Civil Procedure Outlines


  • Pleadings

  • Pleading generallybe alert whenever the fact pattern gives you information about either (1) when a pleading was served or filed (whether it’s a complaint, answer or reply,) or (2) the contents of the pleadings.
  • The complaint
  • Jurisdiction allegations – if the pleading you are given is a federal complaint, make sure that it contains the requisite jurisdictional allegations. If the J allegations are missing, state that D can move to dismiss for lack of J (since the burden is on P to make the J allegations explicitly).
  • Statement of claim – check whether the complaint meets the requirements of a short and plain statement of the claim showing that the pleader is entitled to relief
    • Absence of legal theory not fatal – Remember that it’s not grounds to dismiss that P failed to state the legal theory on which she’s relying. As long as enough of the underlying facts are disclosed to give D an idea of the subject matter of the suit, statements about legal theories or legal conclusions aren’t required.
  • Special matter – on the other hand, make sure that any special matter is pleaded with particularity. If it is not, have the D make a motion for a more definite statement.
    • Illustration – thus be on the lookout for allegations of fraud, mistake etc that are stated conclusory.
    • Special damages – Also, if the complaint claims damages that are in fact special damages, make sure these special damages are pleaded in detail. For instance, damages for intangible torts like slander and false imprisonment, or consequential damages in contracts cases, will often be special.
  • Pleading in the alternative – Remember that pleading in the alternative is allowable under the FRCP, so don’t fall for assertions that a complaint should be dismissed because the allegations are inconsistent or mutually exclusive.
  • The answer, and motions by D
  • The answer – remember that D will be deemed to have admitted any allegations that is not specifically denied in the answer, unless the allegations relates to damages (FRCO 8(b)(6)).
    • P’s answer to D’s counterclaim: Remember that this principle also applies to P’s answer to any counterclaim by D. So if D makes a counterclaim and P doesn’t deny the allegations of the counterclaim, P will be deemed to have admitted the counterclaim’s non-damage-related allegations.
      • No answer needed to affirmative defense – But also remember that this principle doesn’t apply to D’s assertion of an affirmative defense (since no responsive pleading is required to respond to an affirmative defense). FRCP 8(b)(6). In other words, if D raises an affirmative defense, P can remain silent, and will be deemed to have denied the allegations.
  • Motions – Scrutinize any motions made by D, to determine whether the rules governing motions have been satisfied. For instance, a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted must be made before D answers (though after the answer, D can move under 12(c) for judgment on the pleadings
    • 12(b)(6) standard – keep in mind that in a 12(b)(6) motion, the motion can be granted only if there is no set of facts that P could prove that would entitle her to relief. It’s not enough that the judge thinks that P is very unlikely to be able to prove the allegations contained in the complaint. (But it’s possible that the Twombly case imposes a requirement that the claim be at least a plausible one).
    • Waiver – remember that if D brings a 12(b) motion of any sort, and doesn’t include the defenses of lack of personal J, improper service, or improper venue, he waives these defenses if they were available at the time he brought the 12(b) motion. (FRCP 12(g)(2); 12(h)(1)).
  • Affirmative defense proved at trial – if the pattern indicates that at trial D has tried to prove facts that amount to an affirmative defense, check back to make sure that the answer contained the affirmative defense. This applies to defenses like contributory negligence, fraud, RJ, sol and illegality. If the trial is already well along before this failure-to-plead surfaces, have P move to dismiss the affirmative defense, or in the alternative to postpone the trial while P prepares to rebut the affirmative defense.

Time limits: Amendments

  • Time limits generally – be alert to whether pleadings are served and filed in a timely manner. In a federal suit:
    • D has 20 days after service to answer, but if he has been served out of state by use of the state’s long arm, any longer period to answer allowed by that long-arm controls
    • I D waives formal service, then he gets 60 days from the date the request for waiver was sent to him by P
    • If the answer contains a counterclaim, P gets 20 days after service to reply.
  • Amendments – know when amendment is allowed of right, and when it must instead be allowed by leave of court
    • Amendment of complain by P as of right – for instance, P gets to amend once by right prior to D’s service of responsive pleading (i.e., the answer). FRCP 15(a)(1)(A). Note that D’s service of a motion (as opposed to an answer) does not terminate P’s right to amend.
    • Statute of limitations – if there seems to be a question whether a statute of limitations is satisfied, and the complaint was originally served before expiration of the sol, but amended after expiration, look for a relation back issue, In general, the amended complaint relates back to the fate the action was originally commenced, but subject to these special riles (from FRCP 15(c))
      • The claim is the amended pleading must have arisen out of the same conduct, transaction or occurrence alleged in the original pleading
      • If the amendment changes the party (or changes the name listed for the original party), there’s relation back only if, within 120 days after the complaint is filed, the party to be brought in by amendment (call him D): (a) gets actual notice of the action in such a way that D is not prejudiced in making an defense, and (b) knew of should have known that but for the mistake, the action would have been brought against D.
    • Variance of proof from pleadings – remember that the FRCP are very tolerant of variance between proof and pleadings
      • Implied consent to amendment – for instance, if one party present evidence on an issue that isn’t covered b the pleadings, and the other fails to object, that silence will be deemed to be implied consent to the new evidence, and the court will treat the pleadings as amended to conclude that issue (FRCP 15(b)(2)).
      • Objection usually overruled – also, if a party does object to the presentation of evidence on the grounds that it relates to issues not covered by the pleadings, the court will normally allow the pleadings to be amended, and will at most give the objecting party a continuance to meet the new evidence (FRCP 15(b)(1)).
      • Affirmative defense – the issue of variance is most likely to pop up when D fails to assert an affirmative defense in his answer, then introduces evidence in support of that defense during the trial. Here, just as when P is the one who’s introducing the varying evidence, the above rules apply – unless the other side (P) would be seriously prejudiced, any objection by P will likely be overruled, and the court will be quick to find that P has impliedly consented to the amendment of Ds answer to add the affirmative defense.

Discovery

  • Discovery generally – you’ll be told about a deposition, a request for document production, etc. The bad news is that discovery issues are extremely technical and based on the precise working of the FRCP.
  • Procedures – make sure that the detailed procedures governing discovery are followed. Three examples:
    • Automatic discovery – don’t forget that some discovery is automatic – i.e., due without a request from the other side. If the party doesn’t perform the required automatic disclosure, then unless the party has substantial justification for the failure or the failure is harmless, the material that should have been disclosed may not be used by that party at trial. (FRCP 37(c)(1)).
      • Most important – if a party will use particular discoverable information to support its claims or defenses, the party must automatically disclose, early in the lawsuit, the name, address and phone number of anyone who possess that information, along with a list of the subjects of that information. (FRCP 26(a)(1)(A)(i)). Exception: no disclosure is required if the individual’s info will be used solely for impeachment, not substantively.
      • Ditto for documents – if a party plans to use a document (or other tangible thing) as part of her substantive case at trial, that party must give a copy or description to the other party early in the case, without a request.
    • Document production – look out for a party’s attempt to get documents from the other party. The discovering party can’t use interrogatories for this purpose – instead, a Rule 34 Request to Produce Documents must be used.
    • Sanctions – normally before a court orders sanction, the party seeking documents must first obtain an FRCP 37(a) order compelling discovery. If the opposing party still persists in her refusal to produce the documents, only then may sanctions be imposed.
      • Automatic discovery – but note that the no-sanctions-without-prior-order principle does not apply to a party’s failure to provide automatic discovery – here, even without a prior order compelling discovery, the court must prohibit the party from using the discoverable information at trial, unless that failure was either substantially justified or harmless. (FRCP 37(c)(1)).
  • Privileges – be alert to privileges. Remember that information protected by a privilege may not be subjected to discovery. Also, remember that on federal-question issues, federal common law determines what is privileges, but on state-law issues, state law of privilege controls.
  • Work product immunity – be alert to work-product immunity issues. Any time one litigant seeks from the other information that was prepared in anticipation of litigation, either the qualified or the absolute work product immunity will apply. So be on the lookout for attempts to get a lawyer’s notes or memos, an investigator’s report, etc.
    • Qualified v absolute – be sure to distinguish between qualified and absolute immunity. The latter applies only to mental impressions, conclusions, opinions or legal theories. So documents that are entirely fact based (e.g. what caused the accident?) will generally get merely qualified protection. If the immunity is qualified, it can be overcome by a showing of substantial need and an inability to obtain the equivalent materials without undue hardship.
    • Prepared in anticipation of litigation – before you conclude that something is work product, make sure it was prepared in anticipation of litigation. Even a document written by or to a lawyer won’t be wp if it wasn’t prepared at least partly in anticipation of litigation (so that, for instance, a document prepared to comply with a statute or government regulation won’t be covered, though it might be covered by attorney-client privilege).
      • Gray area – profs sometimes test the gray area between prepared-in-anticipation-of-litigation and not so prepared. Be ready to argue both sides.
    • Non lawyer documents – remember that documents prepared by a non-lawyer (eg, a private investigator) who is assisting in preparing for litigation can be covered.
    • Substantial need for materials – once you have determined that a document is covered by the qualified work product privilege, apply the standard that the document can be discovered only if the party seeking it shows substantial need for it, and shows that the equivalent info is otherwise unobtainable without undue hardship. FRCP 26(b)(3)(A)(ii). Argue both sides.
    • Experts – if a document in question was prepared by an expert, special rules governing experts, not the wp immunity rules, apply.
  • Experts – keep in mind that special rules apply to expert. If a party plans to call an expert at trial, the party must have the expert prepare and sign a report containing his opinions and other information; the report is automatically given to the other side
  • Party/ non-party distinction – for instance, an interrogatory can only be addressed to a party, disclosure relating to non-parties must occur through depositions
    • Subpoenas on non-parties – also, beware of the limits of the use of subpoenas for depositions. A subpoena to force a non-party to be deposed must set the deposition for no more than 100 miles from the deponent’s residence or place of business.
    • No subpoena needed for party – conversely, remember that no subpoena is needed to take the deposition of a party.
  • Medical exams – remember that medical exams are especially limited only a party may be forced to undergo an exam, and then only if the party’s condition is in controversy and the discovering party convinces the court that there is good cause for the exam.
  • Settlements and pre-trial conferences
  • Court’s right to order settlement discussion – remember that under Rule 16(c), the court may if appropriate require a party or its representative to attend a pretrial conference and to consider possible settlement of the dispute. So if a part refuses to attend the pretrial conference or to discuss settlement, the refusal can be punished by various sanctions, including a contempt-of-court citation. Rule 16(f).
  • Admissibility of discovery results – use of deposition transcripts is the most-frequently-tested area. Use the two part test:
    • Live testimony test – first, ask whether the deposition statement would be admissible if the deponent were giving live testimony
    • Four categories – second, make sure the statement falls into one of the four categories:
      • It was made by an adverse party, or by an officer or director of an adverse corporate party (in which case it is admissible for any purpose)
      • It was used to impeach the deponent’s credibility while the deponent is testifying (in which case it doesn’t matter whether the deponent is a party)
      • It conflicts with the deponent’s trial testimony, if the interests of the deponent and the question are adverse (in which case it may even be used for substantive purposes)
      • Various circumstances make the deponent unavailable to testify at trial (eg, she is dead, or is located 100 miles from the trial site).

Trial Procedure

  • Burdens of production and persuasion – keep in mind the distinction between the burden of production and the burden of persuasion – don’t use the ambiguous phrase burden of proof
    • Presumptions – if the facts involve a presumption, remember these rules: the party against whom the presumption is directed bears the burden of production (if he produces no evidence to rebut the presumption, he suffers a directed verdict or judgment as a matter of law). But in the federal system and most states, the presumption has no effect on the burden of persuasion – once the production burden is met, the presumption disappears (bursting bubble).
  • Summary judgment – where a party moves for summary judgment, remember the applicable standard: the movant wins only if there is no genuine issue of material fact. Typically, the facts will not satisfy this requirement, and you should conclude that sj is not appropriate. For instance, often there will be a genuine issue of material facts remaining either because:
      • There is a dispositive issue as to which you may feel that one party is highly likely to prevail at trial, but the issue still turns on the credibility of the witnesses
      • There are multiple sub-issues (one of which may be non-obvious), and although there’s no genuine factual question as to some parts, there is an issue as to one (probably a non-obvious) part.
    • Duty of non-movant – on the other hand, remember that the non-movant (the party opposing entry for sj against himself) must respond with a showing that there is admissible evidence that could possibly persuade a reasonable jury to find for the non-movant on the issue in question. That is, the non-movant can’t merely rest upon the denials or assertions contained in his pleading.
  • Appeal: the clearly erroneous standard – if the case is tried to a judge, and is then appealed, be careful to distinguish between fact-based arguments for reversal and law-based ones. Remember that on appeal, the court is extremely limited in its ability to reverse for fact-finding errors: “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” FRCP 52(a)(6). Normally you should conclude that the appeals court can’t reverse for fact-finding error, since the prof probably can’t make a fact-finding error seem egregious in a brief question without tipping of the clearly erroneous issue.
  • Unanimity of jury – when the case is tried to a jury, be on the lookout for non-unanimity. In the federal system, the verdict must be unanimous unless the parties stipulate otherwise (and in the typical fact-pattern, they don’t stipulate).
  • Judgment as a matter of law or Judgment notwithstanding the verdict
  • Two things to remember – if a party moves for judgment as a matter of law (in the federal system) or directed verdict/ JNOV (in CA), two points are most vital to remember:
    • Reasonable jury standard – the standard is essentially whether reasonable jurors could differ as to the result – if they could, the court shouldn’t grant JML/directed verdict/JNOV. So don’t be too quick to agree that the judge was right to grant a JML or equivalent. For instance, if the case turns on credibility of witnesses, JML will almost never be appropriate.
    • Time for motion – the motion must be made before the jury retires, at least under the FRCP. Profs frequently have the jury retire without either party’s making a directed verdict motion, then have the verdict loser move for JML – it’s too late by then. FRCP 50(a)(2); 50(b).
  • Juror misconduct
  • No impeachment of own verdict – The most important rule to remember is that generally, the jury may not impeach its own verdict. That is, the verdict won’t be set aside because of a juror’s testimony about his own or another juror’s misconduct – only evidence from a third party will suffice.
    • Exception – but under the FRCP, there is a limited exception – a juror may testify about whether extraneous prejudicial information was brought to the jury’s attention, or whether any outside influence was improperly brought to bear. But a juror can’t testify about how the jury conducted its deliberations, so that testimony that, say, the jurors ignored the judge’s instructions will still not be allowed under the FRCP
  • New trial motions – Fact patterns often involve a party’s efforts to obtain a new trial, either from the trial judge or on appeal. Some of the reasons for which the court (either the trial judge or the appellate court) can grant a new trial are:
    • Improper conduct by a party, witness or counsel
    • Jury misconduct
    • Judicial error (eg, the judge charges the jury incorrectly)
    • Verdict against the weight of evidence (in the federal system, the verdict must be against the CLEAR weight of the evidence but a new trial can be granted even if there is substantial evidence supporting the verdict, which would be enough to prevent the issuance of judgment as a matter of law).
    • Verdict excessive or inadequate
    • Note – remember that to be grounds for a new trial, the error must affect some party’s substantial rights. FRCP 61. This is the harmless error doctrine. Whenever your fact pattern suggest to you that one of the above grounds for new trial exists, be sure to mention the possibility that the error might be harmless unless it’s clear that it’s not.
  • Remitttitur and additur – Instead of a new trial, state courts usually allow the judge to order a remittitur (new trial to occur unless the victorious P accepts a lower amount specified by the judge) or additur (new trial to occur unless the D agrees to pay a higher amount). But in federal trials, only remittitur is allowed – additur has been held to violate the constitutional right to jury trial.
  • Right to jury trial
  • Constitutional issue – here are the most important points:
    • Federal v state trials – the 7th Amendment (right to jury trial in civil cases) applies only to federal, not state trials
    • Legal v equitable – the 7th Amendment applies only to legal, not equitable issues
      • Equitable action – therefore, you must be on the lookout for claims or defenses that are equitable in nature, so you can point out that there’s no right to jury trial on these. Thus attempts to procure an injunction, to rescind a contract, to receive an accounting, to get an order of specific performance, or to reform a contract for mistake, would all be claims for which there is no right to jury trial.
      • Legal actions – a suit for money damages will almost always be legal. The one exception is where the suit seeks money as restitution for a benefit unjustly held by the D (eg, suit against an employer for back pay which P says he would have earned had the employer not discriminated).
    • Legal and equitable both present – if the case contains both legal and equitable claims, and there is an issue of fact common to both, the court must usually allow the legal claims to be tried first (to the jury). This is the single most frequently-tested aspect of right-to-jury trial. You should cite to Beacon Theatres v Westover if this which claims to try first issue arises.
    • Parties’ labels not dispositive – also remember that the labels used by the parties to describe the relief they seek are not dispositive – the court will look beneath the labels to determine whether the relief being sought is really equitable or really legal.
      • Complexity exception – profs want to know whether the fact that a particular case is extremely complex is enough to mollify the right to jury trial. Some lower federal courts have held that this is at least a factor to be considered in determining whether there is a right to jury trial. But you should point out the SC has never authorized a complexity exception that can override what would otherwise be a 7th Amendment jury-trial right.

Multi-Party and Multi-Claim Litigation

  • Counterclaims
  • Permissive v compulsory – if the facts involve a counterclaims, be sure to distinguish between permissive cc’s and compulsory ones/ Remember the compulsory cc is one that arises out of the same transaction of occurrence that is the subject matter of the opposing party’s claim Rule 13(a)(1).
    • Consequence – the need to distinguish between the two types of cc arises most often because you have to decide whether a claim that could have been asserted as a cc in an earlier action is now barred. Remember that a litigant loses an unasserted compulsory but not an unasserted permissive cc.
    • Federal/state coordination – A sometimes-tested issue is whether, in the second suit, a federal court sitting in diversity must follow the counterclaim rules of the state where the DC sits, especially whether the federal court must decline to hear a claim that state law would regard as compulsory (and thus refuse to hear because not asserted in an earlier action), even though the cc would be permissive under the FRCP. Because of the heavy outcome-determinativeness of the issue, the answer is probably that the federal court must follow the state rule.
    • Supp J – Remember that a compulsory cc falls with sup J, Therefore, it does not need to independently involve $75,000. Furthermore sup J means that D can bring in additional parties to the compulsory cc with whom D is not diverse. (But there probably is not SJ for permissive cc’s, so there must meet the amount-in-controversy and complete-diversity requirements.
  • Joinder of claims – remember that once P has a valid claim against a particular D, he can add as many additional claims as he wishes against the D. These do not have to independently meet the amount in controversy requirement (since aggregation of all claims by one P against on D is allowed).
  • Joinder of parties – here are the most testable issues –
    • 2 tests – for both P-joinder and D-joinder, you’ll need to know the two requirement imposed by FRCP 20(a):
      • The claims must arise from the same transaction, occurrence, or series of transaction or occurrences
      • There must be a question of law or fact common to all Ps or all Ds.
        • Need to discuss both tests – You’ll usually want to discuss exactly how these two tests are or are not satisfied by your fact pattern. The tests are both pretty easy to satisfy, so normally you should find that joinder is proper (assuming there are no J problems). As to Test 1, you should discuss both the logical relation and the common evidence tests for determining whether there is a single transaction.
    • Subject matter & personal J – remember that the requirements of subject matter and PJ must be met as to each D. So check that:
      • Each D was properly served
      • Each D has minimum contacts with the forum state
      • No D is a citizen of the same state as any P (if it’s a diversity case)
        • Sup J – however, keep in mind that sup J is available in a multi-P diversity scenario for purposes of the amount in controversy. So if one P has more than $75,000 at stake against a given D, other Ps whose claims against that same D are each for less than $75,000 may piggyback (Exxon Mobile v Allapattah)
    • Necessary v Indispensable parties – compulsory joinder is often tests.
      • A party who is necessary (the weaker case for joinder) must be joined if J possible, but the action may go on without him if there are J problems
      • A party who is indispensable (the stronger case for joinder) not only must be joined if J possible, but the action must be dismissed if she cannot be joined
        • A party is necessary if (1) in the person’s absence, complete relief cannot be accorded among those already parties; or (2) trying the case without the absentee will either impair the absentee’s interest of leave one of the people already parties subject to multiple or inconsistent obligations
        • For a finding of indispensability, the key factors are the degree of prejudice to the absentee from proceeding without him, and the adequacy of P’s remedies (eg, state court ones) of the federal action is dismissed
      • Cover all scenarios – If you’re uncertain, lean toward the view that the absent party is necessary, but not indispensable. But in any event, you should always analyze how the case comes out under 3 different scenarios: (1) the absentee is found not necessary; (2) the absentee is found necessary by not indispensable; and (3) the absentee is found indispensable. Also looks for fact patterns where there are big problems of diversity or PJ if the absentee must be joined – that’s usually a clue that you have to at least consider the possibility that the absentee is indispensable
      • No sup J – where there’s a necessary or indispensable party (as with any other type of multi-D joinder), sup J does not apply, so ordinary requirements of sm J apply.
      • Dismiss where rescission of contract is involved – be on the lookout for one special often-tested scenario: P, D and X are all parties to a contract and P sues D (but not X) for rescission of the contract. Here, the court is very likely to find that X’s presence is indispensable.
      • Align the parties properly – when you analyze a case of possible indispensability, make sure you align the parties (especially the absent party) according to their real interests. For instance, in the above example, W, if she’s joined, should be classified as a co-D with Devel – that’s what causes her presence to destroy diversity. (By contract, if W was properly classified as a co-P with H, her presence wouldn’t destroy diversity, so she could simply be joined as a necessary party, rather than having the action dismissed because of her indispensability.

Class Actions

  • Class actions generally – here’s what to look for if you fact pattern involves a class action –
    • Hidden issue – sometimes the whole idea of a class action will be hidden. Anytime you see multiple (at least 15) people with similar injuries, you should consider whether they might bring a P class action.
    • Amount in controversy
      • Sup J – if at least one named class member has a claim exceeding $75,000, but other class members (named or unnamed) don’t, sup J will apply to take care of amount in controversy for these less-than $75,000 claimants. (Exxon Mobil v Allapattah)
      • Nature of showing – a sub-issue is often what kind of showing each P must make to satisfy the $75,000 requirement. Remember that as long as it’s not a legal certainty that some P can’t meet the requirement, the requirement will be deemed met. This essentially means that if each P has suffered some sort of physical injuries, the amount requirement will usually be deemed satisfied. Another sub-issue is whether the possibility of punitive damages may be considered – the answer is unclear, but probably little weight should be given to this possibility
    • Numerosity & fair representation – Numerosity and fair representation are frequently tested elements. If there are more than 25 claimants, numerosity is probably satisfied, and if less than 15, it’s probably not. To decide fair representation, look to how much the named P’s have in common with the unnamed P’s
    • b(3) actions – the majority of the time, if there is to be a class action, it will be a b(3) action, not a b(1) or b(2) action. In the garden-variety situation of multiple claimants seeking money damages from a solvent D, the action will proceed under b(3) or not at all.
      • Requirements for b(3) – for a b(3) action, make sure that (10 common issues of law or fact predominate; and (2) the class action is superior to other methods (eg, individual actions). This if there are important issues on which each P varies (eg, each claimant has a unique set of physical injuries), the class action is probably not superior.
      • Mass torts – you’ll often have a mass tort fact pattern. Here, know that courts often refuse to allow b(3) class actions (and to require individual action instead) because of causation issues and the variety of damages suffered. Cite to Amchen. (If d might go broke from thousands of claims, consider the possibility of a b(1) action to preserve a limited fund.
    • Notice – remember that absent class members must always be given notice of the action’s existence (individual notice, where possible, at least in b(3) actions), and that this notice must be paid for by the named P’s. Cite to Eisen v Carlisle.
    • Who is bound – class actions questions often require you to say who is bound by the judgment. In the usual b(3) action, each class member must be given a chance to opt out; if she does so, she’s not bound by an adverse judgment or settlement (and can bring her own suit), but conversely, she doesn’t get any benefit (including collateral estoppel) from any favorable judgment. One who doesn’t opt out (even if she never got notice) is bound by the judgment.
      • There’s no right to opt out in b(1) or b(2) actions
    • Certification – before a class action can go to trial, it must be certified as a class action by the court – i.e., the court declares that the requirements for a class action have been satisfied.
      • Sub-class – if on particular facts you conclude that the entire proposed class does not satisfy the requirements (eg, the named P’s claims aren’t typical, or the named Ps can’t fairly represent everyone), consider the possibility that the court certify a sub-class (just one group of Ps), which could go forward.
    • Settlements – remember that any proposed settlement must be approved by the court. And if the action has been certified, notice of the proposed settlement must be given to absent class members, at least for b(3) actions. (In b(1) and b(2) actions, the court has discretion about whether to require notice).

Intervention

  • Here are the key points
    • Hidden issues – sometimes the intervention issue is hidden. Look for a fact pattern in which persons who are not parties might be affected by the outcome, and you’re asked how they can protect their interest. For instance, questions sometimes involve a non-party who might someday face a similar lawsuit, and would like to help prevent an adverse precedent that would pose state decisis problems
    • Permissive v of right – always distinguish between permissive intervention (FRCP 24(b)) and intervention of right (24(a)). Of-right requires much tighter ties to the subject matter of the litigation, among other things.
      • Consequence – the main consequence of the distinction is that a trial court’s denial of permissive intervention is almost never reversed on appeal, but a denial of intervention of right will often be reversed
      • Avoidance of unfavorable precedent – the intervenors sometimes want to intervene in order to help avoid a negative precedent that would have some stare decisis effect on them in other litigations. When this happens, the court is very unlikely to find that the case qualifies for intervention of right, but might well allow permissive intervention if this would not make the trial unweidlely.
    • No supplemental J – remember that the usually requirements of smj apply to both types of intervention, i.e., there’s no sup J. Be alert to diversity situation where the would-be intervenor is a citizen of the same state as an opposing party – intervention can’t occur no matter how heavily implicated the intervenor’s interests are. (also, in this situation, consider whether the would-be intervenor is an indispensable party in whose absence the action must be dismissed).
  • Interpleader – Here’s what to watch for
  • Hidden issues – interpleader issues are often hidden. Look for someone in possession of a stake, where the stakeholder doesn’t know which of two people is entitled to that state. Examples: bank that holds bank accounts, insurance companies that hold policy proceeds, contest sponsors that hold prizes, estates that hold assets. Typically, it will be up to you to notice that the stakeholder faces the possibility of double/inconsistent adjudications, and up to you to say that the stakeholder should interplead the competing claimants.
    • Statutory v rule interpleader – if you decide that the stakeholder should user interpleader always specify whether he should use statutory interpleader or FRCP 22 interpleader/ Here are the main differences:
      • Jurisdiction – statutory interpleader affect PJ and SMJ; Rule interpleader does not. So nationwide service of process is allowed for statutory interpleader but not for rule interpleader. Similarly, diversity is satisfied for statutory interpleader as long as some two claimants are citizens of different states (whereas for rule interpleader the stakeholder may not be a citizen of the same state as any claimant). And the amount in controversy has to be merely $500 for statutory interpleader (compared with the usual $75,000 for rule interpleader).
      • Deposit of property – on the other hand, the stakeholder has to deposit the property in court (or post a bong) to use statutory interpleader, but does not for rule interpleader
  • Impleader – (third-party) practice issues are very common
    • Hidden issues – impleader issues are sometimes hidden. Look for any situation in which an existing party may want to say, in effect, “If I’m liable to so-and-so, then you’re liable to me in whole or in part for anything I have to pay to so-and-so.” In general, you’re looking for claims of indemnity (whole reimbursement) and contribution (partial reimbursement). This means that you should think impleader in these types of situations (D is the original D, and X is a person not yet a party, who D should consider impleading):
      • Insurance – D is accused of a tort, and X is D’s insurer (X has agreed by contract to indemnify D).
      • Seller of defective component – P is a tort victim, D made the product that injured P, and X made a component of that product
      • Ex: P is killed when an aircraft made by D, and whose engine was made by X, crashes. P sues only D. If P claims that the engine was defective, D may implead X on an indemnity theory.
      • Upstream seller of defective product – P is a tort victim injured by a product, D sold it to P, and X is upstream in the chain of sale. P sues only D, on an implied warranty theory.
      • Ex: P sure D, the retailer of a defective product, for breach of the implied warranty of merchantability. D may implead X, the manufacturer or wholesaler, for indemnity.
      • Joint tortfeasors – P is a tort victim, D and X were separately-acting tortfeasors who have potentially joint and several liability and P has chosen to sure only D, not X. D has a common-law right of contribution from C in this situation, and so may implead her.
      • Ex: P is a patient injured while in D, a hospital, and while under the care of X, a doctor not employed by the hospital. P sues only D. D may implead X for indemnity.
    • No blame-shifting – the third part P, or TPP (D in the above examples) may not claim that the third-party D, or TPD (X above) is the only one liable to P. The TPD’s liability must be derivative of the TPP’s liability. (On the other hand, TPP doesn’t have to prove at the outset that TPD definitely or even probably has derivative liability; it’s enough that TPD may be liable to TPP of TPP is liable to P.
    • Jurisdiction – when impleader claims are part of the fact pattern, by hyper-alert to PJ and SMJ issues, which are very frequently present. You’ll typically see a TPP and TPD who are both citizens of the same state, for instance. Remember that both types of J requirements are relaxed in impleader cases:
      • Sup J – most important, impleader claims come within the court’s sup J. This mean that TPP and TPD don’t have to be diverse to each other (and TPD doesn’t have to be diverse to P), and TPP’s claim against TPD doesn’t have to be worth $75,000. (The third party claim can be a partial claim, such as a claim for contribution, so this amount in controversy relaxation can be important).
      • 100 mile bulge – also personal J can be relaxed because service of the third party complaint can occur anywhere within a 100 mile bulge of the federal courthouse, even if TPD has no contacts with the state where the federal court sits. (Therefore, be on the lookout for service on TPD that takes place in a city close to the courthouse but in another state; the facts will often state the distance between courthouse and point of service, which should tip you to the presence of a bulge issue.
        • Venue – you don’t have to worry about venue for the third-party complaint
    • Additional claim involving TPD – Remember that once a party has been impleaded, there can be additional claims involving the TPD (eg, TPD against P, P against TPD, TPD against TPP, etc). Generally, sup J will apply to these, except for: (1) P’s claim v TPD and (2) TPD’s permissive counterclaims against TPP pr against P.
  • Cross Claims – where two people are already parties, and are on the same side (both Ps or both Ds), one may make a cross-claim against the other. Things to remember:
    • Sam transaction – the cross-claim must arise out of the same transaction or occurrence as the original action
    • Never compulsory – a cross-claim is never compulsory (i.e., it’s not lost if not asserted in the present action).
    • Sup J – Cross-claims come within sup J. So D1 doesn’t need to be diverse with D2 to cross-claim against him

Former Adjudication

  • Former adjudication generally – the fact pattern will have to clue you in to the existence of two suits, one of which has already resulted in a judgment. The trick, of course, is to determine what effect the first judgment should have on the second suit.
  • Merger/bar v collateral estoppel – make sure to distinguish between claim preclusion (RJ) and issue preclusion (CE)
    • Claim preclusion (RJ) – when the first suit was between the same parties or their privies as the second suit, and involved the same claim, you’re interested in claim preclusion. If you find that the requirement for claim preclusion has been met, the case is over – the claim in the second suit is merged into the earlier judgment (if P in the second suit won the first suit) and it’s barred by the earlier judgment (if P in the second suit lost the first suit.
    • Collateral estoppel – where the second suit involves at least one different party than the first suit, or where you conclude that the second suit involves a different claim than the first suit, then you’re interesting in issue preclusion/ce. If cs applies, it resolves a particular issue, but not necessarily the whole claim.
    • Ex: shows P was negligent in car accident – negligence is one issue of the whole claim.
    • Discuss both – often, you’’ want to examine the possibility of claim preclusion first, then go on to issue preclusion.
  • Claim preclusion – here are the major sub-issues:
    • Claim splitting – one tip-off for a claim preclusion problem is claim splitting. Typically, P has an accident, and sues in Suit 1 for property damage, and then in Suit 2 sues the same D for personal injuries. In most states, this doesn’t work – since both types of damages were suffered in the same incident, they’re deemed to be a single claim. If P won in the first suit, say his second claim is merged into the first; if P lost the first suit, say he’s now barred.
    • Compulsory counterclaim – another situation involving claim splitting is the compulsory counterclaim context. When D in Suit 1 fails to assert what is (under the applicable federal or state procedural rules) a compulsory counterclaim, then the mechanism by which D loses the right to bring the claim later is the doctrine of merger and bar
    • Privies – many questions involve privies. Here, the relation between P1 (P in the first suit) and P2 (P in the second suit) is so close, legally speaking, that P2 will be treated as if he had been a claimant in the first suit, so that he can suffer claim preclusion even though he was not formally a party to the first suit. The same can happen for two Ds. Here are some common fact patterns posing an issue of privity
      • Employer employee – D1 is an employee charged with a tort, and D2 is D1’s employer (liable for D1’s tort under respondent superior). Here, D1 and D2 are definitely privies, so D2 is bound if D1 loses the first suit. (But the converse probably does not involve privity – if the employer is sued first, the employer is probably not bounds as a privy).
      • Independent contractor – but if D1 is an independent contractor, D2 (who has engaged D1) is probably not a privy. (the only exception would be if d2 so closely controlled D1’s actions that D 1 actions he regarded as D2’s agent).
      • Passenger-owner – P1 is the driver or a passenger in a car who suffers injuries from a different car driven by X, and P2 is the owner of the car containing P1. P1 and P2 might be held to be privies; however, a finding of privity here is by no means certain
      • Injured person and spouse – P1 is an injured person, and P2 is P1’s spouse, who has her own claim for loss of consortium or (if P1 dies) wrongful death. Here P1 and P2 are probably in privity.
  • Collateral estoppel – here are the main things to look for
    • Issues actually litigated and decided – remember that c.e. applies only to issue that were actually litigated and decided in the first suit. Anytime you see a fact pattern that involves two suits, look for an issue decided in the first suit that may be relevant to the second suit, and determine whether c.e. may apply to compel the second court to use the first court’s findings on that issue.
      • Default judgments – because the issue must have been actually litigated and decided, if the first suit ended in a default judgment, it has no ce effect on the absent D
      • Necessary to outcome – the issue must also have been necessary to the outcome of the first suit. So if the first suit would have come out the same way even if the issue had not been decided at all, or decided differently, then ce won’t apply.
    • Who can be bound – Ce questions often involve who can be bound. There are two main points to remember
      • Strangers can never be bound – first, a true stranger to the first action can never be bound by ce no matter how similar the fact issue, and even if the party who won in the first suit on the issue is now present in the second suit.
      • Privies can be bound – second, as with claim preclusion, if a party in the second suit (who was not present in the first suit) is found to be a privy to a party in the first suit, then the privy can be bound by the earlier finding
    • Who can benefit – Ce questions also often involve who can benefit from ce. Of course, one who was a party to the first action can benefit from ce. But a true stranger to the first action can benefit from factual findings made there. Here are the key sub-issues/rules:
      • No mutuality – nearly all courts today have abandoned the rule of mutuality, i.e., the old blanket rule that a stranger to the first action could never benefit from ce. So when you fact pattern involves a stranger trying to use ce, you should preface your discussion with something like “Assuming that the J follows the nearly universal approach of abandoning mutuality, X may be able to benefit from ve
      • Offensive-defensive distinction – always distinguish between offensive and defensive use of ce, and state which kind of use is proposed in you fact pattern. Offense means use by a first action stranger who is the P in the second action; defensive means use by one who is a D in the second action. Remember that courts are more willing to allow defensive use (but they do sometimes allow offensive use as well).
      • Hanging back – if the facts involve offensive ce, check whether P in the second suit hung back, i.e., declined to join the first suit even though he had a good opportunity to do so. If so, P is less likely to be allowed to use ce on fairness and judicial-efficiency grounds
      • Incentive to litigate – Determine whether the person to be bound had an incentive to litigate the issue the first time. A key aspect is whether that person could reasonably have foreseen that the second suit would come along – the less foreseeable, the less incentive to litigate, and the less likely the second court is to allow ce.
      • Limited J – also, check whether the first suit was in a court of limited J. If so, this makes it less likely that the party to be bound had the requisite incentive to litigate fully.
      • Multiple P anomaly – check whether the facts involve a danger of the multiple P anomaly 9eg, a mass tort in which each of many Ps sues in turn; once D is found liable in once, ce would mean D would lose all subsequent suits). In this mpa situation, courts often hold that ce is unfair
  • Full faith & Credit
  • When to consider – any time you have a judgment in Suit 1 and Suit 2 takes place in a different K that Suit 1, you have a potential FF&C issue. You need to ask, “Is the court in Suit 2 bound to follow the judgment issued in Suit 1?”
    • Two state court actions – If Suit 1 and Suit 2 were both in state courts, the FF&C clause of the US Const requires that the Suit 2 court give to the Suit 1 judgment the same effect that the judgment would have in the state that decided it. So State 2 can’t allow re-litigation of any factual or legal issues, even if the substantive law of State 2 would have produced a completely different result. Also, State 2 must enforce the State 1 judgment – it must let the winner of the State 1 judgment seize the loser’s State 2 assts without any relitigation of the merits
    • State and federal – If Suit 1 is in state court and Suit 2 is in federal court (or vice versa). FF&C principles similarly require the second court to honor the first court’s judgment
    • Jurisdiction not litigated – the key exception – is that the second court can consider whether the first court had J (either personal or subject matter), if the J issue was not litigated or waived in the first suit – Collateral attack
    • Res Judicata effect of first judgment – FF&C means that the res judicata effect of the earlier judgment must also be enforced by the second J. So if State 1 would allow, say, offensive use of ce by a stranger, State 2 must do the same. (If Suit 1 is in federal court sitting in diversity and Suit 2 in state court, the state court must give the first judgment the same effect it would have in the court of the state where the federal court that decided Suit 1 sat (Semtek v Lockheed Martin). 
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