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					Penrose                                                                         Civ Pro - Spring 2001

I. Complaints
       A. Rule 8(a) requires a “short and plain statement of the claim showing that the pleader is
       entitled to relief.”
       B. 3 problems with drafting a claim
                1. substantive validity
                          a. do the given facts comprise entitlement to relief?
                          b. major premise (the law)
                                    1) ex: “if the ∆ insults the π” and “if the π suffers anguish” and
                                    “unless the π provoked the insult” then π is entitled to
                          c. minor premise (the facts)
                                    1) ex: ∆ insulted π, π suffered harm.
                2. Burden of allegation
                          a. generally to the π for “if” to the ∆ for “unless”.
                                    1) rule 8(c) lists most of the “unless”, but otherwise must look to
                                    case law for burden of allegation.
                          b. policy considerations
                                    1) who has greater access to the proof (policy)
                                    2) who has most efficient access to the proof (convenience)
                                    3) who is causing the burden (fairness)
                3. specificity of the allegation (how much detail) - “simple, concise, and direct.” -
                Rule 8(e); “pleadings shall be construed as to do substantial justice” - Rule 8(f)
                “plaintiff need not plead evidence” - Sierocinski
                          a. “code” states require more rigid pleadings than “rule” states.
                          b. goals of specificity:
                                    1) determining the proper legal theory
                                    2) determining the relevance of evidence
                                    3) isolating legal issues for early determination
                                    4) eliminate factual issues early
                                    5) determining the bounds of res judicata
                          c. specificity is not needed where:
                                    1) liberal rules of discovery - See Sierocinski
                                    2) extensive pretrial motions/conferences
                                    3) issue is not complicated
                          d. disfavored claims such as fraud, libel and deceit are often abused and
                          hard to prove so there are special pleading requirements in Rule 9(b)
       C. Definition of “claim” (legal theory or natural grouping of events?)
                1. Rule 8(e)(2) allows alternate claims regardless of consistency
                          a. can state the same claim in several counts (redundancy)
                          b. can state different claims in the same count (joining under Rule 18(a).)
                          c. thus, the issue of the definition of claim is minimized for pleadings,
                          assisting a π who is unsure about what he will have to prove after
                2. Liberality of 8(e)(2) is subject to the obligations of rule 11.
                          a. 11(a) requires the attorney to sign the pleadings averring that they are
                          not frivolous and are based on a “reasonable inquiry.” - See also
                          b. 1993 amendments relaxed sanctions:
                                    1) making them discretionary
                                    2) provided for a “safe harbor” of withdrawing frivolous
                                    motion/claim within 21 days after service by opposition of a
                                    motion for sanctions.

Penrose                                                                        Civ Pro - Spring 2001

                                 3) sanctions paid to the court as deterrents only, not
                                 compensation to other party for costs, reducing hostility
                                 4) no longer deters attorney from making borderline frivolous
                                 argument for change in the law.
II. Answers/Motions (Defenses)
        A. Answer must normally come within 20 days (12(a)(1)(a)) or plaintiff can take default
        under rule 55(a)-(b).
                 a. ∆ may be able to reopen under 55(c) and 60(b).
                          1) must show good cause.
                 b. under 12(a)(4)(A) if the court denies a pre-answer motion, the party must serve
                 an answer within 10 days of notice of the court’s action
                 c. under 12(a)(4)(B) if the court grants a 12(e) motion for more definitive
                 statement, then the party has 10 days to cure the statement.
                          1) also probably applicable to the other corrective motion 12(f) but left
                          out on oversight.
        B. Five types of defenses:
                 1. Dilatory Defenses - do not reach the merits of the case:
                          a. 12(b)(1) lack of subject matter jurisdiction
                          b. 12(b)(2) lack of jurisdiction over the person
                          c. 12(b)(3) improper venue
                          d. 12(b)(4) insufficiency of process
                          e. 12(b)(5) insufficiency of service of process
                          f. 12(b)(7) failure to join a party under rule 19.
                 2. Demurrer - challenges the legal sufficiency of the pleading
                          a. 12(b)(6) failure to state a claim upon which relief can be granted
                          b. 12(f) strike defenses for insufficiency (π’s equivalent to 12(b)(6)).
                 3. Denials- 8(b) - allegations that are not denied are admitted 8(d)
                 4. Affirmative defenses - 8(c) must go in answer
                 5. Corrective motions
                          a. 12(e) more definite statement
                          b. 12(f) strike immaterial or scandalous matter.
        C. Two other actions/objections:
                 1. Counter-claim - rule 13
                 2. Implead - rule 14.
        D. Answer or Motion??
                 1. All defenses and actions/objections listed above may be made by answer,
                 except 12(e)-(f) which must be by motion.
                 2. Rule 12(b)(1)-(7) may be made by motion, before answer, at the option of the
                 3. Denials (8(b)) and Affirmative defenses (8(c)) must be in the answer, or are
                 waived unless amended “of course” (Rule 15(a)).
                          a. this is not explicitly stated, but it follows from the structure of the
                          waiver operation of 12(g) as it applies to 12(b) motions. (consolidation of
        E. Preservation/Waiver of defenses:
                 1. Consolidation of defenses: 12(g)
                          a. all 12(b) defenses “then available” are to be joined into a single pre-
                          answer motion, or they are waived (except 12(b)(6)-(7) which may be
                          raised later).
                          a. bottom line: party is allowed only one pre-answer 12(b) motion
                          (except super defense 12(b)(1))
                 2. Disfavored defenses: 12(h)(1)

Penrose                                                                        Civ Pro - Spring 2001

                         a. 12(b)(2)-(5) (personal jurisdiction, venue, process, service) are lost
                         unless made in the FIRST document (unless amended “of course” - Rule
                         15(a)), whether motion or answer.
                 3. Strong defenses: 12(h)(2)
                         a. 12(b)(6)-(7) can be raised through “trial on the merits,” but not after
                 4. Super defense: 12(h)(3)
                         a. 12(b)(1) lack of subject matter jurisdiction can be made at any time by
                         any party, even upon appeal.
                         b. policy - public interest in keeping the courts in their proper place.
                 5. Correction objections
                         a. 12(e) motion for a more definite statement must be made “before
                         interposing a responsive pleading,” so it is lost if not joined in the pre-
                         answer motion under 12(g)
                         b. 12(f) motion to strike must also be made “before responding to a
                         pleading”, but the court may make it on its own initiative at any time.
III. Replies
         A. Rule 7(a) indicates that the π is not permitted to respond to an affirmative defense, or
         denial, unless ordered by the court
                  1. 7(a) allows replies to “counter-claims denominated as such.”
                  2. thus, court normally only orders replies if the counter-claim were mislabeled
                  as a defense.
                  3. policy is to get on with trial once notice is given.
                            a. At the pre-trial hearing under 12(d), the π will have a chance to reply
                            to the affirmative defenses of 8(c), as well as any 12(b) motion raised by
                            the defendant.
         B. Rule 8(d) treats any averments in a pleading to which no responsive pleading is
         allowed as denied or avoided.
         C. Rule 12(f) is the π’s equivalent of the ∆’s 12(b)(6) for defenses (but he can make regular
         12(b)(6) for counterclaims).
                  1. π may assert that the affirmative defense set forth in the answer is
                  2. this right is preserved through “trial on the merits” by 12(h)(2), and thus is a
                  “strong counter-defense.”

IV. Counter-Claims/Cross-Claims
       A. Compulsory counter claims - Rule 13(a)
                1. ∆ “shall” put the counter-claim in the answer if it “arises out of the same
                transaction or occurrence” and is available at the time of response.
                        a. the “shall” language implies that it is waived if not brought in the
                                  1) but if the claim arises during the action, the defendant may
                                  supplement his counterclaim under 13(e) with permission of the
                        b. 13(f) allows leave to amend if failure to counter claim was excusable. -
                        BOP on moving party
                                  1) contrast with 15(a) for π’s claims, which may allow
                                  amendment without permission, and BOP is on opposing party
                                  to show “prejudice”
                        c. a motion is not a “pleading” so it does not have to contain a counter

Penrose                                                                        Civ Pro - Spring 2001

                                  1) ex: 12(b)(6) motion granted before answer does not preclude
                                  bringing a separate action for what would have been
                                  compulsory counterclaim if the ∆ had answered instead of
                         d. the test of “same transaction or occurrence” is whether the same
                         evidence will support or refute both claims - Williams v. Robinson.
                2. promotes efficiency
                3. Rule 18(a) states that the π “may” join claims, but 13(a) states that ∆ “shall”
                counter claim for claims arising out of the same transaction or occurrence.
                         a. only superficially inconsistent because the π would still be precluded
                         by judicial doctrine of res judicata (like ∆ is precluded by rule 13(a)) from
                         bringing his claims piecemeal if they all arose out of the same
                                  1) but if the claim arose during the action, the π may supplement
                                  under 15(d) with court permission
        B. Permissive Counter claims - Rule 13(b)
                1. ∆ “may” make any counter claim, even for claims “not arising out of the same
                transaction or occurrence.”
                         a. “may” indicates optional.
                         b. counter claim may be wholly unrelated to the original action.
                                  1) for “convenience,” the court may “order a separate trial of
                                  any...counterclaim” under Rule 42(b).
                                  2) court may enter judgment as to “fewer than all the claims”
                                  under 54(b).
                2. counter claim is optional because it doesn’t necessarily promote efficiency.
        C. Cross-claims under 13(g)
                1. ∆ “may” bring a cross claim “against a co-party arising out of the same
                transaction or occurrence.”
                         a. “may” indicates optional.
                         b. prevents the underlying claim from being stalled by exponential
                         growth of claims by other co-parties.
        D. Counterclaims or Cross-claims reverse the role of the parties with respect to that
                1. Response is required under 7(a), failure to reply or move in time brings
                admission under 8(d) and default under 55(b) and (d).

V. Amending the Pleadings (Rule 15).
      A. Amendments before trial
              1. Rule 15(a) allows amendment “once as a matter of course at any time before a
              responsive pleading is served.”
                       a. if no responsive pleading is allowed under rule 7(a), then the party
                       may amend within 20 days as long as it has not been put on the calendar.
                       b. an “answer” is a “responsive pleading,” a motion is not, so a party
                       may still amend without applying for leave if the opponent moves
                       12(b)(6) in response to the original claim.
                                 1) note that 15(a) states that a party “shall plead in response to
                                 an amended pleading” so technically, a 12(b)(6) motion would
                                 not be allowed in response to the amended, but this is an
                                 oversight in the rules.
              2. After the grace period expires (either “responsive pleading” is served or the 20
              days expires), the party may amend:
                       a. with the leave of the court by motion; or

Penrose                                                                        Civ Pro - Spring 2001

                                   1) “leave shall be given when justice so requires.”
                                   2) provides max opportunity to get to the merits of the case,
                                   since pleadings are for general notice only
                          b. by “written consent of the adverse party.”
        B. Amendments after trial has begun (or even ended)
                1. There is no absolute limit on when a pleading may be amended.
                2. Rule 15(b) (first two sentences) treat the pleadings as being amended when the
                issue is tried differently than the pleadings at trial, and neither party objects.
                          1) allows the party to expressly amend to avoid confusion later as well.
                3. Rule 15(b) (last two sentences) provide for the opposing party to show
                prejudice in order to block the entry of an amendment when the issue is being
                tried differently than the pleadings
                          1) must be prejudice on the merits of the case, such as unfair delay,
                          inability to prepare adequately, etc.
                          2) contrast with 13(f) which allows amendment of counterclaims only if
                          the moving party can show “oversight”, etc. - different standard,
                          different burden of proof.
        C. Relation back of amendments - Rule 15(c)
                1. 15(c)(2) allows relation back when the claim or defense “arose out of the
                conduct, transaction, or occurrence set the original pleading.”
                          a. because the role of pleadings is notice, this is usually interpreted
                          b. does not apply to 15(d) supplemental pleadings because the
                          supplemental actions have “happened since the date of the pleading
                          sought to be supplemented.”
                                   1) this can result in technically barring the supplemental
                                   addition of a wrongful death action where the person dies after
                                   the statute of limitations expires for bringing the original
                                   negligence action. But policy behind S/L is not offended by
                                   allowing relation back anyway.

VI. Discovery Rules 26-37
        A. In general, rule are intended to prevent surprise at trial, so their scope is broad under
        Rule 26(b).
                1. Rule 26(b)(1) the “parties may obtain discovery regarding:
                         a. “any matter, not privileged, which is relevant.”
                         b. “need not be admissible” if it is “reasonably calculated to lead to the
                         discovery of admissible evidence.”
                                  1) ex: evidence of remedial measures is inadmissible to prove
                                  negligence, (evidence rule 407) but may still be discovered.
                                  2) ex: your own statements in depositions are usually
                                  inadmissible under hearsay, but your (and your opponent’s)
                                  admissions are admissible.
                                  3) ex: evidence not admissible under hearsay may become
                                  admissible to impeach the witness at trial, or to substitute for a
                                  missing witness.
                         c. but 26(b)(2) allows courts to limit discovery at their discretion.
                2. Rule 26(c) prevents abuse of the liberal discovery rules by issuing a protective
                order “for good cause shown” after a “good faith...effort to resolve the dispute
                without court action.”
                3. Rule 26(g) prevents abuse by requiring the attorney to sign under risk of
                sanctions (similar to Rule 11).

Penrose                                                                     Civ Pro - Spring 2001

             4. Discovery is meant to proceed automatically under 26(a)
                      a. Rule 26(a)(1) provides that “a party shall, without awaiting a
                      discovery request, provide to the other parties:
                               1). contact info for persons “likely to have discoverable
                               information” concerning the facts
                               2). copies of relevant documents, etc.
                               3). computation of damages; and
                               4). copies of insurance agreements.
                      b. Voluntary disclosure must happen within 10 days of discovery
                      conference 26(f).
                      c. Physical or mental examination under rule 35 is the only discovery
                      device that must be initiate by motion to the court.
                      d. 26(e) imposes a duty to
                               1) supplement disclosures at appropriate intervals if the new or
                               incorrect information has not “otherwise been made known to
                               the other parties.”
                               2) seasonably amend prior responses to interrogatories, etc. if the
                               new or incorrect information has not “otherwise been made
                               known to the other parties.”
                      e. 26(a)(2) requires a detailed report by expert witnesses showing all
                      facts, basis and opinions.
                      f. 26(b)(4) allows deposition of experts without a court order if they are
                      testifying experts.
                      g. 26(b)(3) allows discovery of written work product only under
                      “substantial need” and “undue hardship” to obtain the materials by
                      other means.
                               1) partially codifies Hickman v. Taylor’s ban on the discovery of
                               “core” work product of mental processes, opinions, and strategy.
                               2) only applies to “documents and tangible things” so Hickman
                               is still needed to prevent party from being compelled to disclose
                               “core” work product orally.
                      e. failure to cooperate results in Rule 37 sanctions
                               1) party must first get a motion to compel discovery under 37(a),
                               then they can
                               2) seek sanctions of fines, attorney’s fees, dismissal or contempt
                               under 37(b)
                               3) if it is really bad, party can go straight to 37(c) and skip to
                               motion to compel.
      B. Depositions upon Oral Examination (Rule 30)
             1. Leave of the court is not needed except:
                      a. 30(a)(2)(A) when the total number of depositions (oral under 30 or
                      written under 31) made without leave exceeds 10
                      b. 30(a)(2)(B) when that person has been previously deposed.
                      c. 30(a)(2)(C) the party seeks to take a deposition before the discovery
                      conference of 26(f).
             2. non parties must be subpoenaed under Rule 45(b), but parties are required to
             show up simply by notice of the deposition under Rule 30(b)(1).
                      a. if documents are required of a party, a rule 30(b)(5) states that a rule
                      34 request may be made.
                      b. if documents are required of a non-party, a subpoena duces tecum
                      under 45(d) and 45(a)(1)(C).

Penrose                                                                       Civ Pro - Spring 2001

                         c. if a party does not cooperate, sanctions under rule 37(a)(2)(A) and then
                         37(b) may be taken.
                         d. if a non-party does not cooperate, sanctions under rule 45(e) may be
               3. Objections are noted under 30(c), but the deponent still must answer, and the
               objection awaits trial.
                         1) objections may be made for the first time at trial under 32(b) (so they
                         are not waived if not made at the deposition) unless under 23(d)(3)(A) or
                         (B) they could have been corrected (form objections - leading questions,
                         etc.) because it would be unfair to exclude evidence that the examining
                         party could have corrected had he known.
                         2) under Rule 30(d) a party may instruct a deponent not to answer only
                         when the answer is privileged or the question is made in bad faith.
                         Counsel advising unreasonable action may have to pay fees under
                         3) questions requiring application of law to facts are generally not
                         allowed because rule 30 does not have a provision comparable to rule
                         33(c), and the party probably doesn’t know the law well enough. - See
               4. Rule 29 allows the parties to “stipulate” away some of the formalities of oral
               depositions. The “usual” stipulations are:
                         a. objections as to form are reserved until trial (because they are not
                         waived anyway) so as to lessen hostility.
                         b. no signing or filing required under 30(e) and 30(f) because
                         authenticity may be easily proven.
                         c. the stenographer is qualified to admit the oath under 28(a) to prevent
                         wasting time only to find out that the oath was invalid.
                         d. the deposing party pays for opponents copies under 30(f)(2).
      C. Depositions on Written Examination, (Rule 31)
               1. similar to oral examination, except they are written.
               2. party is on his own when testifying under oath to the questions, but the
               opposing lawyer can have the questions for 30 days and serve questions for
               3. normally used only when a non-party witness has limited technical
               information, not requiring legal analysis.
      D. Interrogatories to parties - Rule 33
               a. 33(c) requires answers to application of law to fact, perhaps delayed until later
               in discovery.
                         1). party can frame answers with help of lawyer so application of law to
                         fact is proper.
                         2) however, questions of pure law are not allowed (see O’Brien) because
                         this is an invasion of the “core” work product protected by 26(b)(3) and
                         Hickman. (Can ask legal theory but cannot demand written memo
                         outlining legal theory)
                         3) not an admission under Rule 36, so the party can change legal theories
                         if necessary later in discovery. See Freed v. Erie Lackawana
               b. 33(b) allows a written objection in lieu of an answer.
                         1) 33(b)(4) states that failure to state a ground for objection to an answer
                         waives that ground unless good cause is shown.
      4. Production of documents and things - Rule 34
               a. especially helpful in cases where there is important physical evidence that
               needs to be preserved.

Penrose                                                                          Civ Pro - Spring 2001

                b. only to parties, get non-parties under subpoena duces tecum Rule 45(d) and
        5. Physical and mental examinations - Rule 35
                a. only applies to parties, not third-party witnesses.
                         1) can discover information about witnesses eyesight by deposition,
                         subpoena of medical records, etc.
                b. only made on motion, must be for “good cause,”
                         1) ability to obtain the info by other means is relevant.
                c. the condition must be “in controversy.”
                         1) π bringing personal injury action explicitly places condition “in
                         controversy” - Sibbach.
                         2) can apply from one co-defendant to another without bringing a cross-
                         claim - see Schlagenhauf.
                d. 35(b)(1) and (2) provide for swapping of medical reports between parties.
        6. Requests for admission - Rule 36
                a. Rule 36(a) failure to answer or properly object within 30 days is admission.
                b. 36(a) can ask for the application of law to fact.
                         1) differs from Rule 33 in that the answer is binding.
                c. 36(a) party can not fail to admit or deny based on lack of knowledge until after
                he makes a reasonable inquiry.
                d. 36(b) insufficient answers or ungrounded objections may result in admission.
                e. Rule 37(c) allows a party to “prove” the truth of a matter denied in a request
                for admission, and then get costs for “proving” it.

VII. Pretrial Conferences - Rule 16
         A. Trend (since 1983) to promote broad scope case management by judges early on in the
         litigation, but individual judges have much discretion on how much management to
                  1. 16(a)(5) and 16(c)(9) even allows facilitation of settlement of the case.
                  2. same judge does pre-trial order as does trial, so judge feels less inhibited to
                  determine issues up front.
                  3. done early within litigation (120 days)
         B. Begins with mandatory scheduling order of rule 16(b).
                  1. avoids duplicative proof under 16(c)(4), 16(c)(5)
                  2. judge can move shaky issues up front in order to dispose of case more quickly
                  under 16(c)(14)
         C. Optional one or more pretrial conferences may follow.
         D. More coercive than previous rules
                  1. 16(c)(16), 16(c)(6) and 16(f) imply more strict, coercive pretrial conference, but
                  perhaps not enough to compel discovery unless lack of prosecution is done in
                  bad faith. Identiseal
                  2. 16(c)(11) allows partial summary judgment if the party won’t stipulate to facts
                  that should be stipulated.
                  3. Judge can impose sanctions for failure to appear or prepare under 16(f) even if
                  the parties later settle.
                           a. judge has the power, according to case law, to compel the party to
                           appear, not just the attorney.
         D. Results in order under 16(e), which stipulates the action taken, and in effect
         supersedes the pleadings, because it controls the action from there forward. No contrary
         evidence will be allowed after the order is granted, unless it would cause “manifest

Penrose                                                                            Civ Pro - Spring 2001

                 1. Contrast to Rule 15(b) which requires opponent to show “prejudice” rather
                 than moving party to show “manifest injustice.”

VIII. Motions to Avoid Trial on the Merits
        A. Motion for judgment on the pleadings (Rule 12(c))
                 1. Made after the pleadings are closed (summary judgment 56 can come before
                 the pleadings are closed, but they can still be amended.)
                           a. Can only be used to resolve questions of law, not fact.
                                     1). Ex: if the answer admits the allegations of the complaint, but
                                     sets up two affirmative defenses, the motion will be granted only
                                     if both defenses are legally insufficient (if only one is bad, strike
                                     it with a 12(f) motion.)
                                     2). Counter-ex: motion will not be granted if the answer contains
                                     a denial because that affects a matter of fact.
                                     3) however, if answer doesn’t deny, 12(c) can be used in place of
                                     a 12(f) to get total victory.
                                     4) can also be used in place of a late 12(f), 12(b)(6) or 12(b)(7)
                                     because it is preserved under 12(h)(2), but it will not get total
                                     5) will be converted to a Rule 56 motion for summary judgment
                                     if it contains facts outside the pleadings.
                           b. Treats all of adversary’s allegations as admitted, but his own
                           allegations are taken as true only if admitted by opponent.
                                     1) Result:. 12(c) motion by the ∆ takes on no added strength by
                                     virtue of affirmative defenses in his answer because they are
                                     taken as denied anyway under rule 8(d).
        B. Motion for Summary Judgment (Rule 56)
                 1. 56(a), (b) Can be filed by either party in any type of case, even before the
                 pleadings are closed.
                           a. π must wait 20 days after complaint filed, ∆ can bring it any time.
                 2. Ordinarily accompanied by affidavits in support of the contention that there
                 really is no genuine issue of fact.
                           a. 56(e) The opponent may enter admissible counter-affidavits with
                           contrary facts based on the personal knowledge of the affiants, but may
                           not simply rest on the denials in his pleadings.
                           b. if more time is needed to conduct discovery and get affidavits, 56(f)
                           allows for delay or postponement of ruling on motion.
                 3. Granted only if a “reasonable trier of fact” could not find for the opponent on
                 the matter.
                           a. Ex: statute of limitations has run - no reasonable trier of fact could find
                           that it has not.
                 4. Not used to actually resolve a genuine factual dispute that is found to exist,
                 only to identify whether there are any.
                           a. ex: if π provides 10 credible affidavits, and ∆ only provides 1
                           suspicious affidavit, motion will be denied.
                           b. counter-ex: if π provides conclusive evidence of admission by ∆, then
                           motion will be granted.
                 5. 56(c) and 56(d) May be partial in nature, narrowing the scope of the dispute for
                           a. ex: establish liability for personal injury, but leave damages issue for
                 6. For ∆’s it can serve the equivalent of 12(c) for π to get total victory.

Penrose                                                                          Civ Pro - Spring 2001

                          a. because π has burden of proof, ∆ could even move 56 without alleging
                          any facts -forces π to produce critical evidence early.
                 7. A 12(c) or 12(b)(6) that attempts to allege facts outside the pleadings can be
                 transformed into a 56.
                 8. Can be used as a discovery tool to “force the opponent’s hand”.
                          a. disadvantage: encourages opponent to prepare better.
                 9. Often denied in three types of cases:
                          a. negligence case - facts can be proven, but whether it is negligence is
                          normally left to jury to decide.
                          b. important, broad reaching policy decisions - case precedent is stronger
                          when it is backed up by a full trial and opinion. (scope of appeal is de
                          novo and thus, successful appeal results in whole new trial)
                          c. fraud cases - involve a mental state more properly determined by
                          “feel” of jury.
                          d. present trend is allow more summary judgments because of judicial
                          control/involvement in litigation process.

IX. Provisional Remedies- Seizure of Property (Rule 64) Preliminary Injunctions & Temporary
Restraining Orders (Rule 65)
        A. Rule 64 Seizure of Property (state law applies) - Obtained to prevent irreparable harm
        to the π in advance of trial, or the possibility that he won’t collect after a successful trial.
                 1. Attachment - seizure of ∆’s property to give π security that the judgment he
                 hopes to obtain will be collectible.
                 2. Garnishment - property held by a third person, but belonging to the ∆ is made
                 subject to the π’s claim.
                          a. ex: ∆’s bank deposit or, to a limited extent, wages.
                          b. requires proper service on the third party.
                          c. third party who violates the garnishment order can be forced to pay
                          out of his own pocket.
        B. Injunction - directs ∆ to do or refrain from doing specific acts. Strictly construed to
        avoid undue limiting of ∆’s rights.
                 1. Rule 65(a)(1) requires that no preliminary injunction will be given without
                 2. Rule 65(b) provides for temporary restraining orders when the harm feared by
                 π may be done before the court can hear and decide the case.
                          a. May be done without notice only upon a sufficient showing of need
                          and inability to serve notice in time.
                          b. Good for 10 days only without good cause or permission of ∆.
                          c. Must be followed immediately by an application for a preliminary
                          d. ∆ may move for dissolution of the TRO upon 2 days notice to π.
                 3. Rule 65(c) Both TRO’s and preliminary injunctions require the π to deposit a
                 security bond for damages to the ∆ in case π is wrong.
                 4. Rule 65(d) the order granting a TRO or preliminary injunction shall be clear,
                 and binding only upon the parties to the action and their agents, or parties in
                 concert with actual notice of the order.
        C. Strategy
                 1. move for preliminary injunction and at the same time, move for a TRO.
                 2. then serve the motion for P.I. on the opponent, and include the already
                 effective TRO.
                 3. conduct hearing for P.I. - if successful, it supersedes the TRO. (might be
                 consolidated with trial on the merits under 65(a)(2).

Penrose                                                                        Civ Pro - Spring 2001

                4. conduct trial on the merits - if successful, permanent injunction replaces TRO.
        D. Standard for granting a preliminary injunction.
                1. irreparable harm to the π. (damages insufficient)
                2. harm to the ∆ (whether π’s bond is adequate to cover)
                3. π’s likelihood of success on the merits
                4. public interest in the injunction (third parties, etc.)
        E. Appeal of a Preliminary injunction:
                1. §1292(a)(1) grants the right of appeal of preliminary injunctions even though
                they are only “interlocutory decisions” (and not final decisions under §1291).
                2. Standard of review on appeal:
                          a. limited - Preliminary injunction should not be reversed unless it is
                          “abuse of discretion;”
                          b. Rule 52(a) provides that findings of fact by the judge with respect to
                          “interlocutory injunctions” shall not be set aside unless “clearly

X. Juries
         A. Rule 38(a) preserves the right of jury trial as in the 7th amendment to apply to federal
                   1. 7th amend - “jury trial right is preserved as at common law” at time of
                   constitution (1791).
                            a. claims “at law” (damages) entitled π to a jury.
                            b. “equity” claims (injunctions, mandamus, etc.) - no jury.
                            c. thus merger of law and equity of Rule 2 is not complete.
                            d. new statutory causes of action are treated as their most similar cause
                            of action existing in 1791.
         B. 38(b) and (c) any party may request within 10 days after service of last pleading on the
         triable issue (normally put in complaint, or in answer by ∆) or it is waived.
         C. 39(c) allows advisory juries - findings binding with respect to legal issues (where jury
         is entitled), advisory to judge with respect to equitable issues (jury not entitled).
         D. Rule 40 provides that local rules are to be used for getting the case on the calendar
                   1. some require action by the party, some are automatic
         E. Rule 47 selection of jurors has 3 stages:
                   1. preliminary statement - used to ingratiate yourself to jury, but statements must
                   not be argumentative.
                   2. voir dire - questioning the jurors under oath.
                   3. challenges -
                            a. peremptory - normally 3. (Rule 47(b) and §1870).
                            b. for cause - unlimited (Rule 47(c))
         F. Jury Size:
Less than 12?                         State                              Federal
Criminal                              Yes. Williams v. Florida           No. Fed. Crim. Pro. rules
                                      But 5 is too few Ballew            require 12, so there has been
                                                                         no experimentation.
Civil                                 Yes. 7th Amd. does not apply       Yes. Colgrove v. Battin
                                      to states (could abolish
                                      without constitutional

      G. Unanimity of Jury
Non-unanimous?                    State                              Federal

Penrose                                                                            Civ Pro - Spring 2001

Criminal                              Yes for 12, Apodaca                No. Fed. Crim. Pro. rules
                                      No for 6, Burch                    require unanimity, so there
                                                                         has been no experimentation.
Civil                                 Yes. 7th Amd. does not apply       No now, but could change
                                      to states (could abolish           because precedent Springville
                                      without constitutional             is old and trend is evident.

XI. Trial
            A. Burden of Proof
                    1. Burden of Production
                             a. decided by the judge - usually follows burden of allegation.
                             b. may shift between the parties.
                             c. standard is whether a rational jury could find that this issue is proven
                             by a preponderance of the evidence.
                    2. Burden of Persuasion
                             a. persuade the jury
                             b. does not shift between parties
                             c. standard is preponderance of the evidence.
            B. Motions seeking judgment
                    1. Jury trials - Rule 50(a) judgment as a matter of law - after a party has been fully
                    heard” on an issue
                             a. standard is “no legally sufficient basis for a reasonable jury to find on
                             that issue”
                             b. 50(b) provides it may be may at any time before submission of the case
                             to the jury.
                             c. treated as an adjudication on the merits (with prejudice) but the court
                             may allow the plaintiff to voluntarily withdraw under 41(a)(2) instead of
                             granting 50(a).
                    2. Non-Jury trials - Rule 52(c) judgment on partial findings - after a party has
                    been “fully heard” on an issue
                             a. standard is whether the claim could be maintained without a favorable
                             finding on the issue that the judge has decided against the party.
                                       1) don’t need a reasonable jury standard because the judge is the
                                       trier of fact- if he has decided against the party, that’s it.
                             b. available to either π (if ∆ had burden of proof on something)
                             c. standard of review on appeal is “clearly erroneous”, thus it is better
                             than a Rule 56 summary judgment because the party has been fully

XII. Federal Rules of Evidence
        A. Admissible evidence must be:
                 1. “material” - measure of the applicability of the proposition asserted to the case.
                          a. ex: if ∆ kicked you in the groin, that is material in a battery action, but
                          not a negligence action because malice is not a material element of
                 2. “relevant” - measure of the logical relationship between the evidence and the
                 proposition asserted.
                          a. ex: if ∆ was drunk, that is only relevant if it occurred during the proper
                          time frame.
                 3. “competent” - measure of the authenticity of the evidence and policy

Penrose                                                                        Civ Pro - Spring 2001

                        a. ex: hearsay is not “competent” because of authenticity problems
                        b. ex: privileged information is not “competent” because of public policy.
      B. Basis of Federal Rules
               1. 401 defines what is “relevant evidence”
                        a. tendency to make a material fact more or less probable
                        b. easy standard
               2. 402 states that “relevant” evidence is admissible unless it is not competent
               3. 403 states that even if it is relevant and competent, it may be excluded by the
               judge if its probative value is substantially outweighed by the danger of
               prejudice, confusion or waste of time.
                        a. used when probative value for proper purpose is slight, and improper
                        purpose is great.
               4. 105 - doctrine of limited use
                        a. evidence may only be used for purposes for which it is proper
                                  1) ex: evidence of subsequent remedial measures under 407 is
                                  only admissible to show ownership.
                                  2) ex: hearsay may be used to impeach a witness but not to prove
                                  the proposition for which it is asserted.
      C. Testimony of Witnesses
               1. Rule 701 Opinions by lay witnesses are admissible only if:
                        a. rationally based on perceptions
                        b. helpful to a clear understanding of the case
                                  1) must not be legally conclusory because that is not “helpful”
               2. Rule 702-705 Expert testimony
                        a. can give testimony to which he has no personal knowledge under 703
                        b. standard is whether it would “assist the trier or fact” under 702
                        c. can make conclusions on ultimate issue under 704
                        d. can give opinion without laying out basis under 705
      D. Privileges
               1. the holder is the person who can seek exclusion
                        a. if court erroneously upholds a witness’s privilege, the damaged party
                        can appeal.
                        b. however, if the court erroneously denies the witness’s privilege,
                        damaged party can not appeal because he is not the holder of the
      E. Hearsay - generally inadmissible as being incompetent 802
               1. Definition 801(c) - an out of court statement offered for the purpose of proving
               the proposition asserted by the statement.
               2. Policy- precludes the opportunity to cross-examine the declarant who made
               the statement in front of the jury - the person whose perception, memory and
               sincerity is at issue.
                        a. 801(d)(1) allows prior statements of the witness to be used to impeach
                        b. 801(d)(2) admissions are likewise allowable - believed to be true
                        because you don’t normally admit unless true.
               3. Exceptions -
                        a. “technical hearsay” - doesn’t violate the policy
                                  1) “Verbal Act” - the statement itself is the legal issue (ex: “I
                                  accept” is legal issue for contract)
                                  2) Affect on hearer - the words have a legally significant affect on
                                  hearer (Ex: husband hears man say wife is adulterous. Not

Penrose                                                                          Civ Pro - Spring 2001

                                   admissible to prove adultery, but is admissible to show
                                   3) declarant’s state of mind - (ex: declarant states “I am the
                                   Pope.” Not offered to prove piety, only to show insanity. Same
                                   as saying “I believe...”)
                          b. Business records 803(6) - believed to be independently reliable if made
                          during the ordinary course of business.
                          c. 803(2) excited utterance - stress and excitement prevented a lie. See
                          d. 804(b)(2) dying statements - witness must be unavailable.
                          e. 803(1) present sense impression - no time to fabricate a lie.
                          f. 803(24) and 804(b)(5) (misc.) residual exceptions that allow it in if it is
                          relevant, best evidence, presumably reliable, and justice would be
                 4. Multiple hearsay - need an exception for every level to get it allowed.
                 5. Writings have authentication 901 and best evidence 1002 problems.
                          a. but may not be hearsay if it is a contract or the like because it is a
                          “written act.”
                          b. business exception - can substitute for the testimony of the witness if
                          he could testify out of personal knowledge to the same thing were he

XIII. Submission to the Jury and Return of Verdict (Rules 49, 51, 52)
         A. Jury instructions - Rule 51
                  1. May come before or after closing arguments, or both, at the discretion of the
                  2. Allows more flexibility to judge to manage the trial.
                  3. Party must object to the instruction before the jury retires to deliberate, but
                  does not have to propose the instruction in order to object to the lack of giving of
                  an instruction.
         B. Special verdicts and interrogatories - Rule 49
                  1. Can be a special verdict - 49(a)
                           a. “special written finding upon each issue of fact.”
                           b. parties waive consideration of an issue if it is omitted by the court and
                           the jury has retired.
                           c. tends to localize errors and minimize issues on appeal.
                           d. prevents jury consideration of irrelevant facts/issues.
                  2. Can be a general verdict with interrogatories - 49(b)
                           a. “written interrogatories upon one or more issues of fact the decision of
                           which is necessary to a verdict.”
         C. Findings by the Court -Rule 52
                  1. in a non-jury trial, “the court shall find the facts specially and state separately
                  its conclusions of law thereon.”

XIV. Motions after Verdict - Rules 50, 59
       A. Motion for judgment n.o.v.
                1. Rule 50(b) allows a deferred or denied motion for judgment as a matter of law
                at the close of evidence to be renewed as a motion for judgment n.o.v. after an
                adverse jury finding.
                         a. must have made a previous 50(a) motion at the close of evidence.
                         b. must be made within 10 days (“ten day motion”)
                         c. standard is same as motion for directed verdict, i.e. reasonable jury.

Penrose                                                                       Civ Pro - Spring 2001

                                   1) looks at movant’s evidence in light most favorable to movant,
                                   and only uncontradicted evidence of non-moving party.
                         d. judge may deny the motion at the end of evidence:
                                   1) to prevent reversal causing a new trial.
                                   2) jury may find for mover anyway, making it moot.
                         e. if judge is reversed on judgment n.o.v., there is no new trial, only
                         reinstatement of jury verdict.
        B. Motion for a new trial - Rule 59
                1. Motion must be made within 10 days, (“ten day motion”) or the court itself can
                order a new trial on its own initiative after giving the parties a chance to be
                         a. judge may reconsider his actions and thought he made a prejudicial
                2. One standard is that judgment is against the “weight of evidence”.
                         a. Differs from judgment n.o.v.:
                                   1). by definition results in a new trial,
                                   2). standard is different than “reasonable jury” of 50(b).
                                   3) looks at all the evidence
                3. Another standard is failure to follow jury instructions.
                4. Also, newly discovered evidence (civil trial only).
                5. Only available for non-harmless errors, meaning ones that affect the
                substantial rights of the parties - Rule 61.
                6. Usually joined with a motion n.o.v. under Rule 50(b).
                         a. if the judgment n.o.v. is granted, the judge may also conditionally
                         grant the rule 59 motion for a new trial under 50(c), subject to the
                         judgment n.o.v. being reversed on appeal. (makes no sense to say that
                         “no reasonable jury could find” but that finding was “not against the
                         weight of the evidence)

XV. Judgment
       A. Demand for judgment - Rule 54(c)
                1. in case of default, the judgment shall not be different in kind, or exceed the
                amount asked for.
                2. every judgment shall grant relief that the party is “entitled” to, regardless of
                what they ask for, and even if they don’t ask.
       B. Costs
                1. Other than attorneys fees - Rule 54(d)(1)
                         a. granted as a matter of course.
                         b. “taxed” (tallied) by the clerk under 28 USC 1920
                         c. may be reviewed or denied by judge by motion made within 5 days.
                2. Attorney’s fees - Rule 54(d)(2)
                         a. motion must be made within 14 days to ensure notice to the adverse
                         party before the time for appeal has expired.
                         b. does not require an exact accounting of the fees, but only a “fair
                         c. court may require the moving party to disclose any fee arrangements
                         that have been made between the parties.
                         d. the court may grant or deny the motion with or without allowing the
                         adverse party time to prepare an opposing motion or to conduct
                         additional discovery as to fees.
                         e. fee awards are made as a separate judgment under Rule 58.
       C. Declaratory Relief - Rule 57

Penrose                                                                       Civ Pro - Spring 2001

                1. Under 28 USC 2201, “in a case of actual controversy any court of the United
                States...may declare the rights and other legal relations of any interested party
                seeking such declaration, whether or not further relief is or could be sought.”
                         a. Rule 57 provides that “the existence of another adequate remedy [i.e.
                         money damages at law] does not preclude” a declaratory judgment
                         (which is equitable relief).
                         b. “actual controversy” requirement is to generate focused opinions
                         based on facts, rather than hypotheticals.
                                  1) keeps judiciary from legislating
                                  2) not an “advisory opinion” so it does have precedential value.
                                  3) can even be based on contingent rights within the power of
                                  the π to control - see Amer. Machine
                                  4) not available if the statute has not yet been enforced against
                                  anyone and is contingent that it might - See Int’l Longshormen
                         c. “further relief” refers to additional remedies that could be sought such
                         as money, etc.
                2. Under 28 USC 2202, “further relief” may be granted against the adverse party
                whose rights have been determined by a declaratory judgment, after reasonable
                notice and hearing.
                         a. further relief refers to subsequent actions which would otherwise be
                         barred by res judicata.

XVI. Enforcement of Judgment - Rule 69
        A. First step is for π to identify and discover the ∆’s assets.
        B. Then π seeks a writ of execution from the federal court, addressed to a federal marshal.
                 1. marshal seizes so much of the ∆’s non-exempt property as to satisfy the
                 2. if ∆ does not pay, marshal sells the property, pays the judgment, subtracts his
                 own costs, and refunds the difference to ∆.
        C. Local state rules are generally conformed to.
                 1. some states mandate that the ∆ attend a post-judgment hearing to determine
                 his assets, and order him to turn over his assets to pay the judgment.
                 2. if ∆ does not pay, he may be imprisoned for contempt, not for indebtedness,
                 but for failure to comply with the order since he was able.

XVII. Appellate Review
       A. Appeal to the Court of Appeals - Rule 62
                1. 28 USC 1291 gives a party the right to appeal erroneous “final decisions” of a
                district court.
                          a. Russell v. Barnes Foundation held that a defendant may not appeal a
                          Rule 56 summary judgment as to liability before the assessment of
                          damages, because it is not a “final adjudication of the controversy
                          between them.”
                          b. however, it follows that a plaintiff would be entitled to appeal a
                          summary judgment against him as to ∆’s liability.
                2. 28 USC 1292(a)(1) also gives a right of appeal from “interlocutory” judgments
                that grant, refuse, modify, or otherwise affect injunctions.
                          a. uncommonly used, 1292(b) allows appeal of interlocutory orders
                          (other than injunctions) when they involve “controlling questions of
                          law” to which there is “substantial ground for difference of opinion” and
                          that immediate appeal “may materially advance the ultimate termination
                          of the litigation.”

Penrose                                                                             Civ Pro - Spring 2001

                                     1) ex: if jury verdict for ∆ and π successfully moves for new trial,
                                     ∆ must ask permission from court because judge must “certify”
                                     the question as having question of law deserving appeal.
                           b. ex: π sues ∆ for personal injury on battery and negligence and ∆
                           attempts to transfer assets. π moves for preliminary injunction to freeze
                           assets. If denied, it can be appealed under 1292(a)(1) because it is
                           important enough even though not a final order.
                 3. Rule 54(b) provides that interlocutory orders appealable provided there is “no
                 just reason for delay” where there are multiple claims
                           a. ex: if ∆ moves for summary judgment on battery in a negligence and
                           battery case, it may be appealed by π if granted as long as the judge
                           states “no just reason for delay.
        B. 62(d) Stay of proceedings to enforce a judgment.
                 1. Rule 62(a) provides for an automatic 10 day stay of enforcement of a judgment.
                 2. Appeal must be filed within 30 days under App. Rule 4(a). (So there is a 20 day
                 gap in which to execute)
        C. Ways around the finality rule:
                 a. collateral matter doctrine - ruling was on a collateral matter, separable from
                 the main case, and so is final with regard to the collateral matter and
                 independently appealable.
                 b. special proceeding in mandamus - party losing motion sues judge to compel
                 him to grant motion, judge immediately dismisses, and so is a final decision as to
                 the mandamus.
                           1) still must be an important issue and not interrupt a trial in progress.
        D. Two ways to get to supreme court: § 1254
                 a. writ of certiorari - granted upon petition of any party, “before or after” final
                           1) even winner can request cert. (ex: gov’t loses in 9th circuit, wins in 2nd
                           circuit, seeks cert. for uniformity)
                 b. certification of issue by court of appeals

XIX. Subject Matter Jurisdiction
        A. General vs. Limited Jurisdiction
                1. Federal system is limited jurisdiction
                            a. limited by Const. art. III, sec. 2. (9 specific categories of “cases” and
                            b. limited by statute
                2. State system is general jurisdiction
                            a. can hear any kind of case
                            b. 10th Amd. reserves power to states
        B. Exclusive vs. Concurrent Jurisdiction
                1. Since Art. III, sec. 2 doesn’t state that federal jurisdiction is exclusive, then it is
                concurrent with that of the state
                2. unless you can find a statute (i.e. patent) that provides exclusive federal
                3. state resident vs. state resident is exclusively state jurisdiction.
        C. Original vs. Appellate Jurisdiction
                1. Supreme court has both original jurisdiction and appellate jurisdiction
                2. congress can only limit appellate jurisdiction
        D. Constitutional vs. Statutory jurisdiction
                1. is the source of the jurisdiction Const. or statutory?
                2. if it is constitutional, is it self-executing?

Penrose                                                                         Civ Pro - Spring 2001

                        a. ex: appellate jurisdiction of the Supreme Court, as well as the original
                        jurisdiction of lower courts, is granted by congress (not self-executing)
                        b. ex: original jurisdiction of the Supreme Court is granted by Const.
                        itself (self-executing)
      E. Federal Question Jurisdiction - no monetary limit
              1. Cases “arising under” the laws or treaties of the federal government.
                        a. federal constitution
                        b. federal statutes
                        c. federal treaties
              2. Policy -
                        a. uniformity
                        b. state judges may be parochially biased
                        c. federal judges handle things more regularly, leading to judicial
              3. Federal question “must appear on the face of a well pleaded complaint.” -
              Louisville v. Mottley
                        a. can not anticipate a federal defense to create federal question
                                  1) jurisdiction determined at the beginning to avoid unnecessary
                                  action were the complaint dismissed.
                                  2) the ∆ could avoid federal question jurisdiction by refusing to
                                  put the defense in his answer, thus preventing even default
                                  judgment because the jurisdiction would be improper.
                        b. Mottley only interpreted §1331 in well-pleaded complaint rule to
                        determine that district courts did not have jurisdiction, but not art. II, sec
                        2 to say that supreme court did not have jurisdiction
                                  1) π can return to state court and if he loses, appeal to supreme
                                  court via §1257 which allows review of state court decisions.
                        c. puts more emphasis on the pleadings because they must be “well-
                        drafted” now.
                                  1) ex: no jurisdiction if π sues for “quiet title” and defense is
                                  federal statute, however yes jurisdiction if π instead sues “to
                                  remove a cloud from title” where the cloud is a federal statute.
                                  2) ex: no jurisdiction if π sues for “ejectment” and defense is
                                  federal statute, but yes jurisdiction if π instead claims title under
                                  federal law.
                        d. alternative is for ∆ to bring the action under §2201 for declaratory
                                  1) but court can “unscramble” the parties to get to the
                                  underlying coercive action and then decide whether there is a
                                  federal question on the face of the coercive action.
                                  2) ex: business records subpoenaed. defense is federal statute
                                  protecting records. business seeks declaratory judgment that
                                  statute overrules the subpoena. court unscrambles the parties to
                                  see statute as a defense and dismisses for want of jurisdiction.
      F. Diversity of citizenship jurisdiction §1332
              1. Policy
                        a. fear of bias by the π’s state against the ∆.
                        b. uniformity of decisions
              2. 1332(a)(1) provides for “between citizens of different states.”
              3. 1332(a)(2) provides for “between citizens of a state and citizens...of a foreign

Penrose                                                                           Civ Pro - Spring 2001

               4. “citizenship” means where a person is “domiciled.” - Baker v. Keck
                         a. “domicile” is physical presence plus and intent to remain indefinitely
                                   1) only a single location (can’t have multiple domiciles)
                                   2) motive is not important, person can move to another state to
                                   create diversity
                         b. time of commencement of the action is the time to determine
                         domiciliary status, not the time of the event
                         c. need “national formalities”
                                   1) ex: a U.S. citizen domiciled in Kansas is a citizen of Kansas but
                                   a U.S. citizen domiciled in England is not a foreign citizen.
                         d. corporations are citizens of the state of incorporation AND the
                         principle place of business 1332(c)
                                   1) determined by level of activity - Kelly v. U.S. Steel
                                   2) where the activity factor and the management factor occur in
                                   different states, then balance the two, giving favor to the level of
                                   activity (more employees)
                                   3) if there is no central location for activities, then use the nerve
                                   center American Airlines
               5. Although complete diversity is required in §1332 (by judicial interpretation),
               Art. III, Sec. 2 has not been so limited, so the strict diversity could be changed.
        G. Removal to Federal Court §1441
               1. §1441(a) May be removed by ∆ to the district court in the district in which the
               action is pending if the district court would have original jurisdiction.
               2. §1441(b) provides that in federal question matters, the case may be removed
               without regard to citizenship.
               3. §1441(b) provides that where diversity questions, the case shall only be
               removable if none of the defendants is a citizen of the state in which the action is
               brought. (in-state defendant can not remove)
               4. In contrast to venue (1391), removal is only allowed to the federal court in the
               same district (across the street), so transfer to a different district is a two step
               process (first remove under 1441, then transfer under 1404).
               5. Mechanics of removal: §1446
                         a. file notice of removal in the appropriate federal court
                         b. copy of notice to the state court and the π
                         c. federal court then takes over sole jurisdiction

XX. Jurisdiction over the person
        A. Venue §1391 - where the court will exercise s/m jurisdiction
                 1. substantially the same requirements whether federal question 1391(a) or
                 diversity based 1391(b).
                          a. where any defendant resides if all reside in same state;
                          b. or where a substantial link exists (events or property)
                          c. or if not one of the above, then where any defendant may be found.
                 2. 1391(c) Corporations - contrast with s/m jurisdiction of 1332(c) (only state of
                 incorp. or primary place of business) - π not so limited in venue.
                          a. “any judicial district in which it is subject to personal jurisdiction at
                          the time the action is commenced.”
                 3. 1391(d) for an alien, venue is proper in any district.
        B. Service of Process - Rule 4.
                 1. Proper jurisdiction over the person requires:
                          a. Notice

Penrose                                                                         Civ Pro - Spring 2001

                                    1) Const. 5th Amd. due process - “reasonably calculated” to give
                                    actual notice; and
                                    2) statutory - may be more strict (i.e. serve in person, etc.)
                           b. Nexus/Basis - sufficient connection
                                    1) physical presence, in-state activity, consent, doing business,
                 2. 4(e)(2) - may leave a copy with a suitable person of age at the defendant’s
                 dwelling house.
                 3. 4(d) - provides for waiver of service (concede actual notice)
                           1) gives ∆ more time to answer,
                           2) ∆ must pay costs of service if he refuses to waive.
                 4. 4(k)(1) - may serve a person (to get jurisdiction over the person)
                           a. wherever the state court would allow it;
                                    1) ex: “longarm” statute for non-resident motorist
                           b. when a party later joined is within 100 miles (bulge provision)
                           c. interpleader statute (nationwide service)
                 5. 4(k)(2) can serve out-of-country ∆ who has sufficient contact on a national level
                 to meet 5th amend due process requirement, but insufficient contact with any
                 particular state.

XXI. Conflict of Laws
       A. Swift v. Tyson - federal law in federal court except where there is a local statute which
       controls the issue or if there is a “local usage or custom”, but not state court precedents.
                 a. construed the word “laws” in §1652 (Rules of Decision Act) to exclude state
                 general common law
                 b. philosophy was that judges don’t “make” law, they “find” the natural law.
                 c. need uniformity in federal law
       B. Erie RR v. Tomkins -
                 1. rejected Swift because-
                           a. it encouraged intra-state forum shopping by diversity plaintiffs
                           b. it discriminated against in-state defendants by out of state plaintiffs.
                           c. goal of uniformity was not occurring.
                 2. the “course pursued” by the courts was unconstitutional - courts went too far
                 in the interpretation of the Rules of Decision act made by Swift.
                           a. Swift did not require courts to make general federal common law
                           applicable to states.
                 3. Federal courts must apply state law even in many cases where there is not a
                 constitutional (10th amendment) barrier, simply as a matter of deference to the
       C. Klaxon v. Stentor - federal court must apply the choice of law rule of the state in which
       the federal court is sitting.
                 1. federal court can not decide this substantive right independently, otherwise
                 you get the same forum shopping problems.
                 2. criticisms:
                           a. no constitutional requirement to follow state choice of law rules
                           b. does not eliminate forum shopping because the plaintiff can still go to
                           a federal court in another state if venue was proper.
       D. Guarantee Trust - state statute of limitations applies in federal court (outcome
       determinative test).
                 1. rejected “procedure vs. substance” test as being too mechanical
                 2. “get back in step” with Erie doctrine to prevent forum shopping, equal
                 protection, and federalism

Penrose                                                                          Civ Pro - Spring 2001

                3. however, “outcome determinative” test was mechanical itself!
                         a. ex: Ragan - Rule 3 states statute of limitations is tolled upon filing the
                         action, state law said tolled on service of summons. Court applied
                         “outcome determinative” test to follow state law.
                         b. ex: Woods - foreign corp. can’t sue in state unless he appoints an agent
                         (“door closing” statute). Even though Rule 17(b) allows it, court follows
                         outcome determinative test to close the door.
                         c. ex: Cohen - derivative action by shareholders required π post bond,
                         even though covered by Rule 23.1. Still followed state law.
        E. Byrd - balance state and federal interests case by case:
                1. balance state interests with
                2. federal interest in maintaining independence, less
                3. outcome determinative test
        F. Hanna - Erie doctrine does not control when a valid federal rule is directly on point
                1. Hanna/Sibbach (holding) - federal courts are bound by the constitution to
                follow a federal rule which is on point, unless it is unconstitutional under
                         a. not likely because any rule that is arguably procedural will pass
                         Sibbach given that it has been reviewed by Congress and adopted by the
                         supreme court.
                2. Hanna/Erie (dicta) - if the federal rule is not on point, use a modified outcome
                determinative test.
                         a. only take into account the outcome if it would be changed in a way
                         that would encourage forum shopping or result in discrimination against
                         Erie doctrine.

I. Permissive Joinder of Parties (Rule 20)
          A. A tool for multiple plaintiffs to join together
                     1. must grow out of same transaction or occurrence, AND
                     2. some common question of law or fact will arise later in the action.
                     3. allows claims against defendants in the alternative (See Form 10).
II. Cumpulsory Joinder of Parties (Rule 19)
          A. Must be joined if feasible, if:
                     1. “complete relief” can not be afforded to the parties; or
                     2. the person’s interest will be practically destroyed, or leave one of the parties
                     subject to double liability as a result of later suit by the omitted person.
                              a. ex: A sues B for a debt on a note that C is also a holder. If A wins, B
                              may become bankrupt and A may spend the money before C can bring
                              b. ex: Cotenant 1 sues landlord to rescind a lease. Landlord may demand
                              that Cotenant 2 be joined so as to avoid two inconsistent actions in case
                              Cotenant 2 doesn’t want recission.
                     3. service of process and subject matter jurisdiction are still required
                              a. venue can be waived by the joining party, or the action may be
                              dismissed as to him if he objects to venue.
          B. if it is not feasible to join an “indispensible party,” then the action must be dismissed
                     1. court must weight the amount of the damage of going on without the other
III. Interpleader (Rule 22)

Penrose                                                                          Civ Pro - Spring 2001

         A. mechanism for a defendant to seek relief against multiple competing parties each of
         which claims to be entitled to the identical relief. (i.e., two parties claiming to be the
         beneficiary of a life insurance contract).
         B. potential defendant brings an action to have the court declare which one (if any) is
         entitled to relief.
                  1. “we’ll pay the winner, or neither.”
         C. Two versions:
                  1. “rule interpleader” - Rule 22(1);
                            a. must use if based on federal question jurisdiction
                            b. for diversity actions, ($50,000 or more) service of process is limited by
                            Rule 4.
                  2. “statutory interpleader” - Rule 22(2) (§§ 1335, 1397, 2361)
                            a. only $500 or more §1135(a)(1), but claimants must be from different
                            states (but not complete diversity, only necessary that two are from
                            different states)
                            b. venue is proper in any district in which a claimant resides under §1337
                            (regardless if all reside in the same state as is the case in § 1391)
                            c. process may be served nationwide under Rule 4(k)(1)(C)
IV. Third Party Practice: Impleader (Rule 14)
         A. a defendant may implead another party who he believes should indemnify his losses
         against the plaintiff (original defendant, even by counter-claim, becomes the third party
         plaintiff, and impleaded party becomes third party defendant.)
         B. must get permission of the court unless implead within 10 days of original answer.
         C. the third party defendant may assert any defense against the original plaintiff that the
         third party plaintiff has, or may bring a related action, or the plaintiff may take the
         opportunity to bring a related action solely against the third-party defendant.
         D. defendant’s tool: original plaintiff can not force defendant into impleading a third
V. Class Actions: (Rule 23)
         A. binds unnamed members of a class to a judgment
         B. three types (safeguards)
                  1. 23(b)(1) risk of inconsistent judgments or harming others interests
                  2. 23(b)(2) injunction or declaratory relief would apply to whole class
                  3. 23(b)(3) common question of law or fact predominates and fairness factors are
                            a. ex: too small an amount of money per class member, but high total
         C. Opt-out notice 23(c)(2) - individual may opt out of class, or will be bound if given
         reasonable notice.
                  1. if members are identifiable, 23(c)(2) requires actual notice (i.e. mailing) to each
         D. For diversity jurisdiction, the individual class members each must satisfy the $50K
         limit, with no aggregation, so the likely case is one based on federal question jurisdiction.
         E. Judge must approve class action settlement.
VI. Intervention (Rule 24)
         A. Intervention as a matter of right - 24(a)
                  1. a party who would be necessary under Rule 19(a)(2)(i) does not need to wait
                  until he is forced into the lawsuit.
         B. Permissive intervention - 24(b)
                  1. similar to a rule 20 party, only need common question of law and fact.
                  2. must apply to the discretion of the court.
VII. Validity of Judgments
         A. A judgment, though erroneous, is valid if the court has:

Penrose                                                                          Civ Pro - Spring 2001

                  1. subject matter jurisdiction
                  2. nexus/basis for exercising power over the party
                  3. notice and an opportunity to be heard
         B. A valid judgment is subject to direct attack only (appeal, j.n.o.v., new trial, etc.) during
         the litigation.
                  1. ex: ∆ moves 12(b)(1) lack of jurisdiction over the subject matter. If the judge
                  denies the motion, it is not subject to collateral attack because the issue was
                  actually litigated and thus issue preclusion attaches - jurisdiction to determine
                           a. ex: even if the court order is unconstitutional, failure to appeal or obey
                           results in a valid contempt order
                           b. exception - does not apply if the order disobeyed is not appealable, or
                           having to appeal would, as a practical matter, be meaningless - but
                           injunctions are appealable as interlocutory orders.
         C. A void judgment is subject to collateral attack outside the context of the original
VIII. Jurisdiction over the Subject Matter
         A. Limited by Art. III, §2 grant of judcial power.
                  1. 12(b)(1) motion to dismiss for lack of s/m jurisdiction can be made at any time,
                  even by the plaintiff, after losing.
                  2. Parties can not “waive” s/m jurisdiction, or consent to it.
         B. Federal Question Jurisdiction §1331
                  1. cases “arising under” federal law.
                           a. Must be closely and substantially related to a federal law.
                  2. federal question must “appear on the face of a well pleaded complaint” -
                           a. ex: Bell v. Hood - even though there was no cause of action for
                           damages under the 4th or 5th amendments, the court still had to take
                           jurisdiction over the case in order to determine its lack of merit.
                  3. exception for frivolous cases or where the federal question is not substantially
                  related to the claim.
         C. Pendent Jurisdiction - π’s tool §1367
                  1. §1367(a) federal court has the power to exercise discretion in adjudicating a
                  state claim appended to a federal claim if:
                           a. there is “common nucleus of operative fact” (Gibbs), AND
                           b. the claims would be expected to be tried together
                  2. §1367(c) the court must consider convenience, and fairness to the litigants
                           a. if state law dominates, dismiss without prejudice
                           b. if federal law dominates (preemption), exercise pendent jurisdiction
                           c. court can also separate the trials of the state and federal claims under
                           Rule 42(b) if there is a risk of jury confusion.
                  3. §1367(b) court has no jurisdiction to consider pendent-party case, if original
                  claim is based only on diversity of citizenship and there is not strict diversity.
                  4. The issue of whether pendent jurisdiction has been properly assumed always
                  remains open (like 12(b)(1)).
         D. Ancillary Jurisdiction - ∆’s tool §1367
                  1. only a semantic difference from pendent jurisdiction
                  2. applies to:
                           a. compulsory counterclaims under 13(a)
                           b. impleader actions under 14(a) and 14(a) 6th sentence.
                           c. intervention as a matter of right under 24(a)
                           d. cross-claims under 13(g)

Penrose                                                                       Civ Pro - Spring 2001

              3. does not apply to (must have independent federal grounds for):
                       a. permissive counterclaims under 13(b)
                       b. permissive intervention under 24(b)
      E. Diversity Jurisdiction §1332
              1. Safeguards against abuse of diversity jurisdiction:
                       a. can create it by mis-aligning the parties
                                 1) ex: P1 (NY) can’t create complete diversity by suing P2(CA)
                                 solely to enable P2 to bring a cross-claim against D(CA) by
                                 ancillary jurisdiction that P2 could not have brought against D in
                                 the absence of P1 because of lack of diversity.
                       b. can’t leave out an indispensible party under rule 19 to create complete
                       c. must be the real party in interest under rule 17(a).
                                 1) ex: 5% transfer of rights not good enough in Kramer. Also,
                                 even if a guardian is the only living relative of the real party (no
                                 stake in outcome).
                                 2) probably OK if 100% transfer, even if the purpose is to create
                                 3) the more interest the party has, the less motive is questioned.
                       d. §1359 prevents transactions geared to create jurisdiction by collusion.
                       e. Also, collusive joinder to defeat jurisdiction is prohibited if the
                       objecting party can show that there is no possibility of liablity, unless the
                       joinder of other π’s was done by original π in state court in order to
                       prevent removal. - Rose
              2. Jurisdictional Amount - $50K
                       a. purely statutory based, not constitutionally based, so π could sue in
                       state court for only $49K in order to prevent removal by diverse
                       b. can not aggregate amounts from multiple πs, but one π can aggregate
                       several claims against the same (but not different) ∆s.
                                 1) ex: π1 and π2 can not bring two claims, each for $25K against
                                 ∆1 unless unifying to assert a common undivided interest.
                                 2) ex: π1 can bring two claims, each for $25K, against ∆1, but not
                                 one claim each against ∆1 and ∆2 for $25K each.
                       c. under Zahn, can not aggregate amounts from multiple πs, even if one
                       of them exceeds $50K - probably bad policy, most class actions survive
                       anyway on federal question.
                       d. test is no dismissal unless it appears to a legal certainty, considering
                       facts outside the pleadings, that the π can not, as a matter of law, recover
                       more than $50K. (weak standard)
                                 1) allows flagrant claims to be weeded out early.
      F. Removal §1441
              1. Only a tool for the original defendant, not the π who becomes a defedant to the
              original defendants counterclaim, regardless of the amount of the main claim, or
              whether the counterclaim was compulsory or permissive. - Shamrock
                       a. ex: π sues ∆ for $35K in state court, and ∆ counterclaims for $1million -
                       π can not thereafter remove.
              2. Action must be within original jurisdiction of the court
              3. §1441(b) for diversity-based removal, only if none of the defendants is a citizen
              of the state (in-state ∆ can not remove).
              4. All ∆s must join in the removal.

Penrose                                                                          Civ Pro - Spring 2001

                5. §1441(c) court may exercise pendent jursidiction over even unrelated state
                claims if the removal is for a “separate and independent” federal question
                (contrast with supplementary jurisdiction under §1367 if π brings the action in
                federal court first).
                          a. court has discretion to remand “all matters in which state law
                          b. may be a constitutional problem if court decides to adjudicate the state
                          claims because they fail the Gibbs “common nucleus” test.
                          c. does not defeat §1445 (non-removable pro-plaintiff FELA action) - i.e.
                          federal claim must be removable if it had been sued upon alone.
                6. A case having both a state and a federal claim and having a single π and a
                single ∆ is removable under either §1441(a) and §1367 (pendent jurisdiction) if
                the claims are related, and under §1441(c) if the claims are unrelated.
IX. Nexus or Basis
       A. Territorial jursidiction - §1655
                1. a lien or security interest in property existing within the territorial jurisdiction
                of the court may be enforced against a non-resident defendant (given adequate
                notice under rule 4(e)), but due process requires that the judgment only affects
                the property itself, and not the personal liability of the absentee defendant.
                          a. in rem - determines the interests of everyone in the world with respect
                          to a property, even those not parties to the action.
                                   1) ex: real property located within the boundaries of the
                                   2) ex: proceeding to quiet title in land.
                          b. quasi in-rem type I - π attempts to establish a pre-existing interest in
                          the property, and extinguish the interests of other named parties.
                                   1) ex: π sues to partition land, foreclose a mortgage, recover a
                                   chattle, or divorce (marital status being the res).
                          c. quasi in-rem type II - π seizes a res of the ∆ that lies within territorial
                          boundaries, and sues it as a surrogate for a personal action against the ∆.
                                   1) if π wins, he keeps the res, and may sue against other property
                                   until the claim is satisfied
                                   2) π keeps the res even if the ∆ later comes in to defend in person
                                   and wins.
                                   3) unconstitutional under Shaffer unless other minimum
                                   contacts exist with forum state (i.e. may be useable if long-arm
                                   statute does not cover your situation).
       B. Types of appearances
                1. “special appearance” - only to object to in rem jurisdiction over property
                without subjecting oneself to in personam jurisdiction
                2. “limited appearance” -
                          a. ∆ appears to defend property in QIR type II action (not fair to make ∆
                          choose between default and in personam jurisdiction)
                                   1) policy - want to encourage ∆ to come defend the action.
                          b. not allowed for QIR type I action because there is no unfairness - an
                          appearance subjects ∆ to full in personam jurisdiction as to all claims
                          related to the in- rem portion of the action.
                                   1) ex: π can not add a $2million libel claim on an unrelated
                                   matter just because ∆ is present
                3. “restrictive appearance” - long arm jurisdiction - only have basis for the claim
                in the statute
       C. Enforcement of Judgments in Other States

Penrose                                                                     Civ Pro - Spring 2001

              1. A state court judgment may be enforced in another state by bringing a separate
              action on the judgment in that new state, in order to obtain a new judgment in
              that new state.
                       a. New court must find that the judgment was valid (on collateral
                                1). court must have competency to render judgment (i.e. subject
                                matter jurisdiction)
                                2). sufficient nexus or basis for exercising authority over the
                                defendant or the target of the action (i.e. substantive due
                                3). persons to be legally affected must be given an opportunity to
                                be heard (i.e. notice).
                       b. If judgment is valid, it is entitled to full faith and credit.
                                1). laws of the state of judgment are used to determine validity.
                                2). laws of the state of enforcement are used to enforce the
                       c. if the first judgment is from a state court and the second action is in
                       federal court, §1738 provides that the federal court will give full faith
                       and credit.
                       d. if the first judgment is in a federal court and the second action is in a
                       state court, then the supremacy clause requires that the federal common
                       law doctrine of res judicata is applicable and binding on the state court
                       to enforce the judgment.
                       e. If both actions are in the federal courts, federal res judicata binds the
                       second court.
                                1). §1963 provides for registration of a federal judgment in all of
                                the federal courts, without requiring a new action, automatically
                                converting the judgment into a judgment in the jurisdiction of
                                the registering court.
      D. In personam jursidiction - look to state law under 4(k)(1)(A)
              1. physical presence (if not otherwise immune) no matter how transient.
                       a. exception: Fraud and Force - service of process of out-of-state residents
                       is void if done by fraudulently or forcibly persuading them to enter the
                       state and be served, however, fraud may be used to serve a defendant
                       who is otherwise voluntarily in the state.
                       b. exception: Immunity from Service - a non-resident party has
                       customarily been immune from service of process while in the state for
                       attendance at litigation and a reasonable time to go to and from. Look to
                       state law.
                                1) however, this is not constitutionally based, so a state could
                                theoretically treat any appearance as a general appearance.
              2. Domicile
                       a. mere residence is enough, even absent domiciliaries (assuming
                       sufficient notice)
                       b. can serve the absent domiciliary/resident in a foreign state because
                       that is only a question of notice, not nexus.
              3. Consent
                       a. ∆ waives service of process either expressly or impliedly.
                                1) ex: ∆ serves an answer without including the 12(b)(2) motion
                                to dismiss for lack of jurisdiction over the person in the first

Penrose                                                                         Civ Pro - Spring 2001

                                   2) ex: if ∆ loses 12(b)(2) motion, and then defends on the merits,
                                   a minority of states say that he has waived his jurisdictional
                                   objection (i.e. must either collaterally attack, or default in order
                                   to appeal j.o.p.).
               4. Acts done in state (sufficient for actions arising out of the in-state activity)
                         a. Doherty - contract for the sale of stock (transacting business)
                         b. Dubin - owning property within the state
                         c. Adam v. saenger - bringing an action in the state court
                                   1) π subjects himself to all counterclaims ∆ might have, whether
                                   or not compulsory, but not unrelated third party claims,
                                   2) πs attorney is in-state agent for service purposes.
      E. Jurisdiction over Corporations
               1. Int’l Shoe “minimum contacts” test- “modern power” test replaces Pennoyer
               “power” (territorial) test.
                         a. “continuous and systematic” activity will support a related claim
                         (arising from business activities).
                         b. “casual presence” wil not support an unrelated claim.
                                   1) ex: Ratliff - advertising activity alone does not support a claim
                                   for personal injury not arising from the advertising.
                         c. “continuous and systematic” may support an unrelated claim if the
                         activity is substantial enough.
                                   1) ex: Perkins - performing all corporate activity occuring in
                                   Ohio will support an Ohio state court action for unrelated stock
                         d. “single occasion” act may support a related claim if the act is
                         substantial enough.
                                   1) McGee - single mailing of life insurance contract to in-state π
                                   was enough to support claim arising from that contract.
               2. Also consider other “reasonableness” factors such as:
                         a. ∆’s intent in conducting the activity
                                   1) did ∆ “purposefully avail himself” of the protection of the
                                   laws of the state (Hanson, Bruger King).
                         b. π’s interest in recovery
                         c. nature of the activity (private or for profit)
                         d. balance of inconveniences (where are witnesses, etc.)
                         e. state interest in regulating the activity
                                   1) unreasonable if action is simply a spin off leaving only foreign
                                   parties (Asahi).
               3. Does not matter whether action is in rem, quasi-in rem, or in personam -
               “reasonableness” and standard of “minimum contacts” applies - Mullane,
                         a. need both “modern power” and “reasonableness” except if:
                                   1) you would otherwise have in personam jurisdiction but no
                                   long arm jursidiction
                                   2) QIR type II plus some other minimum contacts, but perhaps
                                   not enough for in personam jurisdiction alone
                                   3) to enforce a judgment
                                   4) if there is no other forum available to π (necessity).
                         b. this is part of trend toward a coalesing of the reasonableness and
                         power tests, leaving a reasonableness test as the survivor, and letting the
                         ∆ use transfer or venue to relocate or dismiss the action.

Penrose                                                                        Civ Pro - Spring 2001

       F. Jurisdictional Statutes
                1. Long-arm statutes
                         a. two-part analysis approach:
                                   1) does the activity fall within the state statute coverage as
                                   interpreted by the state courts
                                   2) are there “minimum contacts” so as to make the exercise of
                                   jurisdiction reasonable (constitutional due process requirement).
                         b. ex: Illinois Long-arm statute:
                                   1) applies to any defendant, corporate, partnership, or natural
                                   2) claim must be related to the in-state activity (not going to the
                                   limits of due process)
                                   3) transaction of business (different than “doing business” -
                                   requires less activity, could be a single act)
                                   4) tortious act - focus is on the word “act” not “tort”
                                   5) ownership or possession of land - absentee landlords and
                                   6) insurance contract covering property that was in-state at the
                                   time of contract formation
                                   7) service is nationwide
                                   8) grants immunity for other non-related claims.
       G. Personal Jurisdiction in Federal Court
                1. 5th amendment only requires “minimum contacts” with the U.S. (As a whole)
                so nationwide service is possible.
                         a. service outside the U.S. may be made under 4(k)(2) on foreign
                         defendant with insufficient contacts with any one particular state, but
                         with sufficient minimum contacts with the nation as a whole, and if there
                         exists a federal statute authorizing service
                                   1) the Omni gap - can’t get personal jurisdiction over a foreign
                                   defendant who has insufficient contacts with the state to be
                                   subject to its long-arm statute, and where no federal statute
                                   authorizing service exists. (Not solved by 4(k)(2) alone).
                         b. also, QIR type II jurisdiction is available (provided there are also some
                         “minimum contacts” with the U.S.) under 4(n)(2). Good if defendant is
                         hiding, and thus can’t be reasonably served under 4(k)(2).
X. Venue
       A. Forum non-conveniens
                1. Assumes that subject matter jursidiction, jurisdiction over the person, and
                venue are all okay.
                2. “local action doctrine” - case law created doctrine
                         a. where the action is necessarily local because it could only have taken
                         place in that locality
                                   1) ex: trespass of land
                                   2) ex: in-rem actions
                         b. can lead to a dismissal even if the ∆ does not object (or waives), unlike
                         regular venue considerations
                3. unfavorable change in π law is not a weighty concern in determining new
                forum - Piper
                         a. result is foreign π is discriminated against because he can not take the
                         law of the inconvenient forum with him abroad - §1404(a) only applies to
                         transfers between “districts” not countries.

Penrose                                                                         Civ Pro - Spring 2001

                          b. judge has discretion to require ∆ to waive statute of limitations before
                          transfer in order to prevent bar by π.
        B. §1404(a) transfer provision - either party can use
                 1. transfer to where the action “might have been brought”
                          a. destination forum limited to those where subject matter jurisdiction,
                          jurisdiction over the person, and venue would have been proper for a
                          non-waiving ∆ at the time the action was brought. (Hoffman).
                          b. other considerations, such as statute of limitations, capacity to sue,
                          etc., are not required to have been proper in order to transfer, because
                          the law of the original court applies. (Van Dusen), even though it may be
                          the π who is moving to transfer to bring the advantageous law with him
                 2. assumes smj, jop, and venue are all correct.
        C. §1406(a) transfer provision -
                 1. the court transfers the action (rather than dismissing it) if π lays venue in the
                 wrong district.
                          a. applies even if statute of limitations has since run in the destination
                          forum - Goldlawr
                          b. applies even if jurisdiction over the person is bad in the original forum
                          but venue was okay - Martin v. Stokes
                 2. law of the destination forum applies
        D. §1631 allows transfer from a federal court lacking subject matter jurisdiction to a
        federal court with proper subject matter jurisdiction.
XI. Notice
        A. due process requires notice to be “reasonably calculated under all the circumstances”
        to give actual notice and afford an opportunity to be heard. - Mullane
                 1. personal service or mail service is clearly sufficient, even if it lacks the
                 compulsoriness of jurisdiction.
                 2. mere publication in a newspaper alone is insufficient if the parties addresses
                 are reasonably ascertainable.
                          a. publication may be accompanied by attachment or seizure of land and
                          it would be sufficient for parties of unknown location because everyone
                          is assumed to know the status of their land.
                          b. publication is sufficient by necessity only if identity and addresses of
                          parties are unascertainable.
                 3. mail service to all known members of a class is sufficient as to the unknown
                 members because the common interest is likely to be protected. - Rule 23(c)(2).
        B. Seizure of property as a provisional remedy - notice required
                 1. prejudgment garnishment of wages is unconstitutional without notice and
                 opportunity to be heard - Sniadach
                          a. wages are a “specialized type of property”
                 2. prejudgment seizure of possessory interest in property is unconsitutional
                 without prior notice and hearing unless there are other adequate safeguards -
                          a. Sniadach is not limited to wages
                          b. not okay to hold immediate post-seizure hearing because a temporary
                          deprivation is still a deprivation.
                 3. a secured creditor may seize property without prior notice and a hearing as
                 long as other adequate safeguards are provided such as:
                          a. need a court order issued by a judge (not a clerk)
                          b. need affadavit which alleges facts (not conclusions) signed by one
                          with personal knowledge.

Penrose                                                                          Civ Pro - Spring 2001

                           c. creditor must post a bond (probably double value)
                           d. debtor has the right to post a counter-bond to regain possession
                           e. prompt post-seizure hearing must require dissolution of the writ of
                           seizure unless the creditor can prove the facts alleged in affadavit that
                           are basis for the seizure.
                 4. a commercial party can contractually waive prior notice and hearing if there is
                 not otherwise a great imbalance of bargaining power.
                 5. for attachment of real property, there is no deprivation of possession, only a
                 cloud on the title, so a “balancing test” is required:
                           a. interest of person whose property is seized - magnitude of possible
                           b. risk of mistake - probable value of procedural safeguards
                           c. interest of person who wants seizure - likelihood of empty judgment in
                           absence of seizure.
XII. Res Judicata
         A. Claim preclusion (“no splitting”)
                 1. merger of claim - π wins, claim is merged with judgment
                           a. ex: accidental death policy provides for base amount plus a bonus. If π
                           brings first action for base amount only, and wins, he can not bring
                           second action for the bonus money, even though it was not actually
                 2. doctrine of bar - π loses, claim is barred from being rebrought
                           a. must have been “on the merits.”
                 3. the scope of the word “claim” is important - broad under restatement - “all
                 rights of the plaintiff to remedies against the defendant with respect to all or part
                 of the transaction or series of connected transactions...determined pragmatically”
                           a. broad definition of claim is good for π for 15(c) amendments because
                           15(c) allows claims to relate back to before the statute of limitations
                           b. however, broad definition of claim is bad for π for res judicata because
                           it operates more broadly.
                                     1) ex: can’t bring a separate action for violation of several
                                     different but consecutive leases on the same property if they are
                                     for same motivation and would be expected to be litigated
                                     together. -Sutcliffe
                 4. doesn’t matter if the action was based on different legal theories of recovery if
                 it is the same “claim” and both legal theories could have been brought in the first
                           a. this is true even if the legal theories are inconsistent because rule
                           8(e)(2) allows inconsistent pleadings - Hennepin
                 5. doesn’t matter if the action that is barred by res judicata was brought before
                 the action that was first decided as long as the theory was available in the first
                 action. - Williamson
                 6. doesn’t matter if the remedy (legal vs. equitable) is different between the two
                 actions, if it is the same claim and both could have been brought in the first
                 action - Hennepin
                 7. dismissal for failure to state a claim is a bar unless the court otherwise specifies
                 by operation of Rule 41(b).
                           a. however, voluntary dismissal 41(a), dismissal for lack of jurisdiction,
                           improper venue, failure to join a party under rule 19 (and similarly
                           where ∆ is not put to burden of defending twice) are not with prejudice
                           and thus not a bar.

Penrose                                                                       Civ Pro - Spring 2001

               8. counter claims are likewise barred unless the ∆ is unable to recover fully in the
               first action.
                         a. ex: counterclaim for more than recovery limit of the court
                         b. ex: π is an assignee and ∆’s counter claim is against the assignor - ∆’s
                         claim against π is limited to offsetting π’s claim.
               9. if ∆ fails to assert a permissive counterclaim, no merger, and no bar, regardless
               of whether he pleaded grounds for the counterclaim as an affirmative defense
                         a. however, Issue preclusion might later apply if he pled the affirmative
               10. if ∆ fails to assert a compulsory counterclaim, there is claim preclusion in
               either of two ways:
                         a. by operation of rule similar to rule 13(a), or
                         b. by common law if ∆’s success in the second action would “nullify” π’s
                         success in the first action.
                                   1) ex: π sues for breach of contract, and wins. ∆ is precluded
                                   from bringing a second action for restitution because it would
                                   nullify π’s victory in action #1.
               11. the judgment in the prior action must have been a final judgment, otherwise,
               only question is one of wavier or estoppel.
      B. Issue Preclusion - issue must be “actually litigated and determined” and “essential to
      that judgment”
               1. direct estoppel - same claim, same issue already determined
               2. collateral estoppel - different claim, same issue already determined.
                         a. ex: husband sues for separation and wins. wife can not then bring
                         action for anullment because the issue of a valid marriage was
                         necessarily litigated and determined in the separation action, and was
               3. the scope of the “issue” determined depends on the amount of overlap
               between the way it was actually litigated, and the way it is presented in the new
                         a. ex: in negligence action for car accident, the issue of negligence is
                         determined with respect to all grounds of negligence (i.e. both speeding,
                         and being drunk)
               4. failure to bring a then available defense in the first action does not bar it from
               being brought in the second action because it was neither actually litigated nor
                         a. policy: don’t encourage overlitigation, no increased burden because it
                         was not actually litigated.
               5. definition of “essential” to the first judgment:
                         a. “non-essential determination rule” - if the judgment was made on
                         other grounds, and the issue is determined only in dicta, it is not
                         b. cumulative determination - if more than one issue was essential to the
                         determination of the first action, then of course, both are precluded in
                         the second action.
                         c. ambiguous determination - if it is not possible to tell which essential
                         basis for determination was used because either would be sufficient,
                         then neither issue is precluded
                         d. alternative determination - because you can’t tell which was reasoned
                         well, and which was just thrown in to prevent reversal, neither is
                                   1) preclusion attaches if the action is appealed and determined.

Penrose                                                                 Civ Pro - Spring 2001

          6. only parties in strict privity with a party to the first action can be bound
          (burdened) by issue preclusion because of due process.
          7. at common law, only parties with “mutuality” could benefit from issue
          preclusion (i.e. only can use issue preclusion against someone who could use it
          against you had the first action come out the other way).
                   a. however, mutuality has been abandoned by most courts, and so
                   collateral estoppel may be used offensively if:
                            1) the burdened party had a full and fair opportunity to litigate
                            the issue in the first action
                            2) there are no changes in procedure that would make it
                            3) there is no risk of an inconsistent judgment.
          8. the law of the rendering court determines the scope and effect of the


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