Civil Procedure MIG 1: Personal Jurisdiction
Introduction What states can the P sue D? Not concerned with what court as that is subject matter
Two Step Process Satisfy State Statute Argue both ways – tort where made product or tort where injury
occurred. If arguably met go with constitutional analysis.
Satisfy Constitution Does D have such minimum contacts with the forum so that
exercise of jurisdiction does not offend traditional notions of
fair play and substantial justice?
Forms Personal Jurisdiction
In Rem Jurisdiction
Quasi In Rem Jurisdiction
With the exception of the bulge rule and interpleader, federal
court has same limits as the state.
In Rem Jurisdiction Claim attached to property. Follow analysis below.
Quasi In Rem Jurisdiction Claim not attached to property. Follow analysis below.
In Personam Jurisdiction Easy to find: Domicile, consent, presence in forum at least if not forced or tricked into forum or
filing a special appearance.
Analysis State Long Arm Statute
Minimum Contacts Must result from purposeful availment
(voluntary act) – such as ship goods, use
roads, causes effect in forum. Look at
where actions occur, where make money,
third parties, benefits and protections of
state, transactions giving rise to cause of
Forseeable that D would be sued in this
forum. Look at if it knows actions take
place in the state.
Fairness Relatedness between the contact and the
claim. Dopes P claim arise from D contact
with state? Especially important if D has
small amount of contact with forum. Can
help make up for small amount of contact.
Quality over quantity. Not necessary if have
substantial contacts – continuous business,
served with process, domiciled. Then has
general jurisdiction over business and can be
sued in forum state for actions that happened
anywhere in the world.
Convenience D may complain that makes it
tough to litigate because far from home.
Forum is permissible unless puts D at severe
disadvantage in litigation which is difficult
State Interest May have interest in
providing forum for citizens.
Civil Procedure MIG 2: Subject Matter Jurisdiction
Are we going to state court or federal court?
Federal Courts Diversity of Citizenship Amount in controversy must exceed $75,000
Federal Question Must be between citizens of different states or a citizen against an
Diversity No diversity of citizenship jurisdiction if any P is a citizen of the same state as any D. Make two columns
and if same state on both sides of the line.
What is citizenship? Human Citizen it is the state of your domicile
Domicile established by Presence (physical);and
Need subjective intent to make
permanent home (mental).
No single factor determinable -Note
that moving is not enough
Cannot be domiciled in more than one state.
At time of filing of lawsuit
Corporation Citizenship is All states where incorporated.
The one state where the corporation has
its principal place of business. If don’t tell
you look at 1) headquarters (nerve center);
2) where the corporation does more
production or service than anywhere else
(muscle). Many courts use the nerve center
unless all activity is in one state.
Can have more than one
UnIncorp Citizenship of all the members, including general and limited
Reps For decedents, minors, and incompetents, look to their
citizenship, not the citizenship of their representative
Class Action See below
Amount in Controversy Good faith allegation that the complaint alone exceeds $75,000 exclusive of
interests and costs.
Permissible in complaint unless clear to a legal certainty that cannot recover at
If the P ultimately recovers less than $75,000, jurisdiction still OK; but may be
liable for costs even though won (not attorneys’ fees).
Aggregation Permissible when one P against one D. Don’t have to be
Joint Claims use the total value of the claim (i.e. joint
tortfeasors). Use the word “joint.” Note though that if not
the same claim, different causes of injury, may not be able
Injunction Plaintiff’s viewpoint: does the damage decrease the value
of plaintiff by more than $75,000?
Defendant’s viewpoint: would it cost defendant more than
$75,000 to comply with the injunction?
Erie Apply state substantive law Elements of a claim or a D.
Any federal law that conflicts apply the federal law as long as valid because of
Apply federal procedure law if arguably procedural.
Substantive State Law Outcome determinative
Federal or state system have strong interest that its
rule be applied
Avoid forum shopping by asking if the federal court
ignores will it cause parties to flock to federal court
Substantive Examples State of limitations and tolling
Choice of law.
If substantive but don’t know what it is then can certify to state court.
Collusion By statute, federal court is deprived of subject matter jurisdiction when a party
“has been improperly or collusively made or joined to invoke jurisdiction.”
Watch for an assignment to create diversity
Exclusions Even if diversity and the dollar requirements are met, federal courts will not hear
actions involving issuance of divorce, alimony or child custody decree or to
probate an estate
Federal Question Complaint must show a right or interest founded substantially on a federal law (e.g., federal constitution,
legislation). Plaintiff is suing to enforce a federal right.
Exclusive Federal Patent infringement, federal antitrust and securities claims
Well Pleaded Complaint Plaintiff's claim, properly pleaded, must be based on federal law.
Properly pleaded means that the complaint sets forth only a claim, without any
extraneous stuff that has nothing to do with the claim itself. If P is enforcing
federal right can go to federal court (i.e. saying federal law does not apply is not
Supplemental For every claim joined in federal court, we need to make sure there is a basis of subject matter jurisdiction.
So always ask whether the claim can get into federal court under diversity or federal question. If so, claim can
come into federal court easily. If such a claim does not meet diversity and does not meet FQ, try
General Claims must arise from common nucleus of operative fact Same
transaction/occurrence [T/O]) as the underlying claim
Court still has discretion If the federal question is dismissed early in the
If the state law claim is complex; or
State law issues would predominate.
Pendent (Plaintiff) Only works for claims invoked by P in original federal question. Can be a
Ancillary (any) Only works for claims joined by anybody but the plaintiff in any case
(diversity or federal question)
Removal Allows Ds to have a case filed in state court removed to federal court. Plaintiffs can never
remove even if Ds on counterclaim
General Claims must arise from common nucleus of operative fact
Same transaction/occurrence [T/O]) as the underlying claim
Court still has discretion If the federal question is dismissed
early in the proceedings
If the state law claim is complex; or
State law issues would predominate.
Requirements Can only be removed to federal district embracing state court
where case originally filed.
Multiple Ds All Ds must agree.
If there is a separate and
independent federal question claim
against one defendant, he can
remove the whole case, but the court
can remand state law issues.
Special Diversity No removal if any defendant is a
citizen of the forum. So even
though this case could have been
filed in federal court under diversity,
it is not removal under this special
rule for diversity cases.
Dismissal of D that prevents
diversity The case then becomes
removable because there is no
defendant who is a citizen of the
forum. So D-1 (the remaining
defendant) has 30 days from service
of the dismissal of D-2 in which to
remove. But in a diversity case, no
removal more than one year after the
case was filed in state court (even if
special diversity occurs one year
after removal possible)
Procedure 30 days after service (not filing) of first removable document.
D files notice of removal in federal court, stating grounds of removal and
do not need permission
Signed under Rule 11
Attach all documents served on D in state action
Copy to all adverse parties.
Then file copy of notice in state court.
Remand If removal was procedurally improper, P moves to remand to state court;
she must do so within 30 days of removal. But if there is no federal
subject matter jurisdiction, P can move to remand anytime or the federal
court can remand anytime it finds no subject matter jurisdiction.
Waiver D who files a permissive counterclaim in state court probably waives the
right to remove. Filing a compulsory counterclaim in state court probably
does not waive the right to remove.
Civil Procedure MIG 4: Venue
Concern We could make it to federal court, which federal court?
Two Basic Choices P can choose in diversity or FQ All Ds reside Note though that in cases where all Ds reside in
different districts of the same state can lay venue in the district in
which any of them resides.
A substantial part of the complaint arose
If above not met FQ in any district where any D is found.
Diversity where any D is subject to personal jurisdiction.
Where do Ds reside? Humans Where domiciled (same as citizen)
Corporation Residents in all jurisdictions where subject to personal jurisdiction when case
is commenced (not the same as citizen for subject matter re: PPB and Inc.).
Basically wherever it does business.
Land Where land is.
Transfer Not like removal From one federal district court to another
Can only transfer to one where the case could have been filed: A proper venue
With personal jurisdiction
With subject matter
If venue valid, apply choice of law from original court (statute).
If venue in original forum is improper may transfer in interests of justice or dismiss for improper venue.
Forum Non If there is a far more convenient court elsewhere, a court may dismiss (usually without prejudice) to
Conveniens let P sue there. That other court is one to which transfer is impossible because it is in a different judicial
system (e.g., a foreign country). The decision is based upon (1) public factors (e.g., what law applies,
what community should be burdened with jury service, need for fact finder to visit site of events) and (2)
private factors (e.g., where witnesses and evidence are). Requires a very strong showing.
Doesn’t matter if can recover less in other court.
Almost never granted when P resident if current forum.
Civil Procedure MIG 5: Service of Process/Notice
Basics In addition to personal jurisdiction, must give notice to D
Process Deliver to D a summons
A copy of the complaint.
Serve within 120 days of filing case or case dismissed without prejudice (not dismissed if
P shows good cause for delay in serving).
Process Server By another over 18 and not a party.
Personal Service Given personally to D anywhere found in forum state (office or tennis court)
Substituted Service Permissible if d’s usual abode (i.e. summer home during summer time); and
Serve someone of suitable age and discretion who resides there
Service on Agent Process can be delivered to D’s agent. OK if receiving service is within the scope of
agency, e.g., agent appointed by contract or by law (commissioner of motor vehicles
under a nonresident motorist statute), or corporation’ss registered agent, managing agent
Waiver by Mail Not service by mail. Process is mailed to D by first class mail postage pre paid
permissible if D returns a waiver form within 30 days. By doing so only waives formal
service of process. Doesn’t waive of, for example, lack of personal jurisdiction. Can
refuse but may be required to pay costs of process.
State Methods State where federal court sits or where service effected.
Another State Only permissible if forum state allows with long arm state. Why federal court personal
jurisdiction in federal court is the same as the state where it resides. Exceptions when
can serve regardless of state law: 1) bulge rule; 2) cross interpleader (see below)
Immune While served while instate to be a witness or party in another civil case
Later Documents By mail, add three days for response.
Civil Procedure MIG 6: Pleadings
Definitions Documents that set forth claims and defenses. FRCP use notice pleading, meaning that only required to
convey enough of one’s intentions to put others on notice and allow a meaningful response.
Rule 11 Requires the attorney or a pro se party to sign all pleadings written motions and papers (everything
except discovery infra) Certifying that to the best of her knowledge and belief, after reasonable inquiry:
(1) the paper is not for an improper purpose, (2) the legal contentions are warranted by law (or nonfrivolous
argument for law change), (3) that factual contentions and denials of factual contentions have evidentiary
support (or are likely to after further investigation).
Continuing Certification Certification effective every time position is “presented” to the court
Sanctions Discretionary and are to deter, not to punish. Can be nonmonetary.
Motion for violations Served on adversary and has 20 days to withdraw and fix problem
Motion Filed with court No correction within safe harbor
Court can raise on its own
Complaints By P and commences action
Must include (1) statement of subject matter jurisdiction
(2) short and plain statement of the claim, showing entitled to relief
(3) demand for judgment.
Even though courts tend to be more forgiving or lenient with pro se litigants, these
requirements must be met.
Special Matters Must be pleaded with particularly and specificity as notice pleading above is not enough:
fraud, mistake, and special damages (those that do not normally flow from an event)
D Response Rule 12 Respond either within 20 days of service of process with a motion or answer
Motion Not pleadings, but requests for action
Issues of form: (1) 12(e) motion for more definite statement –
pleadings so vague D can’t frame a response
(2) 12(f) motion to strike - aimed at immaterial
things, e.g., demand for jury when no right
exists; any party can bring.
Rule 12(b): (1) lack of subject matter Jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) insufficiency of process
(5) insufficient service of process
(6) failure to state a claim
(7) failure to join indispensable party.
12(b) Timing First Response (b) 2-5 must be in first response or
Any time through trial Failure to join an
indispensable party and for failure to state a claim
on which relief could be granted.
Never Waived Lack of subject matter jurisdiction
is never waived.
Answer Timing Serve within 20 days after service of
process if D makes no motions; if D does make a
Rule 12 motion, and it is denied, she must serve her
answer within 10 days after court rules on motion.
If D waives service, has 60 days from P’s mailing
of waiver form in which to answer. (Waiver of
service does not waive personal jurisdiction or
Must raise affirmative Ds in answer. Even if did
all the terrible things, P still cannot win (SOL,
RJ, SD, SOF)
Respond to allegations of complaint: (1) admit;
(2) deny; (3) state that you lack sufficient
information to admit or deny; # 3 acts as a denial,
but can’t be used if the information is public
knowledge or is in D’s control. Failure to deny can
constitute an admission on any matter except
Counter Claims (see below)
Counter Claims Offensive claims that go against an opposing party (someone who has sued
us). Filed with D’s answer.
Compulsory Because arises from same transaction or occurrence as it must be
filed in pending case or is waived. The only one that is use it or lose it. Only if
had opportunity to answer (i.e. motion to dismiss granted before answer). If does
not have subject matter jurisdiction, can receive ancillary jurisdiction. Only
works for compulsory.
Permissive does not arise from same T/O and can be asserted later.
If procedurally permissible, do subject matter jurisdiction and start with diversity.
Cross Claims Offenses claims that go against co-party not compulsory so need not arise from
same T/O. Review, diversity, FQ, and supplemental on the basis of the individual
case at issue
Amend Complaints Right to Amend Right to amend once before D serves answer
D has right to amend once within 20 days of serving answer.
If there’s no right to amend Seek leave of court; it will be granted if “justice so
requires.” Courts usually allow unless there’s delay or
If a claimant amends, D must respond within 10 days or
remaining 20 days, whichever is longer.
Complaint says nothing about claim but raises at trial and no objection, have to file a motion to
amend complaint after After trial, move to amend the complaint to conform to the evidence to show the
Complaint says nothing about claim but raises at trial. Can object for variance with pleadings and
keep it out.
Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the
original pleading. Treat as if filed when original complaint was filed and thus can avoid statute of
limitations problems. If adds a new D will only relate back if (1) it concerns the same conduct,
transaction, or occurrence as the
(2) the new party knew of the action
within 120 days of filing; and
(3) the new party knew that but for a
mistake, it would have been named
Civil Procedure MIG 7: Joinder
Co-P Arise from same T/O
Raise at least one common question
Co-D Arise from same T/O
Raise at least one common question
Necessary & Indispensable................................ Some absentees (persons not originally in the suit) should be joined because
.............................................. have some relationship with the action. Their joinder will be compelled if
.............................................. Who’s necessary? (1) without absentee, the court cannot accord complete
relief (worried about multiple suits);
(2) absentee’s interest may be harmed if she isn’t joined
(practical harm); or
(3) absentee claims an interest which subjects a party
(usually defendant) to multiple obligations.
If impossible Suppose necessary but not personal jurisdiction, would
destroy diversity, or valid objection to venue, then the court
must either proceed without him or dismiss the whole case.
Look at whether alternative forum available, the actual
likelihood of prejudice, shape relief to avoid injury.
Impleader Claims involving third party D (TPD) by defending party Not a cross claim because not between existing
Claim must be for indemnity or contribution
Right to implead within 10 days and after that need leave from court
Process File third party complaint and must serve process so must have personal jurisdiction
After joined P can assert claim if arises from T/O
TPD can assert claim against P if arises from same T/O.
Bulge Rule. Absentees joined as necessary parties or for impleader may be served outside the forum state
(even without a state long-arm statute), but only within 100 miles of the federal courthouse. Not
available to serve process on original defendants.
Intervention Absentee wants to join as P or D. Court may realign if came in on wrong side.
Must be timely
Types Intervention of Right The absentee’s interests may be harmed if she is not joined and her
interest is not adequately represented now.
Permissive intervention. D’s claim or defense and the pending case have at least one common
question. Discretionary with court; OK unless delay or prejudice.
Interpleader One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and
inconsistency. Stakeholder is not sure who really owns the property and wants to avoid multiple liability or
suits. The types have different standards for diversity of citizenship, amount in controversy, venue, and service
of process. In each, the court can enjoin claimants from suing elsewhere. Remember: rule interpleader is a
regular diversity case.
Diversity Under rule interpleader: stakeholder must be diverse from every claimant.
Under statutory interpleader: one claimant must be diverse from one other claimant (don’t care
about stakeholder’s citizenship).
Amount Under the Rule, must exceed $75,000.
Under the statute, $500 or more.
Service Under the Rule, treated as a regular lawsuit.
Under the statute, nationwide service (so no personal jurisdiction problems over claimants in
Venue Rule, like a regular case.
Statute, any district where any claimant resides.
Class Action Representatives sue on behalf of a group
Must demonstrate all of these: (1) Too numerous for practicable joinder;
(2) some questions of law or fact in common to class;
(3) representative’s claims/defenses typical of those of the class;
(4) representative will fairly and adequately represent class.
Must fit case within one of the following (1) Prejudice class action to P or Ds (i.e. individual suits would
deplete funds and leave some without damages).
(2) Injunction or DJ because class treated alike by other party (i.e.
(3) Damages which has both Common questions
Class action the superior
method for resolving the
Court Certification Court must determine at early practicable time whether to certify
as a class action. If certifies the class, must define the class and the
class claims issues or defenses as well as appoint class counsel that
fairly and adequately represents intereset of class
For (3) must notify all members including a) can opt out; b) the
binding effect of a class judgment; c) can enter separate
appearance via counsel. No notice for (1) or (2). Representative
pays costs of notice.
Bound All members except those who opt out in
Settlement For a certified class requires court approval.
Court gives notice to class members to receive feedback.
If (3) must give second opportunity to opt out
Subject Matter Jurisdiction FQ
Diversity Only look to rep.
For amount in controversy. Split as some say each
class member must exceed, others say class
Civil Procedure MIG 8: Discovery
Mandatory Initial Disclosures (see outline)
Effect May not be used until after Rule 26(f) conference unless court order or stipulation allows.
Information from a (non)party Depositions (questions can be oral or written). Sworn oral statements by
deponent responding to questions by counsel (or pro se parties), recorded
by sound or video/sound or stenographically. Transcript can then be
made. Can depose nonparties or parties. Nonparty should be subpoenaed,
however, or she is not compelled to attend. Subpoena could be “duces
tecum,” which requires the deponent to bring material (e.g., documents)
with her. Party need not be subpoenaed; notice of the deposition, properly
served, is sufficient to compel attendance.
Interrogatories written questions to parties
Requests to Produce to another party or a non party if accompanied by a
subpoena (like a deposition).
Physical or Mental Exams Only available through court order upon
showing that party’s (or person in party’s control, e.g., parent in control of
child) health is in actual controversy and good cause, which means you
need it and can’t get it elsewhere. Person examined may obtain copy of
report without making this showing, but by doing so waives his doctor-
patient privilege re reports by his doctors re that condition.
Request for Admission Only can go to parties
Parties sign substantive answers under oath Every discovery request
and response is signed by counsel certifying it is warranted, not interposed
for improper purpose and not unduly burdensome. Remember, Rule 11
does not apply to discovery documents, so this is a separate certification
Duty to supplement If a party learns that its response to required
disclosure, interrogatory, request for production or request for admission
is incomplete or incorrect, it must supplement its response.
Scope Can discover anything relevant to claim or defense, not just relevant to case. Relevance means reasonably
calculate to lead to the discovery of admissible evidence. Broader than admissibility.
Privileged Matter not discoverable.
Work Product Material prepared in anticipation of litigation, not routine matters, and generally protected unless
a) substantial need; b) not otherwise available; c) but not mental impressions, conclusions, and legal theories (does
not have to be generated by a lawyer)
Enforcement Presented to court when Receiving party seeks protective order (26(c), e.g., overburdensome, or involves
......................................... trade secrets and we want an order limiting use to the litigation);
........................................ Receiving party answers some and objects to others. At worst, if the objections
........................................ are not upheld, this is a partial violation, so we expect a light sanction.
....................................................Receiving party fails completely to attend deposition, respond to interrogatories
....................................................or to respond to requests for production. This is a total violation, so we expect a
.................................................... heavy sanction.
Sanctions against a party... To seek, the party must certify to the court that he tried in good faith to get
.............................................. info without court involvement.)
Partial Violation order compelling the party to answer the unanswered questions,
plus costs of bringing motion (including attorney’s fees).
Violation of order compelling: RAMBO plus costs (and attorney’s fees re the
motion) and could be held in contempt for violating a court order (except no
contempt for refusal to submit to medical exam);
Total violation: RAMBO plus costs (and attorney’s fees re the motion);
False denial of request to admit: recover only costs (and attorney’s fees) of
having to prove the issue.
Failure to make required disclosure: other side can choose to treat as situation
as total or partial and the party failing to make disclosure cannot use the info at
trial, unless failure was justified or harmless.
RAMBO SANCTIONS (choices available to judge): Establishment order
........................................................... (establishes facts as
Strike pleadings of
the disobedient party
(as to issues re the
from the disobedient
party (as to issues re
case (if bad faith
defendant (if bad faith
Sanction against nonparty Contempt (for violating subpoena or court order).
Sanction against attorney Liable for all expenses (including attorneys’ fees) incurred by the other
side if she counseled one of these bad acts.
Civil Procedure MIG 9: Pretrial Adjudication
Right Plaintiff may dismiss once without prejudice (which means she can re-file the claim) before defendant serves an answer or
moves for summary judgment.
But if P files a written notice of dismissal in the second case, it is with prejudice (so the claim cannot be re-filed).
Includes later state filings.
Default Judgment Default is a notation made by the court clerk on the docket sheet for the case. A claimant gets a
default by showing the clerk of the court that the defendant failed to respond within 20 days after being
served with process. Defendant can respond anytime before the default is entered on the docket.
Having a default does not entitle the claimant to recover. She needs a judgment to enforce and
recover money or other remedies. The clerk of the court can enter judgment if: a) there has been no
response at all by the defendant; b) the claim itself is for a sum certain; c) claimant gives an affidavit
that that sum is owed; and d) defendant is not a minor or incompetent.
If any of those four things is not true, the claimant must go to the court itself (not the clerk) to get
the judgment. The judge will hold a hearing and has discretion about whether to enter the judgment. D
gets notice of that hearing only if she has made some appearance in the case.
A default judgment cannot exceed what the claimant demanded in her complaint (or be a different
type of relief. This is different from when a case goes to trial. There, the claimant can recover more
than she claimed in the complaint (or a different type of relief).
After default, D can move to set aside the default, usually by showing good cause and a viable
defense. Good cause usually means excusable neglect..
Failure to State a Claim/Demurrer Assumes if all allegations are true, would the P win a judgment? Never looks at evidence, looks
only at complaint.
Motion for Judgment on the Does the same thing but filed after D’s pleadings are closed
Summary Judgment ............ Moving party must show no genuine dispute on material issue of fact and is entitled to
judgment as a matter of law. Can be for partial summary judgment, as to one of several claims.
Views the evidence in the light most favorable to nonmoving party. The whole idea is to weed
out where don’t need a trial. Have a trial to resolve a dispute of fact.
Affadavits are sworn statements and therefore are evidence.
Verfiied pleadings are like affidavits. Otherwise pleadings are not evidence.
................. Apply FRE so evidence must be admissible.
Conferences ................. 26(f)
................. Pretrial Conferences court may order as needed to expedite the case and foster settlement.
................. Final decides evidence to be tried – recorded in pretrial conference order which supercedes
pleadings and may be amended to avoid manifest injustice. Or could amend by conforming to
evidence if evidence beyond the pretrial conference order is proffered and not objected to. The
final pretrial conference order is an important document -- it is a roadmap of issues to be tried,
evidence to be presented at trial, witnesses, etc. So there are no surprises at trial
Civil Procedure MIG 9: Trial, Judgment and Post-Trial Motions
Jury Trial Must demand within 10 days of service of pleading that creates jury triable issue.
Seventh Amendment Right to jury trial in civil court, federally and at-law. If involves both split responsibilities,
trying the jury issues first. Damages issue requires it as matter of law (anything over $20). Can’t be denied on
ground that it is incidental
Voir Dire Unlimited strikes for cause
................. Only three peremptory strikes which must be used in a race and gender neutral way
................. because jury selection is state action
Directed Verdict/Motion for Judgment as a Matter of Law (JMOL) Exceptional case because take away from
jury after the other side has been heard. Defendant can move twice. Plaintiff only after close of all the evidence.
Standard that reasonable people could not disagree on the result. Generally view evidence in light most favorable
to non moving party.
Judgment Notwithstanding the Verdict (JNOV)/Renewed Motion for JMOL Same except comes up after jury
gives a verdict, within 10 days after entry of judgment. Standard same as above. Must move at close of all the
evidence (only D can screw up) or else cannot bring renewed motion.
Motion for New Trial Judgment entered but prejudicial error or new evidence that could have not been obtained
with due diligence during trail, prejudicial misconduct of anyone, serious error of judgment by jury. Move within
10 days after enter judgment. It is less radical than RJMOL.
Appeal Final Judgment Rule As a general rule, can appeal only from final judgments – an ultimate decision by the trial
court on the merits of the entire case. File notice in trial court within 30 days after entry of final judgment. After
making this order does the trial court have anything left on merits of case? Not grant of motion for a new trial,
Denial of a motion to remand to state court (after case was removed)?. Yes: Denial of motion for a new trial,
Grant or denial of renewed motion for judgment as a matter of law
Res Judicata Claim Preclusion Same claimant against same defendant.
............. Ended in valid final judgment on the merits (unless court said otherwise when entered,
any judgment on merits unless based on jurisdiction, venue, or indispensable parties).
Default judgment on the merits
Asserted same claim Define it transactionally – any right to relief arising from a T/O. But
some courts say separate claims for property damage and personal injuries because different
Collateral Issue Preclusion Ended in a valid, final judgment on the merits
Estoppel ........ Same issue litigated and determined (i.e. not default judgment because didn’t litigate)
........ Essential to resolving first case
........ Against whom? One who was a party to the first party or represented by a party. Required
........ by DP
By whom? Traditional view of mutuality. Now non-mutuality that can be the P or D in
case two and need not been a party to first case as long as the person it is being used against
had a full and fair opportunity to litigate. If P was not a party and nonmutual, cannot do
under mutuality rule but most courts would not allow this either but there is a trend which
would allow this nonmutual offensive as long as it is not unfair: 1) full and fair opportunity
to litigate; 2) could foresee multiple suits; 3) could not have joined easily in first case; 4) no
inconsistent judgments on record
Also consider notice, shield versus sword, fair opportunity to be heard.
Civil Procedure Tips
Very likely to be an essay
Not picky on timing usually except removal (practice writing 10, 20, 30 so look like others).