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#Post#: 51--------------------------------------------------
Civil Procedure II - outline 1!
By: SunsetSailor Date: February 17, 2011, 9:25 pm
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I. Discovery
a. Appealing a Discovery Ruling
i. Generally not immediately appealable (28 U.S.C. 1291)
ii. If court erred in ruling on appeal, no relief unless
substantial right is affected
iii. Was Decision Final?
iv. Was Judge Wrong?
b. Formal Discovery Techniques
i. Interrogatories
ii. Depositions
iii. Production of Documents & inspection of property
iv. Mental/physical examinations
v. Requests to admit
c. Informal Discovery Techniques
i. FOIA (freedom of information act)
ii. Rights to know (EPCRA)
iii. Private investigators
d. Scope of Discovery
i. 26 b 1 – scope
1. any matter not privileged relevant to any claim or defense of
any party
2. any matter relevant to subject matter (with court order)
ii. 26 b 2 – Limitations
1. interrogatories & depositions by rules 30, 36
2. Limited if
a. Cumulative, duplicative, obtainable from another source
b. Ample opportunity to obtain info sought
c. Burden/expense outweighs benefit
3. Priveleged:
a. Atty-client, husband-wife, dr-patient
b. Must be kept confidential or waived.
c. Upjohn: client includes: control group, employees
w/knowledge, etc…
4. Work Product (26 b 3)
5. Information from non-testifying expert
iii. 26 b 3 - Trial Preparation Materials
1. Party may obtain docs and tangibles discoverable under b 1
a. Prepared in anticipation of litigation
b. By or for another party or representative
i. Attorney
ii. Consultant
iii. Surety
iv. Indemnitor
v. Insurer
vi. Agent
c. Must show substantial need
2. Court protects:
a. Mental impressions
b. Conclusions
c. Opinions
d. Legal theories
iv. Mandatory Disclosures
1. 26 a 1
a. Initial disclosures:
i. Name, address, phone of parties used by disclosing party in
making claims and defenses
ii. Copy, description, and location of documents
iii. Computation of damages
iv. Insurance agreements
v. Exemptions (See E)
b. Made at or within 14 days after Rule 26 (f) conference
c. Unless joined/served after conference, then have 30 days from
time of service
2. Expert Testimony
a. ID of any party to be expert testimony
b. Also written, signed report of testimony with:
i. Opinions expressed
ii. Basis and reasoning
iii. Data
iv. Exhibits to be used
v. Qualifications
vi. Compensation
vii. List of other cases testified in.
v. Protective Orders – protect from annotance, embarrassment,
etc…
1. Pre-condition: movant must certify that movant attempted to
resolve situation w/o court first.
2. Must show good cause
3. Includes possible alternatives
e. Sanctions – Rules 26 g, and 37
i. 26 g (Compliment to Rule 11)
1. Disclosures signed to the best of signors knowledge,
information and belief that disclosure is complete and correct
as of the time it is made
2. Discovery Request, Response, or Objection
a. Signed by one atty
b. Signed by completing party
c. To best of signors knowledge, information, and belief formed
after reasonable inquiry the request, response or objection is:
i. Consistent with existing law (no significant changes)
ii. Not for improper purpose
iii. Nor unreasonable
3. sanctions on motion or by courts initiative MANDATORY
a. reasonable expenses
b. reasonable atty’s fees
ii. 37 Failure to cooperate with discovery SANCTIONS
1. By Motion
a. Party fails 26 (a) – Required Disclosures
i. Must discuss with other party first
ii. Motion to compel disclosure
b. Failure to 30, 31, 30(b)(6), 31(a), 33, 34
i. Must confer first with other party
ii. Motion to compel an answer, designation, or inspection
c. Courts options:
i. If motion is granted, may get motion and atty fees
ii. If motion is denied, other party may get protective order
iii. Also option of granted in part and denied in part
2. Failure to comply with court order
a. Failure may be considered contempt of court
b. May make sanctions that are just
i. Establish facts not responded to
ii. Prohibit evidence
iii. Default judgment
iv. Contempt for fail to comply with mental/physical exam
v. Also reasonable expenses including atty’s fees.
3. Fail to disclose, false disclosure, refusal to admit
a. Failure to disclose 26(a), 26(e)(1,2) cannot use evidence not
disclosed. May impose other sanctions
b. Fail to admit genuinness of doc?  pay fees for
proving genuinness
4. Fail to attend own deposition or serve answers to
interroratories, or respond to request for inspection
a. Ct may take any action or sanction i, ii,or iii above as
just.
b. May include atty;s fees and expenses
f. Interrogatories – Rule 33 ** Only To Parties**
i. Without leave of court, get 25
1. additional available, must satisfy 26 b 2
2. must be served after time in 26 d
3. Each must be answered separately, or objected to
4. Answers signed by person making them
5. Within 30 days
6. Objections must be stated with specificity
ii. Must fit in Rule 26 b 1
iii. May give business records for examination (d)
g. Depositions – Rule 30 ** To Parties And Non-Parties**
i. Get 10 unless
1. before time specified in 26 d conference
2. party has previously been deposed
3. Limit to one day-7 hours
ii. Notice must be given to all parties
1. notice to all parties
2. notice of method, date, time, place, name of deponent
3. conducted before officer of the court
iii. May depose a corporation
1. need also subpoena
2. need matters so knowledgeable person will be at the
deposition
iv. Examination
1. recording of all said
2. record objections, but answer given unless instructed not to
(privileged)
v. Attendance
1. If party calling deposition does not show, pay others costs
2. no subpoena  no show  pay others costs
h. Depositions on written questions **Rule 31**
i. May obtain w/o leave of court UNLESS
1. Exceeds 26(b)(2)
2. Person in prison
3. No written stipulation of the parties
4. Would exceed 10 dispositions
5. Person has already been deposed
6. Before time specified in rule 26(d)
ii. Serve questions on all parties
iii. Within 14 days, cross questions may be served
i. Use of Depositions in court **Rule 32**
i. In accordance with rules of evidence, depositions may be used
in court with provisions
1. NEED THIS RULE?????????
j. Depositions Before Action or Pending Appeal **Rule 27**
i. Before action, must petition court (and court must issue
order) to depose any expected adverse party, must show:
1. petitioner expects to be party to action cognizable in US
Court, but presently unable to bring or cause to be brought
2. subject matter expected in action & petitioners interest in
action
3. facts to be established in deposition and reason for wanting
these facts
4. names or descriptions of parties expected to oppose
petitioner in action
5. names of deposes, and expected substance of testimony
ii. notice – must give notice…
k. Persons before whom depositions may be taken **Rule 28**
i. In US
1. by officer authorized to administer oaths by laws of the
court where action is pending
2. person appointed by court  given power to administer
oaths
ii. Outside US – see rule
l. Requests for Production – Rule 34
i. Notice to parties, subpoena to non-parties
ii. Can ask for docs or for inspection
iii. W/O leave of court: only after 26 d conference
iv. Respond or object w/in 30 days
m. Requests for Admission – Rule 36 ** To Parties Only **
i. Any matter in 26 b 1 relating to:
1. Statements or opinions of fact
2. Application to Law/Fact
3. Includes genuineness of documents
ii. Must admit or deny
1. if no response in 30 days  admit
2. May object in writing
3. May specify so much as is true and deny the remainder
4. May not give lack of knowledge as an answer.
iii. Admit = conclusively established
1. Unless court permits withdrawal
2. Admitted for pending action only (incentive to admit)
n. Mental and Physical Examinations – Rule 35 **For Parties Only
**
i. Discovery v. Privacy
1. Court must order the examination
2. Must show good cause and notice
3. Must be exam over mental or physical condition in controversy
ii. Party examined may get reports upon request, but waive
confidentiality on all examinations
iii. Rule 35 does apply to Δ’s
o. Stipulations regarding Discovery Procedure: **Rule 29**
i. Unless directed by court, parties may by written stipulation:
1. provide that depositions be taken before any person, at any
time or place, upon any notice, and by any manner AND
2. Modify other procedures or limitations EXCEPT: the time
provided in 33, 34,36
Joinder
II. Joinder !! Still need to satisfy SMJ, Personal Jurisdiction,
Venue!!
a. Policy: join as many claims as plaintiff has in same case,
Π is master of the complaint, judicial economy
b. Joinder of Claims and Remedies: Rule 18
i. 18 (a) Original, Counterclaim, Cross-claim, or 3rd party
claim  join as many claims as party has
ii. 18 (b) Remedies
c. **Rule 13** Cross-claim and counterclaims
i. (a) Compulsory
1. counterclaims (that are known at time) must be stated in
serving opposing party:
2. Must arise out of same transaction or occurance that is
subject matter of opposing parties claim (and does not require
presence of a 3rd party w/o jurisdiction)
a. For “out of same transaction” logical relation test:
b. When cc arises out of the same aggregate of operative facts
(same facts are basis for both claims)
3. May NOT state claim if:
a. At time of action, claim is subject of another pleading OR
b. Opposing party brought suit by attachment, or another method
where court did not gain jurisdiction.
ii. (b) Permissive – any claim against not arising out of the
transaction or occurance.
1. no 1367 supplemental jurisdiction
iii. Martino – McDonald Case: See CLAIM PRECLUSION
d. Joinder of persons needed for just adjudication (Compulsory):
Rule 19 (Construe Narrowly)
i. Compulsory joinder (a) if subject to service AND does not
destroy subject matter J:
1. in the persons absence complete relief cannot be accorded
among those already parties OR
2. Party claims an interest and absence may:
a. Impair persons ability to protect interest OR
b. Leave parties in suit at risk of double, multiple, or
inconsistent obligations
3. Party may be joined as involuntary Π, or as a Δ
4. If no venue, Party may move and be dismissed
ii. Indispensible?  if indespensible and no
jurisdiction, court must dismiss suit
1. Factors:
a. extent to which person’s absence will be prejudicial to
person or parties already in suit
b. extent to which court can lessen or avoid the prejudice
c. whether a judgment rendered in persons absence will be
adequate
d. whether Π will have adequate remedy if action is
dismissed
2. Cases where indespensible:
a. Parties to Patent litigation
b. Trust beneficiaries
c. Joint interest in property
d. Foreclosures
e. Partners
f. Lessor/lessee
g. Assignees to a K
e. Permissive Joinder (**Rule 20**)  If joinder by a
crossclaim/counterclaim, look first to 13 h
i. As Π
1. assert right to relief jointly, severally, or
a. arise out of same transaction, occurrence, or series of
transactions/occurrences AND
b. any question of law or fact is common to all persons
ii. As Δ
1. asserted against them jointly, severally, or
a. arise out of same transaction, occurrence, or series of
transactions/occurrences AND
b. any question of law or fact is common to all Δ’s
iii. Ct. may order separate trials to prevent delay,
embarrassment, expense, prejudice
f. Misjoinder **Rule 21**
i. Parties may be added or dropped by court
ii. Misjoinder is not grounds for dismissal
g. Interpleader
i. Rule 22
1. Need Complete Diversity
2. Need $75000 +
3. Need personal jurisdiction
4. Need good venue
5. When Π may be exposed to multiple liability
6. Not compulsory
ii. Statutory
1. Need only minimum diversity (§1335 a 1)
2. Need $500 + (§1335 a)
3. Nationwide PJ (§2361)
4. Venue is good wherever any Δ is (§1397)
h. Third-Party Practice **Rule 14** IMPLEADER – once impleaded,
can claim any against party under rule 13 BUT need separate
ground for jurisdiction. If original claim, counterclaim,
crossclaim, 3rd party claim, then under rule 18, no need for
jurisdiction (original claim needs jurisdiction)
i. (a) When Δ may bring in 3rd party
1. Δ may bring in 3rd party Δ if new Δ is liable
to Δ for all or part of Π’s claim against original
Δ(3rd party Π)
2. 3rd party Δ’s rights:
a. any defenses against 3rd party Π (rule 12)
b. any counterclaims against 3rd party Π (Rule 13)
c. any defense against Π that 3rd party Π has
3. Π’s rights
a. Any claim against 3rd party Δ arising out of same
occurance or transaction
ii. (b) Π may bring in 3rd party if counterclaim is raised
against Π, and 3rd party is liable to Π as if Π
were the Δ in part (a)
i. Class Actions (Rule 23)
i. Policy –
1. fairly and adequately resolve disputes
2. interest to control own case
3. hard to join the numerous parties for Π
4. If adequate, all absent members of class are bound
ii. Prerequisites (a)
1. Numerosity
a. Make Joinder impractical
2. Commonality
a. Questions of common law or fact common to the class
3. Typicality
a. Representatives are typical of class
b. Claims/defenses are typical of those of class
4. Adequacy of Representation
a. Representative parties will fairly and adequately protect
interests of class
b. Settlement:
i. Notice to class members
ii. Fairness hearing
iii. Ct. Approval
iii. (b) Conditions to be maintainable
1. separate actions would create risk of
a. inconsistent/varying adjudications
b. impede/impair members who are not parties
2. party opposing class has acted against class as whole (Civil
Rights suits, employ discrimination, etc..)
3. questions of law common to all predominate over questions
unique to individuals AND class action is superior method to
resolution, FACTORS:
a. interests of individual members controlling suit
b. extent and nature of existing litigation concerning
controversy by or against members of class
c. desireability of concentrating the litigation in a particular
forum
d. difficulties likely as a class action
iv. Class types
1. Inconsistent judgments (b-1-A)
a. protect Δ from inconsistent
2. Impaired interest class (b-1-B)
a. Protects non-litigants interests
3. Injunctive action class (b-2)
4. Opt-Out class (b-3)
a. Class action is best way for efficient adjudication
v. (c) Determination of class type: (b)(1), (b)(2), or (b)(3)
1. court determines type (class applies for type desired)
2. for (b)(3) notice must be given to each member
a. members may be excluded
b. judgment will include all members who do not request
exclusion
c. any remaining member may send appearance through counsel
vi. (e) Dismissal/settlement ONLY on court’s approval, notice to
all members
vii. Absent class members ARE bound by issue preclusion UNLESS
can prove that were not adequately represented (collateral
attack?)
viii. Jurisdiction
1. Diversity –
a. only NAMED Π’s and Δ’s must be diverse
b. Each named Π must individually meet amount in
controversy
2. Allows for supplemental jurisdiction – piggy-back on a
federal question claim
j. Intervention **Rule 24** (Construe Narrowly, Mirror of Rule
19)
i. (a) – On timely application, SHALL be permitted if:
1. Statute confers unconditional right to intervene OR
2. Applicant:
a. claims interest relating to property or transaction AND
b. action may as practical matter impair/impede ability to
protect interest,
c. UNLESS interest is adequately represented
ii. (b) – Permissive intervention, on timely application, MAY be
permitted if:
1. statute confers conditional right OR
2. applicants claim/defense and main action have a common
question of law or fact
iii. Failure to intervene does not waive right to bring suit
iv. Factors to weigh:
1. how long applicant waited to move to intervene
2. prejudice to existing parties from delay
3. prejudice to applicant for denied intervention
4. unusual circumstances
Pre-trial Resolution
III. Pre-trial Resolution
a. Default Judgment **Rule 55**
i. (a) failure to plead or otherwise defend – clerk enters
default
ii. (b) judgment entered:
1. by clerk, need petition by Π AND
a. Sum Certain AND
b. Δ has failed to appear (Jurisdictional)
i. any contact with court may be judged as an appearance
2. by the court – on petition by Π
a. if Δ has appeared, then notice is needed
b. notice 3-days before hearing on default
iii. (c) Set aside default – for good cause, in accordance with
Rule 60 (b)
b. Dismissal **Rule 41**
i. (a) Voluntary
1. by Π, with no court order
a. before opposing party files answer or motion for summary
judgment OR
b. with approval of ALL parties who have appeared in action
c. No prejudice, unless more than one dismissal by Π, then
adjudication on merits against Π.
2. by court order 
a. when Π applies for dismissal, not satisfying part 1
b. counterclaims of Δ may remain pending independent of
dismissal
ii. (b) Involuntary – Δ may move if:
1. Π has failed to prosecute OR
2. Π has failed to comply with order of court
3. Operates as adjudication on the merits
iii. (d) punish Π by reimbursing Δ fees in first case
if Π re-files 2nd case
c. Negotiation and Settlement
i. K for settlement, outlining all terms of settlement
1. Which issues are settled?
2. Δ admit liability?
3. preclude future adjudication?
4. Jurisdiction waived in case of breach?
5. Confidentiality – Who owns suit?
a. Public interest for respecting/breaching confidentiality
i. Complete litigation
ii. Protect finality
iii. Encourage discovery, make it easier
iv. Discourage settlements
v. Use same ct. holding lowers costs of adjudication
b. One View: allow modification: If modification of
confidentiality can put parties where they would otherwise be
only with repetition of another’s discovery, court can deny
modification ONLY if prejudice tangibly substantial rights of
opposing party. IF substantial prejudice can be proved, court
can weigh injury v benefit
c. Another view: protect confidentiality agreement UNLESS
extraordinary circumstances or compelling need.
ii. Courts MUST honor K for settlement in future adjudications
iii. Timing:
1. Pre-suit – Π threatens, K not to sue
2. Post filing – Π files, K to voluntary dismissal of suit
w/prejudice
a. NEERY: - If parties apply for vacatur due to settlement after
appeal is filed, superior ct. can vacate lower ct decision, only
as equity must be satisfied. (need extraordinary circumstances)
 STATE CT: suit belongs to public
i. Aid in future suits
ii. Encourage settlement before trial/appeal
b. BANCORP: - Parties cannot vacate lower court decisions UNLESS
extraordinary circumstances.  FED CT: suit belongs to
parties
i. Efficiency
ii. Encourage settlement
iv. Non-breaching Δ recourse
1. 8c breach is affirmative defense
2. issue preclusion
v. Non-breaching Π recourse
1. re-file suit in Fed Ct
2. Consent decree – in K in case of breach by Δ, conserve
jurisdiction to re-file
vi. Post-Judgment Settlement
1. Bancorp – Even if settlement, vacatur may only be granted as
equitable determination dictates
2. Neery – Can K for settlement UNLESS extraordinary
circumstances
d. Guided Negotiation
i. Settlement judge – assigned judge
ii. Summary jury trial – each side presents summary of arguments
to mock jury
iii. Mediation –mediator has no real power, stay away from law,
talk only about interests
iv. Involve trial judge
1. Rule 16 (a) 5 – facilitates settlement
2. Involvement of trial judge
a. if no settle, can give default, sanctions, etc…
b. Settlement Judge cannot end trial, just the settlements
c. trial judge may use 16(f) sanctions for non-appearance
v. Contract for arbitration – K is good unless exhaust
administrative remedies
1. in original contract for business
2. Due process only applies if gvn’t is to enforce terms of K,
otherwise, no due process is necessary
3. Arbitration and award are an affirmative defense in court
4. Policy – Π and Δ choose procedure, control law,
faster, heaper, private, arbitrator is chosen, “softer” than a
court hearing
5. Can only get out of K to arbitrate by:
a. Fraud
b. Formation of K
c. Unconscionability
d. Extreme circumstances
6. Bancorp – Federal:
e. Summary judgment **Rule 56** BURDEN IS SAME AS IT WOULD BE AT
TRIAL!
i. (a) For Claimant – any party seeking recovery on claim,
counterclaim or cross-claim
1. must show by preponderance that no reasonable juror could
find for opposing party (burden of proof)
a. Must show no dispute as to material fact
b. Must show entitled to summary judgment as a matter of Law
c. Must show that no rational jury could find for the Δ on
that issue
2. opposing party must show one of: (disprove a, b, or c above)
a. claimant has not given evidence to prove an element of a
claim OR
b. disprove one element of the claim
ii. (b) For Defending party – declaratory judgment (burden of
production)
1. must show one of:
a. claimant has not given evidence to prove an element of a
claim OR
b. disprove one element of the claim
2. Entitled to judgment as a matter of law
iii. (c) motion and proceedings
1. time: as soon as opposing party files for summary J, or 20
days after commencement of action, as late as 10 days before
hearing
2. By motion, and may include supporting affidavits
Trier of Fact
IV. Trier of Fact
a. Judge Bias **28 USC § 455** Disqualification of judges
RECUSAL
i. (a) judge disqualifies self – May be waived (see (e)) if
disqualification ONLY under (a)
ii. (b) Other circumstances to disqualify self
1. 3rd degree of relationship
2. Argue:
a. Bias is external to trial?
b. Reasonable standard for bias?
c. Can reasonable person question the judge’s impartiality?
b. Judge bias or prejudice, parties may submit affidavits of
judge prejudice **28 USC § 144**
c. Jury Trial: 7th amendment – need $ 20.00
i. **Rule 38**
1. party must demand a trial by jury where party has right to
trial by jury – 10 days
2. failure to demand trial by jury is waiver of trial by jury
ii. Right to trial by jury exists where it would have in 1791
1. Legal claims  right to trial by jury
a. Most money damages
b. Replevin
c. Ejectment
d. Writ of mandamus
e. Habeas corpus
2. Equity claims  no right to trial by jury
a. Injunctions
b. Declaration of constructive trust
c. Recision, reformation or cancellation of a contract
d. Accounting of Δ’s finances for complex financial
transactions
e. Quiet title, or remove clouds from a title
3. New Claims
a. Look to analogies to 1791 claims
b. Look at nature of the remedy sought – usually legal for money
sought
c. DECLARATORY JUDGMENT:
i. Look to remedy that could be sought
ii. Mention equity v law
iii. Legal remedy controls – if any legal claim could be
brought, protect right to jury trial.
4. Mixed claims
a. Legal claims, cross-claims and counter claims go to a jury
FIRST
b. Equitable claims MUST use basis of facts found by jury, and
are tried by the judge
c. Policy – avoid opposing rulings
5. Courts Discretion on Claims
a. Vast Majority: Court must look to claims pleaded by parties
to determine legal/equity
b. One case, Dairy Queen, 1962 Supremes looked beyond pleadings
to grant jury trial
d. Jury Selection
i. § 1861 – jury pool – to challenge entire jury
ii. § 1863 – random jury selection
iii. § 1862 – Discrimination prohibited: Race, Color, Religion,
Sex, National origin, economic status
iv. Peremptory Challenges **28 USC 1870**
1. each side gets at least three to use for any reason,
2. but not for an improper reason:
a. Race
i. Pattern of racial strikes? (>1)
ii. Consider all relevant circumstances
b. 3rd party suit: (Π or Δ can bring suit on behalf of
juror dismissed for improper reason)
i. litigant suffered concrete redressible injury AND
ii. close relation to 3rd party AND
iii. hindrance to 3rd party to protect own right
v. For-Cause – unlimited, judge dismisses for cause
vi. **Rule 48** - number of jurors
e. Control of jury before verdict
i. Judgment as a matter of Law (JML) **Rule 50**
1. Standard: No legally sufficient evidentiary basis for
reasonable jury to find for opposing party
2. Viewed in light most favorable to non-moving party (Feds look
to Π and Δ evidence, some states look only to
non-movers evidence)
3. Timing: earliest party has fully been heard on an issue.
Latest: before submission to jury
4. Jury questions:
a. Inferences - If inferences are equal to Π and Δ,
then Π loses b/c burden is not met
b. Credibility of Witnesses
c. Disputed Facts
5. Why disliked:
a. Jury will do right thing
b. On appeal, no need to re-try if jury decided on issues
c. Can do a JNOV if jury decides “wrong”
ii. Rules of Evidence
iii. Instructions to jury
iv. Voire Dire – learn how jurors think
f. Control of Jury after verdict
i. JNOV (judgment notwithstanding the verdict) **Rule 50**
1. After evidence and verdict, judge rules that despite the jury
verdict, no rational juror could have found. Verdict directed
for moving party
2. 7th amend problem? NO! Judge is simply delaying a JML until
after the verdict
3. Moving party MUST have moved for JML before trial goes to the
jury
ii. New Trial **Rule 59**
1. Standard = verdict is against the great weight of the
evidence
a. Flawed procedure
i. Allowance/withold of evidence
ii. New evidence
iii. Jury misconduct
b. Flawed verdict
2. must apply within 10 days of entry of the judgment
3. Remittitur = modification of damages  new trial
unless Π agrees to lower damages
4. Additur = award what jury did not give  new trial
unless Δ agrees to higher damages (not good in Fed ct,
violates 7th amendment)
Appeals
V. Appeals
a. Limits on Appeal
i. Who
1. Party who suffers an adverse judgment on the merits
2. No waiver
a. party must have raised issue below
i. looser below can only raise issues presented below
b. Policy – allow trial ct to correct wrong before appealed
c. Winner waives nothing, can raise any issue in defense of an
appeal
d. Cross-appeal – on issue lost below, can only raise issues
raised below
e. Change in Law (on issue not raised below)
i. Generally waived if not raised
ii. If Fundamental change in law central to case, court may
allow appeal
f. Plain Error – hard to show in civil cases – Law is so
established, there is no need to argue
g. SMJ – Cannot be waived
3. Multiple claims
a. If lost on one claim, may appeal unless no more damages are
available
b. Can appeal losses on one claim IF would have been alternate
results
c. Collateral consequences: would consequences be different if
prevailed on other claims?
i. Fraud and bankruptcy – fraud survives bankruptcy
4. Mootnes
a. Circumstances have changed so no longer can give relief (any
relief)
i. Settlement, etc…
ii. Exception  capable of repetition yet evading review
– could never get to Supremes even in repetition (offense
includes a time limit such as abortion so offense becomes moot
after a time so the case cannot get to Supremes)
5. Waiver **Rule 46** (notice is not enough)
a. Objection
b. Request rulings and jury instructions
c. Object to the jury instructions given
b. When
i. Time – 30 days after judgment has been entered, US has 60
days
ii. After Final Judgment on the merits
c. Extent
i. Final Judgment (exceptions) – not on merits
1. Cohen Final Order Doctrine (need all three) Order must
satisfy all three conditions
a. Conclusively determine disputed question (not claim)
b. Resolve an important issue completely separate from the
merits
c. Effectively unreviewable on appeal from a final judgment
i. cannot be vindicated on appeal, regardless of costs
d. Examples:
i. qualified immunity
ii. absolute immunity
iii. Atty-client privilege
iv. Intervene
e. appealable are prejudgment orders that “finally determine
claims of right separable from, and collateral to, rights
asserted in the action and that are too important to be denied
review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is
adjudicated”
2. Interlocutory Appeals (§1292) – on merits
a. Granting, modifying, continuing, refusing, dissolving
injunctions
b. Certified by district judge and appellate court that:
i. Contains controlling question of law
ii. Substantial grounds for difference on the controlling
question of law
iii. Materially advance the termination of the litigation
iv. Get 10 days
3. 54 (b) multiple claims OR multiple parties
a. direct final judgment on one or more claim, but not all
claims or against one or more party but not all parties
b. must include “there being no just reason for delay”
4. §1291 gives Ct of Appeals jurisdiction over all final
judgments by district courts
5. § 2072 gives Supreme Ct. power to prescribe rules that govern
whether judgment is final or not
6. **Rule 23 (f)** Class actions
a. Grant or deny class action certification – appeal is
permitted
b. Have 10 days from entry of judgment
7. Mandamus  actions against the judge:
a. To require judge to confine to jurisdiction
b. To require judge to confine jurisdiction or perform an act
required by law
i. includes lower court
ii. drastic remedy (confine court)
iii. must be exceptional circumstances
c. Can refuses writ but author it so that lower court is
convinced to grant requested relief
ii. Harmless Error § 2111 Unless affects substantial rights of
party, no reversal on error
iii. Scope of review
1. Question of law  De Novo, no deference to lower court
2. Question of Fact
a. Bench trial  clearly erroneous
b. Jury trial  clearly erroneous
c. Clearly erroneous
i. If two possible interpretations, then cannot be clearly
erroneous
ii. Although evidence to support the finding, appellate court
has definite firm conviction that a mistake has been made
iii. Defer to fact finder for questions of fact and credibility
1. for oral evidence
2. for documentary evidence
3. Pre-trial rulings  abuse of discretion
d. End of Trial
i. 60 (b) vacate judgment
ii. New Trial Started!!!
New Trial
VI. New Trial
a. Method of analysis:
i. What court was first to judgment?
1. tells which law of preclusion applies
2. tells scope of claim
ii. Same Claim?
iii. Same Parties/Privity (also due process problem w/ adequate
representation)?
iv. Final judgment on the merits?
b. Claim Preclusion: Final Judgment on the merits is an
absolute bar on subsequent actions with the same parties or
those in privity upon the same claim or demand.
i. Policies
1. judicial economy
2. repose – must move on with life, closure, finality
3. inconsistent rulings possible
ii. Parts:
1. Same parties (or privity)
a. Successive or mutual interest
i. Successive  party in first suit owns whole, when 1st
suit started, later to new party
ii. Mutual = own sane interest at same time
b. Interest being represented adequately
i. Due process
ii. Notice
c. Examples
i. Successive ownership of property
ii. Express agreement to be bound
iii. Procedural representation (class actions, guardians)
iv. Parties not yet in existence
v. Co-ownerships, Joint ownerships  no privity
2. Same Claim
a. Broad Definition (federal courts)
i. All or part of transaction or series of connected
transactions
ii. Factors
1. relation in TIME, SPACE, ORIGIN, or MOTIVATION
2. convenient trial unit
3. Conforms to expectations or business understanding or usage
iii. Same transaction or occurrence  precluded **RULE
18**
b. Narrow (some states)
i. Claim and parties must be identical
1. need same evidence for both or
2. need same cause of action for both
c. If Π chooses to go to a court where some claims would be
lost, then the lost claims may be precluded UNLESS court is for
a specific purpose
3. 1st case ends in a final judgment
a. settlement
b. consent decree
c. final order by judge
4. Judgment was on the merits (not dismissed b/c of
jurisdiction)
iii. If 1st claim in state court, and 2nd claim in federal
court, fed court MUST ask if state preclusion laws would
preclude claim EVEN if fed ct has exclusive jurisdiction
1. See §1738 and Fair Faith and Credit
2. Exception: if Fed Law repeals § 1738, then not precluded
iv. How to use
1. 8(c) must include in answer or loose it (it is an affirmative
defense)
2. 12 (b) (6) failure to state a claim – only if it is in
Π’s complaint (not likely)
3. Motion for Summary Judgment
v. Other ways for claim preclusion:
1. 13(a) compulsive counterclaims are lost if not in a pleading
a. compulsive if it arises out of the same transaction or
occurrence
b. is the subject matter of opposing parties claims
2. Counterclaims are lost if they could nullify a prior judgment
Martino v. McDonalds Common law/states
3. New claims that directly nullify a previous claim are barred
c. Issue Preclusion – When an issue of fact or law is actually
litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether
on the same or a different claim.
i. Method of analysis
1. Which court went to judgment first?
2. Is issue of fact or law the same?
a. Identical (substantive and burden of proof)
b. Actually litigated and decided?
c. Essential to the judgment?
3. Are the parties the same?
a. Privity
b. Victim of preclusion in second suit must have been a party in
the first suit
i. To give full and fair opportunity to litigate
ii. Give similar procedures & incentive
iii. Defensive Preclusion: one Π sues Δ after Δ.
1. encourages Π to join all Δ’s
2. judicial economy
iv. Offensive preclusion: One Δ and multiple Π’s,
each sues separately until one wins, remaining shape suits to
mirror winning & file for summary J on preclusion (Train wreck)
1. Trial court CAN give Offensive preclusion IF:
a. No easy joinder for Π’s
b. Δ has incentive to defend 1st suit vigorously
c. Other suits are foreseeable
d. Preclusion is not inconsistent with any previous judgments
e. Δ would have same (or worse) procedural oportunities in
second suit
f. Where jury compromise is not appearant
g. The prayer was not disproportionate from the award
h. Prior determination is not manifestly erroneous
i. No new crucial evidence
4. Valid final judgment in the first action?
ii. Factors:
1. Issue of law or fact is identical
a. To substantive Law AND
i. Findings of fact made by 1st court
ii. Issues of law made by 1st court
b. To procedural law (burden of proof)
2. actually litigated and determined
a. Π has burden to show that the issue was actually
litigated
i. High burden, either jury/judge must state specifically or
ii. Proved by the evidence
b. If verdict decided on more than one issue, either dispositive
to the claim, then no preclusion
3. valid and final judgment
a. sanctions = not enough to preclude
b. default = enough to preclude
4. determination is essential to the judgment
a. If case on two grounds, both dispositive  not
precluded
i. If appealed and upheld both possibilities, then precluded
ii. If one issue appealed, favor preclusion
b. Case decided on one ground  preclusion
Collateral Attack
VII. Collateral Attack
a. Policy:
i. Prevent re-litigation of decided points of law
b. Judicial estoppel: Party who won below tries to bring a new
siot w/inconsistent proposition (can’t both be right
simultaneously)
i. Note: Some courts don’t allow judicial estoppel because can
present same evidence as in court below  same judgment
c. Full faith and credit
i. A IV § 1 – states must give credit to other states
ii. 28 USC § 1738 – Feds give full faith and credit to states
iii. Even SMJ must be given FF&C:
1. Where a court has jurisdiction over the parties and
determines that it has jurisdiction over the subject matter, the
parties cannot collaterally attack the judgment on the ground
that the court did not have jurisdiction over the subject matter
UNLESS the policy underlying the doctrine of Res Judicata is
outweighed by the policy against permitting the court to act
beyond its jurisdiction. Among the factors appropriate to be
considered in determining that a collateral attack should be
permitted are that:
a. Lack of jurisdiction over the Subject Matter was clear
b. Determination as to jurisdiction depended on a question of
law, not of fact
c. Court was one of limited and not general jurisdiction
d. Question of jurisdiction was not actually litigated
e. Policy against courts acting beyond its jurisdiction is
strong
iv. Personal Jurisdiction:
1. Litigate  no re-open
2. Apply and no litigation  no re-open
3. default  can attack
Relief from Judgment
VIII. Relief from Judgment (60 )
a. For Clerical mistakes before case is docketed in appeallate
court
b. Get ONE year for:
i. Mistake, inadvertence, surprise or excusable neglect
ii. Newly discovered evidence
1. due diligence could not have given evidence before 59(b)
motion could be filed
iii. Fraud (intrinsic or extrinsic), misrepresentation,
misconduct
c. Get reasonable time for:
i. (iv) Judgment is void – intrinsic fraud
ii. (v) Judgment has been satisfied, released, discharged, or
prior judgment has been reversed or vacated OR NO LONGER
EQUITABLE  INJUNCTIONS
iii. (vi) Any other reason justifying relief
d. Court not limited for:
i. Independent action to relieve a party from judgment
ii. Standard is Grave miscarriage of injustice:
1. Evidence would have changed the outcome of the original trial
2. Was it important?
3. Was it intentional?
iii. Fraud By Court (intrinsic plus)
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