      1. If express reqt's met, then final & X per. 4 appeal runs when that jgmt entered
    12. Appeal as of Rt
      1. Not Exercised
        1. Then can't appeal later so must do it w/in X per.
        2. Can invoke Rule 60 2 get fresh jgmt
    13. Injunction
      1. Statute §1292)a)1
        1. Even though not final, can appeal as of rt
        2. Order dissolves, refuses, modifies, grants, etc.
      2. Not Subj. 2 Rule 54)b
      3. Temp. Restraining Order (TRO)
        1. Not appealable b/c not w/in §1292)a)1
      4. Prelim. Injunction
        1. Can appeal but not penalized 4 not appealing
        2. If prelim. injunction becomes final, can still appeal

    Res Judicata: Claim Precl. & Issue Precl

    Claim Precl.

    1. Final Jgmt
      1. What Might Have Been Brought
      2. Merger: When successful P, then jgmt merged all trxn'ly rel'ed claims
      3. Bar: When successful D & P tried 2 find another way 2 prevail then barred
      4. Trxn'al Rel
        1. Can't change theories 2 bring in same claims
        2. Changed meaning over time b/c don't want P come back repeatedly
      5. Privy
        1. Restrictive class before but that class expanded now
      6. Merit changed in meaning 2 incl. Rule 12)b)6 jgmts unless ct orders otherwise
      7. Jgmt takes over & C/A can't B sep'ed once jgmt given b/c becomes something new
    2. Rule 41)b
      1. Except 4 any jxn'al stuff, dismissal is adjudication on merits unless ct says otherwise
    3. Collateral Attack
      1. FF&CC
        1. F2 must look 2 law of F1 4 res judicata
        2. Law that controls res judicata is law that rendered the jgmt
      2. Fed. Law of F1 Controls
        1. Although can argue that state law def's rts & oblgn of parties, 4 Erie, fed. law controls the incident of jgmt
      3. Law of F1 Controls
        1. Whether jgmt final / not
        2. whether something trxn'ly rel'ed / not
        3. Det'ing which persons may take adv. of issues that were det'ed in litg.
        4. If mistake in interp. of F1 law, move on b/c it happens
      4. Domesticate Jgmt
        1. When take F1 jgmt 2 F2 4 exec. of order
        2. F2 jgmt can B set aside if F1 jgmt is reversed by Rule 60)b)5
      5. Latest Jgmt in X Controls
        1. Even if incorrect interp. of law
        2. US Sup Ct has jxn of FF&CC
      6. Aff. Defense that D must Plead of Res Judicata / forever waive

    Issue Precl.

    1. Def's
      1. Privy if virtually rep'ed in axn
      2. Binds subseq. litig. on issues dec'ed btwn parties & privies in final jgmt
        1. Actually litig'ed
        2. Nec. 2 resolution
        3. Not unimp. / tangential
    2. Strangers
      1. Not Privies so Not Binding
      2. Mutuality of Estoppel / Oblgn
        1. No longer the law
        2. Strangers may use issues used against the parties in previous litig. even though couldn't B bound by opposite finding in some X's where F1 law controls the issue
      3. If P lost before, D can set up defensive issue precl.
      4. But if P won, D can make P prove case each X
    3. Offensive Issue Precl.
      1. Gen'ly no offensive use
      2. Allowed when couldn't intervene in 1st case & weren't waiting in the wings 2 take adv. of finding
      3. Dep's on cases & law of F1
  • Can litig. Issues Not Raised in 1st Trial
  • Er & EE
    1. ER Not in Privy
      1. If ee wins case by non-neg, er can use that in defensive issue precl.
      2. But if ee lost, er not bound b/c stranger
      3. So P should join them
  • Crim.
    1. D Convicted v. Acquitted
      1. V's couldn't bring claims before so can use offensive issue precl. if convicted
      2. V's not bound if acquitted
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    Ms. . Haeji Hong
    July 19,1996