BarBri Civil Procedure Outline

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					                               Civil Procedure Outline

I.   Personal Jurisdiction (in what states can plaintiff sue defendant?)
     a. Personal Jurisdiction exists when the forum state has power over the defendant
     b. Three Steps:
             i. Satisfy the Forum’s Statute (e.g., long-arm statute, attachment statute)
                    1. California’s long-arm statute claims jurisdiction is proper as long
                        as the exercise of jurisdiction meets federal constitutional
            ii. Absolute Bases of In Personam Jurisdiction
                    1. In personam jurisdiction exists where the defendant:
                            a. Is domiciled in the state;
                            b. Is present and personally served with process in the state
                                (not through trickery or force);
                            c. Consents to suit in the state;
                            d. Enters a general appearance in the suit
           iii. Satisfy the Constitution (due process test)
                    1. Jurisdiction is constitutional when the defendant has “such
                        minimum contacts with the forum state so that exercise of
                        jurisdiction does not offend traditional notions of fair play and
                        substantial justice” (two hurdles: minimum contacts &
                            a. Minimum Contacts
                                     i. Quantity and Nature of the Defendant’s Contacts
                                            1. Defendant purposeful availed himself of the
                                                benefits and protections of the forum state;
                                            2. Foreseeability that the defendant could get
                                                sued in this forum
                                    ii. Relatedness Between Defendant’s Contacts and the
                                        Plaintiff’s Cause of Action(s)
                                            1. Relatedness may not be required if the
                                                defendant has substantial ties with the forum
                                                state (e.g., present when served, domiciled,
                                                doing substantial continuous business)
                                                because then defendant is subject to general
                                                personal jurisdiction and can be sued in the
                                                forum state for a claim arising anywhere in
                                                the world
                                            2. For in rem (and quasi in rem) jurisdiction
                                                (jurisdiction over the defendant’s property),
                                                constitutionality depends on whether the
                                                dispute is related to the property attached. If
                                                the dispute is directly related to the land, the
                                                constitution is satisfied if the land is located
                                                within the forum state. If the dispute is not
                                                 related to the land, the constitution is only
                                                 satisfied if the defendant’s contacts with the
                                                 forum state are sufficient
                                   iii. The Interest of the Forum State in Protecting Its
                                        Citizens (e.g., interest in providing a forum for its
                                        citizens to challenge wrongful behavior)
                            b. Reasonableness of Exercising Jurisdiction
                                     i. Are the burdens placed on the defendant in
                                        defending in this forum reasonable?
                                            1. Defendant may complain that the forum
                                                 state is inconvenient because it is far from
                                                 his home, but this forum state will be
                                                 appropriate unless it puts the defendant at a
                                                 severe disadvantage in litigation (very tough
                                                 to show)
                                    ii. Would plaintiff be unreasonably burdened if he had
                                        to bring suit in another forum?
                                   iii. Are some witnesses or evidence located in this
II.   Subject Matter Jurisdiction (what court do we go to, state or federal?)
      a. Subject matter jurisdiction involves the court’s power over a particular type of
      b. Two Types of Cases that Can Be Heard in Federal Court
              i. Diversity of Citizenship Cases (complete diversity is required)
                    1. Requirements:
                            a. Amount in controversy exceeds $75,000, excluding interest
                                and costs (more than $75,000 must be pled by the plaintiff
                                in good faith)
                                     i. Whatever plaintiff claims in good faith is
                                        controlling, unless it is clear to a legal certainty that
                                        it will not exceed $75,000 (tough to prove)
                                    ii. If plaintiff sues for more than $75,000, but recovers
                                        less than that, jurisdiction is still appropriate, but
                                        she may have to pay defendant’s costs
                                   iii. Aggregation (adding together two or more claims to
                                        meet the amount requirement)
                                            1. Claims may be aggregated only if there is
                                                 one plaintiff verses one defendant.
                                                     a. Exception: If one plaintiff sues more
                                                          than one defendant (joint claims), the
                                                          total value of the claim can be used
                                                          to meet the amount in controversy
                                   iv. When Plaintiff Seeks an Injunction (discuss both
                                            1. Majority Rule
                      a. The amount in controversy
                          requirement is met if the harm
                          seeking to be prevented would harm
                          the plaintiff by more than $75,000
              2. Minority Rule
                      a. The amount in controversy
                          requirement is met if it would cost
                          the defendant more than $75,000 to
                          comply with the injunction.
b. Action is between:
       i. Citizens of different states (at time case is filed)
              1. There is no diversity of citizenship if any
                  plaintiff is a citizen of the same state as any
                  defendant; OR
      ii. A citizen of one state and a citizen or subject of a
          foreign country (at time case is filed)
              1. “Citizenship” for persons
                      a. State where “domiciled”
                                i. Presence in the state at some
                                    point with intent to make it
                                    your permanent or fixed
                               ii. Intent can be found through
                                    paying in-state tuition, voting
                                    there, etc.
                              iii. Person can only have one
                                    domicile at any given time
                      b. For decedents, minors, and
                          incompetents represented in
                          litigation by a fiduciary (e.g.,
                          guardian ad litem, committee,
                          conservator, executor), citizenship of
                          the decedent, minor, or incompetent
                          controls (not the citizenship of the
                                i. Exception: In class action
                                    suits, the citizenship of the
                                    representative controls
              2. “Citizenship” for corporations (can be a
                  “citizen” of more than one state)
                      a. All states where incorporated; AND
                      b. The one state where the corporation
                          has its “principal place of business”
                                i. Headquarters (nerve center;
                                    where decisions are made);
                                     ii. Many courts use the nerve
                                         center, unless all activity
                                         occurs in a single state; OR
                                    iii. Where the corporation does
                                         more business activity than
                                         anywhere else
                      3. “Citizenship” for Partnerships
                            a. For unincorporated partnerships
                                (partnerships, labor unions), the
                                citizenship of all members is
                                important, and it is possible that a
                                partnership could be a citizen of all
                                50 states (and no diversity
                                jurisdiction) if general and limited
                                partners live in every state.
2. Exclusions
       a. Even if the requirements for diversity jurisdiction are met,
           federal courts will not hear cases involving “issuance of a
           divorce, alimony, or child custody decree” or the probate
           an estate.
3. Collusion
       a. There is no subject matter jurisdiction when a party “has
           been improperly or collusively made or joined to invoke
                i. Example: A (California) wants to sue B
                   (California), and A assigns his claim to C (Utah). C
                   then sues B. This is no good if C is a mere
                   collection agent for A, with no real interest in the
4. Erie Doctrine (which law applies, federal or state?) (an issue only
   in diversity cases)
       a. A federal court in a diversity case must apply the
           substantive law of the state in which it is sitting, but must
           apply federal procedural rules
                i. Valid federal statutes or rules dealing with
                   procedural matters will be applied over contrary
                   state law
                       1. However, a federal rule/law will not apply
                           when its effect would be to toll a state
                           statute of limitations (state law controls
                           whether or not the statute of limitations is
               ii. Substantive Law Areas (where state law will apply)
                       1. Elements of the claim
                       2. Choice of law rules
                       3. Statutes of limitations
                                 4. Tolling
                       iii. If there is no federal provision on point, but the
                            federal judge wants to do something other than
                            apply state law, she can only do this if it isn’t
                            substantive. Factors the judge should use to
                            determine if the law is substantive or not:
                                 1. Is it outcome determinative (would applying
                                    or ignoring the state law affect the outcome
                                    of the case)? If yes, it is probably
                                 2. Balancing of the interests (does either the
                                    federal government or state have an interest
                                    in applying its rule?)
                                 3. Avoid forum shopping: If the federal court
                                    does not apply state law on this issue, will it
                                    cause litigants to flock to federal court? If
                                    so, the court should probably apply state law
                       iv. If state substantive law is unclear, the federal court
                            may certify the question to the state supreme court
                            for clarification
ii. Federal Question Cases (plaintiff’s claim “arises under federal law”)
       1. Plaintiff’s complaint shows a right or interest founded substantially
           on federal law (e.g., federal constitution, federal legislation).
           Plaintiff sues to vindicate a federal right.
               a. Citizenship is irrelevant and there is no amount in
                   controversy requirement
               b. Well-Pleaded Complaint Rule
                         i. If the complaint were well pleaded, just stating
                            plaintiff’s claim without extraneous matters
                            unrelated to the claim, would it arise under federal
                            law? Is plaintiff enforcing a federal right? If so,
                            that claim invokes federal question jurisdiction.
                                 1. Example: Mayberry R.R. gives Gomer a
                                    lifetime pass in settlement of a claim. After
                                    several years, R.R. refuses to honor the pass,
                                    asserting that a federal statute prohibits such
                                    passes. Gomer sues R.R. for specific
                                    performance, alleging the statute doesn’t
                                    apply. His complaint mentions a federal
                                    law, but there is no federal question because
                                    he is not seeking to enforce a federal right.
               c. Additional Claims: There may be additional state claims
                   joined to the federal case, but for every single claim joined
                   in federal court, there must be a basis of subject matter
                   jurisdiction (diversity jurisdiction, federal question, or
                   supplemental jurisdiction).
                                i.  Supplemental Jurisdiction
                                       1. Pendant
                                               a. Requirements:
                                                       i. Claim is asserted by the
                                                          plaintiff in a federal question
                                                          case; AND
                                                      ii. Claim arises from a common
                                                          “nucleus of operative fact”
                                                          (from the same transaction or
                                               b. Even if these requirements are met,
                                                  the court has discretion to not hear
                                                  the supplemental claim if the federal
                                                  question is dismissed early in the
                                                  proceedings or if the state law is
                                                  complex or state law issues would
                                       2. Ancillary
                                               a. Requirements:
                                                       i. Claim is asserted by anyone
                                                          but the plaintiff in a diversity
                                                          or federal question case;
                                                      ii. Claim arises from a common
                                                          “nucleus of operative fact” as
                                                          the underlying case (from the
                                                          same transaction or
                                               b. Even if these requirements are met,
                                                  the court has discretion to not hear
                                                  the supplemental claim if the federal
                                                  question is dismissed early in the
                                                  proceedings or if the state law is
                                                  complex or state law issues would
              2. Some federal question cases (e.g., patent infringement, federal
                  antitrust and securities claims) have exclusive federal jurisdiction
                  and can only go to federal court
c. Removal (allows defendants to have a case filed in state court “removed” to
   federal court)
       i. A defendant may remove an action that could have originally been
           brought by the plaintiff in federal court
      ii. A case may be removed if:
              1. It invokes federal question jurisdiction or diversity of citizenship
                      a. In diversity cases only, however, removal is not available if
                          any defendant is a citizen of the forum state
                      2. All defendants agree (plaintiffs cannot remove, even if they are
                          defendants in a counterclaim)
                              a. Exception: If there is a “separate and independent” federal
                                   question claim against one defendant, he can remove the
                                   whole case (including state claims), but the court can, in its
                                   discretion, then remand state law issues back to state court;
                      3. Removal is made within 30 days of service of the first document
                          that makes the case removable (e.g., the complaint, dismissal of a
                          defendant who prevented removal, etc.)
                              a. In a diversity case only, however, removal is not available
                                   more than one year after the case was filed in state court
            iii. Procedure for Removal
                      1. Defendant files a notice of removal in federal court, which sets
                          forth the grounds for removal, is signed under Rule 11, and
                          contains all documents served on the defendant in state court
                      2. A copy is given to all adverse parties
                      3. If removal is improper, the plaintiff has 30 days (if based on a
                          defect other than subject matter jurisdiction) to move to “remand”
                          the case back to state court
                              a. And, the federal court must remand the case to state court
                                   whenever it determines there is no federal subject matter
            iv. A case can only be removed to the federal district embracing the state
                  court in which the case was originally filed
             v. Waiver of the Right to Remove
                      1. A defendant who files a permissive counterclaim in state court
                          waives the right to remove. But filing a compulsory counterclaim
                          in state court does not waive the right to remove
III.   Venue (relates to the proper federal district in which the matter will be decided)
       a. Venue Generally
              i. A civil action where jurisdiction is founded on a federal question or on
                  diversity can be brought in:
                      1. A judicial district where any defendant resides (is domiciled), if all
                          defendants reside in the same state; or
                      2. A judicial district in which a substantial part of the transaction or
                          occurrence giving rise to the claim occurred;
             ii. If there is no district in which the action may otherwise be brought (i.e., all
                  the defendants reside in different states and the claim arose overseas), the
                  action may be brought in:
                      1. A diversity case, a judicial district in which any defendant is
                          subject to personal jurisdiction at the time the action is
                          commenced; or
                      2. In a federal question case, in a judicial district where any defendant
                          is “found”
            iii. A defendant that is a corporation is deemed to reside, for venue purposes,
                 in any judicial district in which it is subject to personal jurisdiction at the
                 time the action is commenced
            iv. Local Actions
                      1. Actions concerning ownership, possession, or injury to land
                         (including trespassing) must be filed in the district where the land
      b. Transfer of Venue (going from one federal district court to another)
              i. A case can only be transferred to a federal district where the case could
                 have been filed originally (a proper venue with personal jurisdiction over
                 the defendant independent of any waiver by the defendant)
             ii. Two Statutes
                      1. If venue in the original forum is proper, the case may be
                         transferred to another federal district court if needed for the
                         convenience of the parties, the convenience of the witnesses, or the
                         “interests of justice”
                              a. The court to which a case is transferred under this statute
                                 must apply the choice of law rules of the original court,
                                 even if the plaintiff initiates the transfer
                      2. If venue in the original forum is improper, the court may transfer
                         in the interests of justice or may dismiss the case
      c. Forum Non Conveniens
              i. The discretionary doctrine of forum non conveniens allows a federal court
                 for the convenience of the parties and witnesses, in the interest of justice,
                 to transfer any civil action to any other division or district where it might
                 have originally been brought, or if transfer is not possible, to dismiss the
                 civil action without prejudice
                      1. Federal courts cannot transfer cases to a foreign judicial system or
                         a different state court system, so dismissal may be proper
             ii. The court must evaluate both private and public factors in making its
                      1. Public factors
                              a. Availability of an alternative forum; the plaintiff’s choice
                                 of forum; the interest the forum state has in providing a
                                 forum for its residents; what law applies; and what
                                 community should be burdened with jury service
                      2. Private factors
                              a. Convenience of the parties and witnesses; location of the
                                 evidence; and where the accident or event took place
                                      i. The fact that a plaintiff may recover less in the other
                                          judicial system/court does not make transfer or
                                          dismissal improper
                                     ii. Forum non conveniens is rarely granted if the
                                          plaintiff is a resident of the present forum
IV.   Service of Process
      a. Plaintiff must arrange to have someone deliver to the defendant process:
             i. A summons (formal court notice of a suit and time for response); and
            ii. A copy of the complaint
     b. Plaintiff must serve process within 120 days of filing the complaint or else the
        case will be dismissed without prejudice (unless plaintiff shows good cause for
        the delay)
     c. Process may be served by any nonparty who is at least 18 years old and may take
        the form of:
             i. Personal service
                    1. Papers are given to defendant personally anywhere you find the
                         defendant in the forum state (unless defendant is present only to be
                         a witness or party in another civil case)
            ii. Substituted Service
                    1. Process can be left with someone other than the defendant if:
                             a. It is the defendant’s usual abode;
                             b. The person being left with process is of suitable age and
                                discretion; and
                             c. The person being left with process resides there
           iii. Process can be delivered to defendant’s agent authorized to receive service
                (e.g., a corporation’s registered agent or any officer) or a state officer
                appointed by operation of law (nonresident motorist, etc.).
           iv. Waiver by Mail
                    1. Process can be mailed to the defendant by first class mail, postage
                         prepaid, as long as:
                             a. Defendant returns the waiver form waiving formal service
                                within 30 days
                                      i. If he does not return the waiver form, he must be
                                         served personally or by substituted service at his
            v. Process can be delivered to a defendant in another state as long as state
                law allows for it (with a long-arm statute, for example).
                    1. Exceptions:
                             a. Federal court can serve a defendant outside the forum state
                                regardless of state law under the Bulge rule and/or statutory
                                interpleader (see below)
     d. These rules apply to formal service of process, by which a defendant is brought
        before the jurisdiction of the court. For subsequent papers (e.g., answer, other
        pleadings, motions, discovery requests and responses) can be served by delivering
        or mailing the document to the party’s attorney (or pro se party). If mailed, three
        additional days are given for the required response time
V.   Pleadings (documents setting forth the claims and defenses)
     a. “Notice” pleadings
             i. Pleadings must convey enough contentions to allow a meaningful
                response (do not require great detail, just enough to put the other side on
     b. Rule 11
       i. Requires attorneys (or pro se litigants) to sign all pleadings, written
          motions, and papers (except discovery documents) certifying that (to the
          best of the attorney’s knowledge and belief, after reasonable inquiry):
              1. The paper is not for an improper purpose;
              2. The legal contentions are warranted by law (or a nonfrivolous
                  argument for change of the law);
              3. The factual contentions have evidentiary support (or are likely to
                  after further investigation); and
              4. The denials of factual contentions have evidentiary support (or are
                  likely to after further investigation)
      ii. Continuing Certification
              1. Certification is effective every time the paper is “presented” to the
                  court (filing, later advocating a position, etc.)
     iii. A motion for a violation of Rule 11 is served, but not filed. The party
          allegedly violating the rule has 21 days (“safe harbor”) to fix the offending
          document. If he doesn’t fix, then the motion can be filed.
     iv. Sanctions may be levied (they are discretionary) against the attorney, the
          firm, or the party. Sanctions should be sufficient to deter repeat of
          conduct, and can be nonmonetary.
              1. The court can also order a party to show cause of why sanctions
                  should not be levied
c. Complaint (principal pleading by the plaintiff that commences the suit)
       i. Must include:
              1. Statement of subject matter jurisdiction;
              2. Short and plain statement of the claim showing entitlement to
                  relief; and
              3. Demand for judgment
      ii. Three matters must be pleaded with particularity or specificity:
              1. Fraud; Mistake; Special Damages (damages that don’t normally
                  flow from an event)
d. Defendant’s Response (Rule 12)
       i. Defendant must respond to a complaint in one of two ways (motion or
          answer) no later than 20 days after service of process (or else he risks
              1. Rule 12 Motions
                      a. Issues of Form (motions must be brought by defendant
                           before filing a responsive pleading, or else waived):
                               i. 12(e) motion for a more definite statement (when a
                                   pleading is so vague that the defendant cannot
                                   frame a response)
                              ii. 12(f) motion to strike (pares out immaterial
                                   allegations, cheap shots, and things that don’t
                                   belong (e.g., a demand for a jury trial in a case
                                   where there is no right to a jury)) (any party can
                      b. Matters of Abatement:
                                     i. Waiveable Defenses that Must Be Put in The
                                        Defendant’s First Rule 12 Response (pre-answer
                                        motion or answer) or Else Waived:
                                            1. Motions to dismiss due to:
                                                    a. Lack of personal jurisdiction
                                                    b. Improper venue
                                                    c. Insufficiency of process
                                                    d. Insufficient service of process
                                    ii. Defenses that Can Be Raised At Anytime:
                                            1. Motions to dismiss due to:
                                                    a. Lack of subject matter jurisdiction
                                                    b. Failure to join an indispensable party
                             c. Matters Regarding the Merits
                                     i. 12(b)(6) failure to state a claim on which relief can
                                        be granted (must be brought by pre-answer motion
                                        or inserted in answer)
                                    ii. 12(c) judgment on the pleadings
                                   iii. Motion for summary judgment (Rule 56)
                      2. Answer (filed when defendant decides not to file an answer or his
                         pre-answer motion is denied)
                             a. Timing
                                     i. Defendant must serve his answer no later than 20
                                        days after service of process if she brought no pre-
                                        answer motions, or no later than 10 days after a
                                        court rules on a pre-answer motion
                                    ii. If defendant waives service of process, she has 60
                                        days (from plaintiff’s mailing of the waiver form) in
                                        which to answer.
                             b. An answer must contain:
                                     i. Responses to the Allegations of the Complaint
                                            1. Admit;
                                            2. Deny; or
                                            3. State that he lacks sufficient information to
                                                admit or deny (which has the effect of a
                                                    a. Cannot be used if the issue is a
                                                        matter of public knowledge or is in
                                                        defendant’s control
                                                             i. Failure to deny can constitute
                                                                an admission, except as to
                                    ii. Affirmative Defenses (statute of limitations, res
                                        judicata, contract isn’t enforceable due to fraud,
VI.   Counterclaims
        a. An offensive claim against an opposing party (e.g., defendant vs. plaintiff) that is
           filed with defendant’s responsive pleading (answer).
        b. Two Types
                i. Compulsory Counterclaim
                       1. A defendant’s claim against the plaintiff that arises from the same
                           transaction or occurrence as the plaintiff’s claim;
                       2. Must be filed with the defendant’s answer in the pending case (or
                           else defendant waives the right to sue on the claim)
                               a. Exceptions
                                         i. If the claim had already been asserted before
                                            plaintiff sued defendant, then it is not compulsory
                                        ii. If the defendant never had to answer (because he
                                            asserted a pre-trial motion and it was granted) he
                                            never had to assert the compulsory counterclaim, so
                                            he can bring the claim in a separate case
                       3. If there is no independent basis of subject matter jurisdiction for
                           the counterclaim, the court may still hear the claim under ancillary
                           supplemental jurisdiction
               ii. Permissive Counterclaim
                       1. Requirements:
                               a. A claim not arising from the same transaction or
                                    occurrence as the plaintiff’s claim;
                               b. Claim does not have to be asserted in a pending case (can
                                    sue in a separate action);
                               c. Claim must meet the requirements for subject matter
                                    jurisdiction (diversity or federal question)
                                         i. Claim can never meet the requirements for ancillary
                                            supplemental jurisdiction because the claim does
                                            not arise out of the same transaction or occurrence
VII.    Cross-Claim (claims made against a co-party; defendant v. defendant)
        a. Requirements
                i. Claim must arise out of the same transaction or occurrence as the
                   underlying action; and
               ii. Meet the requirements for subject matter jurisdiction (diversity or federal
                   question) or supplemental jurisdiction
VIII.   Amending Pleadings
        a. A plaintiff has a right to amend a complaint one time prior to when the defendant
           serves an answer
        b. Relation Back Doctrine
                i. Amended pleadings relate back to the date of the original pleading if they
                   concern the same conduct, transaction, or occurrence as the original
                       1. Example: P files a complaint on July 1. The statute of limitations
                           runs on July 10. P then files and serves an amended complaint
                           (adding a new related claim) on July 15 (before the defendant has
                            answered). P’s amended complaint is not time barred and relates
                            back to the date of the first complaint.
               ii. New parties may be added (e.g., changing the defendant) (and the
                   amended complaint will relate back) if:
                        1. The new party receives notice of the action so that he will not be
                            prejudiced in maintaining his defense on the merits;
                        2. The new party knew that but for a mistake, he would have been
                            named originally; and
                        3. This all occurs within 120 days after the filing of the original
      c. A defendant has right to amend an answer one time within 20 days after serving
          the answer
      d. If there is no right to amend, a party can seek leave of court, and it will be granted
          if “justice so requires” (courts usually allow unless there is delay or prejudice)
      e. If, at trial, plaintiff introduces evidence regarding a claim not contained within the
          original complaint, and the defendant does not object (impliedly consents to a trial
          of this new claim), after trial, the plaintiff can move to amend the pleading or
          pretrial conference order to conform to the evidence (to show the new complaint)
                i. However, if the defendant does object to the new claim, the evidence
                   regarding the new claim is inadmissible because it is at “variance with the
IX.   Joinder of Parties and Claims
      a. Joinder of Parties
                i. Parties may join as plaintiffs or defendants (permissive joinder) whenever:
                        1. Some claim is made by each plaintiff against each defendant
                            relating to or arising out of the same series of occurrences or
                        2. There is at least one question of fact or law common to all the
                            parties; AND
                        3. The requirements for subject matter jurisdiction (federal question
                            or diversity) or supplemental jurisdiction are met for each claim
               ii. If the plaintiff wants to join an additional defendant, joinder will be
                   allowed if:
                        1. There is an independent basis for subject matter jurisdiction; or
                        2. The additional claims arise out of the same transaction or
                            occurrence as the underlying claim, the original claim’s
                            jurisdiction is not based on diversity, and the court, in its
                            discretion, decides to hear the claim
                                a. Reasons the court would not hear the claim
                                         i. The claim is novel or complex;
                                        ii. The state claim predominates over the federal
                                             claim; or
                                       iii. The federal claim has been dismissed
              iii. Compulsory Joinder (when necessary and indispensable parties must be
               1. A party (an absentee) is “needed for just adjudication” and must be
                   joined by the court if:
                       a. Complete relief cannot be given to existing parties in his
                           absence (worried about multiple suits);
                       b. Disposition in his absence may impair his ability to protect
                           his interest in the controversy (worried about harm to the
                       c. His absence would expose existing parties to a substantial
                           risk of double or inconsistent obligations (worried about
                           defendant); AND
                       d. The party is amenable to process (there is personal
                           jurisdiction over him) and his joinder will not destroy
                           diversity or venue
               2. If Joinder is Impossible (no personal jurisdiction or joinder will
                   destroy diversity or venue)
                       a. The court will use factors to decide whether to proceed in
                           the party’s absence or dismiss:
                                 i. Whether the judgment in the party’s absence would
                                    prejudice him or the existing parties
                                ii. Whether the prejudice can be reduced by shaping
                                    the judgment
                               iii. Whether a judgment in the party’s absence would
                                    be adequate
                               iv. Whether the plaintiff will be deprived of an
                                    adequate remedy if the action is dismissed
               3. Joint tortfeasors subject to joint and several liability are not
                   necessary parties
               4. Bulge Rule
                       a. An absentee joined as a necessary party may be served out
                           of state, within 100 miles of the federal courthouse,
                           regardless of state law.
b. Joinder of Claims
        i. A plaintiff can join any number and type of claims against a defendant.
       ii. When multiple plaintiffs or multiple defendants are involved, it is essential
           only that at least one of the claims arise out of a transaction in which all
           were involved
      iii. A plaintiff may join two claims if success on the first is a prerequisite to
           the second
      iv. When jurisdiction is based on diversity of citizenship between the plaintiff
           and the defendant, the plaintiff may aggregate all claims that he has
           against the defendant to satisfy the jurisdictional amount
       v. When jurisdiction is based on federal question, a nonfederal claim can be
           joined only if it is regarded as part of the same case or controversy as the
           federal claim
      vi. Whenever claims are joined, the requirements of subject matter
           jurisdiction must be met
     c. Impleader (when defendant wants to bring in another third-party defendant for
         indemnity or contribution)
              i. Defendant (who becomes a third-party plaintiff) has the right to implead a
                  third party defendant within 10 days of serving his answer (after that, he
                  needs court permission)
             ii. In an underlying diversity case, there does not have to be diversity (or
                  existing diversity may be destroyed) for the third party defendant to be
                  joined if there is ancillary supplemental jurisdiction for the claim
                      1. A plaintiff can assert a claim against the third party defendant only
                          if it arises from the same transaction or occurrence as the
                          underlying claim and meets the requirements for subject matter
                          jurisdiction (federal question or diversity) or supplemental
                      2. The third party defendant can assert a claim against the plaintiff, if
                          it arises from the same transaction or occurrence as the underlying
                          case and meets the requirements for subject matter jurisdiction
                          (federal question or diversity) or supplemental jurisdiction
            iii. Bulge Rule
                      1. Third parties joined by impleader may be served out of state,
                          within 100 miles of the federal courthouse, regardless of state law.
X.   Intervention (where an absentee wants to join a pending suit and bring herself in as a
     plaintiff or defendant)
     a. Intervention of Right
              i. Available whenever:
                      1. The absentee claims an interest in the property or transaction that
                          is the subject matter of the action; and
                      2. The disposition of the action without him may impair his ability to
                          protect that interest
             ii. There is no independent basis of subject matter jurisdiction required when
                  one intervenes as a defendant (ancillary supplemental jurisdiction is
                      1. However, under the supplemental jurisdiction statute, there is no
                          ancillary supplemental jurisdiction over claims made by one
                          seeking to intervene as a plaintiff (meaning there must be some
                          independent basis of subject matter jurisdiction)
            iii. Does not require independent jurisdictional grounds
     b. Permissive Intervention (discretionary with the court)
              i. Available when:
                      1. The applicant’s claim or defense and the main action have
                          common questions of law or fact (no direct personal or pecuniary
                          interest is required); and
                      2. The intervention is supported by its own jurisdictional ground (and
                          won’t destroy diversity);
     c. Interpleader
       i. When one holding property or money (stakeholder) forces all potential
          adverse claimants (those who want the property/money) into a single
          lawsuit to avoid multiple litigation and inconsistency
      ii. Two Types:
              1. Rule 22 Interpleader
                      a. Requires:
                               i. Complete diversity between the stakeholder and
                                  every adverse claimants and an excess of $75,000 in
                                  issue; OR
                              ii. A federal question claim
                      b. Normal service and venue rules apply
              2. Statutory (section 1335) Interpleader
                      a. Requires:
                               i. Minimum diversity between the claimants (one
                                  claimant must be diverse from one other claimant)
                                  and $500 in issue
                      b. Service may be nationwide (no personal jurisdiction
                          problems) and venue is proper where any claimant resides
d. Class Actions (where representative(s) sue on behalf of a group)
       i. Requirements (all must be met)
              1. Parties are too numerous for practical joinder (for them all to be
                  parties in the case);
              2. There are some questions of law or fact that are common to the
              3. Representative’s claims/defenses are typical of those of the class;
              4. The representative and his lawyer will fairly and adequately
                  represent the class;
              5. Class Must Fit Within One of Three Types:
                      a. Prejudice Class Action
                               i. Class treatment is necessary to avoid harm either to
                                  class members or to the opposing party (e.g., there
                                  are many claimants to a fund and individual suits
                                  would deplete the fund leaving some without
                              ii. No notice to potential class members is required and
                                  no right to opt out
                      b. Injunction or declaratory judgment (not damages) is sought
                          because the class members were treated alike by the other
                          party (e.g., discrimination in employment)
                               i. No notice to potential class members is required and
                                  no right to opt out
                      c. “Damages” Class Action
                               i. Requirements:
                                       1. Common questions predominate; and
                                              2. A class action is the superior method to
                                                  handle the dispute (e.g., mass tort case
                                                  where the major common question is
                                                  whether the tortfeasor was negligent)
                                      ii. Notification Required:
                                              1. Class representative must pay to give
                                                  individual notice to all members reasonably
                                                  identifiable, telling them:
                                                      a. They can opt out;
                                                      b. They will be bound if they don’t opt
                                                          out; and
                                                      c. They can enter a separate appearance
                                                          through counsel
             ii. Who Is Bound by a Class Judgment
                     1. All class members are bound, except for those who opt out of a
                          “Damages” type class action
            iii. Subject Matter Jurisdiction
                     1. Class action can invoke a federal question; OR
                     2. Invoke diversity of citizenship
                               a. Only the citizenship of the class representative(s) matter
                               b. As to amount in controversy requirement:
                                       i. Traditional Rule: Every class member’s claim must
                                          be in excess of $75,000
                                      ii. Modern Trend (and followed by the 9th Circuit):
                                          Only the representative’s claim must exceed
                                          $75,000 regardless of other class members’ claims
            iv. Settlement or dismissal of a class action must be approved by the court
                 (and court, before approval, must notify the class members and get their
XI.   Discovery
      a. Required Disclosures (must be produced even though no one asks for it)
              i. Initial Disclosures
                     1. Unless court order or stipulation of the parties provides otherwise,
                          within 14 days of a Rule 26(f) conference, the parties must identify
                          persons and documents “likely to have discoverable information
                          that the disclosing party may use to support its claims or defenses,”
                          as well computation of damages and insurance for all or part of
             ii. Experts
                     1. As directed by the court, parties must identify experts “who may
                          be used at trial” and produce a written report containing their
                          opinions, data used, qualifications, compensation for the study, and
                               a. Experts must be paid reasonable fees
                       b. If an expert retained in anticipation of litigation is not
                          expected to testify, no discovery will be allowed absent
                          exceptional need
      iii. Pre-Trial
               1. No later than 30 days before trial, parties must produce detailed
                   information about trial evidence, documents, and the identity of
                   witnesses who will testify live or by deposition
      iv. Duty to Supplement
               1. If a party learns that its response to required disclosure is
                   incomplete or incorrect, it must supplement its response
b. Discovery Tools (cannot be used until there has been a Rule 26(f) conference,
   unless a court order or stipulation says otherwise)
        i. All substantive answers must be signed under oath
       ii. Every discovery request and response must be signed by counsel
           certifying it is warranted, not interposed for improper purposes, and not
           unduly burdensome
      iii. Duty to Supplement
               1. If a party learns that its response to a discovery request is
                   incomplete or incorrect, it must supplement its response
      iv. Tools that Can be Used to Get Information from a Non-Party or a Party
               1. Deposition
                       a. Questions can be oral or written
                       b. Answers are oral, under oath, and in response to questions
                            asked by each party or her counsel
                       c. If used on a non-party, the non-party should be subpoenaed
                            (or else he is not compelled to attend)
                       d. A party deponent does not have to be subpoenaed; notice of
                            the deposition, properly served, is sufficient to compel
                       e. A party cannot object at trial to any evidentiary question
                            which could have been remedied at the deposition
                       f. A party cannot take more than 10 depositions or depose the
                            same person more than once (unless court orders it or the
                            parties stipulate to it)
                       g. Deposition is one day of seven hours (unless court order or
                            the parties’ stipulation says otherwise)
                       h. Use of depositions at trial (all subject to the rules of
                                 i. To impeach any deponent;
                                ii. For any purpose if the deponent is an adverse party;
                               iii. For any purpose if the deponent (regardless of
                                    whether a party) is unavailable for trial, unless that
                                    absence was procured by the party seeking to
                                    introduce the evidence
               2. Requests to Produce
              a. Requests by a party to another party (or, if accompanied by
                 a subpoena, to a non-party) requesting that he make
                 available for review and copying various documents or
                 things, or to permit entry upon designated property for
                 inspection or measuring
              b. Responses to a request to produce must be made within 30
v. Tools that Can be Used to Get Information from a Party Only
      1. Interrogatories
              a. Questions are in writing
              b. Answers are in writing, and under oath
              c. Party receiving interrogatories must respond or object
                 within 30 days
                      i. The party can say they don’t know the answer to a
                          question, but only after reasonable investigation
                               1. If the answer could be found in business
                                   records and it would be burdensome to find
                                   it, the propounder can be allowed access to
                                   those records)
              d. At trial, a party cannot use their own answers, but others
                 may be used per regular rules of evidence
              e. A party may only serve 25 interrogatories on another party
                 (including subparts) (unless a court order or party
                 stipulation says otherwise)
      2. Physical or Mental Examination
              a. Only available:
                      i. Through court order upon a showing:
                     ii. That the party’s (or a person in the party’s control
                          (e.g., parent litigating on behalf of her child)) health
                          is in actual controversy;
                    iii. And a showing of good cause (i.e., you need it and
                          cannot get it elsewhere)
              b. The person examined may obtain a copy of the report
                 without making this showing, but by requesting a copy
                 without making this showing, he waives his doctor-patient
                 privilege regarding reports by his doctors regarding the
                 same condition
      3. Requests for Admission
              a. A request by one party to another party to admit the truth of
                 any discoverable matters
              b. Party must respond to a request for admission within 30
                      i. The response must either admit or deny
                               1. Exception: It can indicate a lack of
                                   information if the party has indicated that he
                                   has made a reasonable inquiry
                                      2. A failure to deny is tantamount to admission
                                         (but the party can amend if the failure is not
                                         made in bad faith)
c. Substantive Scope of Discovery
       i. A party can discover anything “relevant to a claim or defense.”
      ii. For good cause, the court can allow discovery of anything relevant to the
          subject matter of the case
              1. “Relevant”
                      a. Anything reasonably calculated to lead to admissible
                          evidence (you can discover stuff that may end up being not
     iii. Privileged matter is not discoverable (evidentiary privileges)
     iv. Work product (“trial preparation materials”; material prepared in
          anticipation of litigation) is not discoverable (whether it is prepared by the
          attorney, the party, or any representative of the party)
              1. Exception:
                      a. It is discoverable if there is:
                                i. Substantial need; and
                               ii. The information is not otherwise available
      v. Mental impressions, opinions, conclusions, and legal theories are
          absolutely protected from discovery
d. Enforcement of Discovery Rules & Sanctions
       i. Discovery is usually worked out among the parties, without court
          intervention. In problem cases, the court can get involved.
      ii. When making any motion against a party, the party must certify that he
          tried in good faith to get the materials from the other side
              1. How Presented to the Court
                      a. Receiving party can seek a protective order under Rule
                          26(c) (e.g., because the request is over burdensome, trade
                          secrets are involved and their use should be limited to this
                          case, etc.)
                      b. Receiving party answers some discovery requests, but
                          objects to others. If objections are not well taken, this is a
                          partial violation (imposing a light sanction)
                                i. Possible Sanctions for parties: An order compelling
                                   answers, plus costs of associated with seeking the
                                       1. If the party violates the new order, the court
                                           may impose these penalties (plus costs and
                                           attorneys fees involved with seeking the
                                               a. Impose an establishment order
                                                   (establishes the facts requested as
                      b. Strike pleadings of the disobedient
                          party (as to issues relating to
                      c. Disallow evidence from the
                          disobedient party (on such issues)
              2. If the party violates the order with bad faith,
                  the court may:
                      a. Dismiss the plaintiff’s case; or
                      b. Enter a default judgment against the
              3. The violating party may also be held in
                  contempt (except in cases involving refusal
                  to submit to mental or physical exams)
       ii. Possible Sanctions for non-parties
              1. Contempt, for violating subpoenas or court
      iii. Possible Sanctions against attorney
              1. Attorney may be liable for all expenses
                  (including attorney’s fees) incurred by the
                  other side if he counseled one of these bad
c. Receiving party fails completely to attend a disposition,
   respond to interrogatories, or to respond to requests for
   production. This is a total violation (heavy sanction).
        i. Possible Sanctions for a Party
              1. Court may impose these penalties (plus costs
                  and attorneys fees involved with seeking the
                      a. Impose an establishment order
                          (establishes the facts requested as
                      b. Strike pleadings of the disobedient
                          party (as to issues relating to
                      c. Disallow evidence from the
                          disobedient party (on such issues)
              2. If the party violates the order with bad faith,
                  the court may:
                      a. Dismiss the plaintiff’s case; or
                      b. Enter a default judgment against the
              3. There can be no contempt, however, because
                  the party did not violate any court order
       ii. Possible Sanctions for non-parties
              1. Contempt, for violating subpoenas or court
                                    iii. Possible Sanctions against attorney
                                            1. Attorney may be liable for all expenses
                                                (including attorney’s fees) incurred by the
                                                other side if he counseled one of these bad
                             d. Party submits a false denial to a request to admit
                                      i. Sanctions for Parties
                                            1. The other party may recover only costs and
                                                attorney’s fees related to having to prove the
                                     ii. Possible Sanctions against attorney
                                            1. Attorney may be liable for all expenses
                                                (including attorney’s fees) incurred by the
                                                other side if he counseled one of these bad
                             e. Party unjustly fails to make a required disclosure
                                      i. Sanctions for Parties
                                            1. Other side can choose to treat it as a partial
                                                answer/partial objection to the discovery
                                                request or as a complete failure to respond;
                                            2. Failing party may not use that evidence at
                                                trial, unless the failure was harmless or
                                     ii. Possible Sanctions against attorney
                                            1. Attorney may be liable for all expenses
                                                (including attorney’s fees) incurred by the
                                                other side if he counseled one of these bad
XII.   Termination of a Case Without Trial
       a. Voluntary Dismissal by Plaintiff
              i. Plaintiff may file one written notice of voluntary dismissal before the
                 defendant answers or moves for summary judgment (and case will be
                 dismissed without prejudice)
       b. Default and Default Judgment
              i. Entry of Default
                     1. Clerk is asked to enter a default on the docket (purely ministerial
             ii. Default Judgment
                     1. After the default is entered, plaintiff may seek a default judgment
                         (which will be enforced so that plaintiff may recover money)
                     2. The clerk may enter a default judgment when:
                             a. There has been no response at all by the defendant within
                                 20 days after service of process
                             b. The claim is for a certain sum (plus costs)
                             c. The plaintiff gives an affidavit that the sum is owed; AND
                                d. The defendant is not a minor or an incompetent
                        3. The court (after a hearing on damages) may enter a default
                            judgment when any of the four prior things have not been
                                a. When the court is going to hold a hearing on damages, the
                                    defendant is entitled to notice only if he has made an
                                    appearance (e.g., filed a motion to dismiss that was denied,
        c. Dismissal for Failure to State a Claim (“demurrer” in some state courts) (Rule
                i. Defendant can move to dismiss for failure to state a claim prior to filing an
               ii. Court takes all of the allegations of the plaintiff’s complaint as true and
                   asks: if plaintiff shows what she alleged, would she win a judgment?
                        1. This motion tests only the sufficiency of the plaintiff’s allegations,
                            and does not address evidence
              iii. If the court grants the defendant’s motion, it will probably allow the
                   plaintiff to amend his complaint
        d. Motion for a judgment on the pleadings
                i. Does exactly the same thing as Rule 12(b)(6), but is filed after pleadings
                   are closed (after defendant has filed an answer)
        e. Motion for Summary Judgment
                i. Summary judgment must be granted if:
                        1. From the evidence (affidavits, discovery materials), there is no
                            genuine issue of material fact; and
                        2. The moving party is entitled to judgment as a matter of law
               ii. Court looks at the evidence proffered by the parties and it must be
                        1. The pleadings submitted by the parties are not evidence (unless
                            specifically told so in the facts or told they are “verified
                            pleadings”), so each party should put in evidence (e.g., affidavits)
              iii. Court will generally view the evidence in the light most favorable to the
                   nonmoving party
XIII.   Conferences
        a. Rule 26(f) Meeting
                i. Unless a court order says otherwise, at least 21 days before scheduling a
                   conference or order, the parties must meet to discuss claims, defenses, and
               ii. A discovery plan must be presented by the parties to the court within 14
              iii. Generally, parties cannot use discovery until after the Rule 26(f) meeting
        b. Scheduling Order
                i. Unless local rules or a court order says otherwise, the court can hold a
                   conference among counsel no more than 120 days after service of process
                   on the defendant.
              ii. The conference is for scheduling cut-offs for joinder, amendment,
                  motions, and the scheduling order sets these out (blueprint for the
     c. Pretrial Conferences
               i. Court may hold pretrial conferences as needed to expedite the case and
                  foster settlement.
              ii. The final pretrial conference order basically supersedes the pleadings
                       1. However, it may be amended:
                               a. “To prevent manifest justice;” or
                               b. By conforming to the evidence, if the evidence beyond the
                                   pretrial conference order is proffered and not objected to
XIV. Trial, Judgment, and Post-Trial Motions
     a. Jury Trial
               i. Requirement of Demand
                       1. Party must demand a jury trial in writing (in a pleading or a
                           separate document) no later than 10 days after service of the last
                           pleading raising a jury-triable issue
              ii. Right to a Jury Trial in Civil Cases (Federal Court)
                       1. The Seventh Amendment preserves the right to a jury trial in
                           federal courts in all suits of “common law” (actions at law where
                           there is a claim for damages), but not in suits in equity (seeking an
                       2. If a case arises that involves both law and equity, the jury will
                           decide the facts underlying the law issues first, and the judge will
                           then decided the equity issues
                               a. Judge is bound by the jury’s findings on the factual issues
             iii. Jury Selection (Voir Dire)
                       1. Each side has unlimited strikes of potential jurors for cause
                       2. Each side has three peremptory strikes
                               a. Must be used in a race and gender neutral manner
             iv. Motion for Judgment as a Matter of Law (jnol) (directed verdict)
                       1. A motion to take the case away from the jury
                       2. Defendant can move for a jnol twice (at the close of the plaintiff’s
                           evidence and at the close of all evidence)
                       3. Plaintiff can move for a jnol at the close of all evidence
                       4. Court will grant the motion when reasonable people could not
                           disagree on the result
                       5. Court generally views the evidence in the light most favorable to
                           nonmoving party
     b. Renewed Motion for Judgment as a Matter of Law (what used to be called a
         judgment notwithstanding the verdict “jnov”)
               i. If a party made a motion for a judgment as a matter of law at the close of
                  all of the evidence, and then loses at trial, that party can file a renewed
                  motion for judgment as a matter of law no later than 10 days after entry of
                      1. If the party failed to make a motion for a judgment as a matter of
                          law at the close of all evidence, he is deemed to have waived the
                          right to make the renewed motion for judgment as a matter of law
             ii. Court will grant the motion when reasonable people could not disagree on
                 the result
            iii. Court generally views the evidence in the light most favorable to the
                 nonmoving party
      c. Motion for a New Trial
              i. If a judgment has been entered, but errors committed at trial require a new
                 trial, a party can move for a new trial no later than 10 days after entry of
             ii. Grounds for a New Trial
                      1. Error at trial makes the judgment unfair (e.g., wrong jury
                          instructions or evidentiary ruling);
                      2. New evidence surfaces that could not have been obtained with due
                          diligence for the original trial
                      3. Prejudicial misconduct of a party, attorney, third party, or juror
                          (e.g., juror lied on voir dire or made independent investigation of
                          the accident scene)
                      4. Judgment is against the weight of the evidence (serious error of
                          judgment by the jury)
                      5. Inadequate or excessive verdict
XV.   Appeal
      a. Final Judgment Rule
              i. A losing party can only appeal from a final judgment (an ultimate decision
                 by the trial court on the merits of the entire case; when there is nothing
                 else for the court to decide on the merits)
                      1. Denial of a motion for summary judgment and a grant of a motion
                          for a new trial are not final judgments
                      2. The grant or denial of a renewed motion for judgment as a matter
                          of law is a final judgment
      b. Interlocutory (non-final) Review
              i. Interlocutory Orders Reviewable as a Matter of Right
                      1. Orders granting, modifying, or refusing injunctions
                      2. Appointing or refusing to appoint receivers
                      3. Findings of patent infringement where only an accounting is left to
                          be accomplished by the trial court
                      4. Orders affecting possession of property (e.g., attachments)
             ii. Interlocutory Appeals Act
                      1. Allows an appeal of a nonfinal order if:
                              a. The trial judge certifies that it involves a controlling issue
                                   of law as to which there is substantial ground for difference
                                   of opinion; and
                              b. The court of appeals agrees to hear it
            iii. Collateral Order Rule
                      1. The appellate court has discretion to hear and rule on an issue if:
                             a. It is distinct from the merits of the case;
                             b. Involves an important legal question; and
                             c. Is essentially unreviewable if we wait until final judgment
                                 (e.g., claim by a state that it has 11th Amendment
           iv. When more than one claim is presented in a case (e.g., claim and
                counterclaim), or when there are multiple parties, the trial court may
                expressly direct entry of final judgment as to one or more of them if it
                makes an express finding that there is no just reason for delay
            v. Extraordinary Writ
                    1. Not technically an appeal, but an original proceeding in appellate
                        court to compel the trial judge to make or vacate a certain order
                    2. Available only to enforce a clear legal duty (not a substitute for
           vi. Class Actions
                    1. Court of appeals has discretion to review an order granting or
                        denying certification of a class action, if review is sought within 10
                        days of the order
                    2. The appeal does not stay proceedings at the trial court unless the
                        trial judge or court of appeals so orders
XVI. Res Judicata and Collateral Estoppel (affirmative defenses; defendant must include in
     a. Generally
             i. The court in Case 2 should apply the law of the system that decided Case
                1 when determining res judicata and collateral estoppel issues
     b. Res Judicata (claim preclusion) (analyze the validity of the judgment and the
        finality on the merits for each claim)
             i. Once a valid and final judgment on the merits has been rendered on a
                particular cause of action, the plaintiff is barred by res judicata from trying
                the same cause of action against the same defendant(s) in a later lawsuit
                    1. Res judicata is limited to “parties,” so it does not bar similar causes
                        of action brought by others
                    2. “Final judgment on the merits”
                             a. Almost all judgments and involuntary dismissals are on the
                                 merits except for those based on jurisdiction, venue,
                                 indispensable parties, dismissal under the statute of
                                 limitations (in some courts), or dismissal without prejudice
                                 (in some courts)
                    3. “Same cause of action”
                             a. Most jurisdictions define “cause of action” or “claim” as
                                 including any rights to relief arising from a transaction or
                                 occurrence or a series of related transactions
                                      i. Some jurisdictions say there is a separate cause of
                                          action or claim for property damage and for
                                          personal injury, even if they were caused in a single
                                          transaction (because personal injury and property
                                   rights are different primary rights) (“primary rights”
                      b. Note: Look to whether the second cause of action raises a
                           different, but related, law that may require proof of
                           additional or different elements (in which case, argue that
                           the causes of action are not the same)
      ii. Res judicata bars subsequent causes of action arising out of the same
          transaction or occurrence which should have been asserted in the earlier
               1. This is true unless it would be unfair to apply res judicata under the
                  circumstances (e.g., plaintiff didn’t become aware of the facts
                  constituting the claim until after the first lawsuit)
     iii. “Merger” vs. “Bar”
               1. When the one claiming res judicata in the second case won Case 1,
                  and res judicata is applied, it is called “merger”
               2. When the one claiming res judicata in the second case lost Case 1,
                  and res judicata is applied, it is called a “bar” (he is barred from
                  suing again)
c. Collateral Estoppel (issue preclusion)
       i. A final judgment on an issue for plaintiff or defendant is conclusive in a
          subsequent action involving a different cause of action between them or
          their privies, as to issues actually litigated and essential and necessary to
          the judgment in the first action (that issue is deemed established in the
          second action)
               1. Collateral estoppel may only be asserted against someone who
                  was a party (or was in privity with a party) to the original case (due
                  process requirement)
               2. Collateral estoppel may be used by:
                      a. Traditional “Mutuality” Rule
                                i. Only someone who was a party to the original suit
                                   could use/benefit from collateral estoppel
                               ii. Present Status of Mutuality
                                       1. In jurisdictions where the mutuality
                                           principal is being eroded away, courts will
                                           uphold collateral estoppel when:
                                                a. The issue decided in the first case is
                                                    identical to that raised in the second;
                                                b. There was a final judgment on the
                                                c. The party against whom the
                                                    judgment is to be used had a fair
                                                    opportunity to be heard on the
                                                    critical issue; and
                                                d. The posture of the case is such that it
                                                    would not be unfair or inequitable to
                                                    a party to apply collateral estoppel
b. Modern Rules
      i. Will allow nonparties to use/take advantage of a
         prior judgment when claimed by:
             1. The defendant in the second case who was
                 not a party to the original case (“non-mutual
                 defensive collateral estoppel”); or
             2. The plaintiff in the second case who was not
                 a party to the original case in some cases if it
                 is fair (“non-mutual offensive collateral
                      a. Factors Used to Determine if It Is
                               i. Party collateral estoppel is
                                  being asserted against had a
                                  full opportunity to litigate in
                                  the first case;
                              ii. Party collateral estoppel is
                                  being asserted against could
                                  foresee multiple litigation;
                             iii. Plaintiff could not have
                                  joined easily in the first case;
                             iv. There are no inconsistent
                                  judgments on record (i.e., no
                                  multiple litigation arriving at
                                  different results on the issue)

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