Civil Procedure Outline

Law 145: Civil Procedure
Professor Goldberg
CIVIL PROCEDURE: COURSE OUTLINE

JURISDICTION
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Special Appearance: Permits to participate in the case w/out submitting to the courts personal jurisdiction; cannot raise any other
objections to s case
Limited Appearance: Only for quasi in rem method established for someone whose prop is seized to come to the forum state and
defend on the merits and rend himself vulnerable only up to the amount of the contested prop
o Ex. sues for $100,000; seized prop worth $50,000 limited appearance if you lose, you only lose the $50,000
Challenging PJ
o (1) Direct Attack (a.k.a. appeal): Working w/in the same lawsuit May be better option than collateral if has assets in the
state, also if does not want to risk default (as he would in collateral)
o (2) Collateral Attack: Suit challenging the validity of a judgment entered in a completely separate lawsuit RISKS
DEFAULT (Normally claiming there was something deficient in ealier proceeding ex. st ct failed to apply fed law)
Courts will ONLY entertain collateral attack for lack of PJ if took no part in the initial proceeding
Advantages: s home forum evaluates the sufficiency of the distant forums PJ which distant forum would have used
if had elected the option of direct attack
Pennoyer and Intl Shoe: Personal Jurisdiction Over Nonresident s

o Pennoyer: No state has power outside its boundaries and every state has exclusive power w/in its boundaries. Thus need
actual service w/in the state
o Intl Shoe: subject to personal jurisdiction if he has MINIMUM CONTACTS with state and the maintenance of the suit
does not offend traditional notions of fair play and substantial justice
Long-Arm Statutes: States enact after Intl Shoe provide PJ over nonresident s who cannot be found and served
in the forum state. 2 types:
(i) Attempts to categorize factual situations which seem likely to satisfy minimum contacts test of Intl
Shoe authorizes court to exercise juris
(ii) Blanket approach confers all jurisdiction permitted by state/federal Con law
Intl Shoe gives rise to a dichotomy between general jurisdiction and specific jurisdiction
[A] General Jurisdiction: State asserts juris over a on all claims against the whether or not related to the s in state activity.
When a ct has gen juris over a , that party is suable in the forum for any claim, whether or not related to the activities in the forum state
o Examples
When individual is found w/in the state or domiciled there
When corporations are incorporated w/in the state or engaged in substantial and extensive activity w/in the state
Selling is OK for gen juris but buying is not (Helicopteros)
o Factors to consider in Gen Juris hypos:
(1) Amount of reciprocity
(2) Marginal increased inconvenience from having to defend an unrelated suit [CLARIFY these first two]
(3) Ability to plan can you anticipate this lawsuit?
(4) States interest if you are doing lots of thing in the state state may have an interest in how you conduct your
business
[B] Specific Jurisdiction: State asserts juris over only w.r.t. claims arising from or related to the s activity in the forum state
o Modern Specific Juris Analysis: New DP analysis after Asahi and Burger King; see below: NEED BOTH:
(A) AFFILIATING CIRCUMSTANCES: Partly about s ability to control whether that contact actually happens,
partly about whether it is appropriate for one state to apply its own law to out-of-state entities
Just sending products out to wherever they end upeven if a lot of products end up thereisnt enough for
jurisdiction (Asahi)
o CF: If tires were made specifically in CA market; advertising/marketing in CA IS THERE AN
ELEMENT OF CONTROL? then aff cir
No sufficient aff circumstances if NO CONTROL over where vehicle is going (World Wide Volkswagon)
Lots of correspondence w/ state may compensate for lack of physical presence (Burger King)
(B) REASONABLENESS: 3-way balancing between , , and states
State: Interest in protecting its citizens, interest in litigating in the state (ex. franchise)

Professor Goldberg
: Is it easy for them to litigate in the state? (May be if they are sophisticated businesspeople Burger King)
Transient Jurisdiction: Nonresident actually found and served w/in forum state but s presence there is (a) intended to be brief (b)
unrelated to s claim
o (a) Scalia: Tag/presence is enough to establish jurisdiction (unnecessary to test under Intl Shoe Pennoyer is fine)
o (b) Brennan: Evolutionist Intl Shoe should be applied
o Goldberg: Best arg against jurisdiction here is that it is unreasonable
Forum Choice: Convenience, values/bias, procedural advantages, choice of law

o Gen Juris: If you have very widespread availability of gen juris and if thats enough to trigger jurisdiction can forum
apply its law/choice of law simply because a business is doing a lot of business in their state Allstate hints at yes
o Just because you have gen juris forum cannot necessarily apply its law.
Ex. Shutts: KS cannot apply its law in class action Enough leases in Kansas to establish gen juris are not
enough for Kansas to assert its law over all the s
o In DJ cases fed court must follow SUBSTANTIVE law of the state in which its located (Sun Oil)
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Nationwide Service
o Long arm Statutes = State going outside its boundaries; Service of Process = Nationwide
o R4(k)(2): Territorial Limits of Effective Service: If juris is Conl giving notice is effective to establish PJ, w.r.t. claims
arising under FED law, over any who is NOT subject to the jurisdiction of gen juris state gen juris courts (plus you have
contacts with the U.S. and reasonableness)
NOTE: 4(k)(2) puts in the odd position of arguing against PJ in all 50 states and the in the position of having
to argue for jurisdiction in order to get around 4(k)(2)
Anthology Readings, Brussels Convention (see O, 5); Jurisdiction in Cyberspace: see O (in 2 places)
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NOTICE
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MODERN STANDARD: Reasonableness under the circumstances. In order to determine if reasonable: Identify
burdens/mitigating factors for both sides:
o (A) Efficiency: Cant create notice requirements that are too onerous
o (B) Individual fairness: Will people have opportunity to present case?
o (C) Legitimacy
o (D) Distribution: Ex. Are in-stators benefited while outsiders are not?
Ex. Mullane Court refuses to permit notice by publication to known addresses but does approve a notice by publication to the
beneficiaries for whom individualized notice was impractical method of notice is method used when people actually want to reach
other individuals (here, mail)
o (1) DP Violation?: Balancing state interests w/ beneficiaries interests
Burdens for bank: Not burdened for people with known addresses
Burden on beneficiaries: Have to pay attention to NY newspapers
Mitigating factors: Put on notice that they should be looking at newspapers (in original K), the guardians
(but they dont work on contingency), also dont want too elaborate a notice system
Service of Process: R4: Summons: (1) Gives control over service of process; (2) Permits service by mail as a form of federal
service
o 4(d): Waiver of Service: can waive the ordinary formalities and receive summons/complaint electronically and if not,
cost shifts from the to the
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VENUE CHANGES: FORUM NON CONVENIENS AND TRANSFER
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State courts CANNOT transfer cases to other states, and neither state nor federal courts can transfer cases to foreign countries
o Cts permit DISMISSAL of suits under FNC in anticipation that will recommence suit in foreign venue
o FNC codified in some states (including CA)

3
Professor Goldberg
- [I] Forum Non Conveniens: Discretionary doctrine courts can decline to hear a case even though they were legally able to do so
o FNC Guideposts For TRIAL Cts (higher cts just looking for RB)
(1) has burden (as opposed to in PJ)
(2) Public and private interests
(3) Presumption in favor of s forum choice when:
(a) is forum resident YES
(b) is U.S. non-forum resident GENERALLY YES
(c) is foreign NO
(4) No presumption of convenience in s place of incorporation or PPB
Ex. Stangvik (ERES, 1991) [ = Swedish; = CA bad heat valves. Very expensive to litigate in
Sweden all docs relating valves in English, witness are American] Case goes back to Sweden
(5) No transfer where lacks an effective remedy in the transferee forum

How bad does the transferee forum have to be to stop the transfer: Chrysler v. Gonzalez, (Supp cases,
p. 12) [ trying to transfer case to Mexico. Even though Mexico has extremely-low damage cap, court
says economic liability of lawsuit should not affect forum transfer.] If you are litigating this case bring
in evidence about what actually goes on in Mexican litigation
o FNC Strategy for s
can facilitate FNC by structuring its defense (Ex. U.S. chemical plant said there was sabotage at the plant in
India hence facilitated moving case to India)
can attach conditions designed to make transfer more convenient (ex. says will make all previous EEs
available/comply w/ Swedish law)
o FNC Examples:
(1) Classic FNC: Union Carbide/India case: Ct holds that disadvantages of the Indian legal system (ex. huge
filing fees and big case backlogs) did not render Indian forum inadequate in the litigation re: giant pesticide leak
(2) Piper Aircraft (293, 1981) [Plane crash in Scotland kills all Scots, plane manufactured by PA company]
Goes back to Scotland.
The mere possibility of an unfavorable change in the applicable law does not bar a FNC dismissal,
unless change makes remedy so clearly inadequate or unsatisfactory that it is no remedy at all.
(3) Alfaro [s = Costa Rican; = Dow. Dangerous Pesticides in Costa Rica] Stays in America. [CLARIFY]
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[B] Transfer Within the FED System: 1404(a): Change of Venue

o Easier to transfer case than FNC
o Fed ct hearing a case solely on the basis of diversity is required to apply the law of the state in which court is located
o When a shift is made to a transferee court, the original transferor courts law applies
o CONVENIENCE is only factor that should be taken into account when the change happens.
o Ex. Farans (317, 1990) [ = Injured PA; = Del. corp w/ PPB in IL. files in PA fed ct and then 2nd diversity suit in
Miss fed ct. Wants to transfer Miss case to PA, but use Miss sttt lim (which is treated as procedural, not substantive law)]
Court holds PA must take Miss sttt lim CONVENIENCE: If PA didnt borrow Miss law would just keep case in
Miss and that would be worse for all parties (burden on to litigate in 2 places)
Scalia Dissent: This encourages forum shopping between state and federal court
COUNTER: This case only happened b/c Sun Oil Scalia made his own problem
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SUBJECT MATTER JURISDICTION
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Permissible scope of judicial power of fed cts: Art III 2: (a) Directly vests SC w/ jurisdiction; (b) Authorizes Cong to create and
endow lower courts w/ SMJ
Distinctions between PJ and SMJ

o PJ is about power over a particular ; SMJ about power over categories/classes of cases
o As a , you can invoke the DJ in your own home state
CANNOT remove a case from a state court in one state to a fed court in another
No removal when is sued at home
o PJ much easier to waive as an objection than SMJ
PJ: Waived by showing up or consenting in advance; ALSO: R12(b),(g),(h): If PJ not raised as defense in a
motion that you make raising other defenses you lose it

Professor Goldberg
SMJ: Much more difficult to waive (B/c PJ more about fairness; SMJ about federalism)
Ex. sues in fed ct, tries case and loses. Then ALLOWED to raise lack of SMJ for the first time on
appeal
Redundancy: Fed judges are more independent b/c of their method of employment/tenure/salary; centered in urban areas; tend to
hear different set of cases; Value of dialogue between fed cts (higher premium on Conl claims) and state cts (higher premium on
consumer safety issues)
[1] Diversity Jurisdiction: 1332

o (1) Complete Diversity Requirement: Parties need to be from different states (even if 1 out of 1,000 s no good)
EXCEPTION: Minimal Diversity: All you need is 1 and 1 from different states. Cong can pass laws
authorizing.
NOTE: Removal can only take place where original case COULD have been filed in FED court
o (2) Determining Citizenship
(A) Individuals: Domicile: Physical residence in a state AND an intent to remain there indefinitely CAN
ONLY HAVE 1 @ A TIME; Determination made @ the time of the suit
Continues until has changed both his residence AND his intent
(B) Corporations: Can be citizen of any state of its incorporation or PPB. 2 Issues:
(i) INCORPORATION: Forum rule: If incorporated in multiple states, and sued in one of these states
treated as a citizen only in the state in which you are sued
(ii) PPB: Several tests
o (a) Nerve center theory: PPB should be place from which officers direct/control/coordinate
all activities
o (b) Place of Activity: Where does most of corp activity take place
o (c) Total Activity: Case-by case analysis that looks at several factors including corporate
structure, nature of activities in various locations, # of EEs
NOTE: Distinction between corps RESIDENCE (venue purposes) and citizenship (DJ)
o For venue: corporation resides in any judicial district in which it is subject ot PJ at the time
the action is commenced
(C) Fraudulent Joinder and Nominal Parties
(i) Fraudulent Joinder: If finds that it has joined a party who destroys DJ so long as party NOT
w/in 19(b) (indispensable) category may drop party to preserve courts juris
(ii) Nominal Parties: Party against whom there cannot be a judgment
o Ex. MD tenant injured by fumes v. 1 VA management for the building and 2 MD
Supervisor. wants to be in MD st ct so adds the supervisor of the management co. as co-.
Supervisor NOT nominal party, b/c in underlying tort law, supervisor is civilly liable. Not
nominal party because in theory there can be a judgment against him
o Ex. MLB and the Reds in Rose v. Giamatti
o
(3) Amount in Controversy: $75,000, exclusive of interest and costs, determined @ start of action
Aggregation
(i) may aggregate all claims he asserts against a single
(ii) Multiple PARTIES (s, s, or both) joined on one or more claims
o Aggregation possible IF parties have COMMON UNDIVIDED INTEREST or title BUT NOT if
they have separate and independent interests
(iii) counterclaims against Suggests that aggregation should not be permitted (see Lexis, 130)
Zahn (374, 1973) [ Class action greater than $10,000 at stake but many class members have less than
$10,000 at stake.]
o (i) NO AGGREGATION: No aggregation of s CLAIMS against different s (b/c s did not
have suit upon joint and undivided interest)
o (ii) NO SUPP JURIS: B/c parties did not all meet the amount in controversy requirement
o Part result of Zahn easier to bring cases in state court (AiC not as big an obstacle)
DJ Cases
Strawbridge v. Curtiss (335, 1806) SC construes general diversity sttt to require complete diversity (no party may
share citizenship w/ any opposing party)

5
Professor Goldberg
Carden v. Arkoma Associates (345, 1990) Unincorporated associations (such as partnerships and labor unions),
take the citizenship of each member [ = LA citizens; = limited partnership under laws of AZ (general partner
non-LA, 1 limited partner is LA citizen). Court says gen partner cannot sue.]
NOTE: For class actions: diversity determined by the citizenship of the representative parties, w/out
regard to the absent class members (Supreme Triber of Ben-Hr v. Cauble)
Rose v. Giamatti (356, 1989) [ = OH citizen; = NY citizen. Rose wants to be in OH state court so adds
additional parties: MLB (hq in NY; partnership of 25 non-OH teams and 1 OH team) and Reds (OH team)
argues no complete diversity b/c Reds are from OH.] MLB and Reds are nominal parties (no case against them) so
diversity determined on the basis of remaining parties [CHECK]
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[2] Federal Question Jurisdiction: 1331 (vests FQJ in lower fed courts); Art III. TEST:
o (A) A pivotal and substantial federal element (Lexis, 113)
o (B) Well-Pleaded Complaint Rule: Case arises under fed law only if appears on the face of a well-pleaded
complaint Thus, cannot invoke FQJ by anticipating a fed defense or bringing a fed question into his complaint that is
not essential to his case (Mottley case shouldnt be in fed ct b/c fed law would only come in once the RR raised it as an
aff def)
o Declaratory Judgment: Procedural device that allows a prospective to turn himself into a : Suit is transposed to what
it would look like if the real is the and if a federal question is raised in that transposed version then can get FQJ
NOTE: Only available in actions that create economic paralysis for (ex. Cts reluctant to use in personal
injury actions)
Milder forms of dec jud dont want injunction but want to see if conditions are unConl or unlawful
Ex. in mental institution claim of no adequate care. Typically youd go for an injunction BUT you
can also ask for a dec judge to say that these conditions are unConl/unlawful (less coercive remedy on
institution than injunction)
[3] Supplemental Jurisdiction

o One part of lawsuit satisfies fed SMJ requirements and other parts do not
o Art III sets largest outer-limit for fed SMJ speaks to judicial power over cases arising under fed law and
controversies between diverse citizens, not just over questions.
o 1367: Statutory Supplemental Jurisdiction: If 1367(a) is satisfied BUT freestanding claim is based only on diversity,
then determine whether supp claim is disqualified for supp juris by 1367(b). If not decide whether ct should decline to
exercise supp juris for any reasons listed in 1367(c)
[a] Qualifying Under Section 1367(a):
TEST: Claims so related that they form part of the SAME CASE OR CONTROVERSY under Art
III
o Underlying question: Should these issues be tried together in the interests of efficiency and
fairness?
o NOTE: A claim which does not meet the same transaction test of R13/20 (compulsory
counterclaim and joinder) is not necessarily excluded from supp juris
Court ma take narrower view of transaction/occurrence b/c harsher result for finding
out an unasserted claim was compulsory (cannot be asserted later) vs. supp juris context
(claim can still be heard in state court)
[b] Disqualifying Under 1367(b)
(i) In diversity-only cases, the courts do not have supp juris over claims by PLAINTIFFS AGAINST
persons made parties by R14, 19, 20, or 24 or over claims by persons joined as PLAINTIFFS under R19
or intervening as PLAINTIFFS under R24
o NOTE: Against = applicable to joining s, but not to joining s
o R14: 3rd Parties (Ex. (Iowa) v. (Neb). wants to make 3rd party claim against 2 (Iowa)
claim isnt by , so allowed under 1367. (If made claim not allowed))
o R19: Compulsory Joinder
o R20: Permissive Joinder
o R24: Intervention
NOTE: If theres no diversity and the 3rd party wants to sue original thats okay under 1367 because
its not a claim brought by a
[c] Discretion Under 1367(c)
Look at efficiency/fairness gains you have by hearing case in fed court

Professor Goldberg
6
(1) If the claim raises a novel or complex issue of state law (state courts will do a better job
AND you get precedent at the end)
o (2) If the claim substantially predominates the claim over which the dist ct has original
jurisdiction (Weeding out situations where has weak fed claim or where theres a lot more
evidence associated w/ state law claim than w/ fed claim)
o (3) If dist court has dismissed all claims over which it has original jurisdiction
o (4) Exceptional circumstances (Confusion or Prejudice Ex. 2 claims are likely to be confused
by jury; state claim is likely to cause prejudice)
1367 Problems (439-40) See email for answers and lecture notes for a few explanations
o
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ASCERTAINING APPLICABLE LAW
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Origin: Erie (454, 1938): Substantive state law required when the difference between state and fed law might substantially affect
the outcome of the case. [ injured by object from s train. CL of Penn says s a trespass SC demands application of state law]
MODERN RULE: Track Assignment (Hanna) based on substantive vs. procedural

o First ascertain whether theres a conflict between state law and fed law (UNLESS LAW NOT RATIONALLY
CLASSIFIABLE AS PROCEDRUAL) and ask: Can the two rules act simultaneously? Can the application of 1 nullify the
other?
(a) If there IS a conflict: Follow fed law
Gasperini
(b) If NO conflict: Byrd/Guaranty Trust Analysis
(i) Outcome Determination: Does choosing between fed and state law determine the outcome?
(viewed EX ANTE: before the filing ask: would the choice in forum be changed by difference
between state/fed law in question?)
o If YES leans toward being substantive if balance goes toward the state apply state
o If NO leans toward being procedural if balancing goes toward federal apply fed
(ii) Balancing of State and Fed Interests: Ascertain how important matter is to the state, and balance
that w/ federal interest in controlling the judicial process. If the fed interests strongly predominate
apply fed law
Examples
o Ex. Fed court. Heart valve problem; mfr in CA. In-state FNC Rule: no transfer if there is an adverse change in the law.
Fed FNC: granted even if theres an adverse change in the law. Should ct apply fed law or state law?
(1) No conflict between state law and FRCP/sttt/Con do ex ante analysis. Ask if the two FNC rules going to
create inequalities between state/fed court. If so then it might affect outcome.
(2) Balance government interests:
Does fed interest rise to the type of federal concern raised in Byrd? Here fed interest seems more
concerned w/ judicial economy operation w/ court system, and saving time. Not dealing with individual
rights and basic conceptions of fairness.
NOTE: Bias in favor of the state when difference would control peoples out-of-court conduct.
o You can also look at previous state law cases applying this doctrine.
o [CLARIFY] Gasperini v. Center for Humanities (524, 1996) RE: Issue 2 Court establishes Abuse of Discretion
principle: If trial judge decides to leave jury verdict intact, fed app court not going to come down hard on the trial judge.
Only going to overturn trial courts verdict if there is an abuse of discretion.
Scalia dissent: Says we should be on the Hanna track. Interesting: Ginsburg (majority) favors the states, and
Scalia comes forward on federal policy and tort s.
o Walker v. Armco Steel Corp (507, 1980) Non-Hanna track case where court finds no collision between state and fed
law; thus uses state law. [ sues for injuries while using s product; relying on definition found in FRCP, argues he
filed suit w/in the OK stat of lim. says court required to follow OK law.] Court says for there to be some conflict
between state and fed law, the refusal to apply FRCP would have to thwart some purpose the fedral rule was intended to
achieve. This did not happen because that particular rule did not affect state sttt of lims.
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PLEADING

Professor Goldberg
R8: General Rules of Pleading and R11: Signing of Pleadings, Motions; Representations to Court; Sanctions:
o A short and plain statement of the claim showing the pleader is entitled to relief
o Function: Give notice of claims or defenses
o Specificity: General idea of incident thats bringing the parties to ct Need minimum threshold of detail to make sure
pleading hasnt been presented for an improper purpose (harassment, delay)
Operation of Pleadings:
o Distinguishing Allegations and Defenses how do you know whats a defense?
(1) R8(c): Affirmative Defenses
(2) State and fed sttts
(3) If no rules or sttts:
(a) Argue about probability: which party is more probable to bear burden
(b) Argue about which party that has access to information
o Ex. Ad poss is more likely to have knowledge it took place
(c) Argue about policy: do you want to encourage this?
o What if no facts to back up your complaint?
R11(b)(3): Representations to Court: You can allege it so long as you indicate in your pleading that its likely to
have EVIDENTIARY SUPPORT after reasonable discovery
When in doubt fag something under this
R8(e)(2): Consistency: A party may set for 2 or more statements for a claim or defense alternately or
hypothetically
NOTE: CANNOT say: I wasnt there, but even if I was, I didnt do it b/c under R8 all statements shall
be made subject to R11 so you must have some FACTUAL SUPPORT or an idea that you could get
this evidence from discovery
o What if unsure about the law?
R11(b)(2): Representations to Court: Claims needed to be warranted by existing law or a nonfrivolous
argument for extension, modification, or reversal of existing law or the establishment of new law
Thus can look for scholarly treatises, legislative histories; if you just dont like the law (nonfrivolous
argument for reversal); some precedent that that law is vulnerable (like decisions that express unease
with precedents or other states)
o Sanctions
R11(c)(1)(A): Initiating Sanctions: If you think theyre alleging something you dont think they can back up,
give them 21 days to fix it
R11(c)(2): Nature of Sanction: Presumption that sanction is to be paid to ct unless there is a special showing for
need for deterrence
NOTE: If you make/respond to a pleading you are making a certification as an attorney and, if a certification
like this is made w/out justification the other side may impose a sanction (may include reasonable amount to
pay, including attnys fees)
Pre-Answer Motions: R12: Defenses and Objections. Pattern: PJ rules easiest to lose; SMJ rules hardest to lose; tendency to
consolidate motions
o R12(a): When Presented; R12(b): How Presented
o R12(g): Consolidation of Defenses in Motion: If youre going to make a pre-answer motion, you have to consolidate it
w/ all other motions.
EXCEPTION: 12(h)(2): A defense for failure to state a claim / failure to join party under R19 / objection for
failure to state a legal defense to a claim May be made in any pleading permitted under 7(a) or by motion for
judgment on the pleadings OR at the trial
o R12(h): Waiver of Certain Defenses:
12(h)(1)(A), 12(h)(1)(B): Defense of lack of juris over person, improper venue, insufficiency of service o process
is waived IF
(A) omitted from motion in the circumstances described in 12(g) OR
(B) it is NEITHER made by R12 motion NOR included in a responsive pleading or amendment permitted
by R15(a): Amended Pleadings
o R12(e): Motion for More Definite Statement Rarely invoked: only reserved for situation where you are INCAPABLE of
responding to the complaint and you need more info
ex. Complaint alleges a car accident but doesnt say what date AND you drive down Boylston every day

Professor Goldberg
o Problems (614): See Lecture Notes
The Answer: 3 kinds of responses: (1) denials, (2) defenses [8(c)], (3) claims by the
o R11 applies just as much to answer as it does to the complaint: cant deny things wholesale
o Circumstances where you use inferences to provide evidentiary support
Ex. If aircraft designed by was in use at the time of the accident alleged in s complaint, then and/or others
caused changes to be made in aircraft which were not known by .
o Defenses vs. Denials
Ex. Trespass. Evidence of s title by ad poss: DENIAL Logically related to ownership and destroys an
essential allegation of s complaint
Evidence of an easement: Not admissible in defense of a trespass action, unless has pleaded an easement as an
affirmative defense
NOTE: Once you allege something as aff defense you acquire a burden of proof @ trial
Amendments to Pleadings
o R15: Amended and Supplemental Pleadings
15(b): Amendments to Conform to the Evidence
When issues not raised by the pleadings are tried amendment to pleadings may be necessary to cause
them to conform to the evidence and to raise these issues.
o NOTE: Failure to amend does NOT affect the result of the trial of these issues.
If evidence is objected to at the trial ct may allow pleadings to be amended when the objecting party
fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the
partys action or defense
o Ex. Evidence is in Tibet and hard to locate; if evidence has since burned
Attorneys Fees
o In the U.S. not normally awarded to a victorious party
o In CA legal doctrine that allows for recovery of attys fees when you will a public interest case
Also an exception to attorneys fees when you win a case that affects a bunch of people who arent s (Ex. A
shareholder derivatives action all of the shareholders benefit)
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DISCOVERY
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Purposes of Discovery: (1) Avoid Surprise: Get info out in advance before trial so there are no surprises and greater legitimacy;
(2) Better Screening Process: Actually have facts/testimony/documents; (3) Promote Settlement: Allows for depositions that
involve the direct questioning of witnesses; (4) Rectify Imbalances of Power: That result from imbalances in access to
information
Discovery Rules: R26: General Provisions Governing Discovery

o 26(b): Discovery Scope and Limits: You can get anything thats relevant to your own side, and it doesnt need to be
admissible
o 26(a)(1): Initial Disclosure: Not only do you have to give up what the other side asks for you have to give out certain
info w/out the other side even having to ask
Initial disclosure encompasses:
Names of witnesses, documents to support your side, damages computations (encourages settlement),
relevant insurance coverage, expert witnesses
26(a)(1)(A): Have to disclose what you may use in support of claims/defenses UNLESS SOLELY FOR
IMPEACHMENT discrediting other sides witnesses/evid
o 26(c): Protective Orders: I shouldnt have to respond to this
o 26(d), (e): Timing and Supplementation
How you respond to information after youve already received the other sides discovery request
o 26(f): Discovery Conference and Plans
FURTHER MODIFIED BY R37 sanctions if you havent cooperated w/ discovery plan
o 26(g): Certifications and Sanctions AUGMENTS R37; akin to R11

9
Professor Goldberg
Mechanism very similar to what R11 applies to pleadings: if you make/respond to a discovery request, you are
making a certification as an attorney and if certification is made w/out justification, the other side may impose a
sanction (may include reasonable amount to pay, including attnys fees)
o
R27-36: Various discovery devices. See chart, below; See text problems/lecture notes, 635R30: Depositions
(opportunity to actually
question the witness)
NOTE: in depos you are
supposed to respond
subject to objections
R33: Interrogatories to
Parties (used to figure out
how other side plans to
back up allegations
theyre making) Not
necessarily objectionable
just b/c its answer
involves an opinion
Parties ONLY (its a lot of
work to answer to
interrogatories you
have to hire someone)
R34: Requests for

Documents
R35: Physical and

Mental
Examinations of
Persons
R36:
Requests for
Admission
(cant say no
merely b/c
you cant
acquire info)
Parties; Subpoena
R45 to non-party
Party
(ex. case, 641 want
to get physical
examination of bus
driver so need to
name driver as a
party)
Courts permission
required
Parties only
You need to show

good cause to get
such an examination
ordered (ex. some
reason to believe that
the persons physical
or mental condition
caused the accident)
Party gets determined
Sequence
Towards whom?
Party OR witness (but if

your witness is not
local you have to go
to the witness (637))
How requested?
(Sometimes you
have to go to the
court; sometimes
you can just
direct a request
to the other side)
Any limits?
To party: directly
For non-party:
subpoena may be needed
No leave of court if less

than 25 in number
(including all discreet
subparts) (see FRCP 96)
Request to party and

subpoena to nonparty
30(a)(2): Ct
permission required if
greater than 10 depos,
2nd time for deponent, or
out-of-sequence (before
time specified in 26(d))
37(d): Failure to
attend depo
Party OR witness
Court permission is
required if greater than 25
per party or out-ofsequence
Leave to serve
additional interrogatories
shall be granted to extent
consistent w/ 26(b)(2)
Attorney (thus diminishes
the value of responses to
interrogatories)
Keep them in
order/sequence
NOTE: natural
limit of how much
youll ask for
because you wont
be able to make
sense of it
Attorneys guide
parties (atty
determines what
needs to be produced
in response to this
request)
Who responds?
No leave of
court
required
Attorney
Privileges
o (A) Attorney-Client Privilege
Functional test: if the info is necessary to ensure effective legal representation, it is covered by the privilege
(Upjohn Co. v. United States: Attny communicating w/ # of lower-level EEs regarding matters that are the subject
of a legal inquiry. Court makes a big deal that this communication was taking place w/in the context of lawcompliance activity (rather than a lawsuit) thus looks like essential communication)
NOTE: For litigation response: communication may be less necessary and cts may be less inclined to
extend privilege
NO PRIVILEGE IF not flagged, in a litigation (rather than a client counseling) context, and it not necessary to
ensure effective legal representation (see problem 4, p. 654)
Waiving the privilege
Ex. Filing suit in medical malpractice waive your attorney/physician privilege
Ex. If meets the initial standard but its disclosed to 3rd party then waived
Ex. Non-managerial EEs working w/ @ the time of the accident. Witnessing of the accident not w/in the scope
of EEs duties was the same kind of info any witness would have

10
Professor Goldberg
Justifications: (1) Client has misapprehension of legal conduct; (2) Attny may be in position to persuade the
client to testify truthfully
o
(B) Work Product Privilege

R26(b)(3): Trial Preparation: Materials (added to FRCP after Hickman see below)
Materials prepared in anticipation of litigation/trial should be available only upon showing that the party
seeking discovery has (i) substantial need AND (ii) that the party is unable w/out undue hardship to
obtain the substantial equivalent of the materials by other means
o Also: the court shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of any attorney
SUMMARY: Courts concerned with: (i) How badly you need it; (ii) What other kinds of alternatives
are available to you; (iii) What youve done to get it
NOTE: Though 26(b)(3) expressly only protects tangible work product (documents, etc.) CL declared
by Hickman extends protection to some intangible work product when it advance the polices articulated
in Hickman
Hickman v. Taylor (657, 1947) [Tugboat sinks. Counsel for tugboat owner takes written statements from
survivors, interviewed other fact witnesses, and made memoranda of interviews. s later sent interrogatory asking
for statements, memoranda, reports.] Court does not allow s access to info.
Justification: 4 Policy Considerations
o (i) Efficiency (Encourages attorneys to keep things in their head; Free rider problem you do
the work, then have to hand it over); (ii) Individual fairness (Essential that lawyer work w/
certain degree of privacy); (iii) Distribution (s as well as s may not want to disclose
information); (iv) Legitimacy (Legitimacy of system perhaps undermined if s had to give up
such info)
Discovery Sanctions/Abuse
o Bleak House 1968 (see lecture notes for specifics)
Possible retaliation: ask for a protective order under R26 (but then you incur the costs of making a motion)
o Relevant FRCP Provisions (applying this list to Bleak House examples see lecture notes)
R26: Gen Discovery Provisions
26(b)(2): Limitations: Ct may alter frequency/extent of discovery methods if
o (a) Unreasonably duplicative; obtainable from some other more convenient source
o (b) Burden/expense of discov outweighs likely benefit (taking into account see p. 72)
26(c): Protective Orders ex. can get protective orders invoking 26(b)
26(g): Also provides sanctions
o ex. can give you something indicating there was document destruction
o ex. if other side objects
R37: Sanctions for improper request and for improper refusal to respond
37(a): Motion to Compel Disclosure: Motion must include a certification that moving party has in
good faith conferred or attempted to confer w/ other non-moving party to cooperate
o 37(a)(4): Expenses and Sanctions:
If motion successful: get costs for making motion + reasonable attorney fee
If motion is denied: ct may require motioning party to pay the other
37(b): Failure to Comply with Order: If other side still doesnt respond after motion is made and court
says they have to respond
37(d): Failure to Attend @ Own Depo or Serve Answers to Interrogatories
o Can treat something like evasive response under 37(a) or like not responding at all under 37(d)
Economics of Pleading and Discovery (Bone reading)

o Normative questions: How do you make the procedural system more efficient? (puts aside individual
fairness/distribution) Differentiates w/ Positive analysis: prescriptive and predictive
o Purpose of procedure from an economic standpoint
[1] Minimize errors in application of substantive law
[2] Minimize errors in the cost of achieving that accurate applications of substantive law
Bone describes this together as Minimizing the sum of error and process costs
Model re: when cases go to trial and when you get settlement:

Professor Goldberg
Case 1
Potential recovery = $100,000
and estimate 60% chance of
recovery
Costs of litigation = $10,000 each to
and
Value of case to = $50,000 (0.6 x
100,0000) 10,000
Cost of case to = $70,000 (0.6 x
100,000) + 10,000
11
Case 2
Potential recovery = 100,000
s estimate of recovery = 75%; s
estimate = 25%
Costs $10,000 each
Value of case to = 65,000
Costs of case to = 35,000
Case 3
Same as case 2 hypo but what if can
increase cost to of defense while keeping
s own costs low
If s costs goes up to 40,000 then
you get potential settlement
Thus discovery may facilitate
settlement at the price of accuracy
NO SETTLEMENT
SETTLEMENT
In order to achieve these goals you need information about

(a) likelihood of errors that will result from different procedural devices
(b) how costly those errors are
(c) the process costs associated w/ different procedural rules
[A] Pleading
Bone: Strict pleading rule should be applied very selectively only to lawsuits where s are likely to be
uninformed of merits of casts and costs of investigation are moderate (and hence s could find out about the
merits from investigating) (150)
Otherwise get too much discouragement of potentially meritorious suits
So first you look at impact of alternative pleading rules on likelihood of getting accurate outcome; then
you look at process costs of invoking either rule
(1) Notice Pleading Rules: Notify enough to make a decision [CLARIFY]
Accuracy costs: May litigate potentially frivolous cases (not enough facts at the time of filing)
(2) Strict Pleading Rules: Provide a lot more detail to support your allegations
Accuracy costs: Some meritorious claims may not get filing b/c at time of the pleading not enough
available info
[B] Discovery (203)

Bones Model:
(1) We should allow discovery only when increased value of accuracy at trial plus any deterrent value is
at least equal to the total costs on both sides of actually carrying out the discovery
o Also: agency costs parties cant second-guess decisions of attorneys
o One of the reasons for discovery abuse much easier to generate information than it is to
discover information
(2) Discovery not warranted: conducted for its impositional value rather than informational value
o Impositional uses: force the other side accrue costs, such that settlement will be more favorable
to your own side
o Prisoners dilemma: 2 parties who would be better off if they cooperated w/ each other, but b/c
each side is unsure whether the other side will cooperate they do nothing
Prisoners dilemmas flourish in situations where theres lack of information and lack of
agreement
NOTE: There are ways out of the prisoners dilemma but only involve
setting up trust on both sides
Reasoning
Weighing accuracy costs vs. process costs
Discovery facilitates settlement: can get people to converge on likelihood of recovery
o And if no settlement allows case to proceed at trial with more accurate facts
BUT discovery itself increases cost of litigation to both parties and judicial system
2 possibilities: (i) System with discovery; (ii) System w/out discovery
Incentives to share information w/out discovery
o Sharing FAVORABLE info aids in settlement process

Professor Goldberg
12
Sharing UNFAVORABLE info:
If you dont disclose unfavorable info, other side might believe your case is worse than
it actually is
NOTE: Incentive to share unfavorable info becomes much more heightened if one side
thinks the other will get that information independently
Disc may also make settlement LESS likely: if both parties disclose only favorable information
Accuracy of Discovery: Also suggests that prospect of discovery produces settlement, and one side has
more info than the other then you may have inaccurate settlements that will not mirror the likelihood of
success
Costs of Discovery: Costs of conducting discovery; Costs that it saves us by dispensing w/ trial and
moving to settlement; Costs of world w/out discovery
Restructuring legal system to deal with this i.e. specialize it to deal w/ discovery
Ex. Fed system has outsourced problems over discovery to magistrates
Ex. Possibilities of greater signaling: if you can make effective signals you can induce settlement
more (reduce prisoners dilemmas)
Ex. Possibilities of greater reputational consequences easier to smoke out discovery jerks
Cost shifting [CLARIFY]
Creates asymmetrical burden
Other side may exaggerate its expenses
o
**************************************************************************************************************
TRIAL BY JURY
-
7th Amendment Right: In suits @ CL...the right to trial by jury shall be preserved
o (1) No 7th A right to trial by jury when claims are solely equitable in nature. RULE: If you have claims that are legal
combined with claims that are equitable, and they have the same or overlapping facts, they get tried by a jury
o (2) Does not apply to states: Most states have their owns protections to right to trial by jury
o (3) Looks back in time (to 1789) unlike the DPC (something that changes over time)
NOTE: CAs provision looks back to 1853 (state con ratified)\
RE: Claims that didnt exist in 1789 (ex. housing/employment discrim) courts will try to transpose to 1789 or
look hard at the type of remedy sought transpose modern remedy into 1789 remedy
Trial by Jury: Advantages/Disadvantages

o Advantages: collective rather than individualized judgment; juries less susceptible to political pressure; lot of convergence
between findings of judges and juries (both would reach same decisions); educates people about the legal system; More
legitimacy in group ruling than in ruling by individual judge; Sometimes following the letter of the law will reaches unjust
result; Judges can ask juries to give special verdicts; forces lawyers to present cases clearly
o Disadvantages: Inefficient; in some cases (ex. rape) juries are more likely to acquit than judges; unpredictable;
economics generates wrongs incentives for litigation/generates extra litigation/costly and makes system run slower;
juries lack expertise; more susceptible to claims of sympathy; imposes burdens on those who participate
**************************************************************************************************************
SUMMARY JUDGEMENT
-
Summary Judgment: Denying access to jury trial when, after discovery, you dont have enough admissible evidence to
demonstrate a genuine conflict as to the facts
RULE: Party bearing burden @ sum jud doesnt have to negate everything all it has to do is (1) point out that the other side
doesnt have any admissible evidence and (2) come forward and show there is no genuine dispute
o IN: Celotex (689, 1986) reformed old precedent (Adickes) which said s burden @ Sum Jud very high: have to negate
every possibility that might support s claim
CA Exception: Sum jud may be denied where only proof of material fact is declaration made by individual who was sole witness to
the fact / individuals state of mind
o Ex. Podiatrist hypo: Can deny sum jud because its an individuals (building owners) state of mind thats at stake
o Distinction w/ fed civ pro: if you couldnt pull this out during discov, were not going to give you the chance @ trial

Professor Goldberg
13
Burden of Proof @ Sum Jud

o Burden of proof at sum jud: moving party (usually ) has to prove no genuine dispute re: material facts using
ADMISSIBLE evidence
Normally harder for party w/ burden of proof () to get sum jud thus primarily device
Issues of material of fact = those which may affect the outcome of the suit
Genuine dispute = reasonable jury could resolve against the movant
o Vs. Normal Burden of proof = burden of production (coming forward w/ evidence) + burden of persuasion (in civil
cases: a preponderance of the evidence vs. crim cases: beyond a reasonable doubt)
Economic analysis of Sum Jud

o Very efficient but possible costs in sum jud procedure
o Counter: Normative concerns: (1) Distribution when other side has all the evidence there might be special concern
about avoiding sum jud (ex. Cal Exception); (2) Legitimacy: Judge cutting off these cases not as legitimate as having a jury
look at the evidence
**************************************************************************************************************
PRECLUSION
Claim Preclusion
CP is forfeiture rule: precluded from bringing a later claim
because you failed to include it with an earlier claim
Normally strictly limited to same partys privity
Limited to same transaction or cause of action
Old terminology: res judicata: the thing has already been
adjucated NOTE: CP and IP are aff defenses; R8(c) refers to
CP as res judicata
-
Issue Preclusion
Rule against re-litigation
Doesnt always require same parties: Re-litigation doesnt need
to be against the person in the first litigation (or by the person in
the first litigation); non-mutuality
Can invoke issue preclusion even though issue arises in entirely
different transactional setting
Old terminology: collateral estoppel
[1] Claim Preclusion

o RULE: If lawsuit 2 should have been brought with lawsuit 1, and is not, lawsuit 2 is forfeited CP may preclude claims
that did not actually appear in the prior adjudication
Ex. Cant permit to bring one suit for damage to the right fender and 2nd suit for damages to the left fender
o REST 24: Transaction Test for Claim Definition: Preclusion depends on whether the claims are part of the same
transaction or series of transactions out of which the action arose. Consider:
(A) Whether facts are related in time, space, origin, OR motivation
NOTE: Origin/motivation did the events underlying the first claim motivate the second (ex. car
accident; guy gets out and slugs the other)
(B) Whether they form a convenient trial unit
(C) Whether their treatment as a unit conforms to parties expectations or business understanding
o Normative goals:
(i) Efficiency: Many overlapping witnesses, events of 1 will be relevant in proving the events of the other
(ii) Fairness: What do people normally think of as being tried together
o Dangers of test: Murky, pragmatic, balancing lots of factors not a lot of predictability. If close case probably want to
come out against preclusion (When in doubt, resolve it against the forfeiture)
o Relation to Supp Juris: CLARIFY
o
Relevant FRCP provisions No CP or IP in FRCP

R42(b): Separate Trials: If claims are too complicated/confusing/prejudicial court can separate claims out and
order separate trials
R18(a): Joinder of Claims: Whatever you have against can be brought together, regardless if unrelated
R13(a) Compulsory Counterclaims: Pleadings have to state as counterclaims any claims against the opposing
party if they arise out of the same transaction or occurrence as the subject matter of the opposing partys claim
(and do not require the presence of third parties of whom the court cannot acquire jurisdiction see FRCP, p. 38)
NOTE: If you fail to include counterclaim forfeit

Professor Goldberg
14
NOTE: No def of transaction courts will usually look to REST (time, space, etc.)
o When in doubt, define narrowly (thus hard to get forfeiture). Spectrum: Broad to narrow: Supp
Juris > Claim preclusion > Compulsory counterclaims
NOTE: Counterclaim insufficiently related to the original claim under 13(a) is treated as permissive
under 12(b)
FF&C Sttt: 1738 (FRCP, 335): Effect of judgment 1 must have FF&C in every court in the US which means preclusive
effect of judgment 1 must be respected in forum 2
Ex.: L1: state court; L2: in fed court. Different rules in state/fed.
Fed ct deciding L2 is required to follow the preclusion law of the state court in L1 b/c 1738 (NOTE:
Same result if L2 were in state court)
Ex: L1: fed court, based on FQJ; L2: state court.
State ct deciding L2 required to follow federal preclusion law (b/c Supremacy Clause of Con)
Economic Analysis of CP
CP conserves resources of parties/judiciary by consolidating claims
Can be thought of as a rule of compulsory joinder of claims under the threat of forfeiture
Claim preclusion handout see lecture notes
Herendeen (731, 1975) [L1: state court; tort action: fraudulent inducement to leave employment wins on failure to
state a claim; Case 2: v . (fed ct; breach of K action: alleges that failing to pay pension benefits under retirement
plan)] Issue: do you apply federal or state law of claim preclusion? Court allows 2nd lawsuit (see lec notes for bad tests it
uses) but most courts applying REST 24 would say they need to be brought together
Defenses
who bypassed opportunity to assert defense/counterclaim may be precluded form asserting that
defense/counterclaim under 13(a). For non-FRCP:
REST 22: Effect of Failure to Interpose Counterclaim: who fails to bring claim in 1st action is only
precluded from maintaining action for that claim after 1st judgment if
(a) Counterclaim is required to be interposed by a compulsory counterclaim sttt, OR
(b) Relationship between the counterclaim and the s claim is such that successful prosecution of the
second action would nullify the initial judgment
NOTE: Far more generous than Mitchell tests, below
NOTE: Now compulsory counterclaims are so prevalent that if a jurisdiction doesnt have it it was
probably done for a reason
Mitchell (749, 1932) [ farmer raises successful defense in L1 (fed) then proceeds in second action to recover the
full amount hes owed (state)] Farmer precluded from bringing L2. TESTS:
(i) Same transaction/same facts; (ii) Same cause of action;
(iii) Cant split aff defense and claim significant that he asserted a defense based on common
facts/cause of action
(iv) Dont want to bring a later claim if it is going to nullify an earlier claim (LIKE REST)
Distinction w/ Kirven case (751, 1907) Chemical v. Kirven. K files several defenses, but then w/draws
defense re: defective fertilizers. Verdict for Chemical, but K starts 2nd action from damage to his crops
due to the fertilizers. 2nd action not precluded
CP and Dismissal of Actions under R41:

41(a): Voluntary Dismissal
41(a)(1): By ; By Stipulation: Unless otherwise stated, the dismissal is w/out prejudice (Ex. might
dismiss if theres a settlement)
41(a)(2): By Order of the Court
41(b): Involuntary Dismissal: Involuntary dismissal will have preclusive effects UNLESS judge says no or its a
dismissal based on (1) lack of jurisdiction (2) improper venue, or (3) failure to join a party under R19
Only room for creativity is on jurisdiction but SC seemingly closed that door in Costello
Costello v. United States (755, 1961) [CHECK]
Previously: Judge-made law said anything that is a threshold determination must be viewed as
jurisdiction (b/c jurisdiction is power of courts to hear cases)

Professor Goldberg
15
L1
L2(a)
L2(b)
Here, court says dismissal for failure to state a claim does have preclusive effects (i.e. doesnt fall under a
41(b) exception)
Semtech: Narrower interpretation of 41(b): 41(b) only governs if both L1 and L2 are in fed ct. If L1 in fed ct and
L2 in state court cannot say that 41(b) was intended to govern the effect of the 1st judgment in fed court. Thus
off the Hanna track and on the Guaranty/Byrd track
L1: v. in fed ct, based on diversity. L2: v. in state court, in a different state.
(1) SC holds that 41(b) only governs the refiling of a lawsuit in the very same fed district court.
(2) Whether Guaranty Turst/Byrd dictates that the law of the state in which L1 was filed should
determine the preclusive effect of the original diversity action
o Scalia: overriding federal interests warrant the application of fed CL to determine the preclusive
effect of such federal judgments
However: in most cases, fed CL rule of preclusion should incorporate the law of the
state in which L1 was filed, in order to avoid forum shopping and unfair application of
the law in L1
[2] Issue Preclusion

o RULE: Final judgment precludes relitigation of the same issue, so long as (1) issue was actually litigated and (2)
circumstances of the case do not suggest reason why it would be unfair to invoke the doctrine
DP protects genuine strangers to the original litigation from being bound by IP
MINORITY of jurisdictions also deny strangers use of IP against original parties by invoking mutuality (only one
capable of being bound by a prior adjudication may use it to bind another)
o REST 27: 2 IP concerns: (A) Was this issue actually litigated AND (B) Was this issue necessary to the to the judgment of
the lawsuit? If so, then IP
o Was the issue necessary to the judgment? Classic example:
L1: v. (contributory neg defense) general verdict for .
L2: v. (negligence claims; same accident). Issue of s negligence NOT precluded b/c L1 could have been
decided either b/c was not negligent or b/c was negligent (or both)
general verdict: does not provide reasons for awarding to one of the parties
special verdict: verdict in which jury makes specific findings of fact
o NOTE: Questions of IP arise only after it is determined that other doctrines dont bar suit. Thus assumes:
Original not barred from brining L2 by claim preclusion/compulsory joinder
Original not precluded from prosecuting a L2 by compulsory counterclaim rules
v. ; prop damage wins
v ; prop damage
wins on general verdict
v. ; personal injury
- Does s contrib. neg
preclude L2? Depends on
whether raised contributory
negligence as a defense in L1
If so, then IP if introduces it
in L2
- NOTE: There are some
jurisdictions where it is s
burden to prove there is NO of
contrib. neg. Thus becomes
necessary to the judgment of L1
v. ; personal injury (like
Blue Goose see below)
- Verdict in L1 necessarily
established s neg so in L2
IP from relitigating issue of
s neg
- s neg: If the issue was
litigated in L1, will IP from
v. ; Personal Injury
- Gen verdict in favor of
in L1 means either
not neg or is contrib.
neg (or both)
- Thus, IP bars L2
either s contrib. neg OR
s lack of neg in the L1
will support L2 victory
- No IP b/c is not clear
which issue (s neg, s
lack of neg, or both) was
established and you need
a finding in s favor on
both issue in L2
v. ; personal
injury wins on
special verdict that
was not neg and was
neg
- Either s non-neg or
s neg alone is
enough to support
judgment for in L1
- REST 27: Where a
judgment of trial ct is
based on
determination of 2
issues, either of which
alone would support
the result judgment
is NOT conclusive in
later action w.r.t. either
issue
- That said, some
courts not following
REST have given IP to
alternate holdings
either of which could
v. ; prop damage wins on

special verdict that and both neg
- Yes IP could have appealed
the finding of s neg
- No IP on issue of s neg b/c had
no opportunity to appeal issue of s
neg b/c was the winner of L1
(REST 28)
- On issue of s neg maybe IP
b/c could have appealed the
finding against it

Professor Goldberg
relitigating in L2
16
support the judgment
REST 28: Exceptions to general IP Rule: Although an issue is actually litigated/determined and the determination is
essential to the judgment relitigation of the issue is NOT precluded in the following circumstances (780)
(1) Like the last example in chart party against whom preclusion is sought could not have got a review of L1s
judgment
(2) Issue is one of law AND EITHER (a) the 2 actions involve claims that are substantially unrelated OR (b) a
new determination is needed in order to account for change in law (or avoid inequitable administration of law)
(2a) Ex: L1: v. (city); for tortious injury. Defense: sovereign immunity wins. Years later, L2:
same v. , for completely unrelated tortuous injury.
o Soverign immunity should not be precluded from L2 under 2(a) (although there could be stare
decisis trial cts are bound by app cts decisions until app cts changes the rule)
(3) Either differences in procedural opportunities between L1 and L2 (ex. no discovery in L1 but do get discovery
in L2) OR differences factors relating to the allocation of jurisdiction
Ex. L1: (patent holder) v. (mfr); state court wins. L2: v. , fed ct Under judicial code fed
courts are given exclusive juris over patent actions. Thus no IP to state court finding
(4) Burden: (i) party against whom preclusion is sought had a significantly higher burden of persuasion in L1
than in L2; (ii) burden shifted to his adversary; (iii) adversary has a significantly heavier burden in L2.
Ex. convicted in criminal action, then sued in civil no IP b/c s burden is crim higher than civil
(5) Catch-All: Clear/convincing need for new determination of the issue (i) b/c public interest reasons; (ii) b/c
it was not sufficiently foreseeable at the time of L1 that the issue would arise in L2; or (iii) because sought to be
precluded did not have fail/full adjudication in L1
Ex. If you had no way to anticipate that new law came into existence
Ex. Litigant in L1 suffered from a disability that made it difficult to provide defense
NOTE: If you apply one of these exceptions all that it means is that matter gets relitigated. So when in doubt,
allow for relitigation
Little v. Blue Goose Motor Coach Co. (764, 1931)

L1: Bus Co. v. Husband; prop damage to bus, defense of contrib. neg General Verdict Bus Co.
L2: Husband v. Bus; bus raises defense of contrib. neg on the part of husband (today L2 barred under R13(a))
Court finds issue contrib. neg preclusive. In L1, bus co. couldnt have won w/out a finding that the husband was
negligent
Thus: sometime in your strategic interest to not raise defense, pay the $130 bucks in the small claims
court, and re-litigate later
NOTE: If you didnt have adequate opportunity to litigate the first time around you could potentially have DP
issue
Kaufman v. Eli Lilly & Co. (771, 1985)
L1: Bichler v. Lilly (pharmaceutical) Bichler wins
L2: Kaufman v. Lilly, raising same claims; just have different and difference in timing of taking the pill.
Court holds Lilly precluded from contesting its negligence because the same issue had been decided adversely
to Lilly in L1. However, court does permit Lilly relitigate issue of whether s injuries were caused by injestion of
DES (b/c in L2 timing of injestion differed from L1)
Privity: Did the L2 parties already vicariously have their day in court?
General Foods Corp v. MA Dept of Public Health (784, 1981)
L1: Grocery Mfrs of America v. MA Dept of Health; state court MA wins
L2: GF + R-S v. MA Dept of Health; fed court. GF contributed money to L1 and member of same trade
association as GMA; R-S did not contribute money and is not member of same trade assoc (although its
parent company did give money and is a member)
Question: Are 2s in privity w/ 1s? (i.e. did they already vicariously have their day in court?)
o GF in privity b/c of authorization for representation in L1 (member of trade association and
helped finance litigation) had a clear opportunity to join litigation
o R-S not in privty even though they are controlled by company that participated in L1, they
could not effectively control the actions of their parent company
Other privity examples
Trustee in L1; beneficiary in L2

Professor Goldberg
17
Derivative rights: Successors in interest (ex. buyers only get rights that seller has) successor in
interests are bound b/c you only get what predecessor in interests have
Mutuality: Allowing L2 parties not in privity w/ the L1 parties to take advantage of prior adjudication against their
opponents.
Traditionally, mutuality prohibits 3rd parties not in privity w/ L1 parties from using favorable findings as IP against
a prior party. EXCEPTION: Derivative liability Ex. L1: v. EE (who is liable for injury) judgment EE.
L2: v. ER action precluded. Justification: If there were no preclusion and the ER is found liable would
negate previous finding for the EE
(A) Defensive Non-Mutual Issue Preclusion: asserts another partys victory against a as a defense
L1: v. 1 Wins; L2: v. 2. Under DN-MIP, 2 can use 1s win against
o Justification: Efficiency may produce greater consolidation of s in L1
Bernhard v. Bank of America Natl Trust & Savings Assoc. (794, 1942)
o L1: Cook (executor of estate) v. Beneficiaries (includes Bernhard) Cook wins
o L2: Berhard (administratrix of will) v. Bank of America
o Bernhards loss in L1 cannot be invoked by bank against Bernhard b/c bank wasnt party to
L1 (if Bernhard had won that round he couldnt have invoked that win against Bank in L2
mutuality is all about symmetry)
o NOTE: This case could be analyzed under a derivative liability exception too
(B) Offensive Non-Mutual Issue Preclusion: New seeks to take advantage of another partys victory against
to PRECLUDE from contesting the issue of liability.
L1: 1 v. 1 wins; L2: 2 v. 2 wants to use 1s victory against (similar to Eli Lilly)
Courts more cautious in permitting ON-MIP than DN-MIP.
o (i) Discourages joinder other s will hang back and wait to sue themselves
o (ii) Also, unfairness concerns:
DN-MIP chooses forum, against whom IP is used
ON-MIP chooses forum but it is the against whom IP is used thus getting IP
used against you in a forum you didnt even pick
Thus, courts weigh whether issues of fairness/efficiency arise and then go from there: REST 29:
Criteria to assess whether or not there was full/fair opportunity to litigate the issue in L1 (781)
o (1) If issue itself gives indication that there should be no IP
o (2) If L2s forum gives party against whom IP is asserted procedural opportunities not
available in L1 and could likely result in issue being determined differently
o (3) Joinder: Ex. Big train accident passengers NOT prevented from suing separately AND
invoking ON-MIP. When its a personal injury action legal system averse to forcing people to
litigate their personal claim
Cf. Shopping center tenants vs. owner of center courts might feel better about
forcing all these s to join their claim together
o (4) If determination relied on as preclusive was itself inconsistent w/ another determination of
the same issue
o (5) If prior determination may have been affected by relationships among the parties in L1 that
are nor present in L2 (ex. Developer advertising vacation lots. 2 buyers: real estate broker and
school teacher. Both make K to buy lots and both fail to complete K)
L1: v. Teacher; defense: reasonably relied on the advertising teacher wins. L2:
Broker arguably cannot use teachers defense (b/c knowledgeable)
Parklane Hosiery v. Shore (801, 1979)
o L1: SEC v. Parklane injunctive relief; L2: Shareholders v. Parklane.
o Court suggests that it may be appropriate to deny ON-MIP to s who had intentionally adopted
a wait and see attitude to earlier proceeding. Parklane not PERMITTED to be joined as a
party in L1 so could not be accused of this.
**************************************************************************************************************
JOINDER
-
Joinder of Claims

18
Professor Goldberg
o (A) By Plaintiffs
R18(a): Joinder of Claims: NO LIMITS no relationship between claims in order for joinder
NOTE: Court does have discretion to
o (a) Sever claims under R21: Misjoinder
o (b) Order separate trials under R20(b): Permissive Joinder and 42(b): Separate Trials
Although joinder rule itself does not confer fed SMJ it creates opportunity for the application of SMJ doctrines
(supp juris, aggregation)
No diversity: any state claims asserted by in fed court will be dismissed for lack of SMJ UNLESS
claims are sufficiently related to fed claims also asserted in the case for supp juris to attach
W/ diversity: unrestricted joinder provisions + rule that a single can aggregate all claims against a
single = s unrelated claims, each of which seeks $30k recovery against single , will, if brought
together, fall w/in SMJ of fed court
Thus if claims dont satisfy 1367(a) wont be able to join in fed court
o
(B) By Defendants and Co-Parties: Counterclaims

Just like claim joinder anything goes (so generous b/c if is willing to overcome concerns re: inability to
choose time/place must be efficiency gain to bringing in the claim)
R13(a): Compulsory Counterclaims: CC that arises out of SAME transaction/occurrence as the subject
matter of the opposing partys claim
o Pleading MUST state as a CC any claim that arises out of same transaction/occurrence as
opposing partys claim AND does not require for its adjudication presence of 3rd parties over
whom the court cannot acquire jurisdiction.
o Pleader need not state claim if
(1) At the time action the claim was the subject in another pending action, OR
(2) Opposing party brought suit on the claim by a process by which the ct did not
acquire jurisdiction to render judgment on the claim, and the pleader is not stating any
counterclaim under R13
o Definition of transaction/occurrence under 13(a): Whether the CC is logically related to
the existing claim against the prospective counterclaimant. TEST for logical relationship:
Events have common origin or one set of events triggers all the other events (IN: Grumman
Systems. v. Data General (848, 1988))
o Question: What if some facts derive from a common origin and some dont? Court says as long
as there is logical relationship w.r.t. core facts, we dont care about the others
o Ex. L1: (former ER) v. (former EE); EE went off and started his own business; ER brings
claims for breach of K, etc. Then EE turns around and sues ER w/ claims of slander.
Compulsory? YES underlying dispute between the parties: what this EE did when he
left the ER (and all of this is about what stemmed from that)
NOTE: If L1 is in state court L2 forum will file state compulsory CC rule; if L1 in
fed court L2 court will file fed compulsory CC rule
o NOTE: 13(a): A pleader shall state so if youre not a pleader, youre not subject to the
compulsion
R13(b): Permissive Counterclaims: CC rooted in a DIFFERENT transaction or occurrence
o Pleading MAY state as CC any claim against opposing party NOT arising out of
transaction/occurrence as opposing partys claim
o NOTE: A counterclaim beyond original fed court jurisdiction cannot be brought w/in the
language of 1367 unless it is so related in subject matter of the s claim that it would also meet
the test for compulsory CCs
Thus permissive CCs are often ineligible for supp juris
Justifications: Makes look more sympathetic; efficiency common facts/witnesses; Put pressure on
w.r.t. settlement
o Converse: When is separate suit preferable over CC: Might be unhappy with L1s jurisdiction
choice; trial of your CC w/ s claim might prejudice your case
Can we get supp juris over every counterclaim? Stricter rule for 13(a) than for supp juris (b/c consequence of
faulty 13(a) is forfeiture)
Ex. v. ; s claim = fed question, s claim = state law you can take advantage of supp juris if you
have the same case or controversy (look to Gibbs, etc. for ways to test this underlying facts, etc.)
NOTE: Some counterclaims that dont fall under 13(a) might still get supp juris [CLARIFY]

Professor Goldberg
-
19
Joinder of Parties
o R20: Permissive Joinder of Parties: Need (1) transactional relationship and (2) common question of law OR fact
Thus, though rules are NOT as generous w/ multiple parties
NOTE: This rule same when joining s as with joining s
NOTE: Ability to join parties under transactional relationship standard of R20 can make possible supp juris. Ex.
Under R20 who has fed claim against 1 can join a transactionally related state claim against 2
1367(a) will confer supp juris over the claims if both claims arise out of a common nucleus of facts (and
they normally will if they are transactionally related under R20)
This is subject to courts exercise of discretion under 1367(c)
o R21: Misjoinder/Nonjoinder of Parties: will argue for mis/nonjoinder. Case wont get thrown out, but attempt to meld
parties together will fail (severance also covered in R20(b) and R42(b))
o
Joinder of s
ADVANTAGES: Spread out costs, efficiency, may increase likelihood of settlement (ups the ante in the eyes of
the ), do it to defeat diversity (if you like being in state court), join more sympathetic parties
DISADVANTAGES: Lose control, confusion, addition of unsympathetic co-s
Guedry v. Marino (863, 1995) [7 s: 6/7 had free speech claims. 4/7 had race discrim claims. 1/7 has retaliation
for workers com claim AND race/sex discrim. says these all shouldnt be allowed together w/ a particular
focus on the 1/7 claim.] Court lets everyone in. If you have 6/7 w/ free speech claim, 4/7 w/ sex discrim
claim the 1/7 can get in w/ her sex discrim claim overlap even though her other claims dont overlap. AS
LONG AS YOU CAN OVERLAP W/ PEOPLE WHO ARE PROPERLY JOINED DONT HAVE TO
OVERLAP W/ ALL OF THEM.
HOWEVER: Goldberg: May need presence of overarching concern that animates all the claims
Joinder of s
ADVANTAGES: Other s litigate for you, encourages in-fighting among s, more parties to pay judgment, add
less sympathetic s, Discovery devices you can use against parties that you cannot use against non-parties
(interrogatories)
DISADVANTAGES: More of them shooting at you
Compulsory Joinder
Principle: chooses where suit is brought/what claims are heard. Exceptions:
(1) Choice of court: s have available removal and transfer/FNC
(2) What claims are heard: s can expand lawsuit through assertion of claims, counterclaims, crossclaims, and 3rd party claims
R19: Joinder of Parties Needed for Just Adjudication: 2 step-analysis: [19(a)] Whether person should be
joined is feasible and then [19(b)] If joinder not feasible, whether absent party should be regarded as
indispensable and the action dismissed
19(a): Persons to be Joined if Feasible (Necessary Parties either they are or are not joined): If
you can get juris over the following people must join if
o (1) In the persons absence complete relief cannot be accorded among those who are already
parties
o (2) Person claims an interest related to the subject of the action and the persons absence may
(i) Impair/impede the persons ability to protect that interest
(ii) Leave any of the persons already parties subject to substantial risk of incurring
multiple/inconsistent obligations b/c of the claimed interest
19(b): Indispensable Parties A how much determination: If person described in 19(a) cannot
become a party court will determine whether action should proceed w/ current parties or be dismissed
o FACTORS TO CONSIDER
(1) To what extent judgment rendered in persons absence might be prejudicial to
current parties; (2) Extent to which prejudice can be lessened/avoided by protective
provisions of the judgment; (3) Whether judgment rendered in persons absence will be
adequate; (4) Whether will have an adequate remedy if action is dismissed for
nonjoinder
NOTE: Joint tortfeasers are neither necessary nor indispensable under R19

Professor Goldberg
20
Broussard v. Columbia Gulf Transmission Co. (877, 1968) [1 (LA) v. (TX); 2 (TX, absentee, 1s
co-owner) big diversity problem]
o Ct finds 2 to be R19(a) party but then had to determine whether it could proceed in her absence
since joinder would destroy the diversity juris of the fed ct
Ex. Situation where you do not have compulsory joinder: 1 (driver 100k damages); 2 (passenger
20k damages); both part of same accident w/
o Thus 1 satisfies amount in controversy, 2 does not
o SMJ problem: ambiguity under 1367
1367(a) is fine b/c same case/controversy
1367(b): not excluded thus, this is allowable b/c 1367(a) is satisfied and 1367(b) does
not exclude it not being made AGAINST (b/c its )
o NOTE: Even though this is not excluded in 1367(b) still runs up against Strawbridge v. Curtis
rule. This is the problem outside the class action context. W/in the class action context its a
back-door Zahn case
Ex. Same situation except each has 50k claim
o Cant use 1367 AT ALL b/c 1367 presupposes anchor claim that independently satisfies fed SMJ
o Now youre in world of aggregation: if its a permissive joinder courts will NOT allow
aggregation
NOTE: Aggregation is a judicial doctrine, not a rule basically interprets amount in
controversy requirement in diversity sttt)
o However if instead of driver/passenger the 2 s are co-owners of prop then if theyre
viewed as parties that should sue together, they CAN aggregate
Fairness Concerns
Fairness re: Those already in the lawsuit (normally s)
Fairness re: Absentees not included in lawsuit
o Depends whether absentee bound by whatever happens in lawsuit w/out him: Unless Absentee is
in PRIVITY w/ a party will NOT be bound b/c never had his day in court
Why worry about non-privity absentee? B/c he can still be harmed
Fairness re: if suit isnt allowed to proceed b/c cant get juris over the absentee or some other reason
the absentee cant be sued (ex. sovereign immunity) my be deprived of choice of forum or may not
be able to go through with lawsuit at all
o Ex. Tribal nations enjoy sovereign immunity (cant sue w/out consent)
(i) Tribal members v. Department of the Interior (who improperly approved leases of
tribally held land)
Tribe is absentee party. If individual tribal members win the tribes interests
are harmed.
(ii) Finding of human remains in an area of land both the Hopi tribe and Navajo nation
claim as ancestral territory. Hopi tribe sues UC demands return of remains.
However Navajo nation says remains are culturally affiliated with them.
Navajo nation not bound if ct finds Hopi are entitled to remains b/c/ no privity
and never had day in court
UC afraid that Navajos will come after them after UC win in L1
Mitigating Factors
(A) PJ : R4(k)1(B): 100-Mile-Bulge Rule: In FED courts you can go 100 miles past the courthouse
to draw in an absentee DEFENDANT who is joined under R14 or R19
o Ex. v. 1; Fed ct in NY. NY doesnt have PJ over 2. If 2 is w/in 100 miles of NY
courthouse even though NY long-arm and DP will not permit NY to submit PJ over 2 PJ
gets stretched over 100 miles (so long as you are adhering to 5th A)
(B) SMJ: 1367 Doesnt offer much relief
o 1367(a): Compulsory joinder not a problem b/c if there is a compulsory joinder very likely to be
part of same case/controversy
o 1367(b): Could present a problem: In any fed case where ct has jurisdiction founded solely on
1332 ct has no supp juris under 1367(a) for DEFENDANTS made parties under R19
(C) Nationwide service of process
(D) Interpleader (see below)
(E) Way in which relief is structured

Professor Goldberg
21
o
Ex. If you add absentees, you destroy complete diversity. So 2 permits 1 to go ahead w/
lawsuit 1 to claim everything but has to hold $ as trustee for 2
**************************************************************************************************************
IMPLEADER AND INTERVENTION
-
Impleader: If Im responsible to , then youre responsible to me (Ex. Asahi, Owen Equip v. Kroger)
o Impleader is a favored joinder device in the interest of the court to avoid multiple cases
o Distinction: Crossclaim = vs. co-. Impleader is against someone whos not in the lawsuit
o R14: Third-Party Practice
14(a): When May Bring in Third Party: Who is or may be liable to the for all or part of the s claim
against the . Thus if no DERIVATIVE LIABILITY argument cant bring in a R14 impleader
Ex. Car accident. argues that wasnt even involved in the accident. No R14 impleader
o However if arg I wasnt only one who contributed to s injury there are multiple
tortfeasors thats impleader situation
o NOTE: Some states say can choose which of multiple tortfeasors theyre going to sue if so,
then you cannot bring in impleaders
o Also have to worry about satisfying PJ and SMJ
NOTE: 4(k)(1)(B) 100-mile bulge rule applies (in fed court)
NOTE: Doesnt matter if addition of 3rd party complaint destroys complete diversity
1367(b) only applies to persons made parties by s under R14
o Must I? NOT required to bring 3rd party complaint
o Strategy: Why join another ?
You could wind up losing to the , then going after other in separate lawsuit then lose again
Dont want inconsistent result if its defective for purposes of the s suit against you, you want it to be
defective for adjudication between you and the other
Efficiency gain of getting it done all at once, avoidance of bad outcomes, advantages of pointing against other
party from the very beginning, 3rd party might have good litigation team (thus have more firepower against )
Intervention
o v. ; X (not originally named in lawsuit) wants to join in as or
o R24: Intervention: 2 categories in both, must get permission of court and court has discretion to grant/deny request
24(a): Right to Intervention: (2): Similar to 19(a) language right to intervene when absentees interests
would be harmed UNLESS Xs interest is adequately represented by existing parties
24(b): Permissive Intervention: Even if no right to intervention under 24(a) Can still ask court to let you in
court will consider whether intervention will unduly delay/prejudice the adjudication of the rights of the original
parties
o Supp Juris: CANNOT take advantage of supp juris w.r.t. intervention 1367(b) says no supp juris over s made parties
under R24 OR s seeking to intervene under R24
o No compulsory intervention but can be denied benefits if you dont intervene
Ex. REST 29: Whether there was full/fair opportunity to litigate in first action. Consideration given to whether
(3) Person seeking to invoke favorable preclusion/avoid unfavorable preclusion could have effected joinder in the
first action between himself and his present adversary
Ex. Another possibility if you dont intervene could let a case go forward on R19 w/out you
v. , X absentee, no PJ over X (and X is a R19(a) party who should be joined if feasible) if the case
goes forward w/out him, it may disadvantage his interests
**************************************************************************************************************
CLASS ACTIONS
-
R23: Class Actions

o 23(a): Prerequisites for Class Action: Member of a class may sue/be sued only if (lists criteria)
o 23(b): 3 kinds of class actions
23(b)(1): Substitute for compulsory joinder prosecution of separate actions by/against individuals members
would create risk of...

22
Professor Goldberg
23(b)(2): Injunctive/declaratory relief party against the class has acted on grounds generally applicable to the
class and therefore injun/dec relief is appropriate
23(b)(3): Overlapping issues of fact or law but not sure if youre going to have efficiency gains lists factors
used to sort through these situations
o 23(c)(2): Notice and Membership of Class
23(c)(2)(B): Under 23(b)(3) type suit individual notice to all members who could be identified through
reasonable effort
Bullet points: Notice states that
o Member may enter appearance through counsel
o Court will exclude any member who requests exclusion
o Binding effect of class judgment on class members
Thus if you get notice you can drop out, you can join in but if you sit passive, its going to bind
you w/out your involvement
-
DP Issues
o Hansberry v. Lee (899, 1940) Established principle that class action judgments could bind passive class members.
DP ruling: Members of class not present as parties may be bound by judgement where they are adequately represented by
parties who are present. NOTE: In DP doctrine concept of adequate representation is closely tied to notice (see
R23(c)(2)) [L1: wife in case to prohibit sale of prop wins class actio. L2: husband argues the other way (wants to sell
prop to AfAms). L2 opposing party says IP since wife was part of class, the decision was binding to husband]
o NOTE: 23(c)(2) loses the notice flexibility of Mullane (always need actual notice to those practicable; notice for those
impracticable must be attempted by best alternative means [ex. publication]) (c)(2) mandates individual notice to all class
members who names/addresses are known w/out regard to practiciability
PJ/SMJ Issues
o Citizenship of representative is all that counts in effect there is supp juris on all the unnamed class members (Supreme
Tribe of Ben-Hur v. Cauble)
o NO AGGREGATION: If you add up claims of everyone in the class and its still under 75k cant get DJ (Snyder v.
Harris)
Snyder and then Zahn limited the availability of general DJ for class actions by ruling that class members w/
separate and distinct claims had to individually satisfy amount in controversy requirement
NOTE: What if one person has 75k and the rest dont? 1367(b) has no exception for class actions so apparently
this can be solved by extending supp juris to hear the below-amount claims
This is still a dilemma though, b/c drafters of 1367 thought they werent changing result of Zahn
heading to SC
o PJ: Schutts: Relationship between forum and members of the class did not have to meet stringent DP requiremetns
applied to the relationship between forum and s minimum contacts test does not apply (Basically gives green light to
state courts who previously refused to entertain class actions b/c lack of minimum contacts between forum and nonresident
members of class)
o Thus, actual notice requirement and constraints on fed SMJ combine to restrict availability of small-claim, large-class
actions in fed court so may want to file class action in state, rather than fed, ct
Justification for Class Actions

o PROS
Efficiency gains likely if other members of the class would otherwise bring their own lawsuits
Ex. Single creates widespread low-level loss causes millions of people a health detriment worth $1,000 so
not enough for them to sue individually
These people can ban together, pool their losses, and bring lawsuit against polluter is an efficiency gain
for society cost internalization
o CONS
Efficiency/distribution: assessing/distributing each s loss telling a million riders that they are owed 27 cents
and mail it in the envelope w/ a 37 cent stamp!
Ways of remedying this problem ex .demand future taxi cab reduction but may not correspond to all
drivers/riders
o So ways of rectifying losses can trigger legitimacy issues are courts becoming administrative
agencies/legislative bodies?
Distribution concerns ex. between polluter/breathers

23
Professor Goldberg
- Why Would I?
o Ex. Injured through use of contraceptive device
Maybe class action not effective: wide variation of harm suffered by different individuals, free riders
But you do get moral force that comes with large group
o Ex. Inmate @ San Quinton bad health care
Yes class action present as large, systemic problem
Also you want to get system changed
o Ex. Youre @ a segregated school and want in changed
Helps pose issue as systemic problem
Makes courts more inclined to grant systemic relief
o Ex. Youre one of 1,500 co-owners of a piece of property thats being harmed by sewage thats being spilled on adjacent
property
Could you even bring this by yourself? This may be a compulsory joinder situation may have to bring other
people together
Class action might be the only way you can sue
-
Theres no must I for class actions closest thing is if all class members are subject to compulsory joinder
Clarify Zahn (see p. 4)

Cost Shifting in the bone Reading
Determining the applicable law: Hanna vs. Non-hanna

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Law 145: Civil Procedure

CIVIL PROCEDURE: COURSE OUTLINE

Pennoyer and Intl Shoe: Personal Jurisdiction Over Nonresident s

Law 145: Civil Procedure

Forum Choice: Convenience, values/bias, procedural advantages, choice of law

Law 145: Civil Procedure

(5) No transfer where lacks an effective remedy in the transferee forum

[B] Transfer Within the FED System: 1404(a): Change of Venue

Distinctions between PJ and SMJ

Law 145: Civil Procedure

[1] Diversity Jurisdiction: 1332

Law 145: Civil Procedure

[3] Supplemental Jurisdiction

Law 145: Civil Procedure

MODERN RULE: Track Assignment (Hanna) based on substantive vs. procedural

Law 145: Civil Procedure

Law 145: Civil Procedure

Discovery Rules: R26: General Provisions Governing Discovery

Law 145: Civil Procedure

R34: Requests for

R35: Physical and

You need to show

Party OR witness (but if

No leave of court if less

Request to party and

Law 145: Civil Procedure

(B) Work Product Privilege

Economics of Pleading and Discovery (Bone reading)

Law 145: Civil Procedure

In order to achieve these goals you need information about

[B] Discovery (203)

Law 145: Civil Procedure

Trial by Jury: Advantages/Disadvantages

Law 145: Civil Procedure

Burden of Proof @ Sum Jud

Economic analysis of Sum Jud

[1] Claim Preclusion

Relevant FRCP provisions No CP or IP in FRCP

Law 145: Civil Procedure

CP and Dismissal of Actions under R41:

Law 145: Civil Procedure

[2] Issue Preclusion

v. ; prop damage wins on

Law 145: Civil Procedure

Little v. Blue Goose Motor Coach Co. (764, 1931)

Law 145: Civil Procedure

Law 145: Civil Procedure

(B) By Defendants and Co-Parties: Counterclaims

Law 145: Civil Procedure

Law 145: Civil Procedure

Law 145: Civil Procedure

R23: Class Actions

Law 145: Civil Procedure

Justification for Class Actions

Law 145: Civil Procedure

Clarify Zahn (see p. 4)

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