Civil Procedure Outline – 1L Second Semester (Spring 2010)

Civil Procedure Outline Spring 2010



PLEADINGS >> used to put the parties on notice of the other party’s contentions.

    1. Rules on the Form of Pleadings comes from Rule 10 – (a) caption, names of parties; (b) paragraphs; separate statements; and (c) adoption by reference; exhibits.
      1. Per Rule 11(a) – every pleading, motion, paper, must be signed by at least 1 attorney.
      1. Rule 11 >> Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions note, this rule will probably be revised this term.
        1. 11(a): signature requirement by at least 1 attorney, in pleadings.
        1. 11(b): signed pleading is a certification that to the best of attorney’s knowledge:
          1. 11(b)(1): not for improper purposes (harassment, ↑ cost of litigation),
          1. 11(b)(2): claims, defenses, etc. are warranted by law,
          1. 11(b)(3): allegations (will) have evidentiary support,
          1. 11(b)(4): denials of factual contentions are warranted on evidence, etc.
        1. 11(c): sanctions may be imposed on attorneys, firms, parties who violate 11(b).
          1. 11(c)(1)(A): 21 day safe harbor to w/draw the complaint.
          1. Requires good faith and reasonable inquiry  relying on client is not enough.


    1. Rule 7 >> Pleadings Allowed; Form of Motions
      1. 7(a): definitions of pleadings allowed under Rule 7(a) —
      1. Pleadings by Π
        1. Complaint: Π’s statement; allegation of facts that cover each essential elements of the P’s cause of action (turn each elements into an allegation) used to give notice of the nature of the controversy between parties.
      1. Δ’s motion to dismiss (demurer in CA) by D – facts are true but failed to state a claim
        1. Is there sufficient specificity in the allegations and the elemental facts (not much is required unless it is a fact or code pleading)
      1. Pleadings by Δ
        1. Answer: Δ’s response to each allegation of Π’s statement.
          1. [Π] court may order a Reply.
        1. Counterclaim: Δ asserts a complaint against Π.
          1. [Π] Reply to the counterclaim.
        1. Cross-claim: Δ asserts a complaint against a co-Δ.
          1. [Δ2] Answer to the cross-claim.
        1. Third-party complaint: Δ files a complaint against one not already a party to the action under Rule 14.
          1. [new Δ] Answer to the third-party complaint.
          1. [Π] court may order a Reply.
      1. Note, in California, pleadings 2, 3, and 4 are all termed as “cross-complaint.”
    1. Purpose of pleadings –
      1. Provide D with what they are being sued for – notification
      1. Provide a method by which the issues can be narrowed
    1. Kinds of pleading:
      1. Notice Pleading –Requires very little of pleader.
          1. Just have to provide notice to the D about what the claim is about; need not plead many specific facts
        1. Used in Federal courts and majority of states
        1. Governed by Rule 8(a)
      1. Rule 8(a) Complaint Components:
        1. (1) short and plain statement of the grounds for the court’s jurisdiction;
          1. Need some statutory basis for being in federal court so important to show jurisdiction at the beginning
        1. (2) short and plain statement of claim showing pleader is entitled to relief; and
        1. (3) demand for judgment for the relief the pleader seeks (prayer for relief).
        1. Left out any reference to a short and plain statement of facts
          1. Notice pleading came along- not concerned with whether you plead ultimate facts but just whether the allegations in the complaint put the D on notice as to what the claim is. Details would come out during discovery
            1. Could dispose of the case through other vehicles like summary judgment
            1. A de-emphasis on pleading, just put the other party on notice b/c the facts come out later through discovery.

Swierkiewicx v Sorema, N.A Whatever the practical merits of this argument, the FRCP do not contain a heightened pleading standard for employment discrimination suits. Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits.

    1. The complaint satisfied the requirements of Fed. R. Civ. P. 8(a) because it gave the employer fair notice of the basis for the claims.
      1. His complaint detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination. The allegations stated claims upon which relief could be granted
    1. DC grant of failure to state a claim is wrong only dismiss under Rule 12(b)(6) when BRD that Π can prove no set of facts in support of COA entitling relief.
      1. The correct motion is one for a more definitive statement – Rule 12(e) motion, but Δs should use caution in this motion
      1. Is there b/c if pleading is vague or ambiguous that D can’t formulate a response but it is rarely used b/c D could just deny it
    1. Courts look at complaints very liberally, the usage of “including, but not limited to” makes the complaint sufficient.
    • Incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he might ultimately need to prove to succeed on the merits if direct evidence of discrimination was discovered.


Bell Atlantic Corp. v. Twombly

    • Represent a major shift in the notice pleading construct – Antitrust cases require more information than just previous standard of notice pleading. But court doesn’t say it’s now code pleading, just says it needs more info for these types of cases and that this was insufficient facts to show that the parties entered into a conspiracy. What is alleged is just a conclusion of law, it’s not a fact so don’t have to assume that it’s true
    • Subsequent cases: Ashcroft case – applied Twombly that had to do with discrimination, nothing to do with antitrust – need a well-pleaded facts that state a plausible claim for relief
    • The Court’s opinion changed the existing interpretation of the notice pleading requirements of FRCP 8(a)(2) (and the standards for dismissal under FRCP 12(b)(6)), creating a new, stricter standard of a pleading’s required specificity.
    • “In applying these general standards to a claim of conspiracy under Section 1 of the Sherman Act, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”
    • “The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the plain statement possess enough heft to show that the pleader is entitled to relief.”
    • Reasoning: is mostly an expense issue – “proceeding to antitrust discovery can be expensive.”


Code Pleading: used in a minority of state courts, but powerful jurisdictions (CA, NY).

    1. “Fact pleading”: requires a statement of facts of COA in ordinary and concise language showing a right to remedy.
    1. Complaint Components requires showing a prima facie case: 1) caption/form, 2) body w/ each COA in #ed ¶, 3) statement of jurisdiction, 4) entitlement of pleader to relief, 5) demand for judgment for relief, 6) prayer for relief, 7) designation of parties, 8) signing and verification.
    1. Lawyers put in more than is necessary at times in the statement of COA to sway/educate the judge from the beginning.
      1. The outcome of the case does not usually depend on the adequacy of drafting; but still must be cautious in drafting adequate complaints.
    1. Δ may file a pre-answer motion before the answer (delaying deadlines on answer).


FRCP 9(b): FRCP originally contemplated more specific pleading in two limited classes of cases: those involving averments of fraud or mistake.

  • The motion to dismiss a claim grounded in fraud under Rule 9(b) for failure to plead with particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for failure to state a claim.


Affirmative Defenses – Rule 8(c): lists nineteen affirmative defense that must be pleaded by a D

    • In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

Accord and satisfaction, Injury by fellow Servant,

Arbitration and award, Laches,

Assumption of risk, License,

Contributory negligence, Payment release,

Discharge in bankruptcy, Res judicata,

Duress, Statute of frauds,

Estoppel, Statute of Limitations,

Failure of consideration, Waiver, and

Fraud, Any other matter constituting avoidance or

Illegality affirmative defense.


Gomez v Toledo

  • P does not have to allege bad faith, but b/c good faith is a defense the D must plead it affirmatively. A complaint can’t be dismissed under Rule 12 (b) (6) for failure to state a cause of action when P doesn’t allege bad faith in complaint.
  • Why does court decide this?
    • Fairness – wouldn’t be fair to put burden on P when only uniquely known by the D (nature of the qualified immunity defense)
      • Official must show that he was acting objectively reasonably and subjectively, the D was acting without any bad faith or malice against this particular P
      • Particularly unfair to expect P to plead something only known to the D
  • Might be appropriate for the P to file a reply – a response to the answer – to make allegations to show that the D acted in bad faith
  • By the plain terms of 1983 (2) two and only two allegations are required in order to state a cause of action under that statute.
    • First, Pl must allege that some person has deprived him of a federal right.
    • Second, he must allege that the person who has deprived him of said right acted under color of state or territorial law.
    • Pet has made both of the required allegations. He alleged that his discharge by respondent violated his right to procedural due process and that respondent acted under color of Puerto Rican law.
  • Since qualified immunity is a defense, the burden of pleading it rests with the D (FRCP 8(c)) – D must plead any matter constituting an avoidance or affirmative defense.
    • It is for the official to claim that his conduct was justified by on objectively reasonable belief that it was lawful.

Notes: Burden of pleading and burdens of production and persuasion

  • Burden of production – person must produce evidence to prove a claim and if they don’t, they lose
  • Burden of persuasion – P has the burden of persuading the fact finder that their version of the facts are true
  • Burden of pleading doesn’t necessarily mean that the party has the burden of production & persuasion at trial, although it usually does


Rule 12


Tellabs, Inc v Makor Issues & Right Ltd Heightened pleading standards

Under the PSLRA’s heightened pleading instructions, any private securities complaint alleging that the D made a false or misleading statement must:

  • 1) specify each statement alleged to have been misleading and the reasons why the statement is misleading,
  • 2) state with particularity facts giving rise to a strong inference that the D acted with the required state of mind.
    1. The strong inference standard raised the bar for pleading scienter and signaled Congress’ purpose to promote greater uniformity among the Circuits. But Congress did not throw much light on what facts suffice to create a strong inference or on what degree of imagination courts can use in deciding whether the requisite inference exists.

USSC goal: Established the following prescription

    • First, faced with a Rule 12(b)(6) motion to dismiss a section 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegation in the complaint as true.
    • Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motion to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. The inquiry is whether ALL of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.
    • Third, in determining whether the pleaded facts give rise to a strong inference of scienter, the court must take into account plausible opposing inferences. But 21D(b)(2), Congress required Ps to plead with particularity facts that give rise to a strong inference.
  • The court’s job is not to scrutinize each allegation in isolation but to assess all the allegations holistically. In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?

Conclusion:  A securities fraud complaint must allege facts establishing an inference of guilty intent that is “cogent and at least as compelling as any opposing inference of nonfraudulent intent.”

  • A court must consider each plausible inference of intent, both fraudulent and nonfraudulent, and then decide whether a reasonable person would consider the guilty inference “at least as strong as any opposing inference.”

Effect:Tellabs increased the hurdle civil litigants must traverse in order to recover damages for securities fraud because it made it more difficult to demonstrate scienter (a necessary element of the claim). Instead of being able to reasonably deduce scienter from the alleged facts of the case, a claimant must also demonstrate that fraud is at least as likely as other, more-innocent explanations.

Rule 12(b): How Presented – optional motions to dismiss (may also be raised in answer):

      1. (1) Subject Matter Jurisdiction
      1. (2) Personal Jurisdiction – Rule 12(h)(1) waives these if not initially raised.
      1. (3) Venue
      1. (4) Insufficient Process
      1. (5) Insufficient Service of Process
      1. (6) Failure to State a Claim upon which relief can be granted.
      1. This motion admits the truth to the complaint.
      1. Before this motion is granted, Π usually is given a chance to amend.
      1. CA calls it a demurrer

FRCP 12(b)(6) states that a dismissal of a claim is proper where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegation.

      1. (7) Failure to Join an Indispensable Party (under Rule 19.)
    1. 12(e): motion for a more definite statement only permitted where the pleading is so vague that it is unreasonable to expect someone to answer.
      1. Not very common b/c usually helpful for Π.
    1. 12(g): Consolidation of Defenses in Motion.
      1. Must make all defenses and objections in the motion.
    1. Common law allows Δ to enter a special appearance to deny personal jurisdiction.
    1. Responding to the Complaint by Answer or Reply >> tells the court what facts are admitted and what facts need to be proven Δ can…
    1. 12(a) generally requires Δ to serve an answer w/in 20 days of being served.
      1. If service of summons is waived under Rule 4(d), then w/in 60 or 90 days.
      1. If Δ’s Rule 12(b) motion to dismiss is denied, then w/in 10 days after denial.
      1. 12(a)(3) rules of motions for the U.S. gov’t or agencies.
    1. Leave to amend: after a motion to dismiss or demurrer has been granted, P is routinely given leave to amend. Failure to grant leave to amend at least once is almost invariably held an abuse of discretion.
      1. The rationale is to ensure that the failure to plead the missing element reflects a real deficiency in the proof available to the P, rather than remediable error or inadvertence.


Ethical Constraints on Pleading

  • Inconsistent Pleadings
    • Rule 8(d) Pleading to be concise and direct; alternative statements; inconsistency
    1. Each allegation must be simple, concise & direct.
    2. Alternative Statements of a Claim or Defense
    3. Inconsistent claims or defenses – a party may state as many separate claims or defense as it has, regardless of consistency
  • Note, no longer required (as was by common law) that pleadings must be consistent may plead alternative theories, as long as ethically consistent w/ Rule 11.

McCormick (Δ) v.Kopmann (Π) Π’s husband killed in car accident by Δ. Π pleads 2 alternate theories. Π’s two counts do contradict but alternate theories are allowed; just can’t recover on both counts

  • A complaint may contain inconsistent allegations, even though the proof of one negates any fault on the basis of the other.
  • Like Rule 8(d)(2) allows Π to plead alternate claims in good faith when Π does not know which of the claims were true truth established in trial.
  • Determination to be made under each count is whether there is any evidence upon which the jury could base a verdict for the P under the count in Q, and if there is, the motion as to that count must be denied and the issues submitted to the jury. Jury is the finder of fact.
    1. Risks:
      1. Could confuse the jury
    1. Benefits:
      1. Saves the P’s time and money & the courts
  • Judicial efficiency in allowing alternate theories – otherwise, Π would have to pick 1 theory, file and if lost, re-file the 2d theory.
    1. Some J’s preclude inconsistent jury instructions – P has had an entire case to discover the facts, now the P must chose one once the case goes to the jury


  • Frivolous Claims and Contentions
    • Drawbacks: Inefficient b/c deter frivolous lawsuits after the lawsuit
    1. More efficient & effective in CA
    2. Numerous other statutes or rules have been enacted to address this problem of frivolous lawsuits, such as Rule 11
  • Legal remedies against lawyers who file pleadings w/ little basis in law or fact.
    1. Malicious Prosecution: (1) Δ plead against Π; (2) won; (3) w/ no probable cause; (4) Δ acted w/ malice; and (5) Π suffered special damage (some jdxs.)
      1. A difficult tort to utilize.
    1. Abuse of Process: legally justified claim undertaken w/ improper motivation.
  • Factors in determining frivolous claim:
    1. Reasonable investigation;
    1. Evidentiary support; and
    1. Existing law, controlling precedent, support for argument.
  • Sanctions may be imposed on initiative of Δ or court, at the discretion of the court to deterΠ from repeating misconduct.


Rule 11

  • Rule 11: Counsel must make an inquiry into both the facts and the law which is reasonable under the circumstances (more stringent than bad faith requirement)
    • Main purpose is deter conduct, not compensate lost fees
    • Also contemplates not just monetary sanctions but reprimands, orders to undergo continuing education, and referrals to disciplinary authorities.
  • Rule 11 has four elements:
    • A requirement that every pleading, motion or other paper be signed (Rule 11(a))
    • A declaration that the signature shall be treated as a certification that the document has certain attributes
    • A description of the required attributes: that the document has been prepared after reasonable investigation and that to the best of the signer’s knowledge, information, and belief the document meets minimum standards of factual merit, legal merit, and lack of improper purpose
    • A description of the standards and process for the award of sanctions when a certification is found to violate the rule.
  • Rule 11 must be served on opposing counsel 21 days before filing to allow them to fix it before filing; the defective complaint would then be amended
  • 21 day safe harbor granted to avoid overflow of Rule 11 litigation on sanctions.
    • Factors in determining sanctions: 1) sanctioned party’s ability to pay; 2) attorney’s history of behavior; 3) Δ’s need for compensation; 4) degree of frivolousness; and 5) “willfulness” of the violation.
  • Rule 11(a) Signature – every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name.
  • Rule 11(b) Representations to the Court – The attorney must present that the pleading
  • Is not being presented for improper purpose, such as to harass, cause unnecessary delay, or needless increase the cost of litigation
  • Is warranted by existing law or by a nonfrivilous argument for the extending of the law
  • Factual contentions have evidentiary support the denials of factual contentions are warranted
    • Rule 11(b)(1) can be brought by motion or on court initiative
    1. safe harbor not available if court initiative
    • Rule 11(b)(2): requires that all claims, defense, and other legal contentions be warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
  • Rule 11(b)(4) deals with the denial of allegation by the defendant
  • Rule 11(c) Sanctions – if Rule 11(b) violated, court may impose an appropriate sanction on any attorney that violated the rule. Law firm held jointly liable.
    • Motion for a sanction must be made separately
    • Discretionary – doesn’t have to be imposed
    • Safe harbor provision (Rule 11(c)(2)) – other party must serve a motion for sanctions on the other side but cannot file it with the court for 21 days
      • If offending document is withdrawn, then the authority for sanctioning goes away
      • Court can also sanction a side on its own
  • Rule 11(d) Rule 11 DOES NOT APPLY TO DISCOVERY


Zuk v. E. Penn. Psych. Inst. of the Med. Coll. of Penn. Sanctions imposed against Π + attorney b/c Π filed copyright infringement case w/ no basis at law (lack of research.) Rule 11, not a statute, allows for the sanction, but sanctions w/out comments are not allowed.

  • 28 § 1927 Counsel’s liability for excessive costs (the other side’s attorney’s fees)
    1. sanctions are to deter intentional and unnecessary delay in the proceedings, not punish and the amount of sanctions were too high ($15,000)
    1. Statute designed to discipline counsel, not attorney’s client
    1. Also need to find bad faith on attorney’s part
    1. Need notice & opportunity to be heard
  • Extensive review of Rule 11 – attorney violated Rule 11
    1. No proper inquiry into the law
    1. No reasonable inquiry into the facts
      1. Criticism – one of the inquiries into the facts dealt with statute of limitations but that is something the D is supposed to raise, not the P
    1. BUT – P never got the 21 day safe harbor so he could have withdrawn the suit, but P says he wouldn’t have withdrawn it anyway


Rule 8(b): Defenses; Admission and Denials

  • Answer will respond to each numbered paragraphs of the complaint
  • Admission: establishes Π’s averment as true for purposes of that case only.
  • Effect: For purposes of this case, the D is admitting the truth of the allegations so no need for P to prove those facts at trial
  • After an admission, no evidence is necessary.


Fuentes v. Tucker, Δ driver hit and killed kid. Π produced graphic evidence at trial, won large $$ damages. Δ appealed b/c he admitted fault so evidence should not be allowed to calculate damages b/c they admitted liability so those extra facts were irrelevant. B/c Δ admitted during pleadings, no need to bring in more evidence = loss of use of evidence for a sympathetic jury verdict.

  • Once admission of liability, the evidence is no longer relevant and should not be brought in.
  • Sometimes making an admission is a strategic move to take away Π’s right to prove facts.

Denial: puts the allegation at issue and creates an issue of facts Δ may set out as many alternative claims/defenses regardless of consistency (modern rule.)

  • Burden of proof: Π must prove the allegation being denied; Δ is allowed to contribute contrary proof. Denial tells the P he must prove the allegations
  • General denials are not allowed – must go line by line through Π’s allegations.
  • Denial must be in good faith.

Zielinski v. Philadelphia Piers, Inc., Π was struck by forklift owned/operated by Δ but did not find out it was Δ’s forklift until after s/o/l ran out. Δ is equitably estopped from denying agency even though s/o/l has run b/c of lack of good faith in the denial.

  • Focus of the case: get a truthful answer.
  • Court relies on Rule 8(b) – denial in good faith should meet substance of the averment denied; not so here b/c Δ has no basis in denial.
  • Rule: In the federal courts, a D who knowingly makes inaccurate statements may be estopped from denying those inaccurate statements at the trial.
  • Analysis: Rule 8(b) requires that denials fairly meet the substance of the averments denied. This requirement, together with the basic requirement of good faith in pleading contained in Rule 11, probably would provide adequate grounds for the decision in this case. Rule 8(b) also requires that the party shall state in short and plain terms his defenses to each claim asserted against him. If D had stated that their defense to the complaint was that they were not the employers or owners of the personnel or machinery involved, P would have been able to bring this action against the proper party. D seemed to lack the good faith that the federal rules require because they waited until the time of trial to raise their defense that P had sued the wrong party.

Demurrer (CA): written response to a complaint which pleads for dismissal b/c even if the facts in the complaint were true, there would be no suit.

Failure to deny/answer is the same as an admission


Amended Pleadings >> displace the prior pleading.

  • Liberally allowed under Rule 15(a); pleaders can correct their mistakes.
  • Allowed one-shot at amending w/out other party’s permission before a responsive pleading/answer is served; Answer may be amended once w/in 20 days of service of first answer.
  • Otherwise, leave of court or written permission from the opposing party is required.
  • Amended Pleadings w/ Leave of Court is discretionary.
  • Ct should freely give leave if justice so requires
  • Amendments on the eve of trial are more likely to be denied b/c it would mess up trial
  • Reasons for allowing this: find new facts & new theories of liability during discovery & want to pursue them
  • What right do you have after statute of limitations has expired?
  • Relation back doctrine – amended complaint will be deemed to relate back to the date of filing of the original claim



  • This is a pre-trial order by the DC – something the court will do right before trial which will guide the parties for the remainder of the case
  • D should have specifically denied portions of this in a way that the actor was not employed by the D – can’t just deny, have to provide some sort of explanation when you deny the claim
  • REMEDY – D’s can’t deny it later on, they are estopped from denying that they are employer
    • Estoppel: done something misleading, D will be estopped from later raising a defense or facts alleging something else

The legal consequences of a denial: generally speaking, a denial has two consequences. First, it imposes on the P the burden of proving the allegation denied. Second, it ordinarily permits the D to introduce evidence that would tend to disprove the allegation.

Denial for lack of information and belief: the pleading rules contemplate that the denial of an allegation in a pleading should be made based on the knowledge of the person making the denial. However, it is recognized that a D, at least at the time when required to answer, may not know whether a particular allegation is true or not. Accordingly, the rules permit the D to aver that he has no information or belief sufficient to answer on the basis to deny the allegation (Rule 8(b)(5)).

When does a denial fail to provide fair notice? A denial may fail to provide fair notice in two ways. It may suggest that D intends to contest – and has an ethical basis for contesting – matters which he in fact has no fair basis to contest, leading the P to waste time and money on proving matters which are not really in dispute. Denials having this vice ought ordinarily to run afoul of Rule 11(b)(4), which states that the person signing the answer certifies that after an inquiry reasonable under the circumstances the denials of factual contentions are warranted on the evidence, or, if specifically so identified, are reasonably based on belief or a lack of information.

  • An answer may also fail to disclose the issues which D in fact intends to contest, suggesting to the P that there is no issue to be investigated or proven when in fact there is such an issue. The requirement of fair notice is enforced in part by the requirements in Rule 8(b)(4) that a denial must fairly respond to the substance of the allegation and that a party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
  • Ordinarily a denial is a sufficient basis for D later to introduce evidence at trial tending to disprove P’s allegation, D alleges the inconsistent proposition.

Counterclaim: A D may choose not only to answer P’s complaint, but also to advance an affirmative claim of her own. A counterclaim is typically filed at the same time as the answer, but it is, in effect, a complaint by the D. See Rule 13.

Verification: In many state courts, an unverified complaint may be answered by a general denial, but a verified complaint must be answered specifically, positively or according to the information and belief of the D. Further, if the P verifies her complaint, the D must verify her answer.

Note on the Reply: The original Field Code provided for a reply by the P to any new matter raised in D’s answer. The Federal Rules allow a reply only to a counterclaim denominate as such, or when the court directs the P to reply to new matter in an answer (Rule 7(a)). CA does not permit a reply. In J’s where no reply by the P is required, or where none is permitted, affirmative defenses may be controverted or avoided without any foundational pleading.


  • Relation-back doctrine, Rule 15(c)(1)(b): when P wants to amend complaint to include a new COA, if the new pleading arose out of the same conduct, transaction or occurrence in the original pleading, the filing date relates back to the original filing date for s/o/l purposes.
  • 15(c): amendment of a pleading relates back to the date of original pleading when
  • (1) allowed by s/o/l; or
  • (2) new claim/defense arose out of the same conduct, transaction, or occurrence, or
  • (3) amendment changes party/naming of party w/in 120 days (Rule 4(m) requirement) and:
    1. (A) Party being brought in has received notice of the action so he will not be prejudiced in maintaining a defense; and
    1. (B) But for a mistake concerning proper party’s identity, he knew or should have known that he would be a party.
  • Adding a new party triggers parts (c)(2) and (c)(3) of Rule 15.
    1. **Generally leads to state s/o/l used in District Court to avoid potential Erie conflicts.

Worthington v.Wilson, Police rough in arresting Π. Officers unnamed in original complaint but by the time Π found out the names to amend, too late for s/o/l. Π’s amended complaint does not relate back via Rule 15(c) b/c the amendment corrects a lack of knowledge, not a “mistake.” Also, actual D’s must also be given notice within 120 days of when the first lawsuit was filed.

    1. 7th Circuit interpretation: amending a new Δ is only allowed where identity is mistaken, not where simply unknown.
    1. Erie – Π wants the more favorable state procedural law followed, but Rule 15 is on point, so that will be applied in D.C. before state law.
    1. Holding: A P cannot amend his complaint after expiration of the limitations period to substitute the names of fictitiously-named Ds. Relation back of amendments is governed by FRCP 15(c). This provision holds that, in the event of a mistake in party designation, an amendment will relate back to the complaint’s filing if, prior to 120 days after the filing of the complaint, the proper D was aware of the action. However, a mistake is not the same as ignorance. Rule 15(c) applies to a mistake in designation, not to a lack of knowledge to whom should be designated as a D. Here, the officers were named as fictitious Ds, so this was a matter of ignorance, not mistake. Consequently, the amendments do not relate back.
      1. CA Doe D Practice will apply in federal court when CA provides sol in Federal ct


  • California’s Relation Back Doctrine>> more extensive than any other jurisdiction.
  • Amended complaint dates back to the original complaint if they are both based on the same set of general facts similar to the federal “same transaction” test but more difficult b/c facts have to be of the same nature
  • Must relate to the same nucleus of operative facts – very rigorous in the specificity of the same fact, same coa -harder in CA than in FRCP
  • Doe Defendant Practice more liberal than Rule 15(c) addition of parties.
    1. Named D fictitiously when you don’t know who he is
    1. Five requirements of Π to amending a complaint w/ fictitious Δs:
    1. File original complaint before the applicable s/o/l expires;
    1. Ignorant of name(s) of true Δ(s) designated by a fictitious name in the original complaint;
    1. Plead ignorance in the original complaint;
    1. Allege COA against fictitious Δs in original complaint, based on same set of general facts;
    1. Serve the amended complaint w/ newly named Δs on new (or real) Δs w/in 3 years of filing original complaint, and filing service w/in 60 days.
      1. This then relates back to the initial filing (so three years leeway) – extends sol for up to 3 years
    1. Requirements
      1. P must file original complaint before sol expires – must name one actual D
      1. The P must be ignorant of the name of any D designated by a fictitious name in the original complaint
      1. The P must plead this ignorance in the original complaint
      1. The P must allege a cause of action against the fictitious Ds in the original complaint based on the same general set of facts as the coa later asserted against the actually named D in the amended complaint
      1. When add in extra Ds, must satisfy CA’s relation back
      1. The P must serve the amended complaint naming the actual Ds within the maximum period of three years of filing of the original complaint, and make return available within 60 days after service of the complaint & summons.
    1. Might as well use this in every complaint in case you realize later that there are new Ds to sue
    1. Differences from Rule 15(c)(3): (state law will only apply when it is more generous – CA relation back is less generous that FRCP but the Doe D is more generous)
    1. No notice requirement to the D – Δ’s first notice can be the amended pleading.
      1. No w/in 120-days of filing requirement of Δ having notice
    1. Specifically intended for “ignorance” as to who the real Δs are.
      1. No requirement of “mistake” for not including in original complaint.
    1. Much more pro-P doctrine – easier for P to satisfy considering harsh s/o/l requirements, especially in personal injury cases.
    1. W/out this, P forced to name anyone who could possibly be liable
      1. Gives Π more time to find out who is actually liable via formal discovery and depositions rather than just guessing.
      1. Barrington v A.H. Robins Co.: An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar against named parties substituted for fictitious Ds, if it 1) rests on the same general set of facts as the original complaint; and 2) refers to the same accident and same injuries as the original complaint; and 3) arises from the same set of operative facts
    1. Ignorance must be genuine and not feigned.
    1. Note, there is no duty of diligence on P to find out real names of Δs before filing initially, but once the names are found out, must be diligent in amending.
    1. Streicher v Tommy’s Electric Co: ignorance of the D’s true name must be genuine & not feigned. P’s actual knowledge at the time of the suit is filed is dispositive in triggering the application of the fictitious D provision.


Res Judicata


PRECLUSIVE EFFECT of Prior Adjudication >> need for finality and efficiency.

  • Definition of a valid and final personal judgment (except on appeal or other direct review) based on 2d Restatement of Judgments § 17:
  • (1) – [claim preclusion] Judgment for Π, claim is extinguished and merged in the judgment and a new claim may arise on the judgment.
  • Once the claim is extinguished, cannot refile for more damages.
  • The “new claim” is merely to execute/collect/appeal on judgment.
  • (2) – [claim preclusion] Judgment for Δ, claim is extinguished and judgment barsa subsequent action on that claim.
  • Can appeal or review, but not re-litigate in a separate law suit.
  • (3) – [issue preclusion] Judgment for Π/Δ, conclusive in a later action between them on the same or different claim, WRT any issue actually litigated and determined if essential to that judgment.


  • Res Judicata >> claim preclusion; “thing adjudicated” refers to finality of judgments prevents same claim from being re-litigated in a subsequent suit by same parties.
  • Preclusion Between the Same Parties
  • Requires a judgment that is 1) final, 2) on the merits, and3) valid.
    1. Finality: judgment that has been irrevocably determined; depends on jdx.
    1. Federal courts: final once rendered until reversed or modified on appeal.
    1. Some states: appeal automatically postpones finality until completed.
    1. Merits: the claim itself has been ruled on; not procedural.
    1. Not-on-merits: dismissal for lack of jdx, venue, w/out prejudice, etc.
    1. Validity: valid unless the court lacked subject matter or personal jurisdiction, or improper notice denied due process.
    1. Fed. Dept. Stores (Δ)v. Moitie (Π), No exception to res judicata for Π, who accepted final judgment by re-filing.
  • Rule: Non appealing parties may not benefit from a reversal when their position is closely interwoven with that of appealing parties.
  • Analysis: The principles of res judicata state that a final judgment on the merits of an action preclude the parties or their privies from relitigating issues that were , or could have been, raised in that action. The RJ principles of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. An erroneous conclusion reached by a court in the first suit does not deprive the Ds in the second action of their right to rely on a plea of RJ
  • Real public policy: (fairness, yes, but) finality in the judgment + efficiency.
  • Here, RJ bars all claims that could have been brought are now extinguished.
  • Artful pleading use care; consider all preclusion doctrines when pleading.
  • Transactional Approach from Restatement 2d (most states follow, but not CA) all claims from one transaction must be filed in one suit; judicial efficiency!
  • 2nd Restatement – final judgment is RJ not only on all claims raised but all claims that could have been raised
    • “A valid and final personal judgment is conclusive between the parties, except on appeal or other direct review, to the following extent:
      • If the judgment is in favor of the P, the claim is extinguished and merged in the judgment and a new claim may arise on the judgment
      • If the judgment is in favor of the D, the claim is extinguished and the judgment bars a subsequent action on that claim
      • A judgment in favor of either the P or the D is conclusive , in a subsequent action between them on the same or a different claim, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
    • Claim: when a valid & final judgment rendered in action extinguishes the P’s claims pursuant to the rules of the merger or bar, the claim extinguished includes all rights of the P to remedies against the D with respect to all or any part of the transaction, or series of connected transactions, out of which the actions arose.
    • Transaction v series: consider whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understandings or usage.
  • Transactional test definition of a claim for rj purposes, from 2d Restatement of Judgments § 24.
  • (1) Prior judgment’s preclusive effect extends to all rights of Π WRT all or any part of transaction, or series of connected transactions, from which the original COA arose.
  • (2) Factors, to be determined pragmatically:
    1. Relation of facts in time, space, origin, and motivation;
    1. Whether facts form a conventional trial unit?;
    1. Treatment of facts as a unit conforms to parties expectations or business understandings, or usage.
  • Inquiry: is it under the same claim or COA?
  • Davis v.Dallas Area Rapid Transit, Πs sued for race discrimination & retaliation. Π obtained EEOC right to sue after filing 1st suit and filled another suit. Transactional test shows claims in Davis I and II are a series of connected transactions; II COA is precluded by I.
  • Δ charged “claim splitting” in Π’s filing Davis II getting 2 suits out of 1 COA b/c the claims in both overlap, minus the denial of promotion (even though based on dif acts of discrimination).
  • Π argues claims are different b/c Davis II claims could not have been brought in Davis I b/c lack of right-to-sue letter court says Π should have requested a stay of action pending the EEOC review and decides its RJ b/c arises from same series of transactions (constitutes one claim – can’t claim split in 2 dif lawsuits)
  • Ex. car accident if Π files one action for personal injury damages, cannot file another one later for damages to the car.
  • May specifically ask court to rule not to bar a 2d suit by res judicata, but rarely allowed, only where there is good reason.
  • Subsequent wrongs” by a D constitute new coas, and a Title VII P is free to bring successive actions, claiming in each that his employer has taken retaliatory actions against him more recent than the prior lawsuit. However, Ps are not aided by these principles – the subsequent wrongs must have occurred either after the P had filed his prior lawsuit or after the DC had entered judgment in the prior lawsuit. Here, the conduct Ps alleged in Davis II occurred before Davis I was filed.
  • Thus, under the transactional test’s pragmatic considerations, the barred claims in Davis II and the wrongs alleged in Davis I constitute a series of connected transactions and are the same claim. While factual allegations articulated in the two complaints differ, all of the claims in question originate from the same continuing course of allegedly discriminatory conduct by Ds.
  • In addition, the claims precluded Davis II were so connected in time and space with the claims in Davis I, that they could have, and should have, been brought in the first action to create a single, convenient trial unit.

Analysis: Four elements must be met for a claim to be barred by RJ

  • The parties in both the prior suit and current suit must be identical
  • A court of competent J must have rendered the prior judgment
  • The prior judgment must have been final and on the merits
  • The P must raise the same coa in both suit
  • All of these elements can raise issues of legal interpretation. However, the focus of this case was on the definition of “claim” for RJ purposes.




Claim splitting: once Π brings a suit, must assert all COAs arising out of the same claim cannot split claims to have > 1 “day in court.”

Res judicata does not require joinder of parties though it requires joinder of all COAs, but some states require all claims against all parties (NJ.)

  • Lesson: choose the most jurisdictionally competent forum.
  • Ex. discrimination – 1) state breach of K and 2) Fed Title VII claim.
  • Choice 1: file state claims under state law in state court, then file the federal claim once the right to sue letter is received [easiest.]
  • Choice 2: file in D.C.
  • If Π loses and refiles in state court, barred b/c Π should have tried to assert state claims under supplemental jdx.
  • But if D.C. declines to exert supplement jdx, Π would not be precluded
  • Staats v. County of Sawyer, Π fired after taking leave of absence for bi-polar disorder, now Π alleges discrimination. Under WI law, claim splitting allowed; federal claims could not have been brought in the 1st suit, so Π is allowed to file in state and federal. If there is a court that can hear both claims, P must bring claim in that court.
  • Here, the J of the Equal Rights Division was limited because it could not hear the federal claims, the Equal Rights Division could not: it lacked J to do so. Thus, it was impossible for P to raise his federal claims in addition to his state claims in his action brought before the Equal Rights Division.
  • Note, a rare exception where 1 court could not hear all claims Restatement recognizes that it is unfair to make Π chose a forum to file in.


  • CA Claim Preclusion Primary Rights (a minority view, not as efficient.) Doesn’t use transactional approach
  • Must assert all rights to remedies sought, otherwise could later be precluded.
  • The majority Restatement view is designed to preclude litigation of the same claim in another trial.
  • Cause of action: remedial right in favor of a Π for the violation of one’s “primary right” [for purposes of CA preclusion.]
  • If Δ’s single transaction violates 2 primary rights, Π has rights to 2 COAs.
  • COA = primary right. Single coa cannot be split and made the subject of separate lawsuits. A P who has two coas against a D may proceed with two separate lawsuits.
  • A judgment in one lawsuit will not have a preclusive effect on the other.
  • C.f. one primary right w/ several different remedies.
  • Sawyer v. 1st City Financial Group, COA in Sawyer I (damages for breach of K) are a different primary right from the COA in Sawyer II (damages for fraud, conspiracy, etc.) Two lawsuits also have two totally different factual structures
  • Though Sawyer I and II sought the same remedy ($670k still owed), Π asserted different rights K claim in I, torts in II.
  • Sawyer II would be dismissed for res judicata using the transactional test.
  • Π’s motion to consolidate the two suits was denied b/c they dealt w/ different primary rights, and at that time, it was too close to Sawyer I’s trial date.
  • **To determine whether Π has 1 or 2 primary rights, look at precedent (but much is unclear b/c this has not been decided by CA S.C.)
  • Simply changing the remedy sought does not equal another primary right.
  • On theory: Primary right to be free from personal injury has be construed to include all theories of tort that give rise to the personal injury – assault & battery causes injury to head, arm, etc
  • In CA, the only normal situation where there are two primary rights from a single transaction: tortious act causes injury to both Π’s person and Π’s property (car crash).
  • Another theory: Harm-suffered approach: if the harm suffered is different in the 2 lawsuits from 1 transactions, then there are 2 primary rights. Harm suffered is the same, only one primary right violated.



Collateral Estoppel


  • Collateral Estoppel >> issue preclusion; finality of a final judgment on a particular fact or issue decided in one lawsuit cannot be re-litigated in a subsequent action against same or even different parties, at a later time in a different court.
  • Ex 1: #1: P v D for negligence in car accident – damage to person – P loses
  • #2: P v C for negligence in car accident – damage to property – P can’t win b/c ct already concluded the P was wrong
  • Also, vice versa – if P wins, then wins in negligence for the second case
  • Ex 2: #1 P v D for negligently using a cell phone & car accident for personal injury
  • #2: P v D for negligence in reading a newspaper while driving for property damage to car
  • Issue preclusion still applies b/c should have done better job of investigating beforehand
  • A doctrine whereby issues litigated and determined in a prior proceeding are binding upon all subsequent litigation between the parties regarding that issue.
  • Purpose: judicial efficiency & judicial consistency
  • <–> Direct estoppel: issues actually litigated between parties are binding on those parties in later actions concerning the same claim.
  • Requires a judgment (Restatement): For c.e. to apply to bar litigation of an issue, four elements must be met:
      1. The issues in both proceedings must be identical
      1. The issue in the prior proceeding must have been actually litigated and actually decided
      1. There must have been a full and fair opportunity for litigation in the prior proceeding
      1. The issue previously litigated must have been necessary to support a valid and final judgment on the merits.
    1. <–> from res judicata b/c no “on the merits” requirement and must be actually litigated.
    1. Determined by whether it was foreseeable that the factual issue might come up in later litigation, and whether the party had an adequate incentive to litigate the issue the first time.
    1. Still, parties are entitled to a full and fair opportunity to actually litigate.
    1. C.E v RJ: both affirmative defenses
      1. RJ: a final judgment forecloses successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.
      1. CE: bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of different claims.


Identical Issue Actually Litigated and Determined

Levy v.Kosher Overseers Ass’n of Amer., Inc., Δ used kosher food certification mark similar to Π. Collateral estoppel not applicable b/c Patent & Trademark Office decision is different standard of review/dif legal facts from trademark infringement.

  • PTO investigation was only a visual exam of the 2 marks while trademark infringement looks at many other factors + context of marketplace.


Identities of Parties


Taylor v Sturgell, two dif parties litigated the same issue & were represented by the same attorney

    1. The court held that such “nonparty preclusion” runs up against the “deep-rooted historic tradition that everyone should have his own day in court.”
  • Virtual representation should only be applied rarely and under certain exceptions to the general rule, none of which the Court found applicable in this case.
  • Preclusive effect of prior ct judgment is based on federal common law – don’t look to state law to see if this is allowed
  • Adequate representation – interest of a nonparty and representative must be aligned -ex: homeowner’s association could be litigating for or against homeowners
  • Rule against nonparty preclusion is subject to the following exceptions (c.e is justified when:) (take a categorical approach)
    1. A person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement (non party can agree to be bound by prior decision)
    1. Justified based on a variety of pre-existing substantive legal relationships between the person to be bound and a party to the judgment (certain relationships where it makes sense to bind a nonparty to a prior judgment – like in property cases)
    1. In certain limited circumstances, a nonparty may be bound by a judgment because she was adequately represented by someone with the same interests who was a party to the suit (nonparty was adequately represented by a party with the same interests in the prior lawsuit; ex: class action)
    1. Bound if she assumed control over the litigation in which the judgment was rendered (not a formal party in the litigation but the nonparty controls the prior proceeding)
    1. A party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication.
    1. In certain circumstances a special statutory scheme may expressly foreclose successive litigation by nonlitigants if the scheme is otherwise consistent with due process. (ex: bankruptcy & probate proceedings)
  • Consider: A party’s representation of a nonparty is adequate for preclusion purposes only if, at a minimum:
    1. 1) the interests of the nonparty and her representative are aligned
    2. 2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty. Adequate representation sometimes requires
    3. 3) notice of the original suit to the persons alleged to have been represented
  • Reject a broad doctrine of virtual representation & an all-things-considered balancing approach b/c:
    1. Decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party.
    1. Rejection rests on the limitations attending nonparty preclusion based on adequate representation
    1. Would likely create more headaches than it relieves. It could significantly complicate the task courts face with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under tests. And after the relevant facts are established, judges would be called upon to evaluate them under a standard that provides no firm guidance.
  • CA follows the Restatement approach to collateral estoppel.
  • “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”
  • Note, claim preclusion (res judicata) is the whole ball of wax whereas collateral estoppel (issue preclusion) is just a part of the claim.
    1. Ex. “battery” is a claim; issues are intentional touching? intention of harm



Nonmutual Collateral Estoppel/Full Faith Credit Clause & Statute


Mutuality – Originally, it was held that a party not bound by an earlier judgment (because not a party to it) could not use that judgment to bind his adversary who was a party to the first action.

  • Abandoned – nearly all courts have abandoned the general principle of mutuality. While may courts refuse in particular circumstances to allow the use of estoppel by one not a party to the first action, it is no longer a general rule that a stranger to the first action cannot benefit from findings of fact made against her adversary.

Offensive/defensive distinction – Courts are more willing to allow the defensive use of CE by a stranger than they are to allow offensive use.

  • Offensive use refers to use by a stranger to the first action who is a P in the second action
  • Defensive use refers to use by a stranger who is a D in the second action.
  • Ex: The SEC sues D, a corporation, based on a false proxy statement D has issued. The ct decides in the SEC’s favor, concluding that the proxy statement contained certain falsehoods. P then brings a stockholder’s derivative action against D, based on the same proxy statement. P was to collaterally estop D from relitigating the falsity of the proxy statement. Held: P may use CE. This is true even though P was a stranger to the first action, and even though P’s use is offensive, in the sense that the person seeking ce is the P in the second action


Interjurisdictional Structure

  • If the first suit was in state court and the second suit is in the state court of a different state, the Full Faith & Credit Clause governs. That Clause provides, “Full faith and credit shall be given in each state to the judicial proceedings of every other State.” Form the most par, states give the same preclusive effect to judgments of other states as the rendering state courts would give their own judgments.
  • If the first suit was in state court and the second suit is in federal court, the Full Faith and Credit Act governs. Section 1738 provides, “Judicial proceedings of a State shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of such state from which they are taken.” The SC has held that section 1738 requires that a federal court is required to give the same – no more, and no less, preclusive effect to a state court judgment as the courts of that state would give it.
  • If the first suit was in federal court and the second suit is also in federal court, there is no constitutional or statutory provision that governs. The preclusion rules in this situation come from federal common law. Federal common law is judge-made federal law that is binding on state and federal courts. If both the first and the second suits are in federal court, the federal common law of preclusion provides a uniform rule that does not vary depending on the state in which the first federal court sits.
  • If the first suit was in federal court and the second suit is in state court, there is no constitutional or statutory provision that governs. This is the Semtek situation. The Court in Semtek holds that federal common law governs here, too.


Identity of Parties

    1. Privity: a party w/ an identical interest not in initial suit can be barred by issue/claim preclusion if, by another party, he has had his functional equivalent of a day in court.
    1. Ex. parent/child, named party of a class action, bailment, successor in interest, estate beneficiary, public official acting for a citizen, trustee, etc.
      1. Privity analysis includes:
        1. substantial control – any degree of effective control of prosecution or defense by the non-present party? no bright-line rule, requires a case-by-case analysis.
        1. virtual representation – such similar interests that the later party has had the functional day in court.
        1. Factors: actual or constructive notice of earlier litigation?

formal relationship?

consent to the litigation?

    1. Rationale for privity: when an issue/interest is already litigated by one party, it is a waste of judicial resources to relitigate.
    1. Mutuality: if a prior judgment cannot be used against a nonparty, that nonparty should not be able to use it either. CE should apply only when if can apply mutually.
    1. This rule fell into disfavor after Berhnhard v. Bank of America, (Cal. 1942), which allowed for the use of defensive non-mutual collateral estoppel.
      1. Parklane Hosiery Co. (Δ) v.Shore (Π), Stockholder class action b/c Δ issued materially false proxy; Π relies on finding from SEC suit of whether the proxy was a false statement. Shore’s case deals with damages while SEC’s just deals with injunctive & declaratory relief so Shore asks for a partial summary judgment & use CE for the issue of whether the proxy statement was deceptive (nonmutual (b/c not a party to the previous action) offensive CE). Δ’s 7th Amend. right is not taken (no jury trial) b/c Δ is collaterally estopped from re-litigating the proxy issue.
      1. Rule: If a party that had issues of fact adjudicated adversely to it in an equitable action received a “full & fair opportunity” to litigate its claim, it may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought by another party.
      1. S.C. authorizing the use of offensive non-mutual collateral estoppel.
      1. Π uses a finding on an issue from prior litigation that Π was not a part of.
      1. Defensive CE: P is estopped from asserting a claim that the P had previously litigated and lost against another D.
      1. Defensive use of CE precludes a P from relitigating identical issues by merely switching adversaries – judicial economy
      1. P got to pick the court they thought best to litigate their claim in v offensive CE – D doesn’t get to pick the ct
      1. Although offensive collateral estoppel may, in some cases, provide an incentive for π’s who could have joined in the first action, to “wait and see” since they would not have been bound by an adverse decision in the first action
      1. Offensive CE may be unfair to a D b/c if D in the first action is sued for small damages, he may have little incentive to defend vigorously, particularly if future suits are not foreseeable.
      1. Also, there may be procedural advantages in the second proceeding that were not available in the first one.
      1. Also, inconsistency (25 lawsuits on same issue, 24 lose, last one wins, not fair to bind that decision for further proceedings)
      1. Those effects are not possible here because the statute prevented P from joining. The trial court should be given the discretion of allowing the offensive use if:
      1. the defendant had a full and fair opportunity to defend himself vigorously in the first action,
      1. there are no other previous inconsistent judgments, and
      1. no new procedural opportunities or change in law is available to the defendant in the new action.
      1. Lastly, the ruling does not offend the 7th amendment, because even though offensive use of collateral estoppel was not allowed without mutuality in 1791, the fundamental elements of the jury trial did not require to remain the same now.
      1. 7th Amendment: use original intent in 1791. Nonmutual CE wasn’t even recognized in 1791 so don’t need to apply it now.


  • Recognition of Judgments from Other Jurisdictions
    1. Under the Full Faith and Credit Clause (Article IV, § 1) of the Constitution, a final judgment in one state must be recognized by other states.
      1. Fauntleroy (Δ) v.Lum (Π), MO court wrongly decided gambling K case on cotton futures in favor of Π; Π wants it executed in MS b/c D’s assets are in MS. Under authority of the Full Faith and Credit clause, MS court is obliged to recognize and enforce the MO judgment. Final judgment must be given full faith and credit in other states. Out of state cts must give the decision as much preclusive effect as it would have in the rendering state.
      1. Only time an out-of-state court is not obliged to recognize judgment is when original court did not have proper jurisdiction, venue, parties, pleadings or statute of limitations or when the judgment is not on the merits – judgments based on procedural faults rather than on substantive law – courts like the finality of judgments!
      1. Rule: The judgment of a state court has the same credit, validity, and effect in every other court in the United States which it had in the state where it was pronounced.
      1. Comity: a rule pursuant to which courts in one state give dereference to the statutes and judicial decisions of another.
    1. Order of filing:
  • Federal-State Recognition of Judgments
  • Marrese v. Amer. Academy of Orth. Surgeons, Πs claim of denial of membership to Δ association filed first in state for state claims, then federal for antitrust claims. Remanded back to state court to determine the IL state law’s stance on preclusion; Π is not barred by res judicata.
      1. A special case where the entire suit could not all be heard in the same court.
      1. § 1738 (Full Faith and Credit statute) requires a federal court to look first at the state preclusion law, even when the case is one w/in exclusive jdx of fed court.
      1. Most state law does not mandate preclusion of an issue not within the J of the court hearing the prior action.
      1. Fed ct must give it the same preclusive effect as the state would under its own law
      1. Rule: A state court judgment may not have preclusive effect on a federal antitrust claim that could not have been raised in the state proceeding.
      1. First refer to state law to determine preclusive effect of the state judgment.
      1. Only if state law indicates that a particular claim or issue would be barred, is it necessary to determine if an exception to 1738 should apply.
      1. Limitation: Don’t apply preclusion law if it would violate due process
      1. Ex: state may have a privity doctrine that bars someone where other courts would say that would be a violation of due process
      1. Parsons Steel, Inc. v. 1st Ala. Bank, Δ used fraud to allow someone to get Π’s business subsidiary. Fed claim goes to judgment first. To stop state case by injunction, Δ should have raised argument at the start, not until after state court ruled on res judicata already and the federal court is bound by § 1738.
      1. Π filed in state, then in federal (went to trial first, Δ won not withstanding the verdict – judge sets aside the jury verdict; no sufficient facts to support verdict so direct verdict for D) – Δ used verdict to preclude state case and got an injunction to do so.
      1. S.C. applies § 1738 – once state court rules on res judicata, federal court is bound.
      1. On remand, the state court finds that there was no final judgment at the time the D.C. issued the injunction – injunction allowed under re-litigation exception.
      1. Until a judgment is final, it has no preclusive effect on other cts
      1. Preclusive effect of state ct ruling. FF&CA – says give state ct preclusive ruling so no RJ


Semtek Int’l, Inc. v. Lockheed Martin Corp., Π alleges breach of K and business torts in CA D.C. (dismissed for CA’s 2-yr s/o/l on the merits (OTM)/with prejudice), Π files same claims again in MD court w/ 3 yr sol. Not barred by RJ b/c OTM has a different meaning now & so Rule 41(b) doesn’t really apply.

    1. Even if did apply, Rule 41(b) would infringe upon P’s substantive right & violate FFCC
  • The Erie Problem >> filed 1st in federal court, then in state court.
  • D.C. dismissal was on the merits(Rule 41(b)) — S.C. says the definition of OTM has changed over the years to now = “w/ prejudice” –> simply, cannot bring same lawsuit back.
    1. OTM under claim preclusion law means that the claims have been resolved
  • Not a FFAC case, but new fed common law: when a prior judgment from D.C. is based on diversity, use preclusion law of the state where the D.C. sits (here, CA.)
  • If the case was based on a federal question, would still defer to the federal common law b/c now the federal interest is even stronger.
  • When a prior federal court case was based on diversity, the current state court must give that prior federal court’s judgment the same preclusive effect as a judgment of the state law of the state in which the court sits.
    1. The content of the federal law in this case is that the state court should apply the preclusion law of the state in which the federal court sits.
      1. So follow the CA preclusion law in the MD court
      1. Limitation is when state law is “incompatible” with federal interest
    1. Since state, rather than federal law, is at issue here, there is no need for a uniform federal rule.
      1. Limitation is whether the federal smj is based on J of C and therefore applying a state law, don’t need a uniform federal common law. So this rule only applies when it is based on diversity of C b/c use state, not federal law
    1. The same claim-preclusive rule should apply, whether the dismissal was ordered by a federal or a state court. Here there was no conflict between state law and federal interests.
  • The dismissal in this case simply barred refiling the same case in the same court. It did not bar refiling in other courts. This is consistent with Erie.
  • Ct wants to prevent forum shopping with claim preclusive effects – answer Q with federal common law doctrine that will preempt any contrary state law doctrine of preclusive effects


Another Action Pending

Csohan v.United Benefit Ins. Co., Mom (files 1st in OH)claim insurance policy, Δ files impleader and injunction to stop Πs claim in CA ct. Mom and daughter file TRO to stop action in CA. The injunction to stop Δ is improper b/c OH court cannot issue a complete and final judgment (no jdx over the mother.)

Rule: Where suits in two different Js expose a D to the possibility of double liability, the proceedings of the court having J over the Ps in both suits may not be stayed by an order of the court whose J extends to only one.

Holding: Since the two suits exposed D to double liability, the proceedings of the court which has J over both P and her mother cannot be stayed by the order of the court, who is competent to exercise J over one P only. CA has J over both of them so should rule on interpleader case in CA.

  • The judgment of the Ohio court may not bind P’s mother, a resident of CA. Thus, the court’s determination would not protect D against the danger of having to make two settlements under the same policy.
  • However, since both P and her mother are residents in CA, the court of that state has J to render a judgment that will bind all parties, thus protecting D against double liability. Therefore, the order of the Ohio court enjoining prosecution of the CA action should be vacated. Let the CA interpleader case go forward.
    1. Mom hadn’t had her day in court so could get to have claim tried again. No privity b/w mom and daughter in that case




JOINDER >> Π usually sets scope of the suit – decides who and how to sue as “master of the claim.”

Modern approaches to joinder: The general philosophy of modern procedural rules in both the federal and state systems is to allow liberal joinder of claims and parties.

  • Note, although FRCP authorize joinder, they do not confer jurisdiction always check statutes.

Cross claim – D v D Counterclaim – D v P

    1. Note on Several and Consolidation
      1. A case can be severed into two or more parts for separate disposition. Under Rule 42(b), a DC may sever for convenience, to avoid prejudice, or to expedite and economize. Conversely, under Rule 42(a), a DC may consolidate separately filed cases. The decision to sever or consolidate is generally left to the discretion of the district judge.
    1. Joinder of Claims
      1. Permissive Joinder of ClaimsRule 18(a) – Joinder of Claims and Remedies
      1. Rule 18(a) – [liberal joinder rule] a party asserting a claim to relief as an original claim, counterclaim, cross-claim, or 3rd-party claim may join either as independent or alternate claims, as many claims as the party has against an opposing party.
      1. No relatedness requirement that joined claim arise out of the same/related transaction.
        1. Similarly, jurisdiction is not an issue, if there is already a claim to be properly heard in that court (compulsory, not permissive).
      1. Rationale: efficiency in allowing party to bring all claims against another in same suit.
      1. If, Π v. Δ and Δ counter claims, and then Π’s original claim against Δ is dropped:
        1. The case may be dropped if original Π v. Δ was in federal court based on diversity, and Δ’s counterclaim was based on § 1367.
        1. Depends on if Πs claim was dismissed on the merits.
      1. Compulsory Joinder of Counterclaims – an affirmative claim for relief against the opposing party (not a defense or a denial) that is related to the original action.
      1. An independent cause of action brought by a D to a lawsuit that arises out of the same transaction or occurrence that is the subject matter of the P’s claim.
      1. Ex. after Π v. Δ Δ v. Π
      1. Rule 13(a) at time of service, must state counterclaims the pleader has against
      1. 1) opposing party;
      1. 2) if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require 3rd parties over whom the court cannot obtain subject matter jurisdiction; and
      1. 3) counterclaim exists at the time the opposing party’s pleading is served.
      1. No independent basis of federal jurisdiction required, as of now (no S.C. case law.)
      1. Implications: not a bright-line test of what the transaction/occurrence is, so should just raise all possible counterclaims, otherwise, might be barred from raising them later.
      1. Failure to raise a compulsory counterclaim, is forfeiture of the counterclaim.
      1. But, per 13(f) – Omitted Counterclaims, if the omission of the counterclaim is for oversight, inadvertence, or excusable neglect, or when justice required, the pleader may be leave of court set up the counterclaim by amendment.
      1. Some states have a compulsory counterclaim statute – the counterclaim must be raised in the first lawsuit, otherwise it is barred by res judicata.
      1. Recall – the results would be different in CA and a Restatement jurisdiction b/c of different definitions of what claims must be raised.
      1. Cross claims & counterclaims: once a party has asserted a cross-claim against a co-party, the co-party is, as to that cross-claim, a D. Any claim by the co-party back against the cross-claiming party is a counterclaim. Rule 13(a) &(b) apply. Therefore, even though the cross-claim was not compulsory, a counterclaim in response to that cross-claim that satisfied the relatedness criterion of Rule 13(a) is a compulsory counterclaim on that cross-claim.
      1. Permissive Counterclaims
      1. Rule 13(b) a pleading may state as a counterclaim any claim against an opponent not arising out of the transaction/occurrence that is subject matter of the opponent’s claim.
      1. An independent cause of action brought by a D to a lawsuit in order to oppose or deduct from the P’s claims that does not arise out of the transaction or occurrence that is the subject matter of the P’s claim.
        1. Rationale: avoid federal adjudication of every conceivable non-compulsory counter, which may be totally inappropriate for federal jurisdiction.
        1. No relatedness requirement.
      1. Permissive counters require independent federal jurisdiction (until S.C. says otherwise.)
      1. No preclusive effect of a failure to state a permissive counterclaim.
        1. Jones v. Ford Motor Credit Co., Πs sued individually and as class reps b/c Δ’s discriminatory practices in financing African American car buyers. Δ counterclaimed Πs as delinquent loan payers. Permissive counterclaim w/ supplemental jurisdiction issue pending until the class action certification decision comes down.
        1. Rule: In a potential class action, prior to class certification, it is premature to rule on whether permissive or conditional counterclaims lack SMJ.
      1. Reasoning: Ford Credit’s counterclaims are permissive because they did no arise out of the transaction or occurrence that is the subject matter of the opposing party’s claims. Here, the car buyers’ ECOA claim centered on D’s mark-up policy as it related to the car buyers’ purchase contracts. D’s debt collection counterclaims were related to those purchase contracts, but not to any particular clause or rate. Rather, the debt collection counterclaims concerned non-payment after the contract price was set. Thus, the relationship between the counterclaims and the ECOA claim was “logical” only in the sense that the sale, allegedly on discriminatory credit terms, was the “but for” cause of the non-payment. That is not the sort of relationship contemplated by our case law on compulsory counterclaims.
      • The issue in this case therefore becomes whether Sup J is available for D’s counterclaims.
      • Here, the facts of D’s counterclaims and those of the ECOA claims satisfy even a “common nucleus” standard, because they bear a sufficient factual relationship (if one is necessary) to constitute the same “case” within the meaning of article III and hence 1367: both the ECOA claim and the debt collection claims originate from the car buyers’ decisions to purchase Ford cars. However, satisfying the constitutional case standard does not end the inquiry a DC is obliged to make with respect to permissive counterclaims. A trial court must consider whether any of the four grounds set out in subsection 1367(c) are present to an extent that would warrant the exercise of discretion to decline assertion of sup J. 1367(c) provides:
        • The DC may decline to exercise sup J over a claim under (a) if (1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim or claims over which the DC has original J, (3) the DC has dismissed all claims over which it has original J, or (4) in exceptional circumstances, there are other compelling reasons for declining J.
      • Where at least one of these factors is applicable, a DC should not decline to exercise sup J unless it also determines that doing so would not promote economy, convenience, fairness, or comity. Here, there is no novel or complex issue of state law, and the DC has not dismissed all claims over which it has original J.
      • Analysis: Held that the same “transaction or occurrence” test of Rule 13(a) was narrower than the same “case or controversy” test of 1367 and Article III. In effect, this case clarifies the boundaries between compulsory and permissive counterclaims, and gives Ds more leeway in determining whether to assert counterclaims that are only tangentially related to a P’s claims.


  • Fairview Park Excavating Co. v. Al Monzo Construction Co.,
    1. Introduces the cross claim Rule 13(g): One party sues a co-party
    1. In CA: cross-complaint
      • The Township counterclaimed against D for damages caused by defective work.
    1. Issue: In a diversity case, once a court has JD over a party as a D to a cross-claim, does the court lose JD when that party is dismissed on the merits as a primary D and there is no diversity b/tw that party an the cross-claimant?
    2. Holding: No. Given that cross-claims necessarily involve co-Ds, a rule which would restrict the duration of federal court J over cross-claims to the pendency of P’s primary claim would be untenable: in many cases, cross-claims need not be heard until the P has obtained a judgment on the merits. To permit the raising of a threat of dismissal for want of J at that point would destroy cross-claims otherwise properly maintainable by virtue of sup J.
    1. Rule: Once a district court judge has properly permitted a cross-claim, the sup J that results should not be defeated by a decision on the merits adverse to the P.
      • Dicta: If a federal court dismiss a P’s claim for lack of subject matter J, any cross-claim dependent upon sup J must necessarily fall as well, because it is the P’s claim – to which the cross claim is supplementary – that provides the derivative source of J for the cross-claim.
    1. Rationale:
    1. Dismissal of D’s cross claim on Township was reversed b/c the main claim was dismissed on substantive reasons.
      1. If it’s proper to dismiss the main claim against Township, why isn’t it proper to dismiss the cross claim on the merits?
        1. Once you properly assert supplemental JD, it’s not a basis to deny a claim simply b/c the main claim was denied on the merits.
        1. This is b/c if you let this kind of a cross-complaint be dismissed due to the main claim being dismissed on the merits, it would be like a race for which case is decided first.
        1. The proper thing is, is that if you have proper supplemental JD, you don’t lose the claim simply b/c the main claim is a loser on the merits.
        1. You would lose the claim if the main claim lacked subject matter JD, b/c then there wouldn’t be a proper claim to be supplemental to.
    1. If the main claim was dismissed on JD grounds, must the cross claim always be dismissed once the main claim is dismissed on the merits?
      1. Not if there’s an independent basis for JD b/tw the parties of the cross claim.
    1. Rule 13(g): Supplemental JD statute
      1. In general, is there supplemental JD authorized by the supplemental JD statute? Is there supplemental JD over a cross claim that doesn’t have its own independent federal JD?
        1. Yes, supplemental JD is authorized in either a diversity or federal question case as to cross claims under Rule 13(g).
        1. Look to §1367 (a) which incorporates Art II test to see if there’s a common nucleus of operative facts.
        1. Then look to 13(g), for same transaction/occurrence which is usually interpreted to require the same nexus as Art III.
        1. Rule 13(g) is not listed in the negative list of §1367 (b) so it is not excluded f/ supplemental JD in a diversity case.
    1. Once a Rule 13(g) cross-claim is properly made, the cross-claiming party can add unrelated claims against the cross-claim D under Rule 18(a), which provides, “a party asserting a claim to relief as on original claim, counterclaim, cross-claim, or third-party claim, may join as many claims as the party has against the opposing party.”


Joinder of Parties


  • A Rule 12(b)(6) motion to dismiss (in federal practice) or demurrer (in state practice) tests whether Ps alleged facts satisfy the substantive requirements for a cause of action for negligence, for breach of contract, for violation of a statute, or for some other breach of legal obligation owed to P by the D.
  • Federal courts have begun to refer to the requirement that P state a claim as a “standing” requirement. To have standing, a P must have suffered injury in fact or distinct and palpable injury; must show that the injury has resulted from the D’s action; and must show that the injury is fairly redressable by judicial remedy sought.
  • The real party in interest rule: in federal practice, Rule 17(a) provides “An action must be prosecuted in the name of the real party in interest. The effect of the rule is to ensure that the person asserting a claim for relief is also the person “who, according to the governing substantive law is entitled to enforce the right.”
  • Assignment: a claim that originally belonged to one party may have been transferred to another, by formal assignment or by operation of law. If the assignment is complete, so that the original owner has no remaining interest, then the assignee is the real party in interest.
  • Other legal relationship: In a variety of situations, a person who legally controls the claim is not the same as the person who benefits from the prosecution of the lawsuit. The second sentence of Rule 17(a) recites some of the common situations in which this occurs, and expressly authorizes those persons to sue in their own name without joining the person who will benefit from the outcome of the suit. These relationships can also be manipulated to create or defeat J.


  • Compulsory Joinder of Parties Rule 19(a)(b) – apply to indispensable parties (must be joined) and conditionally necessary parties (should be joined if possible). Gives D the chance to alter the size of the litigation
  • § 1367(b) requires an independent basis of jurisdiction, when joining a party in a case heard in federal court by diversity. Rule 19 directs the court whether to proceed or not based on a lack of federal subject matter J
  • Rule 19 –Joinder of Persons Needed For Just Adjudication
    1. Rule 19(a) – [Indispensable Party] if process + jdx are met, a party shall be joined if:
      1. (1) no complete relief w/out the person – a person shall be joined if in that person’s absence, the court cannot accord complete relief among existing parties.
      1. (2) the person’s interest is related to the subject of the action and is such that to proceed w/out
      1. (i) as a practical matter may impair or impede the party’s ability to protect that interest
      1. (ii) expose the parties already before court subject to a substantial risk of double or multiple liability, or inconsistent obligations by reason of claimed interest.
      1. Very few circumstances where the failure to join a party will call for dismissal.


    1. Rule 19(b) –[Conditionally Necessary Party] if the party in 19(a)(1)-(2) cannot be joined, the court will determine whether in equity and good conscience to continue or dismiss the action if the absent party is considered indispensable by considering:
      1. To what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties;
      1. To what extent can prejudice be lessened;
      1. Whether a judgment rendered in the person’s absence will be adequate; and
      1. Whether the Π will have an adequate remedy if action is dismissed for non-joinder.
    1. Sup J – 1367(b) withdraws J – no J over claims over persons made parties under rule 19(b) – basis of J is diversity & compulsory joinder would destroy diversity – no sup J
    1. Upon analysis, if the entire case (including parties that must be joined) cannot be heard in federal court, dismissal is not uncommon re-file in state court.
    1. Who is an indispensable party?
      1. Temple v. Synthes Corp. Π had plate & screw” implanted in lower back, after surgery the screws broke off in Π’s back. Π sued manufacturer and doctor separately. It is not necessary to join all joint tortfeasors in 1 suit under FRCP 19; the parties here are permissive parties.
      1. Rationale: Π here probably sued Δs in separate courts b/c joinder would destroy diversity in federal court (better chance for recovery?)
      1. Holding: Rule 19 does not change the principle that joint tortfeasors need not be named as Ds in a single lawsuit. The Advisory Committee Notes to Rule 19(a) state that a tortfeasor with the usual joint and several liability is merely a permissive party. There is a public interest in avoiding multiple lawsuits.
      1. Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Ctr. Π entered lease w/ Δ to rent jewelry store spot but Δ could not let > 2 more similar stores, but Δ entered a 3rd K w/ Lords. Δ moved to dismiss b/c Π failed to name Lord’s (but Lord’s has no contacts with state to allow for fed PJ).
        1. A party is not indispensable in an action to determine rights under a K b/c that party’s rights or obligations under a separate K will be affected.

Rationale: Though Lord’s is a Rule 19(a) party to be joined if feasible (b/c Lord’s interests will be affected), the effect does not call for dismissal b/c Lord’s will not suffer prejudice b/c none of Lord’s rights/obligations are being adjudicated.

Rule: A tenant under a lease that violates a clause in another tenant’s lease from a common landlord is not an indispensable party under FRCP 19 to a suit by such other tenant against that landlord.

Holding: FRCP 19 defines an indispensable party as one in whose absence complete relief cannot be accorded, or claims an interest related to the subject of the action and whose absence will impair or impede his ability to protect that interest or force him to risk multiple or inconsistent obligations. D contents that Lord’s and Ds rights under their contract cannot be adjudicated in Lord’s absence. However, the determination that may result in this action is that D may be forced to terminate that contract, in which case Lord’s will still be empowered to assert its rights under the contract for that eventuality. The claim that D may be subjected then to inconsistent obligations following another contract also fails. D’s inconsistent obligations will result from their voluntary execution of two lease agreements with inconsistent obligations required under them. The litigation here can proceed without Lord’s, which is not an indispensable party under these circumstances.

Permissive Joinder of PartiesRule 20(a) – Permissive Joinder of Parties

Jurisdiction requirements must still be met.

Rule 20(a)persons may be joined in one action if 1) right to relief is asserted for/against them jointly, severally, or in the alternative; 2) right to relief arises out of same transaction or series; or 3) at least 1 question of law/fact is common to all parties.

  • Tells nothing of how to resolve federal subject matter or supplemental Js

Capacity – Rule 17(b) – the party suing should be capable of bringing suit. Two different concerns: whether the name by which the party is identified in the litigation refers to an individual or group that the law permits to be treated as a single person or legal entity (unincorporated associations), whether the person suffers from any particular physical, mental or legal imposed disability that prevents the party from participating in the litigation.

Kedra v. City of Philly. Civil rights action for 15 months of police brutality – beating, false imprisonment/arrest of Π family. Also, not every D was involved in each incident nor was every P. Permissive joinder of all Δs is allowed by application of the transactional test b/c incidents, though over a 15 month span, are reasonably related – Rule 20(a), part 2. Mother is still real party in interest even though she was not the one involved – mother acting in representative capacity (Rule 17(c))

Rule: The fact that certain claims and parties relevant thereto span a lengthy period of time will not, in itself, prevent joinder.

  • The fact that not every P is suing the same D is okay under Rule 20(a) – P is still permitted to have joinder of Ds. BUT some may get a more serious sentence than others but since only at pleading stage it is okay, at discovery, decide if other trials are necessary
  • Holding: The joinder provisions of the Federal Rules are very liberal. The impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties. As long as a claim or party is “reasonably related” to the main claim, joinder will be appropriate. Here, even though the various acts of which complaint is made span a considerable period of time, they are part of an alleged pattern. Consequently, sufficient relationship for joinder exists.

Judicial economy calls for liberal joinder



Impleader & Intervention

  • Kinds of Joinder of Parties:
  • Impleader: procedure permitting Δ (becomes the third-party Π) to bring into the suit a 3rd person to help pay all or part of the damages to original Π – third party Δ must be liable to third party Π for all or some of Π’s claims.
  • Rule 14 – Third-Party Practice
    1. § 1367(b) requires an independent basis of jurisdiction in diversity cases.
    1. Rule 14(a)Δ at any time may bring in an unnamed 3rd party who is or may be liable to 3rd party Π for all or part of 3rd party Π’s claim against Π.
      1. Limited to situations where Δ has a right to indemnity against the 3rd party.
      1. The newly impleaded third-party Δ is liable to the third-party Π/Δ in original action, not to the original Π.
      1. **Whether Δ has a right to indemnity comes from state substantive law (Erie!)
    1. Impleader must be filed w/in 10 days after Δ serves answer, or get permission.
    1. Banks v. City of Emeryville, Π arrested for public drunkenness and put in temp detention, which burned down and charred Π beyond recognition. Δ did not file impleader for 1 year. Contribution + indemnity allowed b/c Rule 14(a) requirements for permission in impleader are satisfied.
    1. Rule 14(a) authorizes the newly joined party to assert claims against any other existing party. Could even bring in their own third party D
    1. D’s file third party complaint under Rule 14(a) based on state law claims. Federal claims get dismissed but based on CA state law would allow the state claims to still be heard in fed court. Sup J over third party complaint
    1. Proper use of Rule 14(a) joinder
    1. Rule: In a federal action, an independent basis for federal subject matter J is not necessary for impleader of third party Ds on state law claims
    1. First, although the third party complaint was filed late, the court has discretion to allow impleader where the third party complaint does not unnecessarily complicate the case, or prejudice any of the parties, and is clearly based on the same set of operative facts. By permitting the filing of the third party complaint, the court has already determined that these requirements have been met.
  • The issue then becomes whether the court may entertain state law claims where no independent basis for federal J exists as to those parties. Parties may be joined within the ancillary J of the court where those parties are brought into the case by a party other than the P. Because the third party complaint arises out of the same operative facts as those in the original complaint, the third party complaint need not have an independent basis for federal J if the original complaint has satisfied the federal requirements for J. Therefore, the court may exercise its ancillary J over the state law claims in the third party complaint.
  • The question under Rule 14(a) is whether the Ds can potentially hold the third party Ds liable for some or all of the Ds’ primary liability to the Ps. Hence, if there is any possible scenario under which the third party Ds may be liable for all or part of the Ds’ liability to the Ps, the third party complaint should be allowed to stand.
  • Analysis: FRCP 14 provides that a D can bring in as a third party D one claimed by the D to be liable to him for all or part of the P’s claim against the D. The rule, however, is not mandatory, and the D may refrain from impleader and assert his claim instead in an independent action. To satisfy Rule 14(a), any liability of a third-party D must necessarily be secondary or derivative to the liability of the original D. Impleader seeks to assert a claim against someone who is not already a party to the action, so it must involve a transfer of liability based on the P’s original claim. Thus, impleader of a third party because he is directly liable to the P in the original action is forbidden. For example, a D sued for negligence cannot implead a third party whose negligence was totally responsible for P’s injury.
    1. Late impleader (w/ permission of court) is allowed when it does not complicate or prejudice any of the current parties.
  • Impleader is ancillary on original claim, so venue is usually not an issue.
  • Owen Equip. & Erect. Co. (Δ) v. Kroger. Π’s husband electrocuted. D brings in third party D, P then amended complaint directly against third part D (Owens). Lack of complete diversity over newly impleaded Δ = no fed jurisdiction to hear the case.
  • Court does not want to set bad precedent in allowing manipulation via Π suing diverse Δ, then amending once the non-diverse 3rd party Δ is impleaded.
  • **The original Π cannot seek claims against a newly impleaded Δ, w/out an independent basis of jurisdiction.
  • § 1367(b) – no supplemental jurisdiction over claims made by Πs under Rule 14. Inapplicable to the third party complaint
    1. Does arise out of the same set of operative facts (1367(a)). Applies to the third party complaint
  • Rule: In a diversity case, the federal court does not have ancillary J over the P’s claims against a third-party D who is a citizen of the same state.
  • Rationale: The concept of ancillary J is not so broad as to permit a federal court in a diversity case to exercise J over the P’s claims against a third-party D who is a citizen of the same state. 28 U.S.C 1332(a)(1) requires complete diversity of citizenship. To allow ancillary J in a case like this would be to allow circumvention of that requirement by the simple expedient of suing only those Ds who were of diverse citizenship and waiting for them to implead nondiverse Ds.
  • Analysis: Rule 14 permits ancillary J. In amending it, the Advisory Committee stated that any attempt by a P to amend his complaint to assert a claim against an impleaded third party would be unavailable, by majority view, where the third party could not have been joined by the P originally due to J limitations. Congress reenacted 1332 without relevant change and with knowledge of the aforementioned view. The majority opinion took this as evidence of Congressional approval of that view.


  • Intervention: non-party may interject and become a party in a suit to protect own interests in the action
  • Jurisdiction: § 1367(a) applies if intervention in a federal question case using the

common nucleus of operative facts test;

§ 1367(b) (negative part) applies if intervening in a diversity case – there must be an independent basis of jurisdiction

  • cannot ride the coattails via supplemental jurisdiction.
  • Rule 24 – Intervention
  • Rule 24(a)Intervention of Right: upon timely application, anyone is permitted to intervene in any action
  • (1) when U.S. statute confers an unconditional right; or
  • (2) intervener claims an interest relating to property/transaction that is subject and disposition w/out intervener may as a practical matter, impair/impede intervener’s ability to protect that interest unless intervener’s interest is adequately represented.
  • Rule 24(b) – Permissive Intervention: court has discretion to permit intervention if:
  • (1) federal statute confers unconditional right; or
  • (2) a question of law/fact in common w/ main action is part of intervenor’s claim/defense.


  • Bustopv. Superior Court. Π trying to intervene in LA County School Districts plan to fix racial segregation in schools. In interest of fairness and ↑ involvement by all responsible/affected people, Π is allowed to intervene b/c they are a proper + legitimate interest (children’s education.)
  • Liberal view of intervention – allowing for permissive intervention for individuals whose interests will be affected in a public question case.
    1. Π sought to intervene in the trial court proceedings of LASD b/c they disagreed w/ the plan.
    1. Direct interests of Π – a sound educational system for children – is not represented by either party.
    1. Rule: Before trial, any person having an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action.
    1. Analysis: In the past, many parties chose to have input by appearing as amicus curiae. However, the disadvantages is that such a party lacks the procedural rights of a party to the action, meaning it cannot introduce or rebut evidence and has no right of appeal. An intervenor has such rights.
  • Balance Interests, when deciding whether or not intervention should be permitted:
  • Π should be master of the claim does intervention destroy that?
  • Avoid multiplicity of litigation (if intervener is not allowed in.)
    1. Atlantis Development Corp.v. U.S., Coral reef off FL shore in dispute between Π and Δ b/c both want to develop on it, Π intervened in original suit. Atlantis wants to intervene as a D with Acme and then file a cross claim against them and a claim against the US. Π should be allowed to intervene b/c their rights are not adequately represented by original Π or Δ, whose interests are all adverse to one another.
  • Both original Π and Δ are adverse to Atlantis, so neither can adequately represent Atlantis’ interests impairs Atlantis’ ability to protect interest + no day in court.
  • Old Rule 24(a) said that a party could only intervene if they would be bound by the judgment (in privity) and can’t intervene it the person represents your interests (leaves no way to intervene)
  • New rule broadens right to intervene
    1. Right to intervene given the following conditions:
    1. Is there an existing party who already represents Atlantis’ interest? NO – all have adverse interests
    1. Relate to the same set of transactions? YES
    1. Disposition of the main suit may as a practical matter impair or impede Atlantis’ ability to protect its interests. Will Atlantis be bound by the judgment as a matter of RJ? NO BUT focus on first part. Atlantis will be impaired by the stare decisis of the case

This case sets stare decisis with regards to coral reefs as land though Atlantis would not be barred via res judicata, a decision here could be very bad for a subsequent case filed by Atlantis (if not allowed to intervene.) Ct has never ruled on the Outer Reef Statute so any decision will be binding – will determine the rights of the US against any party to control the reefs. Stare decisis effect can imply the right to use Rule 24(a)

    • Ct very narrowly applies this though b/c this will be the first case to interpret this and so it will be very persuasive and it’s the same property in dispute the second time around
    • Another third party like an environmental group would probably be able to intervene
  • No sup J over a claim by P over persons made parties under Rule 24. So if you intervene as a P against D, you have to have independent fed claim but could intervene as a D.

Rule: Intervention should be permitted even though the original action would not be binding on the intervenor if the practical effect of a judgment in the original action would be to establish a precedent that would be controlling in an action instituted later be the intervenor.





  • Interpleader: enables a party (stakeholder) against whom conflicting claims with regard to the same property are asserted to join all adverse claimants in same action and require them to litigate to see who gets what. A special joinder device that allows a stakeholder to obtain judicial determination that he owes an obligation to one of several competing claimants.
  • The stakeholder can make a claim to the limited fund itself
  • Works best if Π names all possible Δs who may stake a share of the claim.
  • Ex: Life insurance company where the policy holder has died, leaving two competing claimants to the policy proceeds. The co is willing to pay, but wants to pay only once.
  • Authority for interpleader in federal court comes from three sources:
  • State law – if all parties are of the same state
  • Rule 22 – Interpleader (supplements authority under § 1335)
    1. (1) people w/ claims against Π may be joined as Δs so that Π is not subject to double liability.
    1. Requires complete diversity all Πs must be diverse from all Δs.
      1. Inquiry: look at one side v. other side.
    1. Subject matter jurisdiction rules come from § 1332 all claimants must be diverse from the stakeholder.
    1. Personal jurisdiction – use the state’s long arm statute.
    1. Venue rules from § 1391; usually § 1391(a) for diversity.
    1. 1) any district where a Δ resides, as long as Δs are all residents of the same state; 2) any district where substantial events occurred or property is located; or 3) [if no other] any district where a Δ is subject to personal jdx at time of suit.
    1. Injunctions – no express authority under rule interpleader, only equitable actions.
  • § 1335 >> generally more advantageous than Rule-interpleader.
    1. (a) federal jurisdiction of civil acts of interpleader w/ value of $500+.
    1. (1) only minimal diversity is required
      1. At least 2 adverse claimants have different citizenship;
        1. Inquiry: look at the citizenship on one side of the equation.
      1. If stakeholder is reserving an interest, their own citizenship may be considered to meet minimal diversity.
    1. Note, if minimal diversity on one side of the equation fails, can try to interplead under Rule 22, using complete diversity of § 1332.
    1. Jurisdiction in interpleader – Rule 4(k)(1)(C) – nationwide service of process; jurisdiction is found wherever claimants can be found.
    1. Venue in interpleader – § 1397 – venue exists wherever 1 or more claimants reside.
    1. Normally, cannot exert an injunction against proceedings in state courts (b/c of Federal Anti-Injunction Act), unless there is an exception:
    1. Authority for exception to enjoin claimants from filing individual actions in different state courts comes from § 2361.
  • Under new § 1335, the stakeholder is not required to disclaim own interest in the property.


Statutory v Rule Interpleader

28 USC 1335: requires only that a low J amount of $500 be established, diversity need exist only between the claimants, and venue is proper in any district where any claimant made his residence. Service or process under 1335 is nationwide.

FRCP 22: requires a meeting of $20,000 J limit, complete diversity between Ps and Ds, and the application of standard venue rules. Service of process under Rule 22 is only statewide. Section 1335 is clearly preferable means of brining an interpleader action; however, where all the claimants are residents of the same state, Rule 22 may be the only avenue.


  • State Farm Fire & Casualty Co. v. Tashire, Greyhound accident w/ truck (2 passengers) in Shasta County, CA. 2 bus passengers killed, 33 injured. Insurance company for truck driver has $20k policy. Π does not have to wait for all possible claimants to file suit before filing for interpleader, but the scope of their injunction exceeds the bounds of OR state law.
    1. Note, the interpleader is not a “bill of peace”, allowing for sweeping joinder across federal and state courts.
    1. Expanded injunction issued was found to not be ok – interpleader only ok with State Farm, not everyone else
      1. Only State Farm whose liability is defined by the limited fund (can’t be sued more than once). The other claimants could possibly be sued for way more.
  • Rule: Where a stakeholder commences a federal interpleader action to consolidate in one court and in one action, all claimants against the fund interpleaded by nonresidents, the court’s J over those nonresident claimants is limited to the interpleaded fund.
  • Rationale: The federal interpleader statute, 28 USC 1335, applies whenever there are “two or more adverse claimants of diverse citizenship.” This provision requires only “minimal diversity,” that is, diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens. P was not required to wait until the D’s actions against its insured were reduced to judgments before bringing an interpleader suit. Were P to wait, the first claimant to obtain judgment might appropriate all, or a disproportionate share of, the $20,000 policy fund before his fellow Ds were able to establish their claims. The interpleader device was designed to ameliorate the difficulties such a race poses for the insurer and the unfairness which may result to some claimants.



Class Actions

  • Class Action: suit typically brought by 1 or more Πs individually named in the complaint to represent the interests of many, for necessary convenience. Binds not only the named parties but the absentees as well (RJ).
  • Like one giant privity doctrine
  • Rule 23 – Class Actions >> to be certified (certification limited to protect representation), must meet the four elements of Rule 23(a) and fit into one of the Rule 23(b) categories.
  • Required 3 prongs:
    1. Rule 23(a)(1)Numerosity: class is so numerous that joinder of all members as individually named parties is impracticable.
    1. Inquiry: size of each claim (↓ claim ↑ chance); practical chance each individual suit will be brought; public importance; members’ geographic location.
    1. Limitations: notice and manageability of the class.
    1. Rule 23(a)(2) – Commonality of Questions of Law or Fact
    1. Rationale: w/out common questions, no efficiency would be granted.
    1. Inquiry: Can be assessed using the “common nucleus of operative facts” test.
    1. Note, particular difficulty w/ this prong when individual damages persist b/c of variations in issues of causation and injury.
    1. Rule 23(a)(3) – Typicality: claims or defenses of named parties are typical of the class as a whole.
    1. Rationale: adequacy flows from typicality (class representatives acting for others should have the same objectives.)
    1. Rule 23(a)(4) – Adequacy of Representation: fair and adequate protection of the entire classes’ interests by the named parties.
  • Categories of class actions – Rule 23(b)(1) or 23(b)(2) preferred by Π b/c no notice required, per Rule 23(c)(2) and by Δ b/c no opt-out option—finite if/when settled.
    1. *Rule 23(b)(1) – viewed from point of party opposing the class; concerned w/ prejudice to existing parties or absentees aimed at limited funds/asset suits.
    1. (A)prosecution separately by class members would create a risk of inconsistent or varying adjudications for class members incompatible standards of conduct for the party opposing the class.
    1. (B) – prosecution separately by class members would create a risk to substantially impair or impede the party opposing the classes’ ability to protect their interests.
    1. Rationale: less stringent notice requirement for concern of the absentee Π allowing all absentees to share in the limited fund (not in Π’s interest to opt out.)
    1. *Rule 23(b)(2)available when the party opposing the class has acted or refused to act on grounds generally applicable to entire class so final injunctive or declaratory relief is appropriate.
    1. Usually used in civil rights cases.
    1. Rule 23(d)(2) authorizes district judge to require notice in some circumstances in Rule 23(b)(1) and 23(b)(2) class actions.
    1. Rationale: less stringent notice requirement b/c in general, these members would be happy to let Πs represent them as they do not want to take time to go in and represent themselves.
    1. Rule 23(b)(3) – [usually, when damages sought as remedy] questions of law/fact common to the class predominate over questions affecting only individuals, and class action is superior to other available methods. Predominance is assessed:
    1. (A) interest of individual members in personally controlling the prosecution or defense of separate actions;
    1. (B) extent and nature of any litigation in progress involving same controversy;
    1. (C) desirability of consolidating all claims in a single action before single court;
    1. (D) difficulties likely to be encountered in the management of a class action.
    1. Note, the most stringent requires best notice practicable under circumstances, per Rule 23(c)(2), which can require individual notice requirement to identifiable members and ability to opt-out.
      1. Rationale: Πs may want to represent self where $$$ damages are at stake.
  • Rule 23(c)(1)– court will decide certification at an early practicable time.
  • Rule 23(c)(2) – notice requirements.
    1. Basically, opt-out (via notice) is required in any case where money damages are at stake.
  • Rule 23(c)(4) Certification of Issues or Subclasses
    1. (A) allows for certification on certain issues only, or
    1. (B) certification of subclasses.
    1. Ex. nationwide class action based on state laws w/ Πs from different states that may raise state choice-of-law concerns.
  • Rule 23(e) requires settlements to be approved by court to protect absent members.
    1. Rule 23(e)(1)(B) – before the settlement is court-approved, some form of notice must be sent to absentee members advising them of the nature of settlement so they may come to the settlement hearing and object.
    1. Modern Application: posting by internet in the Netflix class action was okay b/c the whole concept of Netflix is online transactions.
    1. Rule 23(e)(1)(C)requires a settlement that is fair, reasonable, and adequate.
  • Saylor v. Lindsay. Π did not approve settlement his lawyer accepted in stockholder derivative class action settlement. Breach of fiduciary duty by lawyer the procedure of settlement did not adequately protect Π’s rights, Π may decline the settlement even though attorney okayed.
    1. The class members were allowed to object to the settlement agreed upon by their attorney based on the court’s duty to find fair, reasonable and adequate settlements.
    1. Recall coupon cases – are a fistful of coupons really a fair settlement (are they worth anything?) for the class members when the lawyers can get $$$$$?
    1. Factors of judicial review of class action settlements:
      1. Complexity, expense, and likely duration of the litigation;
      1. Reaction of class to the settlement;
      1. Stage of the proceedings and amount of discover required;
      1. Risks of establishing liability;
      1. Risks of establishing damages;
      1. Risks of maintaining the class action through trial;
      1. Ability of Δs to w/stand a greater judgment;
      1. Range of reasonableness of settlement fund in light of best possible recovery;
      1. Range or reasonableness of settlement fund to a possible recovery considering all attendant risks of litigation.
  • Rule 23(f) – appealing class certification decisions to the Court of Appeals (uses discretion), if appeal is made w/in 10 days of the decision
  • Jurisdictional Requirements: citizennship of named class members is considered.
    1. After Zahn, no aggregation of claims to meet the amount in controversy.
    1. But see, Class Action Fairness Act f 2005.
  • Res Judicata in Class Actions – adequacy of representation.
    1. Hansberry (Δ) v. Lee,. Δs moved into neighborhood w/ racially restrictive covenant. Prior ruling in a class action (would be against Δ) cannot bind one whose interests were not adequately represented in that suit.
    1. This case set the climate of guidelines to the FRCP rule makers WRT concerns of certifying a class.
    1. Only way Δ would be bound by the Burke finding of fact, is if Δ was in privity w/ Burke, otherwise, Δ’s due process rights of notice and to be heard are unmet.
      1. Or if the named P and individual class members have identical interests in regards to litigation and named party adequately represents those members, then ok. Named parties adequately represents the interests of the absentee class members
    1. Rule: There must be adequate representation of the members of a class action or the judgment is not binding on the parties not adequately represented.
    1. Rationale: There must be a similarity of interests before there can even be a class. Since there was no similarity of interests between Lee (P) and Hansberry (D), D could not be considered a member and so the prior judgment was not binding on D.
  • Uses and Administration of Class Suits.
  • Chandler v. SW Jeep-Eagle, Inc., . Π seeking certification to sue Δ for unfair/deceptive practices in retail installment K. Certain issues certifiable.
    1. Analysis under Rule 23(b)(3)
    1. Predominance of questions of law and fact b/c Δ’s standardized conduct gave rise to the action.
    1. Superiority of class action to other methods, otherwise, many victims would be unaware of their right to recovery. There is enough at stake for each individual to warrant a class action. Also more efficient and consistent to file as a class action
    1. Rationale: A proposed class that meets all the requirements of FRCP 23 must be certified.
    1. Rule 23 requires a two-step analysis to determine whether class certification is appropriate.
      1. First, the action must satisfy all four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation.
      1. Second, the action must satisfy one of the conditions of Rule 23(b). P seeks certification under Rule 23(b)(3), which requires the question of law or fact common to class members, and that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. P meets all of these requirements.
    1. Castano v.American Tobacco Co., Largest class action ever attempted in federal court – people addicted to nicotine. Certification for core liability issues wrong b/c affect of state law variations on predominance.
    1. Δ (and Π actually, in case their suit lost) deserve the wisdom of ↑ 1 jury.
    1. Outcome not surprising b/c massive action involving numerous variations of state law in federal court.
    1. Size of the class (too large) makes manageability an issue.
    1. Individual cases would have to be tried anyways, b/c the original class was only certified on some issues.
    1. Class actions may be certified under FRCP 23(b)(3) only if the requirements of predominance and superiority are met.
    1. P has not met his burden for class certification because he has not considered the effect that variations in state law will have on the issues of predominance and superiority.
    1. Fairness demands that immature mass torts, i.e., those with few prior verdicts, should first be litigated in individual actions until new theories of liability become established.


  • Class Action Fairness Act of 2005
    1. Specifies that if a proposed class action settlement includes coupons as part of the recovery awarded the class. The portion of any lawyer’s fee award to class counsel that is attributable to the award of the coupons shall be based on the value to class members of the coupons that are redeemed. If, following settlement, a portion of the coupons go unclaimed, the court may arrange for their distribution to charitable or government organizations, as agreed to be the parties.
    1. Second, the Act provides that in cases where any class member is obligated to pay sums to class counsel that would result in a net loss to the class member, the court may approve the settlement only if it finds that nonmonetary benefits to the class member substantially outweigh the monetary loss
    1. Third, the Act forbids discrimination in payments to class members based upon the parties to give detailed notice of proposed class action settlements to member who can demonstrate that the parties failed to provide the required notice to such officials has the option to refuse to comply with or choose not to be bound by the settlement.
      1. Class actions prefer to be heard in state court, this rule makes it easier to remove class actions into federal court.
        1. Lax Requirements: minimal diversityif any one class member is diverse w/ a Δ, federal courts have jurisdiction as long as amount in controversy > $5 million.
        1. Prevents forum-shopping by Π classes by taking out large class actions that cut across states and putting them into federal court.
      1. Exxon Mobile Corp. v. Allapattah Services, Inc. One Π meets amount in controversy and others do not, but via § 1367, jurisdiction is exerted over them. Where other elements of jurisdiction are satisfied and at least 1 Π has met the amount in controversy, class action may be properly heard in federal court.
        1. When it comes down to it, not an entirely logical answer by S.C., but the real heart of § 1332 is diversity (§ 1367 will never completely bypass § 1332 requirements.)
        1. Reasoning: rejects two theories:
        1. Indivisibility theory: This theory states that a court lacks original jurisdiction over a case unless every claim in the complaint falls under federal jurisdiction.
          1. This is inconsistent with the theory of supplemental jurisdiction.
          1. This would overrule Gibbs, and runs counter to the idea that a court can split a claim and hear those parts relevant to federal jurisdiction and remand those that are not.
          1. Indivisibility for diversity but not federal question cases
        1. Contamination theory: This can work in the diversity requirement sometimes, however it makes little sense in the amount requirement.
          1. The fear of bias is important for diversity, therefore you need uniformity of parties. With amount in controversy however, there is nothing lost by one party being under the amount.
          1. § 1367 established that parties can be joined and the court can have supplemental jurisdiction.
          1. There is conflict between allowing cases in under Rule 20 but not 19.
          1. Allowing 19 would allow plaintiffs to join non-diverse plaintiffs who would not be allowed at the time of filing. 20 may have been overlooked, if that is the case, then it is up to the legislature to fix it, not the courts. Nothing in the text prohibits addition through 20; permissive joinder.


  • CA Class Action Procedures (Rule 3.766)
    1. No Comprehensive Class Action Statute in CA – Trial courts are to use the class action procedures of Rule 23.
    1. General CA Prerequisites – The party seeking certification as class actions representative must establish the existence of an ascertainable class and a well-defined community of interest among the class members.
  • The community of interest requirement embodies three factors:
    • Common questions of law or fact must predominate over individual issues
    • Class representatives must have claims or defenses typical of the class
    • Class representatives must adequately represent the interests of the class
  • Where individual issues regarding liability and damages substantially predominate over common factual questions, class action treatment is rarely appropriate.
  • Whether a class is ascertainable may be determined by examining the class definition, the size of the class, and the means available for identifying class members.
  • Class Action Procedures – CA courts usually follow the procedural provisions of the Consumers Legal Remedies Act in all civil actions. And in the absence of relevant state precedents, the courts often utilize the procedures prescribed in Rule 23.
  • Management Rules: Motions to certify or decertify a class, case conferences, notice to class members, orders in the conduct of class actions, discovery from unnamed class members, and settlement and dismissals of class actions.
  • Appellate Review: A trial court order denying class certification to an entire class is an immediately appealable order.
  • Notice to Class Members: Generally, the CA courts follow Rule 23(b) to determine whether a certified class is the type which requires mandatory notice to the absentee members of the class.
  • When a CA court determines that some notice to the class as certified is required, the court does not necessarily follow Rule 23(e) to determine the precise nature of the class action. Instead, the court would apply the manner of notice requirements of Civ Code 1781(d), which authorizes notice by publication if personal notification is unreasonably expensive, and Civ Code 1781(e), which governs the content of class notice with respect to requests for exclusion.
  • With respect to the manner of giving notice, Rule 3.766(e) requires the court to consider:
    • The interests of the class
    • The type of relief requests
    • The stake of the individual class members
    • The cost of notifying class members
    • The resources of the parties
    • The possible prejudice to class members who do not receive notice
    • The res judicata effect on class members
  • Rule 3.766(f) then authorizes the court to consider these factors when ordering the means of notice: If personal notification is unreasonably expensive or the stake of the individual class members is unsubstantial, or if it appears that all members of the class cannot be notified personally, the court may order a means of notice reasonably calculate to apprise the class members of the pendency of the action – for example, publication in a newspaper or magazine, broadcasting on TV, radio, or the Internet; or posting or distribution through a trade or professional association, union, or public interest group.
  • Who Pays the Cost of Notice – The CA Legislature has specifically authorized trial cts in consumer class actions to impose the cost of notice to the class upon either the P of the D. The SC extended this rule to all class actions.
  • Cost Allocation Factors
  • Federal Rule Compared – In contract to the CA rule, the FRCP do not authorize a federal court to impose the cost of class notice on the D.
  • Appellate Review – A trial court order allocating the cost of class notice between P and D is not an appealable order; although appellate review may be obtained through the discretionary extraordinary writ process
  • Right to Opt Out of Class – the main purpose of providing proper notice of the pendency of a class actions is to advise class members of their options:
    • To remain a member of the class represented by P’s counsel and become bound by a favorable or unfavorable judgment in the action, or
    • To intervene in the action through counsel of their own choosing, or
    • To opt out of the class action and pursue their own independent actions.
  • Due Process Concerns – An individual class member has no right to opt out of a class action certified under Rule 23(b)(1) or (b)(2).
    1. Most courts determine whether class members are entitled to notice and the right to opt out based on whether class members are entitled to the class action is exclusively or predominately for money damages.
    1. However, the US Court of Appeals for the 9th Circuit in Brown held that in order to bind an absentee class member concerning a claim for money damages, the court must provide the class member with an opportunity to opt out of the class action.


  • Settlement – A class action shall not be dismissed without approval of the court. A trial court has broad discretion to determine whether a class action settlement is fair, but should consider the following relevant factors:
  • The strength of P’s case
  • The Risk, expense complexity and likely duration of further litigation
  • The risk of maintaining class action status through trial
  • The amount offering in settlement
  • The extent of discovery completed and the state of the proceedings
  • The experience and views of counsel
  • The presence of a governmental participant
  • The reaction of the class members to the proposed settlement.
  • Notice Requirement – Code of Civil Procedure 581(K) requires notice to the class and court approval prior to dismissal of an action determined to be a class action under CCP 382.


  • Class Action Remedies
  • Fluid Class Recovery – A trial court in a class action has the same authority to award the full range of legal and equitable remedies as the court would have in an individual action. In additional, the CA courts have authority to award fluid class relief in appropriate cases.
    1. The implementation of fluid recovery involves three steps
      1. First, the D’s total damage liability is paid over to a class fund
      1. Second, individual class members are afforded an opportunity to collect their individual share by proving their particular damages, usually according to a lowered standard of proof
      1. Third, any residue remaining after individual claims haves been paid is distributed by one of several practical procedure that have been developed by the court.
    1. In determining which method to employ, the courts should consider
      1. The amount of compensation provided to class members, including non-claiming (or silent) members
      1. The proportion of class members sharing in the recovery
      1. The extent to which benefits will spill over to nonclass members and the degree to which the spillover benefits will effectuate the purposes of the underlying substantive law
      1. The costs of administration
  • Notice to Class Members

Eisen v. Carlisle & Jacquelin

  • Notice for a class under Rule 23(b).
  • Gives the class member to opt out.
  • Specific rulings w/Issues of Regard to Notice.
  • SC’s attitude toward small claimant class actions is pretty hostile.
  • This threw a wet blanket on small claimant actions b/c what P would want to pay so much for the cost of notice for a huge class of people?
  • Thus, this dampened class actions in federal courts.
  • Irony: Rule 23(c)(2) requires notice to class members of a (b)(3) class b/c it protects the class members by giving them a chance to opt out. But how many of the class members in this case opt out? None, b/c their claim is only $70, thus it seems conflicting and not protective of the absentee class members b/c they will get nothing.
  • The immediate source of this requirement is Rule 23(c)(3)(2) (this is not a Constitutional requirement) (although the ultimate source of this requirement is the Mullane case).
  • A narrow reading of the ruling of this case is that it only applies to (b)(3) class cases, and not to (b)(1) and (b)(2) classes.
  • Rule: To maintain a class action under FRCP 23(d)(2) the P must give individual notice to all identified and easily ascertainable class members and must bear the cost of such notice.
  • The Federal Rule 23 do not permit notice in a class action by means of a mini-hearing on the merits to determine who should bear the costs of notice to fewer than all the identifiable class members?
  • Rationale:
  • Issue of whether a class can be certified.
  • Most recent DC decisions in light of a Rule23 (b)(3) class action:
  • Is this action manageable? Manageability problem. Had to do w/relief. What do you do w/ a judgment of $70 to each of the 6,000,000 investors ($42,000,000)?
  • The DC recommended a fluid class recovery judgment: You don’t try to get the money back to each class member, but once you obtain judgment, you try to get the money back to as many of them as possible, and you do the next best thing for the class – use the money to artificially reduce the amount of odd-lot trades in the future (they get the future benefit of reduced fees since these class members would probably do odd-trades again in the future.)
  • But the SC held that the DC should not have ruled for a fluid class recovery, and that it would be inconsistent w/due process — fluid class recovery is not permissible, thus the class action is unmanageable.
  • The concept of fluid class recovery has received spotty acceptance in the federal courts, but in many of the states (like CA), the concept has been approved by both the courts and the legislature.
  • The fluid class recovery method has been authorized in many ways: trying to get the money back to as many class members as possible, but then to have a way to benefit the entire class.
  • This case doesn’t have to do manageability, but w/ notice.
  • 2 issues of notice: Notice and Cost.
  • Federal Rule 23(c)requires notice to each class member about the lawsuit and giving them the chance to opt out.
  • But the cost of notice to 6,000,000 would be enormous (even by mail).
  • DC said the notice had to be given to the absentee class members by publication, by individual notice, by more generalized notice – the DC did not require notice to each individual class member.
  • This reduced the cost significantly, but it would still cost $225,000. (Normally Ps have to pay for servicing).
  • So the DC had a mini-hearing to assess strength of Ps, (which was strong) allocated 90% of costs to the notice to D, and only 10% to P, thus making it reasonably manageable for the cost of notice to Ps.
  • Now, the SC only needs to address the 2 issues of notice: Notice and Cost.
  • But there’s a JD glitch: Whether the SC had JD to review the decision about the cost of notice and the certification of the class.
  • Problem/concern: Section 1291, only final decisions are appealable, and this was not a final decision by DC before the SC can review, but just a step towards the decision.
  • We have to wait for a DC final decision before the AC can review b/c of judicial economy, don’t want to review a case before a final decision on merits.
  • A decision to notice procedures is a “final” decision, appealable under 28 USC section 1291 b/c it is not tentative, informal, or incomplete, and is not merely a step toward final disposition on the merits.
  • The SC resolves this problem by the collateral matter doctrine: There will be a small class of cases where issues that are separate/collateral to the main issues on the merits have been determined by the TC, and will be considered final decision.
  • The issue of the cost of notice will be considered collateral matter doctrine.
  • This issue is not adequately reviewable at the end of a lawsuit on appeal (deserves immediate appellate review) b/c it might be difficult for D to recoup that money f/P if that D is successful on appeal – Rather than take that chance, view it as a collateral matter and take it on immediate review.
  • Thus both AC and SC has proper JD to review.
  • Today, the collateral matter doctrine is less of a JD concern than it was at the time of this lawsuit b/c of Rule 23(f). Rule 23(f) authorizes AC, as a matter of discretion, to take immediate interlocutory appellate review as it sees fit.
  • Question of Notice in SC:
  • Type of notice: SC did not uphold DC not requiring individual notice b/c it must be the best method available regardless of cost of burden
  • This requirement comes f/Rule 23(c)(2): In a (b)(3) action, the court must require the best notice possible, including individual notice to members who can be identified through reasonable efforts.
  • Rule 23 requires notice to all class members reasonably identifiable, regardless of burdensome cost. There is no provision for publication notice where the class members are known (Mullane). A judge may not exercise discretion and eliminate this requirement.
  • Cost of notice (shifting of the cost f/P to D): SC agreed w/AC, and disagreed w/DC, that P should bear the cost of notice b/c it’s not recognized/authorized by Rule 23, so we’re left w/the usual manner to address it – P is supposed to pay. SC said what DC did was offensive/improper b/c there’s no authority or otherwise to let the DC delve into the merits to shift the cost – this would be unfair to P before trial even begins.
  • All costs of notice must be borne by P b/c a preliminary hearing on the merits tot assign notice costs could have worked substantial prejudice to D.
  • But there was good precedent/analogy to what DC did (w/regard to preliminary inquiry) – that is the method of preliminary injunction – But SC says it’s simply not authorized.
  • Thus SC dismissed b/c the case had been going on too long, P couldn’t pay for the cost of notice so dismissed – didn’t even remand.
  • Dismissal was ordered in addition to remand b/c P refused to bear the costs of notice. The general rule is the Ps must pay the costs of notifying all members of a class, though this expense is recoverable if the class prevails on the merits.


  • Notice in a Rule 23(b)(3) class required by 23(c)(2).
  • Rule 23(c)(2) requires that “in any class action maintained under subdivision (b)(c), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”
  • Notice in Rule 23(b)(1) and 23(b)(2) classes.
  • There is nothing in Rule 23, comparable to the (c)(2) notice requirement for (b)(3) classes, that requires notice to members of (b)(1) and (b)(2) classes.
  • That does not mean, however, that notice need never be provided in such class actions.
  • 1st, Mullane requires that constitutionally adequate notice be provided to class members, even if the rule does not specifically so provide.
  • 2nd, subsection (d)(2) authorizes the District Judge to require notice in some circumstances, providing that “the court may make appropriate order …requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action.”
  • Also, subsection (e) provides that in the event of “dismissal or compromise” of a class action, “notice … shall be given to all members of the class in such manner as the court directs.”
  • Fluid” or “cy pres” recoveries.
  • SC has carefully refrained f/ruling on the validity of “fluid” recoveries in federal class actions.

Ca SC: “Fluid recovery may be essential to ensure that the policies of disgorgement or deterrence are realized…W/O fluid recovery, Ds may be permitted to retain ill gotten gains simply b/c their conduct hard large number of people in small amounts instead of small numbers of people in large amounts.”


Relation of Territorial JD to Choice of Law

Phillips Petroleum Co. v. Shutts

  • Rationale:
  • Personal JD issue: Absentee class members will be bound by the class action judgment in the same way as a D would, thus to bind them, there must be personal JD over each of the absentee class members.
  • Substantial burdens are placed by the state upon absent Ds. The out-of-state Ds are faced w/the full powers of the forum state to enter judgment against it. D must generally travel to the forum, retain counsel, and defend itself or suffer a default judgment. The minimum contacts requirement of the Due Process clause prevents the forum state f/unfairly imposing these burdens on D.
  • The Due Process Clause need not and does not afford as much protection to absent class Ps b/c fewer burdens are placed on them. An absent class P is not required to do anything. The court and the named Ps protect the absent P’s interests. The class action is an exception to the rule that one cannot be bound by a judgment in personam unless one is fully made a party in the traditional sense.
  • Choice of law issue:
  • This is a nationwide class, they might be subject to different laws – the ultimate question of the Kansas court is a due process one: Whether or not there was sufficient contacts w/Kansas, that Kansas had sufficient interest to apply its law to the class members.
  • SC said applying Kansas law to all class members does not pass the due process test b/c not all class members have minimum contacts w/Kansas.
  • Notice issue:
  • SC is addressing (b)(3) and (b)(2) (injunctive) class actions when discussing notice and the chance to opt out (constitutional requirement). This right of absentee class notice applies whenever there are money damages at stake. This would apply to basically all class actions. (The lower courts have been hesitant to accept this, but some have.)
  • Thus, nationwide class actions have had a damper affect b/c of difficulty of choice of law for all absentees in such a diversity case.
  • Problem w/ Rule 23: Manageability issue to figure out which absentee class members have which law applied to them.


  • Saylor v. Lindsay. Π did not approve settlement his lawyer accepted in stockholder derivative class action settlement. Breach of fiduciary duty by lawyer V the procedure of settlement did not adequately protect Π’s rights, Π may decline the settlement even though attorney okayed.
  • The class members were allowed to object to the settlement agreed upon by their attorney based on the court’s duty to find fair, reasonable and adequate settlements.
  • Recall coupon cases – are a fistful of coupons really a fair settlement (are they worth anything?) for the class members when the lawyers can get $$$$$?
  • Factors of judicial review of class action settlements:
  • Complexity, expense, and likely duration of the litigation;
  • Reaction of class to the settlement;
  • Stage of the proceedings and amount of discover required;
  • Risks of establishing liability;
  • Risks of establishing damages;
  • Risks of maintaining the class action through trial;
  • Ability of Δs to w/stand a greater judgment;
  • Range of reasonableness of settlement fund in light of best possible recovery;
  • Range or reasonableness of settlement fund to a possible recovery considering all attendant risks of litigation.
    1. A class action may not be compromised w/o court approval and prior notice to all members of the class (FRCP 23(e)).
    1. As Rule 23 requires, the TC must approve any class action settlement.
      1. But members of the class object to the settlement.
      1. This including absentee members and the named P.
      1. Thus we have a negotiated settlement where the named parties are objected to it.
      1. (In a non-class action case, an attorney cannot settle over their client’s objection – the settlement can only be signed on to if the client has approved it.)
      1. But class actions are treated differently than individual cases, and having the named P approve the settlement is not a prerequisite, b/c the settlement must benefit the class as a whole, not just the named P.
      1. A prerequisite for approval of a class action settlement is for the DC to make sure it’s fair: that the settlement adequately represents the interests of the absentee class members.
      1. Problem: record was so poorly developed that the AC said that there was no enough discovery for the DC to determine fairly who would win.
      1. Regardless of P’s objection and the settlement b/tw party attorneys, the court has an independent duty to ensure sufficient evidence so they can comfortably determine that the outcome is fair.
    1. The interests of P in this stockholder’s derivative suit and those of his attorney are by no means congruent.
      1. P’s financial interest is in his share of the total recovery less what may be awarded to counsel; counsel’s financial interest is in the amount of the award to him less the time and effort needed to produce it.
      1. Inherent conflict of interest b/tw class counsel and class members: The class wants as much money as possible and the counsel wants the most return for the least amount of work.
      1. Thus it’s really important for the judge to actively look at the facts of the case so that the class members don’t get sold out by their counsel.
    1. P’s attorney remains bound to keep his client fully informed of settlement negotiations, to advise the client before signing a stipulation of settlement on his behalf, and if the client has objected, to inform the court of this when presenting the settlement, so that it may devise procedures whereby P, w/ a new attorney, may himself conduct further inquiry if so advised.
    1. As a practical matter, derivative settlements concluded over the head of the complaining stockholders are extremely rare and should be so.
      1. But here, P raised enough questions that the court must carefully consider his claims before approving the settlement.


  • Rule 23(f) – appealing class certification decisions to the Court of Appeals (uses discretion), if appeal is made w/in 10 days of the decision.
  • Jurisdictional Requirements: citizenship of named class members is considered.
  • After Zahn, no aggregation of claims to meet the amount in controversy.
  • But see, Class Action Fairness Act f 2005.
  • Res Judicata in Class Actions – adequacy of representation.
  • Current Rule 23(g) sets up standards and procedures for appointing class counsel: the court has an obligation to appoint class counsel depending on such factors of experience, past cases and interests w/ the class.
    1. New Rule 23(h) which deals specifically w/attorney fees: standards and procedure – now it will be more difficult to award attorney’s fees as excessive b/c it will be litigated out by the court.
    1. The new Rule beefs up some of the procedural aspects: There must be notice to the class, and the court is authorized (not required, just discretionary) to have the notice include a 2nd opt out provision (you can opt out once you know what the settlement terms are, and start your own case).
    1. The new Rule says the named parties must indicate any private side agreements they’ve established w/ the opposing party.
  • Settlement-Only Class >> never intended to be litigated, only settled
    1. Pros: judicial economy Π can recover more each, and Δ can ultimately pay less b/c of saving on litigation costs.
    1. Cons: Πs and attorneys may have different interests; interests of absentee members may go unmet.
    1. Can an absentee collaterally attack a settlement? If absentee didn’t get notice and can prove that the settlement did not adequately serve the interests of that class member, person can collaterally attack the settlement (Agent Orange exposure case)
      1. Amchem Products, Inc. v. Windsor: Class action of adversely affected by past exposure to asbestos products manufactured by 20+ companies. B/c this class could not be certified as under Rule 23(a) factors nor under Rule 23(b)(3) (manageability concerns, lack of predominance of issues), they should not be certified as a class.
      1. This case involves future claimants (injury suffered later, family members).
      1. Rule: settlement-only class must meet requirements of classes certified to litigate manageability and predominance are still important requirements that cannot be replaced by an overall assessment of fairness.
      • FRCP 23 requirements for class certification must be met even if the certification is for settlement only.
      • Rationale:
      • Settlement only class actions have become a standard device for addressing numerous claims.
      • Settlement is relevant to a class certification, and a court confronted w/ a request for settlement-only class certification need not inquire whether the case, if tried, would present intractable management problems.
        1. But those provisions of Rule 23 that are designed to protect absentees by blocking unwarranted or overbroad class definitions remain applicable.
      • SC didn’t say you couldn’t have a settlement class, but certain requirements must be met before you can have a settlement class, including:
        1. Requirementsof Rule 23(a) & (b), except the concern about manageability requirement in trial (since it’s not going to trial) – but everything else applies.
        1. (DC can’t just use a general fairness notion, but first it’s got to figure out if this is an appropriate class action.)
        1. This approach is justified b/c the parties had diverse medical interests – complications of adequately protecting the interest of the class as a whole (b/c the interests of the class are inconsistent w/each other since the funds are limited, and future Ps may not be able to recover later –Rule 23(a)(4)).
        1. Parts of Rule 23(b)(3) are not satisfied b/c there was a lack of “predominance” — not clear that the overall interest predominates over an individual member interest.
        1. Thus these requirements are not met.
      • Is this being too formalistic? Is SC being too rule-bound?
        1. Perhaps not, b/c there would be too much discretion for the individual trial judge.
        1. What benefit is there to satisfy Rule 23? You get a more uniform standard – Constitutional requirement based on Hansberry v. Lee: that there be a common interest and that the named party/attorney will adequately represent the members of the class – the best way to ensure both is to require compliance w/these 2 rules, which are a constitutional embodiment.
      • You can say this ruling was
      • Among the safeguards of Rule 23 are the requirement of notice to all class members and the requirement of unity among class members so that absent members can fairly be bound by the decision of the class representatives.
        1. The federal courts have no authority to apply a more lenient standard, even if they determine that the settlement is fair.
      • Rule 23(b)(3) requires that common questions of law or fact predominate over any questions affecting only individual members.
        1. This rule assures that proposed classes are sufficiently cohesive to justify adjudication by representation.
        1. The fact that all class members were exposed to asbestos products supplied by Ds is insufficient; there are many more issues peculiar to the several categories of class members and individuals w/in each category, such as the nature and extent of exposure, the type of symptoms of disease suffered, whether they smoked cigarettes, etc.
      • Rule 23(a)(4) requires that the named parties will fairly and adequately protect the interests of the class.
        1. The named parties here had diverse medical conditions, but their interests were for generous immediate payments.
        1. Class members who were merely exposed are more interest in having an ample, inflation-protected fund for the future, when symptoms develop.
        1. This disparity between the currently injured and exposure-only categories of Ps makes it unlikely that the named Ps could adequately represent the other class members.
      • It would be difficult to satisfy the notice requirements when there are many persons in the exposure-only category who may not even know of their exposure.
        1. Large numbers of people could not be alerted to their class membership.
      • Rule 23 does not actually mention a “settlement class,” but the courts have often allowed them.
        1. They are especially useful for mass tort cases.
        1. In this case, the Court acknowledged that if a settlement would reduce management problems that would arise in a litigated class certification that factor should be considered an may allow certification of the settlement class.



  • DISCOVERY >> the legal process for compelling the disclosure of information relevant to disputed factual alleged w/ particularity in the pleadings very broad scope of what is discoverable.


    1. The broad scope of discovery permitted (essential to modern civil litigation) is the basis for allowing the minimal requirements of notice pleading and acceptance of jury trials.
      • Rule 26(b)(1) – (Addresses the scope of discovery in general) – parties may discover any matter, not privileged, related to the claims or defenses of any party, even if not admissible as evidence at trial.
      • Rule 26(b)(2)restrictions on discovery cumulative, marginal relevance, obtainable in another way, burden of production outweighs likely value of the info, unduly intrusive, etc.


    1. Purposes:
      • Leads to more accurate outcomes at trial avoid surprises and delay.
      • Narrows issues and eliminates false issues/claims/defenses disposal by summary judgment?
      • Promotion of settlement  ultimately, lower costs to Π and Δ.


    1. Different from other countries’ systems:
      • Can’t continue a trial for a very long time b/c of the jury system
      • Aggregate all info before trial to present to the jury
      • Scope of discovery (FRCP 26) is its breadth – unless otherwise limited by ct order – parties may obtain discovery re any non-privileged matter that are relevant to party’s defense
        1. Scope is exceedingly broad


    1. Begins first, with Informal Investigation
      • Should be used if possible more efficient, less cost.
      • Ex. interviews, visits to property, obtaining information from government bodies, etc.


    1. Discovery tools available
      • Informal – independent of the rules, you engage in activities such as interviewing witnesses, your client. Not backed up by ultimate threat of ct involvement
      • Formal – backed up by ultimate possibility of the court sanction or order
        1. Initial disclosures (Rule 26(a)) – have to disclose certain things w/o even being asked
        1. Depositions – ask witnesses questions to be answered under oath
          1. Benefit – spontaneous
          1. Con – expensive
        1. Interrogatories – written Qs to opponent to be answered under oath within a certain period of time
          1. CA has reduced the basic questions to a form
        1. Request for production of documents or things
        1. Request for admissions
          1. Request other side to admit certain non-controversial facts to save time proving them at trial
        1. Mental or physical exams


    1. Discovery & FRCP >> most states have a form similar to FRCP for discovery.

Rules are set up so the court is not involved in discovery one party makes a request to another, and only if there is non-compliance does the court become involved.

      1. Request for info for discovery and other side objects or other side doesn’t respond
      1. Ct sorts it out through the party filing a “motion to compel discovery” and a hearing
        1. If Ct grants it, the Ct grants an order of the court to compel discovery
        1. If still resist, party held in contempt and the ct can impose sanctions
    1. Rule 26(a)(1) – Initial Disclosures >> Pretrial Discovery
    1. Some forms of formal discovery are too time-consuming and expensive when this core of information will be revealed anyways during formal discovery.
    1. Four categories of required initial disclosure, without prodding from the court:
      1. 26(a)(1)(A): information on individuals likely to have discoverable information – names, addresses, telephone numbers.
      1. 26(a)(1)(B): copy/description by category & location of documents, data compilations, and other tangibles the disclosing party may use to support its claims or defenses.
      1. 26(a)(1)(C): computation of any category of damages claimed.
      1. 26(a)(1)(D): any insurance agreement from which judgment may be paid.
    1. 26(a)(1)(E) – categories of proceedings exempt from initial disclosure.
    1. Rule 26(f) – Conference of Parties; Planning for Discovery
    1. Meeting of parties to draw up a proposed discovery plan after complaint has been served.
    1. The meeting is held as soon as practicable generally, outer limit of 21 days prior to the final deadline for issuance of scheduling order under Rule 16.
    1. No formal discovery (depositions, interrogatories, or requests for admissions) may take place before this meeting.
    1. Rule 30 – Depositions
    1. Put a party or non-party witness under oath and ask them questions, which are transcribed.
    1. 30(a)(1)a party may depose any person (party or not), who possesses relevant information w/in the meaning of Rule 26.
    1. 30(a)(2)(A)only 10 depositions per side (not per party member.)
    1. 30(b)written notice of deposition required.
    1. Pros: allows for attorneys to follow questions w/ more questions based on responses, cross-examination, objections to question by opposing counsel.
    1. Cons: expensive!
      1. 30(b)(2) – party taking the deposition bears the cost, but now may be videotaped or recorded to alleviate cost.
    1. 30(d)(1) – lawyer may instruct their witness not to answer to preserve a privilege, enforce a protective order limiting discovery, or end deposition b/c abusive behavior by deposer.
    1. Rule 33 Interrogatories to Parties
    1. Written questions that must be answered under oath w/in 30 days by a party to the action.
    1. 33(a)Limited to 25 interrogatories per party (not per side, like depositions.)
    1. Incomplete/evasive interrogatory may be subject to Rule 27(b)(2) order to answer ↑ fully.


    1. Rule 34 – Request for Production of Documents (Addresses scope and procedures for discovery relating to the production of documents and things and entry upon land for inspection and other purposes)
    1. A party may request another party to produce documents or tangible things for inspection, copying, or testing.
    1. 30(a)Scope: documents, writings, drawings, photos, maps, records, correspondence, data stored on computers etc.
    1. 30(b) – generally stated request; party may object to documents requested w/in 30 days of service of the request.
    1. Rule 36 – Requests for Admissions
    1. 36(a) – request to the other party for admissions that certain facts/documents are true for litigation purposes.
    1. 36(b) – must answer w/in 30 days by either admitting or denying  failure to respond = admission.
    1. Rule 35 – Physical and Mental Examination of Persons
    1. 35(a) – only available when physical or mental state of a party is at issue, by court order.
    1. Rule 26(g) – Signing of Disclosures, Discovery Requests, Responses, and Objections
    1. 26(g)(1)initial 26(a)(1) & pretrial disclosures 26(a)(3) must be signed, at least 1 attorney.
    1. Rule 26(b)(2) – Discovery Scope and Limits
    1. Limitations: (i) discovery of unreasonably cumulative/duplicative or can be obtained from another source; (ii) party already had chance for discovery; or (iii) unduly burdensome.
    1. The limits on # of depositions and interrogatories may be altered by the court.
    1. Proportionality among clients requesting discovery.
    1. Rule 37 – Failure to Make Disclosure or Cooperate in Discovery; Sanctions
    1. Noncompliance w/ a court order of discovery can lead to sanctions, note incomplete or evasive answers can be considered noncompliance.
      1. Recall Hickman and Upjohn, where the sanction = jail time not really anymore.
    1. Rule 26(g) sanctions if a party or attorney violates certification requirements w/out substantial justification.
    1. Rule 30(d)(3) – sanctionsfor failure to show up at a deposition when party has “notice”, or fails to subpoena a witness and that witness does not appear.
    1. Zubulake v. UBS Warburg LLC, Sexual harassment/discrimination for retaliatory firing case by Π, requesting discovery of old emails on backup tapes and optical disks. Π is entitled to discovery of the requested files b/c they are relevant to her claims; cost shifting re-assessed once Δ produces any 5 tapes of Π’s choice for review (sampling of requested tapes). P should pay 25% of restoring the back up tapes and the D has to pay for the rest of it as well as all the attorney fees associated with it.
      1. Rule: To determine cost-shifting for discovery of electronically stored information, a court must balance the likelihood of discovering critical information and the total cost of production against the amount in controversy, the importance of the issues at stake, and the resources available to each party.
      1. Applicable standards are found in FRCP 26 – 37. Rule 26(b)(1) specifies that parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.
      1. Rule 26(b)(2) imposes general limitations on the scope of discovery in the form of a proportionality test: “The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the important of the proposed discovery in resolving the issues.”
      1. Under the discovery rules, the presumption is that the responding party must bear the expense of complying with discovery requests, but it may invoke the DC’s discretion under Rule 26(c) to grant orders protecting it from undue burden or expense in doing so, including orders conditioning discovery on the requesting party’s payment of the costs of discovery. One solution for balancing the broad scope of discovery prescribed in Rule 26(b)(1) with the cost consciousness of Rule 26(b)(2) has been to consider cost shifting by forcing the requesting party, rather than the answering party, to bear the cost of discovery.
      1. B/c data from backup tapes is costly, 7-part test to determine if cost shifting is appropriate:
        1. 1. Extent to which the request is specifically tailored to discover relevant information;
        1. 2. Availability of such info from other sources; 1 + 2 = marginal utility test.
        1. 3. Total cost of production compared to the amount in controversy;
        1. 4. Total cost of production, compared to the resources available to each party;
        1. 5. Relative ability of each party to control costs and its incentive to do so;
        1. 6. Importance of the issues at stake in the litigation; and
        1. 7. Relative benefits to the parties of obtaining the information.
      1. Factors are listed in descending order of importance.
      1. Purpose for applying factors
        1. Who will pay for this discovery (general presumption is that the D would pay for the discovery)
        1. Depart from general presumption? Should requesting party pay for some of it?
        1. Should we compel this discovery – should ct grant the order for discovery? How pertinent is the info being requested? How useful is it to the P?


  • Privileges and Trial Preparation Immunities
    1. Privileges >> must be asserted by objecting to the discovery request.
    1. Fifth Amendment Privilege against Self Incrimination,
    1. Communications between Doctor/Psychotherapist–Patient,
    1. Communications between Spouses,
    1. Communications between Priest–Pentitent,
    1. State Secrets – among the executive branch.
    1. Attorney–Client Privilege: an absolute privilege to legal advice sought in confidence by a client and communications by the lawyer to the client whether or not related to litigation, unless there is an exception, must be invoked by the attorney and can be waived.
      1. Does not apply to people outside the lawyer–client relationship (i.e. witnesses.)
      1. Rationale: the client needs assurance that they can trust their attorney, in turn the attorney benefits by getting full and frank disclosure of information from the client.
      1. Exceptions:
        1. Crime Fraud Exception: no protection if the lawyer was sought to or aid anyone to commit or plan what client knows or should reasonably know is a crime or fraud, for the future.
        1. No privilege, but cannot just divulge (breaches duty of confidentiality, per ABA), so if asked under oath – tell the truth.
        1. Lawyer–Client Dispute/Lawyer Self-Protection:
      1. Upjohn Co. v. U.S., D contended that certain questionnaires prepared as part of an internal co investigation were protected from disclosure by the attorney client privilege.
      1. Rule: The attorney-client privilege may be applied to communications between all corporate employees and corporate counsel.
      1. Communications between an attorney and client is privileged and cannot be discovered
      1. Rationale: The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. Middle and lower level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant info needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. The control group test adopted by the court of appeals frustrates the very purpose of the privilege by discouraging the communication of relevant info by employees of the client to attorneys seeking to render legal advice to the client corporation. Here, because the privilege does not protect the disclosure of the underlying facts by those who communicated with the attorney, the Government was free to question the employees who communicated with Thomas (P’s counsel) as a means of conducting discovery.
    1. Work Product Immunity: an almost absolute privilege for attorney’s work product preparedin anticipation of litigation.
    1. Applies to all information the attorney prepares, including that covering information from witnesses and non-parties.
    1. Notes on the attorney’s mental impressions/thought process of the case have a near-absolute immunity; absolute in CA.
      1. Rationale: attorney should be able to prepare for trial w/out apprehension that their theories will be taken by discovery.
      1. A partial-absolute privilege b/c other than mental impressions/conclusions, info may be discoverable.
    1. Includes but not limited to witnesses’ statements, notes taken at meetings w/ witnesses or people knowledgeable about matter of dispute, memoranda summing legal research, etc.
      1. Hickman v.Taylor, Δ’s tug-boat sank and 5/9 crew members drowned. Δ’s attorney took statements from the survivors, which Π wants. Production of Δ’s information is not compelled b/c Π has not shown undue hardship (could just go and interview those witnesses on their own or to public records).
      1. Rule: Material obtained by counsel in preparation for litigation is the work product of the lawyer, and while such material is not protected by the attorney-client privilege, it is not discoverable on mere demand without a showing of necessity or justification.
      1. Rationale: The deposition-discovery rules are to be accorded a broad and liberal treatment since mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. But discovery does have ultimate and necessary boundaries. Limitations arise upon a showing of bad faith or harassment or when the inquiry seeks material which is irrelevant or privileged.
  • The general policy against invading the privacy of an attorney in performing his various duties is so well recognized and so essential to the orderly working of our legal suit, that the party seeking work product material has a burden to show reasons to justify such production. Interviews, statements, memorandums, correspondence, briefs, mental impressions, etc, obtained in the course of preparation for possible or anticipated litigation fall within the work product. Such material is not free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may be had. But there must be a showing of necessity and justification.
      1. The attorney-client privilege does not apply here to witnesses, only to clients.
      1. Rather, the court hints at work product privilege b/c it is unfair to let Π have the information on attorney thought-process led to formulation of Rule 26(b)(3).
        1. Rationale: do not want to lead to attorneys no longer writing things down or sharp practices (writing down false statements to be discovered.)
    1. Rule 26(b)(3) – To pierce the immunity, must show 1) substantial need of the materials; and 2) undue hardship in obtaining equivalent material by other means.
      1. Usually only pierced if the witness is dead or cannot be found.
      1. Upjohn Co. v. U.S., Possible bribes by Δ pharmaceutical co. to foreigners investigated by in-house counsel. Attorney–client privilege is available to any employee of the corporation.
    1. Rule: The work product doctrine applies to summonses issued by the IRS.
    1. Rationale: The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications. They are protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal attorneys’ mental processes in evaluating the communications. As FRCP 26, which accords special protection from disclosure to work product revealing an attorney’s mental process, and Hickman, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship.


  • Discovery from Expert Witnesses >> offer informed judgments or opinions about underlying evidentiary facts (usually on topics of malpractice, products liability, personal injury, liability, causation, and damages.)
    1. Note, concern in the American adversary system of potential bias by an expert witness b/c they are paid by the party they represent.
    1. Testimony is only taken from experts qualified by the court, per Evidence Rule 702.
    1. Qualification is based on formal training or experience in the field.
    1. Two categories of formally consulted expert witnesses:
    1. Experts formally consulted but not retained.
    1. Experts retained/hired but not called as witnesses.
    1. FRCP and Discovery of the Expert Witness >> broadening discovery from testifying experts.
    1. Rule 26(a)(2)(A) – each party must identify each name and opinions to be called to offer expert testimony at trial, and a detailed report on nature of opinion, per Rule 26(a)(2)(B).
    1. Rule 26(b)(4) – Trial Preparation: Experts
    1. 26(b)(4)(A)any party may depose any person who has been identified as an expert and whose witness may be presented at trial.
    1. 26(b)(4)(B) – a party (by interrogatory or deposition) may discover facts/opinions of adverse party’s expert witness that is not expected to be called to trial, per Rule 25(b) or a showing of exceptional circumstance (e.g. party has monopolized pool of experts.)
    1. Note, jdx’s split b/c no specific mention in Rule 26(b)(4) – whether identity of opponent’s non-testifying experts is discoverable, but generally, no.
    1. Informal experts – give background information and opinions, but provide no formal evidentiary purpose  those opinions could be adverse to the party’s own interest.
      1. Can even be someone met on the golf-course.
    1. Generally non-discoverable to avoid lazy attorney who just sit back and let the opponent do all the work, then obtain it by discovery.
    1. Agerv. Jane C. Stormont Hospital…. Π’s daughter born mentally impaired b/c of Δ Dr’s negligence in birth. Δ wants info on Π’s informally consulted expert. No discovery of the identity of an informally consulted expert.
      1. Rationale: discovery of identity not allowed b/c that would subvert the protective purpose of the rule; informal experts should not be accountable for informal consultations (would deter informal consultations in future), where they may not even be fully informed of the situation (FRCP 23).
      1. This rule prevents a party from building his own case by means of his opponent’s financial resources, superior diligence, or more aggressive preparation.
      2. Second, disclosing the identities of medical consultative experts would inevitably lessen the number candid opinions available as well as the number of consultants willing to even discuss a potential malpractice claim with an attorney.
      3. Finally, if an opponent had the opportunity to discover the identity of such a consultative expert whom the adverse party does not intend to call at trial, the opponent might instead call the expert to testify at trial.
      4. This would undoubtedly suggest that the party who retained the expert for the purpose of preparation had something to hide when it was the opponent who actually called the expert as a witness.
      5. Non-witness experts who are merely informally consulted by a party in preparation for trial, but not retained or specifically employed in anticipation of litigation, are generally considered to be non-discoverable based on the advisory committee notes to FRCP 26(b)(4).
      6. Discovery is appropriate with a showing of exceptional circumstances for witnesses formally retained (impractical for the parties seeking the discovery to obtain facts or opinions on the same subject by other means)
      7. This case must be remanded for a determination of whether the non-witness experts against whom discovery is sought were informally consulted or specially employed. If they were retained, then their identities will be revealed only if exceptional circumstances exist justifying disclosure. The order of contempt is vacated.

Though Rule 26(b)(4) is silent on the topic of informal experts, even formal experts not retained can only be discovered by a showing of exceptional circumstances.

    1. Note, in Europe, the court chooses 1 expert witness, rather than the American adversary system of opposing experts, hired by each side.


  • Confidentiality, Privacy, and Prevention of Harassment
    1. Formal Protective Orders (FPO): court order sought by a party to prevent discovery of information outside the scope of immunity or privilege to prevent undue burdens that might otherwise be imposed by discovery.
    1. Rule 26(c) – Protective Orders
      1. Requires a showing of good cause, for protection from annoyance, embarrassment, oppression, or undue burden or expense.
      1. Rule 30(d)(3) allows for a FPO to be issued upon a deposition conducted in an annoying, embarrassing, or oppressive manner towards the witness.
    1. Rationale: minimize intrusions and abuses of discovery process.
    1. Can be viewed as restraint of First Amendment free speech by prohibiting litigants from disclosing information, but if supported by good cause, FPO is constitutionally valid.
      1. Vinson v.Superior Court. Π alleges sexual harassment and IIED so Δ wants her to undergo a psychological exam. Π contests for violation of her privacy. Π’s IIED claim put her mental state in controversy, so the exam request is not barred, but they may not ask her questions related to her sexual past. P alleges const right of privacy and a protective order (put limits on the scope of the discovery of the exam)is violated by the psychological exam
    1. Rule: The CA Code of Civ Pro allows the mental examination of a party in any action in which the mental condition of that party is in controversy.
    1. Good cause to justify the mental exam – CA requires the mental state to be at issue to order the exam; good cause is seen b/c Π herself put IIED as the heart of her claim.
    1. Π does not want questions of her sexual past asked, and she wants her lawyer present.
      1. But, topics of her sexual past are irrelevant and outside the scope of discovery Π does have a privilege into the private matters of her sexual history. Only allowed for good cause (show facts making it relevant to probe into prior sexual conduct)
      1. Lawyer may not be present at the exam b/c that defeats the efficiency of the exam rather, Π can take a tape recorder to document any inappropriate behavior, if any.
    1. Rationale: When a party places her own mental state in controversy by alleging mental and emotional distress, there is even more reason to examine that party’s condition in order to properly decide the action. Here, P brought D into court and accused him of causing her various mental and emotional ailments. D denies P’s charges.
  • By asserting a causal link between her mental distress and D’s conduct, P implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress. Thus, P’s mental state is in controversy, and a mental examination of P is appropriate pursuant to the Code of Civ Pro.
  • Lawyer could be present if – may be proper under certain showings
  • Private parties are allowed to enter into confidentiality agreements (sign that you won’t disclose that your child was molested by a priest)



Disposition w/o Trial


  • DISPOSITION WITHOUT TRIAL >> most cases are disposed of before making it to trial.


  • Devices to avoid plenary trial:
    1. Dismissal for Failure to State a Claim – Rule 12(b)
    1. Challenges the legal sufficiency of a party’s factual allegations.
    1. Π Voluntarily Dismisses Own Claim – (non-suit in state court).
    1. Res judicata effects: 1st voluntary dismissal w/out prejudice (not barred by res judicata.)

2d voluntary dismissal with prejudice.

  • Court Dismissal – Rule 41(a)(2)
  • Unless otherwise specified, court ordered dismissal w/out prejudice to prevent unfairness.
  • Involuntary Dismissal for Failure to Prosecute – Rule 41(b)
  • Δ may move for this dismissal ~10% of cases are disposed of for this reason.
    1. Sometimes, Π does not meet certain deadlines; c.f. in CA – deadlines come up quick!
  • Default and Judgment by Default
  • Default – Rule 55(a)entry by the clerk that Δ failed to plead or defend.
  • Judgment by Default – Rule 55(b) actual entry of judgment granting relief against Δ.
    1. Alternative Dispute Resolution – can be voluntary or court-ordered mediation, arbitration.
    1. Summary Judgment – Rule 56 >> pierces Π’s pleading/complaint and forces a test of Π’s ability to meet the burden of production at trial.
    1. Suits start w/ pleadings (not under oath) – notice pleading, very little is required initially.
      1. Timing – Rules 56(a) and (b): after discovery and investigation but before trial, test the sufficiency of the case are there facts under oath that back up each essential element for relief?
      1. Note, partial summary judgment can be granted.
    1. Rule 56(c) – show 1) there is no genuine issue as to any material fact; and 2) moving party is entitled to judgment as matter of law no reasonable jury could find for the opponent.
      1. Evaluated on a case-by-case basis w/ inferences favorable to the opposing party.
        1. Not a weighing of evidence or witness credibility, but a review of the evidence.
        1. Rule 56(e) materials considered on summary judgment: admissions in pleadings, affidavits made on personal knowledge of facts, discovery materials, oral testimony (rare).
    1. Burden of the party moving for Summary Judgment:
      1. SJ says this case should be disposed of now b/c the case presents no genuine issue as to any material fact – no need for trial b/c no factual issues to be resolved so ct can resolve it based on applicable law
        1. Moving party (D) is saying the P does not have facts under oath to support some essential element of their coa
      1. Δ (usually the opponent Π has burden at trial) – establish there is no way Π can win:
        1. With facts presented as they are, there is no way Π can win – Celotex.
        1. Affirmative evidence that negates an essential element of Π’s COA – Adickes.
      1. D usually raises sj but ct also can
      1. Π (rare), the summary judgment mover has burden at trial – have they met the burden?
      1. Once the party moving for summary judgment meets its burden, the resisting party takes the burden and can no longer merely rely on pleadings; possible Π’s options:
        1. May ask for a continuance (more discovery) to get evidence under oath.
        1. Produce the evidence in response.
        1. Re-point out the facts in the record that do support the claims, overlooked by Δ.
      1. Affidavit – statement of facts by witnesses under oath – witness who states fact & swears that the facts are true
      1. Questions to consider
      1. What is the moving party’s sj burden – show or demonstrate to make sj possible?
      1. What is the resisting party’s burden with regard to sj?
    1. Adickes v. S.H. Kress & Co., Π teacher brought § 1983 action b/c denied restaurant service then arrested b/c she is a white lady accompanying black students. Δ failed to meet S/J burden by showing that Π failed to prove a material fact b/c Δ did not show that there was no possibility a police officer was in the store.
      1. Rule: Where the evidentiary matter in support of a motion for summary judgment does not establish the absence of a genuine issue, summary judgment must be denied if no opposing evidentiary matter is presented.
      1. Must view facts in the light most favorable to the P
      1. For Π’s equal rights claim, to avoid S/J she must show prima facie 1) Δ deprived Π of a constitutionally secured right; and 2) Δ acted under color of state law.
        1. Show prong 2 by proving that the restaurant acted in conspiracy w/ police (gov’t).
        1. Δ’s evidence focused on testimony that there was no conspiratorial agreement.
        1. Failed to negate the possibility that there was a police officer in restaurant. Nothing that demonstrated that police was not in store so a jury could infer that there was in fact a conspiracy. Must not only come forward with affidavits that negate some essential fact of P’s coa but must also negate all possible inferences that could be drawn from the facts
          1. Could have just had police file affidavit that they weren’t there at that particular time
        1. The opponent Π, cannot merely point to her pleadings for rebuttals, there must be evidence under oath to support her claim.
        1. Here, Π is lucky that Δ’s record failed to disclose the police officer possibility.
        1. D must come forward with affidavits that negate some essential element of the P’s coa – negate facts and all possible inferences jury to draw from the facts
      1. Moving party must meet initial burden or raising no issues of fact b/f P has to resist it by contrary information
        1. If moving party meets initial burden, resisting party would have to put into evidence facts under oath that what the moving party is alleging is incorrect or open to interpretation – jury would have to decide issue of fact
      1. Rationale:Because, on summary judgment, the inferences to be drawn from the underlying fact contained in the moving party’s materials must be viewed in the light most favorable to the party opposing the motion, D’s failure to show there was no policeman in the store requires reversal. D had the initial burden of establishing the absence of a policeman in the store. Thus, b/c the policeman’s presence in the store presented a genuine issue of fact, P was not required to come forward with suitable opposing affidavits from the policeman denying his presence at the time in question. Had D done so, P would have been required to do more than simply rely on the contrary allegation in her complaint. However, D failed to produce such affidavits. Hence, no defense to its insufficient showing was required. The motion for summary judgment was improperly granted.
      1. Analysis: Affidavits in support of a motion for summary judgment cannot rest on hearsay. They must be based on the personal knowledge of the affiant/ Sanctions may be imposed on an affiance who does not make his statement in good faith. Under FRCP 56(a), while the D may file a motion for summary judgment at any time, even before submitting his answer, the P must wait at least 20 days after the start of the action. In considering the motion, a trial court must deny it if, from the affidavits or other evidence presented, any material fact remains controverted.
    1. Celotex Corp. (Δ) v. Catrett (Π), Π’s husband died from asbestos exposure manufactured/distributed by 15 companies. Δ’s S/J granted. Δ’s S/J motion granted b/c Π failed to show in the record that there are facts to support her claim.
    1. Note, this is the modern approach to summary judgment more typical (not as difficult for the summary judgment mover to meet their burden as Adickes.)
    1. Δ contests the issue of causation between their products and deceased’s injury.
      1. Δ meets the burden by pointing out that there are no facts in the record, under oath to support her claims – Δ did not produce own affidavits to the contrary.
      1. Π’s evidence (letter from the deceased) that he had been exposed to Δ’s product was not under oath.
      1. Burden then shifted to Π to show there is an issue of material fact.
      1. No facts under oath that D’s product caused deceased death
      1. Causation is one of the essential elements of the cause of action
        1. D says no facts under oath in the record that support causation of the P’s coa
    1. When you more for sj, don’t have to accompany motion with an affidavit b/c ct could also raise sj issue & they wouldn’t have affidavits
    1. The moving party can meet its burden on sj by pointing out that in the record, there are no facts under oath to support some essential element of the P’s coa
    1. Just b/c D proves this doesn’t mean just sj – burden then shifts to P to produce evidence that D has overlooked facts or put in the record facts under oath the support the causation element
    1. P could also move for sj by showing that there is no way at trial that the D could win – evidence on every issue that could not be rebutted by the D
    1. Rationale: P had the burden of showing the D had some level of culpability in order to go forward on her claim. She thus bore the burden of proof on this issue. Her failure to meet this burden and thus establish a genuine issue of material fact justified entry of summary judgment. So if P produces no evidence to support claim, can’t possibly meet burdens so sj makes it so if you don’t even have facts under oath to support coa, then P will lose so no reason for a trial.
    1. P has bop at trial – production & persuasion – have to put evidence into the record at trial so if there is no evidence of causation then they will lose
    1. Responding to Summary Judgment Motion
      1. Arnstein v. Porter, Π claims Δ stole some of his biggest hit music that was already copyrighted, by fantastic claims. There is an issue of material fact, though fanciful, that has not been disproven – no S/J.
        1. The standard the court identifies in terms of the degree required – slightest doubt to the facts – very low standard – anytime there could possibly be an issue, it will not make it to summary judgment (now need a genuine issue of material fact)
        1. When credibility is an issue, cannot be resolved via summary judgment (now if just say D is lying, that would not be enough for a trial, need your own facts under oath).
    1. The “slightest doubt to the facts” standard used here for credibility though, is not realistic.
    1. Rationale: If there is the slightest doubt to the facts, a trial is necessary. In copyright infringement cases, there are two separate elements: (1) that D has copied from P’s work and (2), if proved, the copying went so far as to be an improper appropriation. If there is evidence of similarities and access, the court must determine if there was copying. Here, enough similarities in the song existed so that a jury could infer that no coincidence was involved. P’s songs being public provides the opportunity for access. Thus, a jury should hear each side of the story. A witness’ demeanor at trial is an important aid to the jury in settling the matter.




  • TRIAL >> complex and high stakes b/c they occur very infrequently.


    1. Most trials are judge trials
    1. Structure of bringing a case to trial:
      1. Pleadings, discovery, and pretrial motions.
        1. Pretrial conference to force parties to identify and state main issues –> pretrial order (order of the ct based on the info from the lawyers’ questionnaires & pretrial conference)
      1. Clerk puts the case on trial calendar.
      1. Juror selection, voir dire examination.
      1. Π and Δ – opening statements.
      1. Π presents their case; Δ presents to take the case away from Π.
      1. Π rebuts Δ’s case; Δ’s sur-rebuttal.
      1. Both sides rest and may move for a directed verdict.
      1. Closing arguments
      1. Case goes to jury w/ instructions, deliberation, and verdict.
    1. There is a movement for the use of pattern/model jury instructions.
    1. Post-trial motions.
    1. Ask whether this involves a matter of law (seeking damages, more likely to get a jury trial) or equity (permanent injunction – probably no right to jury trial)


    1. Final Pre-Trial Conference: objective – make the case go to trial in the most efficient way and gives both sides notice as to subjects covered at trial, per Rule 26(a)(3).
      1. The issues to litigate agreed on at the pretrial conference dictate the litigation thereon.
      1. C.f. do not give up claims that are still important.


    1. Right to Jury Trial
      1. Statutory Rights
      1. U.S. Constitution – per Rule 38(b) and (d), the right to jury trial may be waived, if not timely demanded.
      1. Article III, § 2, Clause 3 – “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
      1. Fifth Amendment – due process.
      1. Sixth Amendment – criminal law right to public and speedy trial by an impartial jury.
      1. Seventh Amendment – civil cases in federal court, jury trial for disputes > $20.
        1. This right is not considered incorporated under due process, so states are free to come up w/ whatever rules they want for the right to jury trial in state civil cases.
        1. Reverse Erie: if a state court is being governed by federal law, there may be a constitutional right to jury trial.
        1. History: preserves the right to jury trial in courts of law, not courts of equity.
        1. Does not apply to states via the 14th Amendment – states are free to write their own laws for jury trials
          1. CA – does recognize the right to jury trial as it existed in English common law in 1850
      1. Fourteenth Amendment
      1. State Constitutions


    1. Selecting the Trier of Fact
      1. Jury – selection by voir dire, Rule 47(a): jurors are placed under oath and questioned by the judge (usually federal court), or lawyers (usually state court), to look for potential bias.
      1. Standard of appellate review: de novo (from anew).
      1. A good lawyer can establish rapport w/ the jury during voir dire.
      1. Judge – duty to be informed of potential bases for disqualification and do so by own motion.
      1. Standard of appellate review: “clearly erroneous” standard, in deference of the experienced judge’s findings.
      1. § 455 – Disqualification of Judge based on personal bias, personal knowledge of facts, prior involvement as lawyer, financial interest, family relationship, extrajudicial matters.
      1. If a party wants to disqualify the judge, must file an affidavit of bias.


    1. The Judge
    1. Liljeberg (Δ) v. Health Services Acquisition Corp.. Judge on Loyola board, from whom Δ is trying to negotiate a sale of land to develop a hospital. Judge should have recused himself b/c the conflict of interest here creates an appearance of impropriety that § 455(a) intends to prevent.
    1. Rule: A trial judge should disqualify himself where due to dealing with the parties his serving as the trier of fact gives rise to an appearance of impropriety.
    1. Rationale: Collins knew of the advantages Loyola would enjoy as a result of a favorable ruling for D. Whether this actually impacted his judgment is not relevant. The trier of fact must not only be impartial, he must avoid the appearance of partiality. FRCP 60(b) allows courts to relieve a party from final judgment upon such terms as are just. Because the trial judge failed to disqualify himself, the judgment should be vacated.
      1. When there is an issue where the judge’s neutrality could be disputed, the judge doesn’t even have to have actual notice what could he reasonably have known?
      1. Avoid appearances of impropriety.
      1. Policy: protect the neutrality of the system.
    1. “Any judge shall disqualify himself if his impartiality could reasonable be questioned.” Scienter (knowledge) is not an element – don’t have to know of facts that make it seem impartial – b/c people must have faith in the judiciary and if they know of connections, they won’t trust the system
      1. Provision can thus be applied retrospectively
    1. Analysis: 28 USC 455 – provides that a judge must disqualify himself where he or a family member has an interest in the litigation. Deals with bases either for recusal or a motion for disqualification.


  • Province of the Jury >> what cases may be heard by the judge, and not a jury?
    1. Judges try issues of law; Juries try issues of fact.
    1. Sometimes difficult to determine the difference b/w Q of law and Q of fact (for judge and for jury respectively)
    1. Issues of Fact – juries determine “historical” facts, decide what happened by assessing witnesses.
    1. Normative Facts – decision of what to make of historical facts; a normative judgment on the consequences of historical facts; factual decisions that are not just a resolution of historical facts but when the decision-maker is asked to make some normative judgment in regards to the facts
      1. Ex: Q of negligence – “Did the D act reasonably?”
    1. Implications: Judge v. Jury
      1. Different Results? – Judges are highly educated in the law while the jury is theoretically comprised of lay people (and more receptive to sympathetic arguments).
      1. Verdict – juries usually return a general verdict w/ no explanation of how they got that result more difficult to review on appeal.
      1. Political – juries have anonymity while state judges up for reelection may be reluctant to return an unpopular opinion. In controversial cases, judges might prefer juries rather than a judge so if it is an unpopular decision, the judge is off the hook.


    1. Jury Decision in a Factually Undisputed Case
      1. Sioux City & Pacific RR Co. (Δ) v.Stout, Child’s foot injured when playing on abandoned RR’s turntable. There is sufficient evidence to justify the jury’s finding for Π; even when facts are uncontested, it is appropriate for the jury to decide on normative facts.
      1. On appeal, the AC need only look at whether there was sufficient evidence to justify the jury’s finding no weighing of evidence (that is the jury’s job, and in any case, the facts here are uncontested.
      1. Just b/c facts may be undisputed does not mean that there is nothing for the jury to infer – it must still ascertain the responsibility of each party.
        1. Ct says insufficient facts to support jury’s verdict
      1. Jury, not judge, is more appropriate to review normative facts and draw inferences from the undisputed historical facts as to whether or not there is negligence by Δ.
      1. Rule: An instruction that the jury may determine the issue of D’s negligence is properly issued if negligence may fairly be inferred from the evidence presented.
      1. Rationale: A jury should be deprived of the privilege of determining the issue of negligence only if the D is entitled to a direct verdict, and as long as negligence may fairly be inferred from the evidence presented, the issue is properly submitted to the jury.


    1. Taking the Case From the Jury – Motions During Trial
    1. Rule 50(a) – Judgment as a Matter of Law – “directed verdict” in state court, “nonsuit” in CA.
      1. May be made at any time before the case is submitted to the jury. A motion for judgment as a matter of law made after return of the verdict by the jury (i.e., a renewed motion) will not be entertained unless the moving party first made the motion before the case was submitted to the jury (CA: prior motion not required)
      1. 50(a)(1)the other party may move for JML if there is no legally sufficient evidentiary basis for a reasonable jury to rule in their favor.
      1. 50(a)(2) – Timing:after a party has been fully heard at trial on an issue, but before the case is submitted to jury.
      1. Case by case basis – no weighing of evidence; rather, inquiry is whether or not there is a genuine issue to present to the jury w/ inferences that favor the non-moving party.
      1. These motions are usually denied b/c if overturned on appeal, the entire case must be retried in the absence of a jury verdict judicial economy.


    1. Motions After the Verdict
    1. Rule 58 – Entry of Judgment – after jury verdict or judge decision, judgment should be entered, triggering Rule 59 deadlines for filing post-trial motions.
    1. Judgment Notwithstanding the Verdict (NOV), “renewed motion for Judgment as a Matter of Law” – fed ct
      1. No reasonable evidentiary basis that reasonable and fair-minded persons could find for the winning party, thus nullifying the jury’s verdict.
        1. The jury’s verdict went against the weight of the evidence.
      1. Rule 50(b) – Renewing Motion for Judgment After Trial [ Directed Verdict/JML].
      1. Standard of Review: evidence is looked at in the light most favorable to the party against whom the motion is made (but the S.C. has not answered what this evidence is)
        1. Vermont Standard: all evidence is considered – from Simblest.
        1. Federal Standard: consider only evidence that is uncontradicted, unimpeached, and most favorable.
      1. Timing: w/in 10 days of entry of judgment, can be filed in conjunction w/ a motion for a new trial.
        1. Simblest v.Maynard, Π’s car hit in intersection by fire truck during blackout. Π claims he did not hear/see it coming, but witnesses on street did. Π’s own testimony reveals that reasonable men could not find the blackout occurred while he was in the intersection, and Π could have avoided the accident.
        1. Judge should only grant n.o.v. if reasonable jury could have reached that conclusion, no weighing of the evidence
        1. To determine whether the motion for judgment n.o.v. should be granted – it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.
          1. Jury function is to assess the credibility of the witnesses and evidence, not judge
          1. Trial ct must view evidence in the light most favorable to the party
            1. Must be given the benefit of all reasonable inferences that must be drawn
        1. Following Π’s testimony, there is no mathematic way that Π’s testimony can be taken as competent.
        1. Rule: In evaluating the propriety of a motion for judgment n.o.v. (judgment entered by the trial judge reversing a jury verdict if the jury’s determination has no basis in law or fact), the court may consider only that evidence which is favorable to the nonmoving party and such unfavorable evidence against his is uncontradicted and unimpeached.
        1. Analysis: Motions for judgments n.o.v. are traditionally evaluated according the same standards as is applied to motions for summary judgment. All evidence is construed in the light most favorable to the nonmoving party, and the motion will still be denied unless even this liberal interpretation provides no support for the nonmoving party. The standard applied in both instances reflects a strong bias in favor of trial by jury. Thus, the jury’s verdict will not be disregarded nor its determination dispensed with except upon a compelling demonstration that no contention of the nonmoving party is meritorious.


    1. Motion for a New Trialmotion may be made by either party or by judge in jury and judge-decided cases for 1) procedural error; or 2) insufficient evidence.
      1. Rule 59(a) – New Trials; Amendment of Judgments
      1. Timing: (b)w/in 10 days.
      1. Prejudicial Error:
        1. Tanner v.U.S. After mail fraud trial, 2 jurors came forward and admitted to drinking, smoking pot, and doing drugs while on jury. Jury testimony cannot be used to implicate other jurors.
        1. The juror testimony about conduct is not permitted b/c it is internal to the verdict.
        1. Jurors are only allowed to testify as to extraneous prejudicial information or outside influence, not internal though.
          1. Ex. of “extraneous” influence – comments from bailiff, bribes, etc.
          1. Ct personal could testify about juror misconduct
        1. Rule: Evidence of juror intoxication, in the form of juror testimony, is inadmissible to impeach a jury verdict.
        1. Rationale: avoid harassment of the jury to “get” evidence establishing misconduct enough to set aside a verdict; no finality of judgments; reluctance to take jury duty.
        • The sanctity of juror deliberations would be irreparably harmed if jurors could be examined after the verdict in an attempt to impeach the result. The jury system rest s upon the independence of the jury deliberations. In this case, no extraneous influence could be shown to allow the admissibility of the evidence.

Analysis: The rule relied upon in this case has both common law and statutory authority. FR of Evidence 606 codifies the rule recognized at common law. The sole exception is where an extraneous influence pervades deliberations, such as affinity with a party or counsel or a bailiff’s comments about parties or counsel.


  • Insufficient Evidence:
    1. Spurlinv. GM Corp. School bus crash b/c of bus brake failure based on negligence of brake system design and wrong info in owners manual for maintenance. Under “substantial evidence rule”, Π did present a sufficient quantity of evidence for both claims, to w/stand a judgment n.o.v. motion.
    1. Sufficiency of the claims:
    1. Negligent brakes claim – expert witness testimony.
    1. Inadequate manual claim – conflicting testimony is enough.
    1. Task for jury’s verdict to be appropriate requires sufficient, substantial evidence to support jury’s verdict, it must be allowed to stand
    1. New trial can be granted where the jury’s verdict is against the great weight of evidence
      1. Can now weigh the evidence – assess the credibility of evidence an each side – involves a credibility determination
      1. But fed cts won’t use the greater weight standard. Need to be cautious and not use greater weight standard because:
        • Judges shouldn’t set aside verdict just b/c jury could have developed a dif conclusion
        • Based on 7th amendment – no fact tried by a jury shall be re-examined unless according to rules of c.l. – “greater weight” ok b/c common law permitted it when Amendment was adopted so ok
      1. Just b/c conflicting evidence is not enough to justify a new trial – has to be clear that the decision reached by jury was against great weight of evidence
    1. Rule: (1) Grant of a judgment n.o.v. is proper unless there was substantial evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions. (2) A new trial is not properly granted for insufficiency of evidence unless the jury verdict is at least against the great weight of evidence.
    1. Rationale: Expert testimony was offered, although it was not uncontradicted that the braking system was not reasonably safe and that D had thereby breached its duty as manufacturer of the bus. Furthermore, there was also some substantial evidence as to the possibility of intervening negligence on the part of the school bus operators and owners, meaning that the issue of proximate cause should have gone to the jury. (2) In this case, the evidence was conflicting on the issue of negligent design and proximate cause so that the great weight of evidence did not fall against the verdict. Thus, it was not proper to grant the new trial either.
    1. Analysis: Between a judgment n.o.v. and a new trial, judgment n.o.v. has the more drastic effects.. It gives the verdict-winner no chance to offer supplemented proof of his case at a new trial so as to overcome any insufficiency in the quantum of evidence, thereby greatly affecting settlement values.


    1. Standard of Review in Weighing Sufficiency of Evidence:
    1. Great Weight” of Evidence [Federal]: cannot grant a new trial motion unless the jury verdict is against the great weight of evidence.
      1. Rationale: judge cannot act like a 13th juror and override the verdict simply b/c he does not like the verdict Seventh Amendment implications. Connotes even more power vested in trial ct judge
    1. Greater Weight” of Evidence [used in some states]: cannot grant a new trial unless the jury verdict is against the greater weight of the evidence.
      1. Implies the need for a subjective weighing of factors and a preponderance of the evidence test.
    1. O’Gee v. Dobbs Houses, Inc., Flight attendant injured while pushing 800 lbs. airline cold-buffet. Denial of Δ’s motion to set aside was the verdict was an abuse of discretion unless Π accepts award, new trial granted.
    1. Rule: Where a federal ct of appeals determines that evidence does not support a damages verdict, it may reverse, on grounds of abuse of discretion, a denial of a motion to ser aside the verdict as excessive.
    1. Rationale: A federal ct of appeals has the power to review the order of a trial judge refusing to set aside a verdict as excessive. If it reverses, it must be because of an abuse of discretion. If the question of excessiveness is close or in balance, the court must affirm. The very nature of the problem counsels restraint. The benefit of every doubt must be given to the judgment of the trial judge. However, whatever an upper limit to damages has been exceeded is not a question of fact, but a question of law.
    1. A motion for new trial based on a too-high damage award is another way of saying the verdict went against the great weight of the evidence. A federal ct of appeals has the power to review the order of a trial judge refusing to set aside a verdict as excessive. If it reverses, it must be b/c of an abuse of discretion. If the question of excessiveness is close or in balance, the ct must affirm. The very nature of the problem counsels restraint. However, whether an upper limit to damages has been exceeded is not a question of fact, but q question of law.
    1. Appellate court makes their own assessment of the evidence to determine whether there has been a denial of justice, “shock the conscience”.
    1. Excessive or Inadequate Verdicts >> can be adjusted by the trial judge.
    1. Damages must be so excessive that they are shocking in order to be overturned
    1. Additur: Π’s motion for new trial is denied if Δ agrees to increase the award amount to a total specified by the judge. Not allowed in federal cts
      1. Grant a new trial for D or agree to a higher amount
    1. Remittitur: allowed in federal courts if Π has the choice between accepting the lower damage a

amount of being allowed another jury trial.

      1. Generally accepted in all jurisdictions and granted at the trial level.
      1. Either new trial for P or smaller amount of $
    1. Punitive Damages: can be adjusted by the judge using the same discretionary standard as cases of compensatory damages, so the amount is proportional.
      1. Proportionality Factors: 1) reprehensibility of Δ’s conduct; 2) ratio between punitive damage award and severity of harm inflicted/threatened.
        1. Generally, if PD’s are more than 9/1 higher reassessment.


  1. Putting the Case to the Jury
  1. Ethics >> zealously represent your client’s interests, into the gray/unclear area of ethics.
    1. Sabella v. Southern Pacific Co., Π injured while working as a carman cutter and wins $$ judgment. Δ alleges prejudicial misconduct b/c of dramatic accusations by Π’s lawyer at trial. Δ failed to take the proper steps on appeal and failed to make the proper objections at trial.
    1. Which attorney was really less ethnical?
      1. Π’s attorney clearly used questionable methods during closing arguments; BUT
      1. Δ’s attorney failed to represent his client’s interests by properly objecting and requesting the judge to admonish the jury.
    1. BOP on appealing party to preserve record – demonstrate to ct that the prejudice could not be removed at trial ct level
      1. If other side is doing something wrong, must object during the trial & ask judge to admonish the jury to disregard those statements (purpose of admonishment is to remove the prejudice that might exist – jury listens to judge and disregards those statements)


  1. Decisions in Judge-Tried Cases >> possibly no opening statement, relaxed rules of evidence, judge intervention in examination of witnesses, and written rather than oral final argument.
    1. Decisions: judge must make findings of fact and conclusions of law.
    1. Standard of Review: “clearly erroneous” standard.
    2. Extraordinary relief from judgments – going back to same ct that rendered judgment and having it set aside
    3. FRCP 52(a) – requires that findings of fact not be set aside unless clearly erroneous.
      1. Rule 60(b)
      2. Easier to set aside a default judgment rather than a judgment on the merits
    4. Andersonv. City of Bessemer City. Title VII discrimination b/c Δ hired less qualified male. Even in a case based on documentary evidence, the clearly erroneous standard applies; a new trial will not be granted where the judge’s findings are plausible.
    5. Rule: Under FRCP 52(a), a finding is clearly erroneous only when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made.
    1. Appellate ct should be differential to trails ct b/c:
      1. Judicial economy – don’t want same evidence to b reviewed in cts – appeal should just correct errors, no de novo review
      2. Trial ct judge is trained to look at evidence, appellate ct judges aren’t
    1. Even though this is a case of documentary evidence and thus, no gauging by the judge of witness-credibility, must still defer to the trial judge’s expertise in making findings.
    1. Clearly erroneous, and not de novo apply here b/c D.C.’s findings are plausible.
    1. Following this case, Rule 52 was amended to extend to documentary evidence.


  1. Interlocutory Review >> very difficult to obtain, usually only in cases of the extraordinary writs.
  • An interlocutory appeal is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the decisions made by the judge during that trial. However, many jurisdictions make an exception for decisions that are particularly prejudicial to the rights of one of the parties. For example, if a party is asserting some form of immunity from suit, or is claiming that the court completely lacks personal jurisdiction over them, then it is recognized that being forced to wait for the conclusion of the trial would violate their right not to be subjected to a trial at all.
  • The Supreme Court of the United States delineated the test for the availability of interlocutory appeals, called the collateral order doctrine; under the relevant statute (28 U.S.C. § 1291) such an appeal would be permitted only if:
    • the outcome of the case would be conclusively determined by the issue;
    • the matter appealed was collateral to the merits; and,
    • the matter was effectively unreviewable if immediate appeal were not allowed.
    1. Digital Equipment Corp. (Δ) v. Desktop Direct, Inc. Δ used Π’s name marketing Desktop direct from digital”. After coming to a negotiated settlement, Π moved to vacate settlement b/c of misrepresentation in the negotiation. Δ’s request for appeal is denied to protect the strict requirements for interlocutory review.
    1. Rule: Refusal to enforce a settlement agreement claimed to shelter a party from suit altogether does not supply the basis for an immediate appeal
    2. Right to appeal is governed by 28 USC 1291, 1292 (exceptions), 1292(b) & FRCO 23(f) – review in class actions, FRCP 54(b) – DC is permitted to enter a judgment not about all the claims of the parties or even all the parties (affect appeal)
    3. Court of Appeals refused to hear Δ’s appeal b/c the issue was never litigated on the merits and there is no final judgment this case retracts use of the collateral order doctrine.
    1. Rationale: S.C. does not want to open the floodgates for litigation and swallow up the rule to only hear reviews in final decisions in every circumstance where there might not be a “right to stand trial” and a subsequent demand for interlocutory review.
    2. Kerr v.U.S. District Court. Prisoners class action – length/conditions of punishment as constitutional violations. Δ gives limited adult authority files b/c privileged and confident, so Π files a writ of mandamus.Use of the extraordinary writ of mandamus is not appropriate here.
  1. Rule: A writ of mandamus implements a drastic remedy to be used only in extraordinary situations so that it is issued only when the petitioning party has no other adequate means to attain the relief he desires.
  2. Rationale: Because it is a discretionary and drastic remedy to be used only in extraordinary situations, a writ of mandamus is properly denied when the petitioning party has any other adequate means to attain the relief he desires. In fact, the petitioning party must show that his right to issuance of the writ is clear and indisputable. A judicial readiness to issue such writs in anything less than an extraordinary situation would run the risk of encouraging piecemeal litigation, fostering appeal by writ, and defeating the very policies Congress sought to further in requiring that all other avenues by pursued, so the appellate ct is not brought into the picture before the final decision has been made in a case.
    1. Method of seeking appellate review – USC 1651 (CA – authorized by statutes) – writs are discretionary with higher ct – don’t have to grant it nor give reason to grant it.
    2. Writ of Mandamus – an extraordinary writ – higher court tells the lower court to do something (here, to vacate the discovery orders.) A ct order issued commanding a public or private entity, or an official thereof, to perform a duty required by law. Discretionary with Ct of Appeals.
      1. Functions as a substitute for appellate review, usually inlocutory review.
    3. Situations when the when have been issued by federal appellate cts:
      1. When the DC judge:
        1. Refuses to dismiss a case although K is lacking or a meritorious preliminary defense exists
        2. Stays trial proceedings pending arbitration, exhaustion of some administrative remedy or resolution of a related case in another forum
        3. Quashes writs of attachment or garnishment filed before the trial to ensure any judgment can be satisfied
        4. Denies permission to file a cross-claim or other pleading amendment, or refuses to permit intervention
        5. Refuses to permit depositions of certain individuals, or grants permission to take inappropriate depositions or improperly limits or conditions deposition
        6. Enters orders limiting or denying discovery, or requires the production of privileged material
        7. Denies class action status, or consolidates or severs two trials, or refuses to do so
        8. Refuses to recuse himself.
  1. Requires:
    1. Extraordinary circumstances
    2. No other adequate means to obtain the relief desired (no adequate remedy at law).
    3. Right to the writ is “clear and indisputable.”
    4. District Court went outside their proscribed jurisdiction/scope of power.

Difference between appeals from federal cts and st cts – Appeals of final decisions or judgments – an appeal to a federal appellate ct may be taken only from a final decision or judgment of the lower ct. The final ct judgment rules is embodied in two fed statutes, one dealing with cases coming up from the lower fed cts, the other with cases coming up from the state cts.

  • USC 1291 – deals with lower fed cts, providing that the courts of appeals shall have J from all final decisions of the DC of the US.
  • USC 1257 deals with state cts, providing that final judgment or decrees rendered by the highest ct of a State in a decision may be had, may be reviewed by the SC.

Federal statutory provision for interlocutory review – 1292(b) – provides that a district judge may state in writing that an otherwise non-appealable interlocutory order involves a controlling question of law as to which there is a substantial difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. The court of appeals may in its discretion hear an appeal from that order.

  • Extraordinary Writs
    • In California, interlocutory appeals are usually sought by filing a petition for writ of mandate with the Court of Appeal. If granted, the writ directs the appropriate superior court to vacate a particular order. Writs of mandate are a discretionary remedy; such petitions are almost always denied due to the state’s public policy of encouraging efficient litigation of civil actions on the merits in the superior courts.
  • Omaha Indemnity v Sup Ct
    • Alternative writ – ct says to other side, grant this relief unless you explain why it shouldn’t be granted. Oder to show cause.
  • Save-on Drugs v Sup Ct
    • Extraordinary writ relief is appropriate – once info is already out there, can’t take it back – did trial ct properly recognize a discovery privilege?



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