Civil Procedure Holy Grail

7/30/2019 Civil Procedure Holy Grail

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Civil Procedure Review

I. Jurisdiction II. Erie III. JoinderIV. Res

Judicata

1. Subject MatterJurisdiction

2. PersonalJurisdiction

5. Venue

3. Due Process

4. Service ofProcess (Notice)

6. Removal

7. Waiver

1.Joinder of ClaimsPermissive Joinder of

PartiesCompulsory Joinder of

Parties

2.CounterclaimCrossclaim3rd Party Claims

3.Intervention

Interpleader (Not onFinal)

Class Action

1. Res Judicata(Claim Preclusion)

2.Collateral

Estoppel(Issue Preclusion)

3.PartiesWho is subject to

claim or issuepreclusion?


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I. Jurisdiction Checklist

Is ThereSubject Matter

1Federal

Question

2Diversity

18 U.S.C. 1332

3Alienage

18 U.S.C. 1333

4Admiralty

18 U.S.C. 1333

5Disputes Between

States, Counsels, andAmbassadors

United States Constitution, Article III: Federal Courts Are Courts ofLimited urisdiction:

Federal Question Basics: 28 U.S.C. 1331

Does the claim arise under the constitution, treaties, or laws of the U.S.? Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ? Remember, NO $ Amount limit: Can have SMJ over a $1 dispute. Federal Jurisdiction may be exclusive to federal court (e.g., patent or copyright claims); or Federal Jurisdiction may be concurrentwith state court jurisdiction (e.g., civil rights or federal

employment liability act (FELA) claims), subject to the right of removal.

Federal Question Flow Chart

There is FQJThere isNO FQJ.

Does the s well pleaded complaint allege a state law cause of actionin which federal law is an essential element?

Does the federal law that is an element authorize a private right ofaction?

Yes NoDoes the s well pleaded complaint allege an express or implied

federal cause of action?

Yes

No

Yes

Dont rely too much on this. I derived this rule from Smithv. Kansas City Title and Merrell Dow v. Thompson.Aronovsky says the COA are still split and the SC has not

ruled. So, in some circuits this would work but dont treat it

as a hard and fast rule.


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DIVERSITYOF CITIZENSHIP BASICS

1) COMPLETENESS: Diversity must be complete. There cannot be anyone on the left of the v and the right. All s must be

different from all s.

2) DATE: Diversity is calculated as of the date the action was instituted.3) CITIZENSHIP (Domicile)a) PERSONS: Where you were born and continues through your life unless:

i) You physically change your state; andii) You have the intention of remaining in the new state for the indefinite future.iii) If person has multiple homes in different states, look of that persons center of gravity by looking at:

(1) Where does the person live?(2) Where is the family?(3) Where does the person pay taxes?(4) Where does that person work?(5) Where are the cars licensed?(6) Where does the person vote?

b) CORPORATIONS:: Every corporation has two domiciles:i) state of incorporation; andii) its principle place of business (usually where the corporate headquarters is located. Two tests for principle place

of business:(1) Nerve Center Test place where corporate decisions are made; or(2) Muscle (Plurality) Test - place where the corporation does most of its manufacturing or service providing.

c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member. So, anational labor union like the Teamsters could never pass the federal diversity test because it has members in all 50states.

d) PARTIESIN REPRESENTATIVE ACTIONS(e.g., representative of a child, probate, or derivative actions or class actionsuits:i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative.

ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party.

Is ThereSubject MatterJurisdiction?

1Federal Question18 U.S.C. 1331

2Diversity

18 U.S.C. 1332

3Alienage

18 U.S.C. 1333

4Admiralty

18 U.S.C. 1333

5Disputes Between


United States Constitution, Article III: Federal Courts Are Courts ofLimited Jurisdiction:


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Is ThereSubject MatterJurisdiction?

1Federal

Question18 U.S.C.1331

2Diversity18 U.S.C.

1332

3Alienage18 U.S.C.

1333

4Admiralty18 U.S.C.

1333

5Disputes Between


2aSupplemental

(Pendant &Ancillary)

18 U.S.C. 1367

Supplemental Jurisdiction Created by Judicial Interpretation and Codified in 28U.S.C. 1367

SUPPLEMENTAL JURISDICTION BASICS

1) Pendant & Ancillary Jurisdiction: United Mine Workers v. Gibbs state tort claim added to federal employmentquestion. Supreme Court ruled that federal court could assume jurisdiction over state claim because they all emanated

from the same set of facts. This ruling, called thependant doctrine, expanded the definition ofcase and controversyunder Article III.

a) Ancillary claims doctrine allowed s to bring a case and allowed s to assert jurisdictionally insufficient compulsory

counter-claims, cross-claims, and 3rd party claims.

2) 1367: After some restrictions in Owens and Finley, Congress codified Gibbs in 1367.a) 1367(a): Matters originating from a common nucleus of operative facts are now considered part of the same case or

controversy for Article III purposes.b) 1367(b): Codifies Kroger but rejects Finley. limits reach of jurisdiction only in diversity only cases exercise of

jurisdiction must be consistent w/1332 (diversity statute)

i) No supplemental jurisdiction; must have independent jurisdiction for claims byagainst persons made parties by:

(1) Rule 14 (Impleader)

(2) Rule 19 (Compulsory Joinder of Parties)(3) Rule 20 (Permissive Joinder of Parties)(4) Rule 24 (Intervention)

c) 1367(c) gives Ct discretion to hear cases (like Gibbs but not clear whether list is illustrative or exhaustive)i) Says that the Ct may decline to exercise j if:

(1) Claim raises a novel or complex issue of state law(2) The claim substantially predominates over the claim(s) over which the dc has original jurisdiction(3) The Court has dismissed all claims over which it has original jurisdiction(4) In exceptional circumstances other reasons

Remember, 1367(b) appliesONLY if diversity is the sole


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20(), 23

Supplemental JurisdictionFlowchart

Yes

Same case orNo

No SMJ

This is a basic

requirement of

Federal Questionor

Diversity?

Fed. Ques.1367(b) limitation

does not apply to FedSMJ

Party added underwhat Rule?

14 19 20 () 24No SMJ

This is the 1367(b)limitation.

Claim by or ?

1367(b) limitationdoes not apply to

SMJ

Diversity Only

TROUBLE!

The literal language of 1367 lets theclaim in. But the legislative history

indicates that Congress wants the claimto stay out. The Courts of Appeal are

split. The Supreme Court grantedcertiorari in 2000, Justice OConnor


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PPERSONALERSONAL JJURISDICTIONURISDICTION

CONSTITUTIONAL BASES:

14TH AMENDMENTDUE PROCESS

REQUIREMENT

ARTICLE IV, 1:FULL FAITH & CREDIT

CLAUSENotice AndOpportunity to BeHeard

Full Faith and CreditWill Be Given in EachState

STATUTORYBASIS

State FederalLong Arm

Statute

Rule 4(k)

(2)Can Restrict ConstitutionalPersonal urisdiction But

Modern Basis of Personal Jurisdiction

must have sufficient minimum contacts within the forum state such thatmaintenance of the suit does not offend traditional notions offair play and

substantial justice.

International Shoe Co. v. Washington

Traditional Bases of PersonalJurisdiction

ConsentExpress: Carnival Cruise Lines

Implied: Hess v. Pawloski

Waiver: Insurance Corp of Ireland

Contract/Agent Appointment/Shows upto Litigate

DomicileGordon v. Steele: Kid at

College

Milliken: WY Domicile Servedin CO

Physical Presence in StateTag Jurisdiction Lives!

Burnham v. Superior Court

Ex-Husband Served While VisitingKids

FAI R PLAYAN D SUBSTANTIAL JUSTICE(BLIM FEW)

SUFFICIENT MINIMUM CONTACTS(CAPFI)

1. Burden on the Parties: Economic, time, relativeburdens.

2. Law: What forums law?3. Interest of the State: in providing a forum for &

protecting its citizens.

4. Multiplicity of Suits: Will they all be resolved?

5. Forum: Alternative forum available? Fair &convenient?

6. Evidence: Where is the bulk of the evidence?7. Witnesses: Where are the witnesses?

1. Cause of Action: Where did the cause of actionarise?

2. Activities: Scrutinize these activities in the forumstate:

a. Systematic & Continuous = GeneralJurisdiction

b. Sporadic = Specific Jurisdictionc. Direct vs. Indirectd. Dangerous activity?

3. Purposeful Availement: Has purposefullyavailed itself of the benefits & protections of

MODERN SERVICE

Rule 4 (a-e, h, n)

Reasonably Calculated

Under the Circumstances toGive Notice

Mullane v. Central


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Transfer of Venue: 28 U.S.C. Forum Non Conveniens

Possible Exam Questions

Venue Rules: 28 U.S.C. 1391

VENUE:

Underl in Policies: udicial Efficienc Limit Forum Sho in

Venue in diversity cases.

1391(a).

1. Any dist. where any resides, if

alls reside in the same state.2. Any dist. Where a substantial

part of the controverted eventsoccurred or where the disputedproperty is located. Can havevenue in multiple locations.

Venue in all other cases.

1391(b).

1. Same as in diversity cases,above.

2. Same as in diversity cases,above.

Venue ofcorporates

1391(c).

1. An where cor . is sub ect to P .

Venue for aliens 28 U.S.C.

1391(d).

1. Any alien, incl. alien corps., can

Federal Courts NEVER transferto State Courts. Use FNC in such

State Courts NEVER transfer to

federal Courts or to differentStates. Use FNC in such case.

1404 Balancing Test

Convenience of parties & witnesses+ Interests of justice mustsubstantially outweigh s interest

Choice of Law: Diversity Cases

Only

Laws of the transferring state applyunless venue was im ro er in

Venue Exam Tricks

Transferring Court can only send acase to a court where the actioncould have been commenced orinitiated. Therefore, the receivingCourt must have all 3, even if thetransferring Court doesnt:.

1. Subject Matter Jurisdiction2. Personal Jurisdiction

Public vs. Private Factors -

Balancing Test

Private Interest Factors1.Access to sources of proof

2.Ability to compel attendance ofwitnesses

3.Convenience to voluntarywitnesses

4.Difference in substantive law thatwill be applied in new forum isnot decisive in dismissing ongrounds of FNC, but could berelevant if the law in thealternative forum werecompletely inadequate. Piper.

Public Interest Factors1.Local interest in having disputes

resolved locally2.Court con estion

General RuleFNC is tough on s, especially inlight of statutes of limitation andPers. Juris. Courts know this and

wont grant FNC unless:

1. There is an alternative forum;

2. waives statute of limitationsdefense;


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No Removal for In-StateDefendants in Diversity-

Removal: 28 U.S.C. 1441

Federal Question Flow Chart

N

STATE Court FEDERAL Court

4. State to Federal ONLY;

5. ALL s must consent;

6. ORIGINAL s only; no

1. Completely Discretionary2. Must have been qualified to grant

original jurisdiction.3. May grant supplemental

jurisdiction as long as at least oneseparate and independent federal

Federal Question ClaimsPass Through Federal Question

Filter28 U.S.C. 1331

Non- Federal Question ClaimsPass Through Supplemental

Jurisdiction Filter28 U.S.C. 1367

Thereis FQJ

There isNO FQJ.

Does the s well pleaded complaintallege a state law cause of action in

which federal law is an essentialelement?

Does the federal law that is anelement authorize a private right of

action?

Yes Does the s well pleaded complaintallege an express or implied federal

cause of action?

Yes

Yes

No

Same Case or

Common Nucleus of

Meets SupplementalJurisdiction

Requirements under

1441(a)Court May Exercise

or Decline PerAuthority Granted

Not Part of SameConstitutional

Separate &Independent

Yes No


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1441(a)Court Must

1441(c)Court May Keep

OrCourt May


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Waiver

Personal JurisdictionNoticeService of ProcessVenue

Consolidation ofDefenses

Rules 12(g) and 12(h)

SMJ Is A Constitutional Issue and Cannot BeWaived.Parties to an Action May NEVER Consent toWaiver of SMJ

What May NEVER Be Waived? What May Be Waived?


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Is state lawsubstantive /black letter

law?

YES

State lawapplies (f/ Erie

& RDA)

NO

Fed Rule on Point?(look at twin aims ofErie before deciding)

Possibly/No

(GreyArea)

Hanna HoldingApply Fed Rule if its

valid.

Valid if reasonableperson would consider

it procedural

Do BOTH

Byrd TestIs state rule bound upwith (implementing

of) state createdrights& obligations?

Does it regulateprimary behavior?

Hanna DictaAnalyze in light oftwin aims of Erie.

1. Forum Shopping?2. Inequitable admin.

of the laws?

Y YN N

Statelaw

Statelaw

Fed lawRule ofform &mode.

BALANCE

Fed.Countervailing

Interests (for fed

law)(always have

uniformity, butweak on its own.

Byrd was judge/juryrelationship which

outweighedoutcome

determinacy)

Outcomedeterminativetest (for state

law)If outcome would bedifferent depending

on which lawapplies (i.e. statuteof limitations is verydeterminative if itsrun in state and not

fed)

YES

Erie Doctrine FlowchartThe discouragement of forum shopping and avoidance of inequitable

administration of the laws


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III. Joinder

Joinder of Claims

3 Sentences at most on exam:1. In federal practice a can join any claims he or

she has against the .

2. In a state following the FRCP, a can join any

claims he or she has against the becausethose are the Federal Rules.

3. If state X follows the more traditional rule of

Permissive Joinder of Parties: 2 Prong Test

1 at most on exam.

T&O + CQ = Permissive Party Joinder

1. Claims or defenses stem from the sametransaction; AND

Compulsory Joinder of Parties

Rule 19(a)1. Who is necessary and should be joined if

possible?a. Will parties be injured by failure to join

outsider?

b. Will outsiders be prejudiced by result?Exam Tip: Probably only situation in whichoutsider is not compulsory is tort action. Jointtortfeasors are NOT compulsory; may only

want or need to sue the rich .

2. Can you join the outsider? If not, why not?Exam Tip: look out! Reason could be SMJand/or PJ. If so, be ready to perform the entireanalysis.


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1332- Diversityand $ Amount Or

Joinder- Big PictureMust satisfy both FRCP and SM Jx.

FRCP Subject Matter JxAND

Joinder by Joinder by Or

Claims 18 (a) Claims 13 (a, b, g) Parties 14, 19

O

r

A party assertinga claim to relief asan original claim,

counterclaim,cross-claim, or

third-party claim,may join, as

many claims asthe party has

against anopposing party.

20(a) PermissiveJoinder. All persons

may join in oneaction as plaintiffsif they assert anyright to relief

arising out of thesame transaction,

occurrence, orseries of

transactions oroccurrences and if

any commonquestion of law orfact common to all

these persons willarise in the action.

All persons may bejoined in one action

as defendants ifthere is assertedagainst themanyright to relief

arising out of thesame transaction,

occurrence, orseries of

transactions oroccurrences and if

any commonquestion of law orfact common to allthese persons willarise in the action.

(a) CompulsoryCounterclaims - A

pleading shall stateas a counterclaimany claim it has

against any opposingparty, ifit arises outof the transaction oroccurrence that is

the subject matter ofthe opposing party'sclaim and does not

require for itsadjudication thepresence of third

parties of whom thecourt cannot acquirejurisdiction. But

(see exception).(b) PermissiveCounterclaims. A

pleading may stateas a counterclaim

any claim against anopposing party notarising out of the

transaction oroccurrence that is

the subject matter ofthe opposing party's

claim.(g) Cross-claimAgainst Co-Party. A

pleading may stateas a cross-claim anyclaim by one partyagainst a co-partyarising out of the

transaction oroccurrence that isthe subject matter

either of the originalaction or of a

counterclaim thereinor relating to any

property that is thesubject matter of the

original action.

14(a) When Defendant May

Bring in Third Party. At anytime after commencementof the action a defending

party, as a third-partyplaintiff, may cause a

summons and complaint tobe served upon a person nota party to the action who isor may be liable to the third-party plaintiff for all or part

of the plaintiff's claimagainst the third-party

plaintiff.

1331- FederalQuestions

1367-Supplemental Jx

$75,000.01minimum

&

COMPLETEDiversity

- District courts shallhave original Jx arisingunder the Constitutionetc.

Note: this is notexclusive JX

Amount claimed ingood faith isrelevant, not

amount the courtawards, UNLESS to

a legal certainty

cannot recover$75k. Claim mustexceed 75,000 not

actual award.Diversity must

exist at the timethe complaint is

filed with the

clerk. It need notexist at the timeof trial or when

the cause ofaction arose

Well PleadedComplaint Rule- For alitigant to invoke federal

question jur. It isnecessary both that thecase arise under theconstitution or some

other aspect of federallaw and that this fact

appear on the face of awell pleaded complaint.If a substantial issue is

not raised as alegitimate part of the

plaintiffs own claim forrelief there is no federal

question jurisdictionunder the statute. Issuethat the D raises in the

answer or that theplaintiff anticipates are

irrelevant forjurisdictional purposes.

A plaintiff can oftencure the lack ofdiversity problemby dismissing non-diverse parties.Merrell Dow-A

complaint alleging aviolation of a federal

statute in a state causeof action, when congress

has determined thatthere should be no

private, federal, cause of

action for the violationdoes not state a claim

arising under theConstitution or Laws of

the United States.

Where DC hasoriginal Jx, theyshall have supp.

Jx over all otherclaims that arerelated to theoriginal claimwhen they are

part of the sameclaim or

controversy.EXCEPT- whenthey originalclaim arises

SOLELY under1332 the DC

WILL NOT haveJx over claims

made by sagainst personsunder RULE 14,19, 20, or 24.see 1367(b)The DC may also

decline supp. Jx if:1) A novel or

complex state lawissue

2) Claim dominatesthe claim whichoriginal Jx was

based.3) Dc has

dismissed claimsunder DCs original

Jx.4) Other

compellingreasons.

14(b) When Plaintiff MayBring in Third Party. When a

counterclaim is assertedagainst a plaintiff, the

plaintiff may cause a thirdparty to be brought in undercircumstances which under

this rule would entitle adefendant to do so.

19(a) Persons to be Joined ifFeasible. A person who is

subject to service of processand whose joinder will not

deprive the court ofjurisdiction over the subject

matter of the action shallbe joined as a party in the

action if(1) in the person's absencecomplete relief cannot be

accorded among thosealready parties, or

(2) the person claims aninterest relating to the

subject of the action and isso situated that the

disposition of the action inthe person's absence may :

(i) as a practical matterimpair or impede theperson's ability to protect

that interest or(ii) leave any of the

persons already partiessubject to a substantial risk

of incurring double, multiple,or otherwise inconsistent

obligations by reason of theclaimed interest.

20(b) SeparateTrials. The court

may make suchorders as will

prevent a partyfrom being

embarrassed,delayed, or put toexpense by the

inclusion of a partyagainst whom theparty asserts noclaim and who

asserts no claimagainst the party,

and may orderseparate trials or

make other ordersto prevent delay or

prejudice.

Definitions

Real Party in interest:one who will benefitfrom action, one whohas a substantialinterest.

Original claims:claims by s

against s.Counterclaims:

made by s against

s, it is anindependent cause

of action.Cross-claims:

claims between co-parties.

3rd Parties: a partybrought into the

action by a current

.

3rd Party claims:

claim by acting as

3rd Party , to join a3rd party.

3rdPart

y

Original ClaimCounter ClaimCross Claim

3rd party ClaimClaim by 3rd P

19(b) Determination by Court Whenever Joinder NotFeasible. If a person as described in subdivision (a)(1) - (2)hereof cannot be made a party, the court shall determine

whether the action should proceed among the parties beforeit, or should be dismissed, the absent person being thus

regarded as indispensable. The factors to be consideredby the court include: first, to what extent a judgment

rendered in the person's absence might be prejudicial to theperson or those already parties; second, the extent towhich, by protective provisions in the judgment, by the

shaping of relief, or other measures, the prejudice can belessened or avoided; third, whether a judgment rendered inthe person's absence will be adequate; fourth, whether the

plaintiff will have an adequate remedy if the action isdismissed for nonjoinder.

Arising Under Inorder to invoke federalcourt jurisdiction thefederal issue must be asufficient or central partof the dispute.

Parties 20 (a)


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Counterclaims, Crossclaims, and 3rd Party Claims

Counterclaims

1. Compulsory: Rule 13(a); use it or lose it. Underlying policy concerns: efficiency and economy. A counter claim

is compulsory if it arises out of the same transaction or occurrence that is the subject matter of the s claim

(counterclaim must be pleaded)2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same

transaction: (from Plant v. Blazer Financial Services) State Courts will usually respect Rule 13(a); but it is notguaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will probablynot allow a new suit on the same facts.

a. Are the issues of fact and law raised by the claim and counterclaim largely the same?

b. Would res judicata bar a subsequent suit on s claim absent the compulsory counterclaim rule?

c. Will substantially the same evidence support or refute s claim as well as s counterclaim?

d. Is there any logical relation between the claim and the counterclaim?3. Permissive: Rule 13(b); everything else.

4. Exam Tip: Rule 13 pretty much allows a to counterclaim against a for anything he wants. RememberPugsley said the title plaintiff doesnt mean squat in Tort law; it just means you filed first.

5. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (


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Negligence or

CompulsoryCounterclaim

for

Rule 13(a) Compulsory Counterclaim

Negligence or

Tort

PermissiveCounterclaim for

Negligence orTort

Rule 13(b) Permissive Counterclaim

Negligence or

Tort

Negligence orTort

Rule 13(g) Crossclaims

Crossclaimfor Product

Liability

Existing Co-

(Party to OriginalAction)

A counter claim is compulsory if it arises out of thesame transaction or occurrence that is the subject

matter of the s claim (counterclaim must be pleaded)

4 Part Test to define when a claim or counterclaim

arises from the same transaction: (from Plant v. BlazerFinancial Services)1) Are the issues of fact and law raised by the

claim and counterclaim largely the same?2) Would res judicata bar a subsequent suit

on s claim absent the compulsory counterclaimrule?

3) Will substantially the same evidence

support or refute s claim as well as s

JOINDER DIAGRAMS


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Negligence or

Negligence or

Rule 13(h) Joinder of Additional Parties to Crossclaims or Counterclaims

Crossclaim

Existing Co-

(Party to OriginalAction)

Joinder of AdditionalParties (Not InOriginal Action)

In this example, an

original crossclaimsagainst another original

AND joins a 3rd party

3rd Party

(Newly Joined)

Rule 14(a) S1 Adding Third Party Defendant

Negligence orTort

(3rd Party

)

3rd Party

Contributionor Indemnity

Claim

JOINDER DIAGRAMS


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Rule 14(a) S6 TPD Can Assert Claim

Against

Negligence or Tort

(3rd

Party )

3

rd

Party

Contributio

norIndemnityClaim

Requires same Transaction

or Occurrence as s claim

against 3rd Party

Rule 14(a) S7 Can Assert ClaimAgainst TPD

Negligence or Tort

(3rd

Party )

3

rd

Party

Crossclaim

Requires same Transaction

or Occurrence as s claim

against 3rd Party

Counterclaim

TPD MUST assert alldefenses availableunder Rule 12 andcounterclaims andcrossclaims under

Rule 13.

JOINDER DIAGRAMS


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Rule 14(a) S9 TPD Joining Another ThirdParty Defendant

Negligence orTort

(3rd Party

)

3rd Party


Claim

3rd Party


Claim

JOINDER DIAGRAMS

Negligence or

Tort

Breach ofContract

Rule 18(a) Joinder of Claims


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JOINDER OF PARTIES DIAGRAMS

Negligence or

Tort

Rule 20(a) S1 Joinder of Parties - s

Co - Negligence or

Tort

Permissive Joinder of Parties: 2 Prong Test1 at most on exam.

TO + CQ = Permissive Party JoinderClaims or defenses stem from the same transaction;ANDThere is a common question of law or fact bindingthe parties.

Negligence or

Tort

Rule 20(a) S2 Joinder of Parties s

Negligence orTort

Permissive Joinder of Parties: 2 Prong Test1 at most on exam.

TO + CQ = Permissive Party JoinderClaims or defenses stem from the same transaction;ANDThere is a common question of law or fact bindingthe parties.

Co-


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Issue 28 U.S.C. 1335 Rule 22Subject Matter

Jurisdiction- Diversity Minimal diversity; determined between

claimants. (At least 2 claimants diverse)Complete diversity; stakeholder on one

side and claimants on the other

-Amount $500 in controversy $75,000+

Personal JurisdictionandService of process

Nationwide service of process Need personal Jurisdiction; serviceunder Rule 4

Venue Residence of one or more claimants Residence of any claimants (if all from onestate); district where dispute arose; district

where property is; district where anyclaimant found if no other basis for venue

Injunctions Statutory authority for injunctions (28 USC2361)

Only basis is provision in 28 USC 2283 forstay where necessary in aid of . . .

jurisdiction

How to Invoke:stakeholder invokes

and is called

Post a bond with the Court to cover value ofcontroverted property.

Deposit controverted property with theCourt.

Interpleader Rule 22, 28 U.S.C. 1335

You all figure out who I need to pay if I am liable (which I

Interpleader Basics

Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) theownership of which is or may be claimed by more than one party. It is a device to resolve at one time the claims ofmany persons to one piece of property or sum of money, such as a bank account claimed by more than one person.

Policy Objective: So that the stakeholder will not have to pay the same claim twice.

Practical Application: Interpleader is a s tool to join all claimants at once; but may be employed by a throughuse of cross-claim [Rule 13(g)], compulsory counterclaim [Rule 13(a)], or permissive counterclaim [Rule 13(b)].


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Remember, you need PJ over all theclaimants in order for Rule 22

Intervention Rule 24

I wasnt invited, but I am coming anyway

Rule 24(a): Intervention of RightAutomatic, uncontestable right if:

1. Unconditional Right Granted by Federal Statute; OR2. Applicant has interest in transaction or property + disposition will impair his interest - no existing party can

Rule 24(b): Permissive InterventionAt discretion of Court if:

1. Conditional Right Granted by Statute; OR2. Common Question of Law or Fact; OR3. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope

of protective orders and confidentiality agreements. Example: Environmental Lawyers intervene to contest OilCo. settlement a reement orderin destruction of discover documents which ma show broader attern of


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Rule 24(b): Limited Purpose InterventionJudicial Expansion of Rule 24(b):

1. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scopeof protective orders and confidentiality agreements.

2. Example: Environmental lawyers intervene to contest Oil Co. settlement agreement ordering destruction ofdiscovery documents which may show broader pattern of abuse, suppression of which arguably would becontrar to ublic olic .

Intervention Flowchart

Does a Federal Statute grantunconditional right of

intervention?

YesMUST Grant

This is Rule 24(a).

Does a Federal Statute grantconditional right of

intervention?

YesMAYGrant

This is Rule 24(b)

Court will consider delay orprejudice to original parties.

Step 1:

STATUTORY ANALYSIS

Is there a party to the case

who will adequatelyrepresent the applicantslegitimate interest in the

controverted matter?(Can an existing party cover

your ass? )

Yes

Step 2:

CANT SOMEONE ELSE DO IT?

Step 3:

CONSIDERATIONS OF JUDICIAL EFFICIENCY AND PUBLIC POLICY.

MUST GrantThis is Rule 24(a).

Is there:A common question of law or fact?

- or -A limited purpose that wouldserve public policy?

Yes MAYGrantThis is Rule 24(b)

Court will consider delay orprejudice to original parties.


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Class Actions Rule 23: We Were All Screwed Over!

23(A) CLASS PREREQUISITES (CEN C TAB)

1. CLASS: is roughly definable and is a member;2. ECONOMY: Judicial Economy is Served;

3. NUMEROUS: Potential s too numerous for joinder;

4. COMMON LEGAL THEORY: Claims have a Commonlegal theory or arise out of the same transaction oroccurrence;

5. TYPICAL: Claim of named must be Typical of theclass;

6. ADEQUACYOF REPRESENTATION: Named partiesmust Adequately represent the class;

7. B RULE 23(B): Action must fall within one of threecategories of Fed Rule 23(b)

Identifiable Class Named s (or s) are members of the

class

JURISDICTIONFederal Question: Normal Rule Applies

Diversity: Class action is a representative action.

Diversity is based on the representative. Just makesure you pick a from another state.

Amount in Controversy cannot be aggregated.

If its classified as a 23(b)(2) injunctive claim, youwould value the injunction and that could get you overthe $75k

Or you could file it in state court.

But in a 23(b)(3) case youd have a big problem if yourindividual claims were not each over the $75krequirement.

Personal Jurisdiction: Not the Shoe, Denkla, VW test.Focuses mostly on notice.

For 23(b)(3) damages case, requires: Adequate

representative Notice Right to opt out. Not required for


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23(B) TYPESOF CLASSES

Class Defined Policy Objective Practical Application23(b)(1)

Mass version of Rule 19joinder.

Class members may NOT opt outand are BOUND by the holding.

Avoid inconsistentdecisions orimpairmentof interests of class

members. Avoid harm to s and

absentees.

In a limited fund case; if suits broughtindividually, first takes it all. ClassAction protects other s.

23(b)(2)

Limited to Injunctive orDeclaratory Relief

No $ damages

Class members may NOT opt out

Protect rights where large numbers ofpersons are affected.

Civil rights cases.

23(b)(3)

$ MonetaryDamages

Must be superior to otheravailable methods

Must present common questions of

law or fact. (Predominance ofcommon question)

bears cost of notice to all class

members.

Notice must inform members mayopt-out.

Judicial efficiency

Allows relief where individual scould not economically pursueaction

Could be only effective method ofdeterring behavior of some s(many small violations).

Class action for everyone who wasovercharged 10 cents on every can oftuna they bought at Ralphs. No onewould sue individually. But as a class

it would make sense and Ralphswould have to react.

IV: RES JUDICATA

Go Away, Leave Me Alone, I Dont WantTo Talk About It Anymore!

Res Judicata

(Claim Preclusion)

CollateralEstoppel

(Issue Preclusion)

Mutuality of Estoppel(Who or which parties are subject to claim or

issue preclusion?

Res Judicata Basics1. Definition: RJ means you cannot re-litigate a matter that you previously litigated or could have litigated.2. Merger & Bar: The controverted matter (cause of action) is like a poker chip, you only get two choices: bet it or

dont bet it. You cant break it in half and play part now and part later. Additional theories that could have been pleadbut werent are merged into the first judgment and further litigation is barred by RJ.

3. Claim for Relief is The Key: So, whats the claim for relief (cause of action)? Is it litigation to preserve a right or toremedy a wrong? Courts have held both ways and a minority of jurisdictions still use the right-wrong test. But themajority position is to focus on the transaction. On the exam, focus on transaction & occurrence. If the claim arisesfrom the same transaction or occurrence, its probably covered by RJ.

a. Example: In-other-words, if bought a toaster that exploded and killed her pet iguana, shes probably got half

a dozen theories of recovery under tort and contract law (strict liability, warranty, breach, etc.). But all thoseactions arise from the same occurrence the toaster explosion. Most Courts would rule this a single cause-of-action for RJ purposes.

4. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand itscentral importance to the concept ofres judicata.

5. Remember the Policy Rationale: Courts will interpret claims broadlyin order to encourage joinder and discouragemultiple litigation (judicial efficiency). But Courts will interpret claims narrowlyif they are concerned about the

harshness of preclusion and the burden on the

.Collateral Estoppel Basics

1. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. If RJ is ameat cleaver, lopping off the entire claim, CE is a scalpel, severing only the issues previously adjudicated. There are 3requirements for CE:

a. Same Issueb. Actually Litigatedc. Necessarily Decided (This is important. The issue may previously have been decided but was not necessary to

resolution of that case.2. Example: Driver A hits Driver B, sues B for negligence, and wins. Assume that there was no compulsory counterclaim

rule, so B never counterclaimed against A. Now Driver B wants to sue Driver A for his injuries.a. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence,

claims are specific to the , so that single accident gave rise to valid claims for both A and B.

b. But B will be estopped from asserting a claim of negligence against A. This is because A actually litigated andnecessarily determined that B was the negligent driver in the accident. For purposes of the exam, dont worryabout comparative negligence claims.

PET M

Same Primary rightsinvolved?

Same Evidence?Same Transaction or

NIL

Issue Necessary to thefirst action?

Identical Issues?


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Was there a final judgmentin the previous case?(Final means all steps in the adjudication except

execution & appeal.)

NO CLAIM PRECLUSIONRJ wont apply if the matter hasnt

been finally and validly decided by aproper Court!

Do the issues in the current case stem from the sametransaction or occurrence as a previously litigated

case?

Was it considered on the merits?

Yes12(b)(6)Default judgment or Consent decreeSummary judgment & Directed Verdict(JMOL)

NoJurisdictionVenueJoinder of an IndispensableParty

Was it valid?Proper court with subject matter and personaljurisdiction?1738 Full Faith & Credit valid state court decisionsare binding in federal court unless state court lackedcompetency.

Does 2nd Action Involve Same Parties or Those InPrivity?

(Privity requires a legal relationship between theparties)

CLAIM PRECLUSIONEntire claim is precluded, including matters that were

or should have been litigated.

RES JUDICATA(CLAIM PRECLUSION) FLOWCHART

Yes

Yes

No


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Yes

Yes

Yes

No

No

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