CIVIL PROCEDURE

I. PERSONAL JURISDICTION -- A court only has power over the people who have a connection to that

court. (constitutional requirement of due process)

A.Historical Concept:

1. In Personam Jurisdiction: States have power over people within their borders

2. Transactions across state lines forced the states to change

3. In Rem -- state had the power to enter judgement if D had property inside the borders

4. Quasi In Rem -- state could seize or attach property within the state even if the claim was not about

that property. (power up to value up to that property5. Penoyer v. Neff -- attached personal jurisdiction to 14th Amendment Due Process Clause for the

First Time rooting the Personal Jurisdiction Doctrine to the Constitution!

B.Specific Jurisdiction - Where you can bring suit against a defendant based on certain events.

1. Minimum Contacts Test (established in International Shoe) (Also Applies to in Rem jurisdicion;

Shaffer v. Heitner) (international show sets up the distinction between specific and general

 jurisdiction).

a)Minimum Contacts

(1) Purposeful Availment Test established by Hanson v. Denkla (sisters suing for benefits of 

estates. Mom’s trust had been set up in delaware and then mom moved to Florida. Florida

does not have jurisdiction because Trust company did not purposefully avail itself to FL.)

(2)Forseeability (foreseability of causing harm is not enought) Foreseebility that D shouldreasonably anticipate being hailed into court there. World Wide Volkswagon (auto retailer

 being sued in OK. Court says it is not enough that it was foreseeable that a car might drive

though; must have reasonably anticipated being hailed into court in that state!)

(3)Not Casual or Isolated...significant contacts. 

(4)Having Property in the area is not enough anymore...you need to apply minimum contacts

as well, but property may be a factor that is considered. Shaffer v. Heitner (Greyhound bus

case, where directors of Greyhound are sued by stockholder. Says no personal jurisdiction in

Delaware bc attaching property is not enough if property is not related to the COA.)

 b)Claim “Arises Out of those Contacts”

2. that do not offend the notions of fair play and substantial justice (Fairness is not considered unless

minimum contacts have been established --> World Wide Volkswagon)a)The Burden on the Defendant (primary concern according to World Wide Volkswagon)

 b)interests on the forum state

c) the plaintiff’s interest in obtaining “convenient and effective relief” Asahi!

(1)availability of witnesses?

d)efficiency

e)interest in futhering substantive social policies.

f) Must be VERY unfair to defeat personal jurisdiction. (Asahi)

g)Fairness notions may also allow the court to find jurisdiction --> Burger King

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Elementsof FairPlay andSubstantial Justice

 

3. Contracts Cases in Personal Jurisdicion

a)McGee v. International Life Insurance Co. - sufficient minimum contacts in California by

establishing substantial connection when they insured a california resident, accepted payments

from california.

 b)Hanson v. Denkla -- not sufficient minimum contacts when established trust in delaware andthen trustee moved to florida...even though continued the transaction in florida, they had no

choice in the matter. Introduces Purposeful Availment

c) Buger King v. Rudzewicz -- sufficient minimum contacts when michigan resident contracts for

franchise whose headquarters is in Florida, contract calls for him to make payments in Florida

and both were experienced business people.

4. Stream of Commerce Cases in Personal Jurisdiction ( no clear analysis of this)

a)stream of commerce defined --∆ knows that some of its goods go to a particular state, it does not

know exactly which products go where.

 b)Asahi -- plurality opinion with no clear guidance

(1) O’Connors View:

(a)Mere awareness that your goods may enter a forum is insufficient(b)must be accompanied by other acts specifically directed at the forum

(2) White’s View:

(a)Mere Awareness is enough

(3) Steven’s View

(a)Volume of goods established sufficient

c) Internet Cases

(1)Palovich - court creates sliding scale! and find that he did not have personal jurisdiciton.

Defendant argues that this was like Jones v. Calder intentional tort cases where publisher

defames something and knows where the person lives. Targeting a person in that

 jurisdiciton gives personal jurisdiction.

(a) Sliding Scale (established in :i) Passive -- no jurisdiction unless the material is clearly directed at another state

ii)Active --

iii)Interactive/commercial purpose -- definitely jurisdiction

5. General Jurisdiction --when you can bring any claim against a defendant, even one unrelated to

those contacts. most of the time it is the place where you are domiciled.

a)Analysis: Substantial Minimum Contacts

(1)Domicile

(2)Continuous and Systematic Activity in the Forum

(a)Perkins v. Benguet Consolidated Mining -- company operating in the philippines,

president moves back to Ohio, court says that mining company has personal jurisdiction

there because he maintained continuous and systematic activity in the forum.(b)Mere Purchases are not enough for Continuous and Systematic Contact

i) Helicopteros

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(3)State of Incorporation

(4)Presence (has to be voluntary)

(a) State has general jurisdiction whenever a defendant is present in that state.

(b)Burnham v. Superior Court -- ∆ was visiting CA for 3 days for matter unrelated to

claim when served. Court says that there is general jurisdiction in CA but disagree as towhy.

i) Scalia’s View -- Unecessary to apply minimum contacts (minimum contacts is for

when ∆ is not present.) Enough that person was availing themselves to the laws of 

the state.

ii)Brennan’s View -- minimum contacts test applies. ∆’s voluntary presence as well as

the service while he was there gives general jurisdictoin.

iii)Steven’s View -- just says that this is a “very easy case”

6. Contracting for General or Specific Jurisdiction

a)Express Consent

(1)contract

(a)as long as agreement is enforceable under normal contract law, enforceable!(2)Forum Selection Clause -- parties can specify a specific jurisdiction, other party can dismiss if 

not brought in that jurisdiction. Enforceable unless they are no fundamentally fair.

(a) Carnival Cruise Lines, Inc. v. Shute -- court upholds a forum selection clause on the

 back of a cruise line ticket. (but this really only applies to courts)

 b)Implied Consent -- when a party acts in a way that contradicts his claim that the court lacks

personal jurisdiction over him.

(1) Plaintiffs -- if a ∏ files suit in a forum, then they have implied consent.

(2) Failure to assert defense -- if ∆ files a counter claim or other motion and does not assert

personal jurisdiction defense.

7. NOTICE

a)Required by the Due Process Clause of the 14th Amendment (linked to constitutional rights byMullane v. Central Hanover Bank. -- established Mullane Test:

 b)In addition to minimum contacts test used to establish personal jurisdiction must have notice!

c) ∏ must give ∆ a summons (formal document) and a Complaint (telling what the lawsuit is

about).

(1)Corporations have to appoint a person who can accept all service of process.

d)Steps to Notice for A∏:

(1)Need to Serve your ∆ within 120 days of filing!

(2)If wants to save money, would want to ask ∆ to waive service.

(a)Rule 4(d): allows∏ to ask ∆ to waive the process requirement.

i) Why would ∆ want to do this?

(1)∆ will have to pay for costs of service (if they do not waive after being asked)unless they have a really good reason to refuse.

(2)inconvenient and embarrassing

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(3) get more time to answer! (get 60 days instead of 20 days)

(b) notify the ∆ in writing, requesting waiver

(c)give ∆ 30 days to respond.

(d)If ∆ responds and waives service --> ∆ has 60 days to respond.

(3) What if Statute of Limitations is about to run out?(a) In a state where the complaint stops the clock ---> can still ask for waiver

(b)In a state where the complaint does not stop the clock --> get process server started and

do not waive.

e)Remember that 4(k) makes the federal jurisdiction analysis the same as the state jurisdiction

analysis!

f) Adequacy of Notice

(1)“reasonably calculated under the circumstances”

(2)Mullane v. Central Hannover Bank -- putting ad in newspaper is okay notice for people

who they didn’t know, however, not okay when you know people’s names and addresses.

8. Long Arm Statutes -- statutes a lot of states have that even further limit their jurisdictional power;

usually enumerates when an out of state ∆ can be served in that state.a)ie: Gibbons v. Brown -- where the court does not use the “constitutional Analysis” (international

shoe) and instead analyses the Florida Long Arm statute Language that says a ∆ must be

engaged in “substantial and not isolated activity” ; court dismisses claim bc they say that 1

lawsuit brought in florida that is over is not being “engaged.”

II. VENUE -- what court/county/federal district you should file in once you are inside a state’s border.

A. This is NOT a constitutional issue, it is an administrative issue!

B. Governed by 28 U.S.C. § 1391

1. 28 U.S.C. § 1391 (a) -- when based soley on diversity

a)A civil action founded o nly on diversity of citizenship may be brought in

(1) district where the ∆ resides , if all ∆’s reside in the same state.

(2)district where substantial part of events, or substantial part of property involved were.(3)if (1) and (2) don’t work, a district where any ∆ is subject to personal jurisdiction.

(a) 1391 (c) says that corporations reside where there is personal jurisdiction over them.

2.  28 U.S.C. § 1391 (b) -- when not based soley on diversity

a)civil action where subject matter jurisdiction is not founded on diversity may be brought in:

(1) judicial district where a ∆ resides if all reside in the same state.

(2) district where substantial part of events, or substantial part of property involved were.

(3) if (1) or (2) don’t work, a district in which any defendant may be found.

(a)most courts have interpreted “may be found” language as personal jurisdiction, so for

all intents and purposes, these are the same.

 b) 28 U.S.C. § 1391 (d) -- When a ∆ is an alien

(1) Aliens can be sued in any district that has personal jurisdiction over ∆

(2)If multi district state has personal jurisdiction over alien then he can be sued in any district.

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c) remember that if you want to file a 12(b)(3) motion, 12(g) says that you must raise that defense first,

otherwise it is waived.C. Forum Non Conveniens

1. Court created doctrine that allows the court to dismiss an action even though venue is proper

 because they believe it would be unfaira)usually used when the more convenient court is a foreign court.

(1)ie: Piper Aircraft v. Reyno -- where the court decided that scotland would be a more

convenient place to hold lawsuit (since all of the victims were residents of scotland and the

evidence was there.) so granted forum non conveniens dismissal.

2. Factors the Court Considers:

a)where the underlying events occurred

 b)where the witness and physical evidence are located

c) the comparative overall costs

d)whether it is difficult for the witnesses

e)whether a judgement would be enforceable in the where the defendants assets are located

f) choice of law questions (ease of determining law that would govern)g)policy implications

h)backlog in the court chosen

i) the burden on the court.

III. Subject Matter Jurisdiction -- whether or not you can be in a certain court of limited jurisdiction. (ie:

Federal v. State Courts; Tax Courts, Family Court etc.) Article III -- gives federal courts limited

 jurisdiction!)

A. Can you be in Federal Court.

1. 28 U.S.C. § 1331 -- Federal Question

a)Federal District Courts have jurisdiction of all civil actions arising under the constitution, laws

or treaties of the United States.

2. 28 U.S.C. § 1332 -- Diversity of Citizenship; Amount in Controversy

a) Federal District Courts have jurisdiction when amount exceeds 75,000$

(1) Based in what the ∏ asks for (not what they get) as long as they ask in good faith.

(a) most courts do not count extreme punitive damages.

(b) Interest and Court Costs are not included.

(2)What Counts:

(a) Single Claim Greater than $75,000

(b)Single∏ , Single ∆ multiple claims that are each less than $75,000, but add up to more

than $75,000

(c)Multiple∏’s against same ∆ , joint claims adding up to $75,000

(d)Multiple∏’s one claim greater than $75,000

(e)Multiple ∆’s with one ∏ if each defendant is responsible for $75,000(3) What does not Count:

(a)Multiple∏’s against same ∆ non joint claims.

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b)The Suit is Between:

(1)citizens of different states OR

(2)citizens of a state and citizens or subjects of a foreign state OR

(3) citizens of different States and in which citizens or subjects of a foreign state are additional

parties(a)Saadeh v. Farouki --refuses to look at the venue statute literally when it comes to

resident aliens. Says that resident aliens will be considered citizens of the state where

they reside when it destroys diversity, but not when it confers with diversity!

IV.SUPPLEMENTAL JURISDICTION -- When federal court can excericise jurisdiction over claims related

to § 1331 claims

A. Governed by 28 U.S.C. § 1367

1. When district courts have jurisdiction over a claim, they will have jurisdiction over “all other

claims that are so related” that they “form part of the same case or controversy.”

2. Ameriquest -- fraud claims are so related to TILA that they form the same case or controversy

a)Two Tests to Determine whether claims for the Same Claim or Controversy:

(1) common and operative facts (same facts to prove both)

(2)can state claims be dismissed w/o affecting the federal claims?

(a)Necessary to determine the remedy of the first claim?

3. Exceptions: 1367(c)

a)When diversity is founded soley on diversity of citizenship (§1332)

4. Courts Can Also Choose to Decline to excercise Supplemental Jurisdiction BC:

a)novel or complex issue of state law OR

b)claim predominates over the original claim or claims OR

c) the district court has dismissed all claims over which it has original jurisdiction OR

d)exceptional circumstances or other compelling reasons OR

(1)ie: Szendrey-Ramos v. First Bancorp -- federal court decides not to hear Puerto Rican law

claims bc they involve a complex issue of state law.V.  REMOVAL

A.Governed by 28 U.S.C. § 1441.

1. Civil Action brought in State court that could have been brought in Federal Court may be

removed by ∆ to federal court:

a)If claim was eligible for Federal District Court under “Arising Under” (§1331) then -->

Removable (not removable if a counter claim brings federal issue; claim must bring federal

issue)

b)If Claim is eligible for District court under “diversity” or another reason (§1332) ---> removable

only if NONE of the defendants is a citizen of the state where the state court action was brought.

B. How to Remove a Case 28 U.S.C. § 1446

1. No court decision....court only gets involved in if there is a challenge...see below!!2.∆ files a notice of removal in the district court (with everything else).

a)Must be filed within 30 days of the initial pleading. OR

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b)within 30 days of receipt of papers from which it can be ascertained that the case is now

removable. (Like when something happens....)

c) BUT CAN NOT REMOVE BASED ON DIVERSITY NO MATTER WHAT AFTER ONE YEAR!

3.∆ notifies the state court and other parties.

a)also remember that notice of removal is subject to RULE 11C. How to Challenge Removal 28 U.S.C. § 1447

1. Motion to Federal Court who can remand to state court (does not dismiss the case).

2. D only has 30 days to remove...make sure 30 days has passed.

D.When an added D destroys diversity once the case has already been removed, the court can either

deny amendment adding the D or remand to State Court. 1447(e)

E.Caterpillar v. Lewis - where Supreme Court says that even thought the case is removed improperly, no

harm no foul....supreme court works on efficiency!

VI.  ERIE DOCTRINE

A. Basic Rule: Federal Courts must follow state law when deciding diversity cases. (not arising under)

1. Exceptions

a)federal rules of civil procedureB. Erie v. Tompkins:

1. The lower court was obligated to apply Pennsylvania’s wanton negligence standard.

2. The Court overturned Swift (that said state laws included STATE COMMON LAWS AND

STATUTES). (a. says that Swifts interpretation of the Rules of Decision Act = bad!! b. ) 

3. Federal Courts have NO POWER TO CREATE COMMON LAW

4. constitutional ruling

a) SWIFTS INTERPRETATION OF THE RULES OF DECISION ACT IS UNCONSTITUTIONAL

BC IT USURPS THE POWER THE CONSTITUTION GAVE THE STATES TO MAKE THEIR

OWN LAWS.

b) based on the principles of federalism reflected in Article I, Article III and the 10th Amendment.

c) federal common law = unconstitutional?d)federal /congressional law does not have the power to overrule the entire body of state

common laws

C. Guaranty Trust:

1. Outcome Determinative Test

a)even thought the issue in this case was a statute of limitations (procedural) the outcome of the

case should be the same in federal court as it would have been in state court.

b)This test proves unworkable in practice.

D. Byrd:

1. (judge v. jury)

2. court says that the federal court has a strong federal interest in using juries --> can use a jury!

3. Federal Practice can be used when it is not certain that using the federal rule will be outcomedeterminative.

4. Is the rule intended to be bound up in the definition of the rights and obligations of the parties.

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E.Hanna

1. Erie has two Goals

a)discourage forum shopping

b)avoid unfair differences between state and federal courts

2. A FEDERAL COURT MUST APPLY STATE LAW WHEN THE FAILURE TO DO SO WOULDLIKELY RESULT IN FORUM SHOPPING BC THE LIKELIHOOD OF A DIFFERENT OUTCOME.

3. ERIE DOES NOT TRUMP FEDERAL RULES OF CIVIL PROCEDURE.4.The Federal Court is required to follow the rule if:

a)the Rule really regulates procedure ( does not violate the rules enabling act)b)the rule is constitutional (does not violate the constitution)

BIG CONCEPT: The common concept is that federal courts are supposed to apply statesubstantive law and federal procedural Law!!!  the only problem is that if its a hard case, you still need to understand that policy behind thisdoctrine to preserve the power of the states to understand the duties and obligations to each other.

VII. CHOICE OF LAW RULES

A. these are okay per the Supreme Court!!

VIII. SERVICE OF PROCESS -- Must file the suit correctly (∆ must know that he is being sued...)

IX. PLEADINGS -- RULE 7: Tells you what pleadings are allowed

1. Remember You do not have to be consistent! You may set out 2 alternative statements and if one is

sufficient, all are sufficient. 8(d)(2)2. Remember whoever has the burden of pleading an issue, has the burden of proving it!

A. The Complaint -- the initial pleading; filed by∏; specifies all claims against ∆ , allowed by rule 7(a)(1)

1. Parts of a Complaint

a) Kind of Case

b) Why it belongs in this court

c) Why it belongs in any court

2.  RULE 8(A) -- governs Notice Pleading

a)Tells the person you are suing what you are being sued about!

(1) Must contain a “Short Plain Statement stating”:

(a)“grounds for the the court’s jurisdiction”

i) 28 U.S.C. § 1391(1)applies to federal court.

(b)“the pleader is entitled to relief”

(c))“demand for relief sought”

(2) What is a “Short Plain Statement?”

(a)Conley v. Gibson

i)Court says that case should not be dismissed unless it appears beyond doubt that

the ∏ can prove no set of facts that would entitle him to relief.

(b) Bell v. Twombly

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i)Anti - Trust case where Supreme Court Abandons Conley Standard saying that if 

they apply such a broad, easy standard, for anti trust suits companies will be forced

into huge settlements to avoid the costs of litigation

(1)THIS NEW STANDARD HAS NOT BEEN APPLIED IN AZ!!

(2)Cullen v. Auto Owner’s Insurance3. Rule 8 in Arizona -- between Conley and Twombly standard

4. RULE 9 -- Pleading Special Matters

a)  requires specificity requirement for certain claims including fraud!!

(1) for fraud must state with particularity the circumstances constituting fraud or mistake.

Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally

(a) Stradford v. Zurich (greedy dentist -- example of court saying that you must be specific

in claiming fraud.

B. The Response -- either Answer or Pre-Answer Motion

2. Pre-Answer Motion -- Before Answering, ∆ may raise ask the court to examine certain issues by

motion (allowed by RULE 7(B))

3. RULE 12 -- Pre-Trial Motionsa) Remember Pre-Trial Motions STOP THE CLOCK! 12(a)4(A)

b) must answer within 20 days (if waived service -- 60 days)

c) Possible Defenses by Motions:

(1) lack of subject matter jurisdiction

(2)lack of personal jurisdiction

(3)improper venue

(4)insufficient process 

(5)insufficient service of process

(6) failure to state a claim upon relief can be granted

(7) failure to join a party under Rule 19

(a) 12(b)(6) -- court can dismiss motion if (assuming everything∏ alleges is true, there is no reasonable way to construe a complaint to allege a

recognized cause of action.

i) Two ways a complaint can be defective:

(1) Facts --∏ left out the crucial elements of a claim (not likely under notice

pleading, but can happen. More likely when pleading special matters, governed

 by RULE 9)

(2) Stradford v. Zurich, 364

(3) Law -- facts do not allow recovery under any legal theory.

(4)Haddle v. Garrison (trial court initially granted 12(b)(6) motion because under

the facts ∏ could not recover -- ultimately overruled)

ii) ∏ may be allowed to amend complaint after 12(b)(6) motion is filed.iii)After dismissed, ∏ not allowed to bring same factual claim against ∆ again!

d) 12(c) Motion for Judgement on the Pleadings

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1,6&7 may be broughtat any time

2-5 must be raised in the 1st

motion or right to bring motion

is waived 12(h)

Can bring after motion for

removal, bc removal is a

special appearance

6&7 may be brought inanswer asaffirmativedefense

 

e) 12(e) Motion for a More Definite Statement -- may ask pleader to clear up ambiguity. (rarely

used; more likely to use 12(b)(6).

(1) Must be specific

(2)Must bring 12(e) motion in first available motion 12(g)

(3)Must ask for this before responsive pleading!f) 12(f) Motion to Strike -- may ask for party to get rid of parts of claim that are redundant,

immaterial, impertinent, or scandalous.

(1)must be made before responsive pleading or if no responsive pleading is served, within 20

days

g) All of these motions may be joined together but:

(1) After making one of these motions, can not raise another that was available before.

4. The Answer --RULE 12 ∆ must file answer, and must address all of the ∏’s allegations. (even if they

don’t file pre-answer motion)

a) When to Answer: 12(a)

(1) Within 20 Days 12(a)(1)(a)

(2) If Waived Service:(a)Domestic -- 60 days 12(a)(3)(A)

(b)Outside U.S. -- 90 days 12(a)(3)(B)

(3) If Pre-Trial Motion -- within 10 days of courts ruling 12(a)(4)(A)

(4) If court had granted a motion for a more definite statement -- within 10 days of the more

definite statement being filed 12(a)(4)(B)

b) Must Admit or Deny the allegations of the other party RULE 8(b)

(a) if you do not deny --> considered an admission 8(b) UNLESS:

i) Do not have to deny damages

(b) OR can allege Lack of Knowledge with acts as a denial 8(b)(1)(B)(5)

(2) Must Meet the Substance of Complaint!

(a)If Denying only Part of Complaint, must specify specifically which part. 8(b)(1)(B)(4)i)  Zielinski v. PPI -- where ∆ denied part of claim and was not clear which part. ∏ 

thought they were denying that the accident happened, really they were trying to

deny that it was their company. Court says, “too bad” go to trial anyway bc not

specific enough.

(b) May also make inconsistent denials!!

c) Affirmative Defenses -- reason that ∏ is not entitled to recover and introduces new facts RULE

8(C)

C. Allocating the elements -- who has the burden of pleading an issue? RULES 8(c) and 12(b) OR THE

COURT DECIDES!

1.Whoever pleads, has the burden to prove!

2.If neither party raises an issue, that issue usually can not be litigated at triala)exceptions include, issues raised without other party objecting and subject matter jurisdiction

(1)In that case, the party who does not have the burden of pleading prevails!

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3. Who has to plead what is decided by

a) 8(c) and 12(b)

(1) Because these Federal Rules lay out specifically what is a affirmative defense or pre-trial

motion -- allocates those things listed specifically to ∆

b) The Court --- considers following factors:(1) fact necessary more likely to be known by one party or another.

(2) if statute, whether language of the statute treats the issue as part of claim or an exception to

the claim

(3) whether analogous issues are usually treated as elements of the claim or defenses to the

claim.

(a) ie:  Jones v. Block (prison inmate suing because work that prison guards made him do

aggravated his injuries. Statute stated prisoner could not bring claim unless he had

exhausted administrative prison remedies. Court said that exhaustion is an affirmative

defense bc prison has more information on exhaustion of remedies and cites cases)

D. Counterclaims and Crossclaims

1. Counterclaim -- claim against∏ “now that you bring it up...”2. Cross Claims -- claims against a co-∆ “he did it!!”

E. Amendments to Pleadings RULE 15

1. Before Trial

a) Can amend pleadings once without w/o court permission if 15(a):

(1) before responsive pleading (answers and replies, not motions) is served OR

(2) if responsive pleading not required, 20 days after pleading served.

b) Must seek permission by the court if: 15(a)

(1) want to amend after above deadlines OR

(2) a second time within the time period

(a)Courts usually grant a motion to amend unless the other party can show prejudice or

that defect in original pleading was result of inexcusable carelessness.2. During or After Trial 15(b)

a) may amend with courts permission.

3. May relate back 15(c)

a) to keep within statute of limitations

b) Do not need courts permission to relate back...just to get the amendment!

X. Motion for Judgement on the Pleadings RULE 12(C) 

A. Time to File:

1. after all pleading is complete

2. early enough not to delay trial.

B. Standard Applied

1. if all facts alleged are true, if one party is entitled to judgement as a matter of law.C. note: this motion switches to summary judgement if party brings up facts not in the pleadings.

XI. RULE 11 - sets out standards to ensure accuracy and honesty and prevent frivolous lawsuits.

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A. Everything must be signed by at least one attorney 11(a)

1. Rule 11 governs FILED DOCUMENTS (not discovery documents)

a) that are certified by signing, filing or advocating to the court. 11(a)

B. By signing/certifying the attorney has: (11(b))

1. Conducted a Reasonable Inquiry Under the Circumstances AND2. that based on this inquiry, to the best of their knowledge the following are true:

a) document is not presented for improper purpose

b) all legal arguments are supported by either existing law or by a non -frivolous argument

c) all factual contentions are either currently supported by evidence or if specifically so identified

are likely to be supported by evidence after a reasonable opportunity for further investigation or

discovery.

d) the denials of facutal contentions are reasonably based on belief or lack of info.

3. Does not Apply to Discovery!!

4. Sanctions

a) “enough to deter repetition” 11(c)(4)

(1)Court may impose attorneys fees, make lawyer take a class, penalty to pay court etc.(a)Court will consider:

i) willfull

ii)intent to injure

iii)legal training

iv)whether activity pervades an entire pleading

v) added time or expense.

(2)Some Courts rationale is that sanctions should be enough to deter.

b) Motion or Court’s Intiative

(1)Motion 11(c)(1)(A)

(a)party can motion for sanctions

i) serve the motion(1) Other party has 21 DAYS to correct or withdraw doc. 11(c)

(2) If party does not withdraw or correct...motion for sanctions filed!

(2) Court’s Initiative 11(c)(1)(b)

(a) Court will issue an order to show why cases should not be imposed.

(b) If court imposes....do not get 21 days to change...

(c) court must specifically describe the conduct and justify sanctions

C. Walker v. Norwest Corp. -- Court upholds lower court’s award of sanctions.

D. Christian v. Mattell, Inc. -- Court asked lower court to more specifically define why it gave sanctions

(can not give rule 11 sanctions bc the attorney was rude in discovery and in pre-trial conference) but

can give sanctions for failure to conduct adequate factual investigation!

E. Bridges v. Diesel -- did not file with EEOC -- should have done research!XII. Default Judgement -- if the other side does not respond to the complaint! RULE 55

A. Must go to clerk with affadavit showing other party’s failure to plead AND you properly served them!

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1. Clerk may enter the Default Judgement if amount is for a sum certain and against an adult. 55(b)

2. Must Go to Court if 

a)against a minor or incompetent person

b)not a certain sum of damages

XIII. DISCOVERY RULES 26-37!!

A. Tends to End Lawsuits BC:

1.Produces information about the merits of the lawsuit which either leads to:

a) settlement

 b) summary judgement

2. Costs time and money!

a) wear yourself and the other side down

 b) The rules of discovery try to minimize this reason.

B. Scope of Discovery 26(b) ( generally)

1. Relevant and Not Privileged

a) Relevance -- useful to party to prepare its case. (does not have to be admissible to be

discoverable)(1) Can Discover Info Relevant to:

(a) a claim or defense of any party

i)ie: Davis v. Precoat Metals - ∏ suing ∆ for racial discrimination and ∏ wants

information on all racial discrimination claims filed at that particular plant --> court

held that was relevant bc could be used to demonstrate working environment had

culture of discrimination.

ii) ie: Steffan v. Cheney - deposition question about homosexual acts were non -

discoverable bc not relevant to claim that ∏ discharged bc of homosexual statements!

(b) the subject matter of a claim if party receives a court order showing good cause!

(c)Information sought need not be admissible at trail if it appears reasonably calculated to

lead to discovery of admissible evidence.

i)  Background Information (party’s phone number etc.)

ii) Information Specifically prevented by the Federal Rules from Being Admissible at

Trial!

(2) Can not discover:

(a) Financial Information, except:

i) when seeking punative damages

ii) must disclose in initial disclosures any liability insurance coverage that may cover

the claim. 26(a)(1)(A)(iv)

iii) if other party brings up finances in pleading!

(3) REMEMBER THAT SCOPE OF DISCOVERY IS DEFINED IN THE COMPLAINT AND

THE ANSWER! IF IT IS NOT IN THE PLEADINGS IT IS NOT RELEVANT! b) Privilege -- protects information from a specific source (relevant information may be obtained

from a different sources)

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(1) To Claim Privilege, party must: 26(b)(5)

(a) explicitly make claim AND

(b)Tell other party enough info about what is being withheld that they can challenge if 

they want!

i)Thompson v. Haskell -- court says that shrinks testimony is an okay way to get info.(a) Common Privileges: Self Incrimination (5th amendment, so this applies to

all courts), Attorney Client (this applies to communication not the actual

facts), Dr. -Patient, Priest Penitent, Spousal

(2) Work Product Privilege 26(b)(3)

(a)What is Work Product:

i) tangible thing or document AND

ii)relevant and not privileged AND

iii) prepared for litigation AND

(1) Remember Prepared v. Collected (not applicable to everyday communication)

iv) by and for a party

(1) can include info prepared by: attorney, consultant, surety, insurer or agent.(b) But Still Discoverable if:

i) Substantial Need

ii) Unable to get equivilant w/o undue hardship.

iii) But....court will still protect against disclosure of impressions and theories by:

(1) going through and blocking out anything that is not directly what the witness

says!

(c) COURT CREATED: Hickman v. Taylor : ∏ wants to discover ∆’s lawyers notes,

papers, comments etc, to see his thought process....and court says no!! (Big policy issue:

do not want to provide disincentive for lawyers to develop a strategy to protect their

client!)

(d) NOTE: Deponent can always obtain a party of his/her own statements (even if theyare a party to the case) 26(b)(3)

(3) Expert Information 26(b)(4); See 26(a)(2) above for disclosure

(a) To be “discoverable” an expert must:

i)testify based on sufficient facts AND

(1) if the expert is not testifying --> NOT DISCOVERABLE!

ii)Product of reliable principles and methods AND

iii)has applied principles reliably to the facts of the case.

(b) If does not be above criteria, must show substantial need!

i) for example if the facts are no longer available!

(1) Thompson v. The Haskell Company: ∆ wants to discover shrink who saw ∏ 

(who is claiming emotional distress from sexual harrassment) days after she left job. Court said that shrink was discoverable bc her mental state may have

changed over time and there was no other way to get to her that info!

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If other party persistsin trying to get one of these things, can seek aprotective order under26(c) (if after telling theother party no...theypersist)

 

(2) Chiquita v. Bolero Reefer: Expert(who looked at the ship) not discoverable bc

Bolero also had access to ship!!

(c) party who requests for discovery must pay a reasonable fee for the expert as well as

his/her costs.

C. Sequence of Discovery1. Discovery Conference 26(f)

a) Parties meet “as soon as practicable,” at least 21 days before a scheduling conference

 b) Decide if settlement can be reached, if not proceed to c)

c) Make Discovery Plan!

(1) determines timing

(2) subjects of discovery

d) Can not engage in ANY discovery before discovery conference

2. Initial Disclosures 26(a)(1)

a) What Party must disclose without request within 14 DAYS of discovery conference. (unless

parties agree otherwise or court extends)

 b) Party must disclose:(1) names, addresses, phone numbers of any individual who has information --> that the

disclosing party may use to support its claims and defenses --> unless the use would be solely for

impeachment

(2) copy or description on where to find documents, electronically stored information, and

tangible things --> that disclosing party may use to support its claims and defenses --> unless that

information will be used for impeachment!

(3) computation of damages

(4) any insurance agreement under which insurance company may be liable for possible

 judgement!

c) Exempt from initial disclosure:

(1)an action for review on an administrative record(2)a petition for habeas corpus

(3)an action brought w/o attorney by a person in the custody of the U.S.

3. Expert Testimony 26(a)(2)

a) identity of expert --> to be used as an expert

 b) Written Report --> If the witness is one retained or specifically employed to provide expert testimony

(1) all opinions the expert will express

(2) the data (used to create opinions)

(3) any exhibits

(4) qualifications

(5)list of all other cases where he testified in the last 4 years (trial or dep)!

c) time to disclose = when court tells you to but w/o court order:(1) it is at least 90 days before the date set for trial! OR

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(2) If rebuttal evidence (used to contradict another party’s expert) --> within 30 days of the

other party’s disclosure.

4. Pre-Trial Disclosure 26(a)(3)

a) at least 30 days before trial a party must provide to other parties info about:

(1) people they may call at at trial.(a) Differentiate b/w witnesses you will call and ones that you may call.

(2) tangible evidence that may be used

(a)must differentiate b/w will and may

5.Pretrial Disclosure in Arizona! 26.1

a) Two Big Differences:

(1) Have to give names and addresses of ALL THE PEOPLE who might have relevant info (not

 just the ones that you are using)

(2) Have to turn over ALL OF THE RELEVANT DOCUMENTS even if you are not using

them!!

D. Methods of Discovery

1. Interrogatories RULE 33 (written questions)(1) only against parties (only 25 per party)

(2) no court approval necessary unless

(a) more than 25

i) note: each subsection counts as a separate quesiton

(3) must be answered under oath!

(4) within 30 days (unless parties agree or court order)

(5) Party must investigate (unlike deps where person answering from personal knowledge)

 b) Business Records -- if burden of answering interr would be the same if either party

investigated:

(1) specifying the records AND

(2) giving the interrogating party a reasonable opportunity to examinec) Objections

(1) Must state specifically!

(2) The only recourse asking party has is to get an order compelling the served party to answer

under rule 37

2. Depositions RULE 27-32

a) Under oath and recorded by a court reporter!

 b) May be used against non - parties (only discovery device that can be used against non-parties)

c) Do not need courts permission unless:

(1) deponent is in prison

d) Process to get a Deposition:

(1) file a verified petition ask for an order authorizing the deposition 27(a)(1) showing(a) that the petitioner expects to be a party to an action

(b) the subject matter and the petitioners interest

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(c) the facts that they want to establish

(d) the names or a description or adverse parties and their addresses

(e) name, address and expected testimony of each deponent.

(2) at least 20 days before the deposition date must:

(a) Serve each expected adverse party with a copy of petition 27(a)(2)(b) give each adverse party notice as to the time and place of each deposition 27(a)(2)

(3) If Deponent is a Party -- notice and petition creates a duty that they be at the deposition

(a)May be required to travel to distant location (even another state)

i) Unless they feel like the time or place is unduly burdensome -> talk to other side to

reschedule, or seek a protective order (.

(4) If Deponent is a Non-Party -- MUST OBTAIN A SUBPOENA! RULE 45

(a) location -- party may squash subpoena if it requires him to travel to a place more than

100 miles from the place where that person resides.

(b) subpoena must be issued in a district court where the deposition will be held 45(a)(2)

(or if state law allows, anywhere in the state the deposition will take place)

(5) If Deponent is a Corporation or Business Rule 30(b)(6)(a) must describe specifically the matters for examination

(b) organization must designate one or more people to testify on the org’s behalf.

i) designated person must have reasonable knowledge of the subject matter

ii) if the deposing party knows of a person with knowledge/infor of the subject

matter, may simply depose that person!

(6) If Requesting Documents

(a) party must bring documents

(b) non-party deponent -- supboena must specifically request documents!

e) Deposition Procedure

(1) may be held anywhere (usually in the office of one of the attorney’s but can even be done

 by telephone) 30(b)(7)(2) officer of the court there, unless parties ‘otherwise stipulate’ (which they normally do)

(3) UNDER OATH

(4) Other parties may cross examine the deponent

(5) inspections of documents or tangible things

(6) transcribed or recorded

(7) OBJECTIONS 30(d)(1)

(a) may object to the content or form of a question

i) objection noted on the transcript and deponent must continue and answer the

question

ii) an attorney may instruct a party not to answer ONLY when necessary to protect a

privilege either:(1) pursuant to a limit on discovery already imposed by the court OR

(2) if the party plans to seek an immediate protective order.

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(8) Only one day of 7 hours unless the parties stipulate or the court orders a longer time. 30(d)

(2)

(9) Must Get Leave from Court

3. Inspection of Documents RULE 34

a) only parties (but party can be responsible for getting a document that is in the possession of someone else)

 b) party wanting the inspect, submits request and other party must respond within 30 days.

4. Request for Admission RULE 36 -- allows parties to ask another party to admit certain matters for

the purposes of trial.

(1)only against parties

(2) used to weed out matters in the pleading that have been resolved

(3) kind of like a second round of pleading

 b) What may be requested?

(1) A party may request anything within the scope of discovery

(a) opinions of fact or the application of law to fact

(b) may ask another party to confirm that a doc. is genuinec) Party may object if they feel like it is something that should be brought up at trial.

d) Process

(1) Party seeking admission serves request (no limit on number that you can ask for)

(2) Response:

(a) admit that the matter is true

(b) deny that the matter is true

i) must fairly meet the the substance of the requested admission 36 (a)

ii) If party does not deny deemed admitted

(c) state in detail reasons why the party cannot admit or deny the request OR

(d) object to the request

5. Physical and Mental Examination RULE 35 (only need to know that this is available for parties)E. Limits on Discovery

1. Protective Orders 26(c)

a) can ask a court for a protective order to protect a party from, “annoyance, embarrassment,

oppression, or undue burden or expense.” 

(1) Court will grant this order only if the annoyance etc. is unreasonable!

 b) MUST CERTIFY THAT YOU FIRST TALKED WITH THE OTHER PARTY to resolve the issue!

2. Privacy

a) Highly Personal Matters -- Information about a person’s private life (sexual relationships etc.)

(1) Relevance -- court will consider how important the info is; (less relevant, more likely a

protective order....)

(2) Disclosure -- if the info is highly relevant, the court may limit disclosure of info to thirdparties.

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(3) Ie: Stalnaker v. Kmart Corp. -- court allows discovery of about sexual conduct with ∆ (bc

very relevant to the ∏’s case) but not of other employees. Court also orders to keep

information from 3rd parties.

 b) Trade Secrets -- secret information, such as a chemical formula, list of ingredients, etc.

(1) Relevance and Harm -- court weighs these two things when deciding whether to limitdiscovery of info.

(2) In Camera Inspection -- info provided to the court and courts give parties info needed.

F. Supplementing Disclosers and Responses RULE 26(e)

1. Parties (only) must supplement or correct previous disclosures or responses.

G. Preventing Abuses/Enforcing Discovery --The Rule 11 of Discovery RULE 26(g); RULE 37

1. (rule 11 does not apply to discovery)

2. To Compel Discovery

a) talk to the other party....

(1) If they do not respond at all...totally blow you off...not even objection:

(a) 37(d) -- can move directly for sanctions

(2) If they respond...but you still do not get what you want....or if they object:(a) 37(a)(5) -- if motion to compel is granted can/may get sanctions.

 b) Sanctions Possible

(1) matter deemed established

(2) barred from making certain claims or defenses.

(3) pleadings be struck

(4) action be stayed until party complies 

(5) action be dismissed or default judgement entered

XIV. SETTLEMENT

A. Typically prevents a party from suing on the claim again!

B.Why Settle?

1.No More $$2.Controls Risk!

3.Lawyers can get a contingency fee without shelling out money for litigation!

C. Often contains a confidentiality provision

D. Court not often involved

XV. VOLUNTARY DISMISSAL RULE 41(A)

A. By the ∏: 41(a)(1)

1. w/o court order:

a)file a notice of dismissal before ∆ responds. OR

 b) when all parties agree.

B. By the Court: 41(a)(2)

1. ∏ can file a motion with the court to dismissXVI. INVOLUNTARY DISMISSAL RULE 41(B)

A. ∆ may move to dismiss if:

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1. ∏ fails to prosecute OR

2. ∏ fails to comply with rules or court order.

B.Assumed to be dismissal on the merits unless it is for lack of personal jurisdiction!

XVII. SUMMARY JUDGEMENT RULE 56

A. When there is no issue of material fact --> judgement as a matter of law.

1.  Court looks at the EVIDENCE each side has but does not weigh the evidence. If there are

questions of credibility --> must go to the jury!

2. Any time after:

a) 20 days since commencement of the action OR

 b) the opposing party serves a motion for summary judgement!

3.  May seek partial or total summary judgement! 56(a)

4. Both parties can ask for it.

5. a 12(b)(6) motion and a judgement of the pleadings 12(c) can be converted to Summary Judgement!

6.56(f) -- if party opposing the motion shows reason why they cannot present facts essential to

overcome the motion the court can

a)deny that parties motion b)order a continuance to enable affadavits to be obtained, depositions to be taken, or other

discovery to be undertaken

c)issue another just order

d)(this is why motions for summary judgement are usually made after discovery!

B.New standard is established by Celotex -- whoever has to prove at trial has burden in summary

 judgement!

C.Bias -- P failed to raise an issue of material fact.

XVIII. SPOLIATION -- the destruction or material alteration of evidence or ...the failure to preserve property foranother’s use as evidence in pending or reasonably foreseeable litigation

A. Silvestri v. General Motors Inc. -- lawyer breaches duty to preserve evidence (car in car wreck). Even though Pdidn’t own the car, had a duty to preserve since he knew that he was going to bring lawsuit.

XIX. SETTLEMENT

A.Majority of Cases are resolved this way

1. economic realities of our system

2.Control Risk 

a)Sometimes parties settlement options are better than what the court can do...

B. If Settlement is Agreed to Before Lawsuit:

1.Create a Contract called “Settlement Agreement”

a) this is governed by the rules of contracts(1)no duress or fraud ect.

 b) Can include terms of payment

c)Frequently includes a release of liability -- agreement not to sue! (even for future lawsuits with

the same or similar facts)

C. If Settlement is After the Lawsuit was filed.

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1. Do everything above (that is done when settlement is reached before lawsuit) AND

2.Contract to Dismiss

a)if no answer to complaint filed yet --> motion for voluntary dismissal RULE 41

 b) If there has been an answer to the complaint --> stipulation is put in the contract to dismiss the

lawsuit for both parties.

(1)W/ Prejudice = can not file again

(2) w/o Prejudice = can file again

(a) What if you dismiss w/o prejudice and the other party files another lawsuit under

same factual event.

i) You can try to enforce the settlement agreement through an affirmative defense of 

“accordant satisfaction” (basically states that clients have reached an agreement,

you have performed and the other party has not performed).

3. Consent Judgment -- Parties agree that the court can enter a judgement along the certain terms

a) must Present it to a judge to sign off on!

 b)Benefits:

(1)court will enforce the conditions!(2)You do not have to file a lawsuit for breach (like a settlement agreement) if the other party

does not comply....only have to file an order for the court to “show cause as to why the other

party should not be held in contempt for failing to abide by the consent judgement.

4. Confidentiality

a)Value to the Plaintiff 

(1)get more money

 b) Value to the Defendant

(1)avoid bad publicity

(2)keep information from other people that might want to sue

(a)d may not want p to share information he has learned through discovery.

XX.ALTERNATIVE DISPUTE RESOLUTION

A. Three Categories 

1. Pre Dispute ADR Planning

a)Parties agree in advance to use another system (besides trial) to settle disputes (arbitration etc.)

b) a lot of times people sign them without realizing it.

c) In contracts because parties will likely want to preserve their relationship (and litigation is good

at destroying relationships)

d)Saves Money

e)Don’t have to worry about the unpredictability of juries.

2. Post - Dispute Resolution

a)parties decide in the middle of a dispute that they want to use another process to resolve issue

3. Court Annexeda)Court orders parties to go to ADR.

B. Three Majors Waves of Court Decisions on Alternative Dispute Resolution

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1. Courts very Hostile Towards aribitration agreements (1920-1980)

a)Fergason v. Countrywide Credit Industries -- employee suing for sexual harrassment had signed

arbitration agreeement and the court found it to be procedurally unconscionable bc: inequal

 bargaining power (employee/employer), absence of meaningful choice, substantively

unconscionable bc: one sided, only convers claims that the employees would sue over. Courtalso took issue with arbitration fees. P would have been required to pay fees. However, court

says that limiting discovery is okay. They say that as long as adequate discovery is allowed

discovery limitations are fine.

2. Court Very Lenient bc Federal Arbitration Act (congress says presumption in favor of arbitration,

unless there is a problem with the contract, must enforce, burden rests on party that is trying to

invalidate arbitration agreement.) (reaches a high in the 1990s)

a)Carter v. Countrywide Credit Industries -- Court enforces the arbitration agreement saying

 because the FAA supports arbitration agreement party seeking to invalidate bears the burden of 

proof.

3. Begining to become hostile again. Some states are entering this wave (CA) and other states are still

in second wave (TX). (AZ is probably going the way of CA)a)States like CA have begun to invalidate when

(1)taking away a statutory right

(2)Unconscionabilty (not necessarily a review of fairness unless unconsionable... see Fergeson

v. Writers Guild.

XXI.MEDIATION V. ARBITRATION

A. Mediation

1.compromise

2.not binding

3.can work out the best interests of both parties

B. Arbitration

1.One third party deciding2.Avoids capricious jury decisions and large awards.

3.binding

4.mini trial in front of arbitrator.

C.Public Policy behind ADR:

1.What about others in the same position?

2.No publicity

3.DOESN’T SERVE THE PUBLIC AT LARGE!!

4.But, it is more efficient!

XXII. CASE MANAGEMENT RULE 16

A. To Control an Orderly Process

B.How much should a judge should insert himself into the process?C.16(a)(5); 16(c)(9) -- Judges can encourage parties to settle.

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1. Ie: Lockhart -- Judge defaulted D for not sending an adjuster “with authority: to the settlement

conference.

2.If there is a summary judgement motion pending while settlement conferences are going on and

case gets dismissed before voluntary dismissal as part of settlement agreement.

a)Sue for Breach of Contractb)motion to vacate the dismissal and enforce settlement

D. McKey v. Fairbairn -- council wanted to change theory of case from violation of statute to negligence.

E.Confidentiality Provisions:

1.Kalinauskas v. Wong -- P wants to depose another former employee who settled with D for sexual

harrasment as well. D says no, bc confidentiality agreement. Big Public Policy Issue, balancing

interests of enforcing confidentiality aggreements with the policy concerns of allowing defendants

to buy a witness. Ultimately court decides to balance both of these issues noting that they must

protect against repeat offenses. Deposition allowed, but no information on the terms of the

settlement itself. Litigants would have reached same position after discovery...

F. Arizona Rule 16

1.16.1 -a)gives parties and the court the ability to mandate settlement conference

b)Mandates that parties will have someone there with actual power (like someone who is actually

able to make decisions)

c)party can force an opposing policy

2. 16(g)(2) -

a) parties must confer within 90 days to discuss and consider settlement and Alternative Dispute

Resolution and then must file a statement to the court to tell them what happened with the

conference.

b)unfortunately reality is that few judges enforce this.

XXIII. CLAIM PRECLUSION / RES JUDICATA

A. Policy Considerations

1.Efficiency: by requiring parties to join all closely related claims in a single suit, ensures the most

efficient use of scarce judicial resources.

a)general rule that the second claim has to be the same claim as the first

(1)Frier -- court holds that federal claim is precluded.

2.Finality

3.Consistency: helps to ensure consistency in litigation.

a)Martino v. McDonalds Systems Case -- consent judgement enforced non competition agreement.

Martino changes his mind and Court dismisses that lawsuit on basis of res judicata bc of 

inconsistency!! Compulsory Counter Claims. Reconciled with 13(a) -- have to join claims if they

arise out of the same transaction or occurance (rule 18 says you can join others, but you don’t

have to bc they could be part of a separate lawsuit.)B. FOUR REQUIREMENTS FOR RES JUDICATA:

1. Final Judgement

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2. “on the merits”

3. same claim

4. same parties

C. Same Claim: Claim is barred if it was or should have been raised by a party who was or could have

 been a plaintiff in the first action.1.For Claims Brought by Plaintiff 

a)Main Approach / Restatement Approach

(1) Transactional Approach 

(a)all available claims arising out of a particular transaction must be joined

i) claims that arise out of this transaction and are not in first lawsuit are barred.

ii)if allowed to bring same claim must bring it!!

(b) preferred by many jurisdictions because focuses on the historical facts rather than the

legal theories asserted.

b)  Other Approaches:

(1) same evidence/same cause of action

(a) claims are the same if the evidence necessary to prevail on the second claim is mostlythe same as the evidence that would/should have been raised in the first action.

(b) a minority of courts use this approach.

(c)Narrower approach than the transactional approach

(d) Frier v. City of Vandalia

(2)same primary right

(a)claim is the same if it attempts to protect the same primary right

(b)fewer courts use this; older approach

c)  Other Considerations:

(1) if the second claim might impair or contradict the judgement in the first then it should be

 barred

(2) is there same core of operative facts2. Claims Brought by Former Defendant

a)Was the claim a compulsory counterclaim under Rule 13(a)?

(1)If Yes --> PRECLUDED!

 b)If not, was the second claim a possible defense in first action?

(1)If Yes --> PRECLUDED!

c) If answer is no to (a) and (b) --> NOT PRECLUDED.

D. Same Parties

1.Generally, have to be the same parties except the Very narrow exception of in privity.

a)Are Parties in Privity?

(1)are parties litigation the same legal right?

(2)is one party the legal representative of another(3)mutual or successive interest?

(a)landowner and claimant in adverse possession action

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(b)landlord and tenant both suing noisy neighbor

(c)Successive Owners of Property

(d)Procedural and Virtual Representations (searle brothers

 b) Searle Brothers v. Searle: Court says brothers are not in privity with father

E. On the Merits1.** Does not Necessarily Need to Be Verdict on the Facts**

2. What is important is that the plaintiff had a full opportunity to litigate (or d in the case of default

 judgement)

a)Full Trial with Verdict -- obviously on the merits

b)Dismissed for Lack of Jurisdiction -- not on the merits

c)Dismissal under Rule 37 -- on the merits!

d) 12(b)(6) motion -- depends on the jurisdiction

(1) second restatement -- on the merits, bars litigation

(a)rationale for barring litigation is that plaintiff usually has many opportunities to amend

and if the p can not amend on a second or third chance, then there is probably no

important claim to bring.(b)This is the rule used in federal courts

(c)Rule 41 addresses this issue by stating that dismissals are on the merits unless stated

otherwise.

(2) very few states -- not on the merits, does not bar

(a)comparitively little litigation effort goes into these preliminary

F. What is a Final Judgement?

1.entered in the trial court

2.once judgement is entered in trial court, it is considered final, even if pending appeal (in most

 jurisdictions; although some do not give the res judicata effect until the time for appeal has passed)

XXIV. ISSUE PRECLUSION / COLLATERAL ESTOPPEL: Precludes party from litigating a certain issue

A. Basic Analysis1.Same Issue?

a)Must be same burden of persuasion

(1)ie: if burden is higher in the first COA, then not precluded from litigation in second

2.Actually Litigated?

a)default judgements and dismissals do not count.

(1)issue was raised in the previous case

(2)issue was actually litigated in the previous case.

(a)Illinois Central Gulf Railroad v. Parks - railroad tries to preclude issues precluded

 jesse’s contributory negligence from first judgement but bc the issue of contributory

negligence was not obviously the reason that Jesse didn’t recover in the first loss of 

consorsiom case....not estopped.(3)issue was actually decided in the previous case.

(4) (the issue was necessary to the prior judgement)

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3. Actually Decided?

a)must must have actually discussed/decided that particular issue (does not count if court simply

rules one way and does not decide because of the issue)

 4. Necessary to the Decision?

a)Was it essential to the judgementB. Offensive and Defensive Collateral Estoppel

1. Defensive Use -- mutuality not required; used when d argues that a prior judgement precludes the

COA against him.

2. Offensive Use -- jurisdictions are different as to when they allow offensive non mutual collateral

estoppel.

3.Mutuality Requirement -- most courts have now abandoned this and now allow nonmutual!

a)has party had a fair opportunity to litigate

(1) Problems with Offensive Non Mutual Collateral Estoppel:

(a) Discussed in Parklane Hosiery Co. v. Shore

(b)  Free Rider -- potential ∏’s can “sit and wait” and then when another ∏wins, they can

take advantage of the victory, if the other ∏ loses they can still bring their action...(c) Risk of Inconsistent Judgement -- if the ∏s sue in separate actions that are not effected by

prior results, same issue has different conclusions.

(d) General Non Mutual Collateral Estoppel Rule (adopted in Parklane Hosiery) --

nonmutual collateral estoppel is okay unless:

i) prior inconsistent judgements

ii)would have been easy for the party seeking to join in the prior action

iii)other reasons make it unfair

(1)example of this test in State Farm Fire & Casualty Co. v. Century Home

Components

Factors Used to Determine to Apply Offensive Non Mutual Collateral Estoppela. Whether Sit and Wait

b. Whether application would be unfair

c. Inconsistent

d. 2nd action affords def. with procedural opportunities that were not available in the first lawsuit.

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