federal civil procedure final

General Jurisdiction

• PJ based on presence

• Consent

• Individuals

  • At home in state of domicile

• Corporations

  • At home in state of incorporation

  • Principal place of business

  • Business activities that are so systematic and continuous as to render them at home

• Claims can be unconnected to forum state activities

Specific Jurisdiction

• PJ based on

• Due process

• Minimum contacts

• Claims arising out of or connected to the contacts in the forum state

• Reasonableness factors

• State long arm statute

GJ For Individuals

• Presence (service of process or tag jurisdiction)

• Consent/Waiver

• Domicile

GJ For Corporations

• Principal place of business

• State of Incorporation

• Contacts with the state that are so systematic and continuous as to render them essentially at home

• consent

Specific Jurisdiction

Minimum contacts?

Are the contacts in the state related to the claim?

Is the assertion of jurisdiction reasonable?

State Long Arm statute

each state can determine whether to place additional requirements on PJ requirements

Blanket Statute

Any basis for jurisdiction consistent to state constitutions and US constitution

Enumerated Statute

List of circumstances

There must be valid PJ under the state Long Arm Statute and under due process.

Purposeful availment

If the defendant has minimum contacts to the state and the claim arises out of those contacts, then there is specific jurisdiction. Defendant must have availed themselves of the benefits and privileges of the state. Unilateral activity is not enough, must be action of the defendant. Purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Business must be specifically directed at the state.

Reasonableness

It is the defendant’s conduct and connection with the forum state are such that they should reasonably anticipate being hauled into court there for there to be jurisdiction.

Claim must arise out or relate to claim

in order for a court to exercise specific jurisdiction over a claim, there must be an affiliation between the forum and underlying controversy, or occurrence that takes place in the forum state. The relationship among the defendant, the forums, and the litigation must be close enough to support specific jurisdiction. 

“Arise out of OR relates to contacts”

Doesn’t always require proof of causation

All plaintiffs must be from the same state as the suit.

Reasonableness factors

• Burden on defendant

• Forum state’s interest

• Plaintiff’s interest in obtaining convenient and effective relief

• Interstate judicial system’s interest in obtaining the most efficient resolution of controversies

• And the shared interest of the several states in furthering fundamental substantive social policies

Zippo Manufacturing Sliding Scale for Internet

Jurisdiction	←→	No jurisdiction
Very interactive Targets residents of forum Defendant clearly does business over the internet with residents of foreign jurisdictions	Interactive web sites where users can exchange info depends on level of interactivity and commercial nature If related to claim	Minimal interactivity Defendant just posts information on internet which happens to be accessible to residents of foreign jurisdictions

Calder Effects Test

A defendant’s tortious acts can serve as a source of personal jurisdiction only where the plaintiff makes prima facie showing that the defendant’s acts:

1. were intentional, 

2. were uniquely or expressly aimed at the forum state, and 

3.caused harm, the brunt of which was suffered—and which the defendant knew was likely to be suffered in the forum state.

Specific Jurisdiction

1. Long arm statute

   1. Blanket or enumerated

   2. Blanket - reach for as much jurisdiction as constitution allows

   3. Enumerated - must meet requirements of statute

2. Due process analysis

   1. Minimum contacts (Pennoyer, Int. Shoe)

      1. Connected to forum state

      2. Suit must not offend traditional notions of fair play and substantial justice

      3. Avail themselves of the benefits, rights, and protections of the state

         1. Unilateral actions of plaintiff do not establish specific jurisdiction if the defendant has not taken affirmative steps to seek out the forum state (Hansen case)

      4. Foreseeability (WWVW case)

   2. Claim arises out of or relates to contacts in the forum state (Ford case)

   3. Reasonableness factors (WWVW case)

      1. The burden on the defendant of litigating the suit in the forum state

      2. The interest of the plaintiff in adjudicating the suit in the forum state

      3. The forum state’s interest in adjudicating the dispute

      4. The interstate judicial system’s interest in obtaining the most efficient resolution of controversies

      5. The shared interest of the several states in furthering fundamental substantive social policies

   4. Special cases: Calder Effects Test, Zippo Sliding Scale, Stream of commerce

      1. Stream of commerce - targeted or direct action required - only when defendant has targeted the forum state (McIntyre case)

      2. Not enough to foresee that the goods could end up in the forum state

Constitutional requirements of notice

Fundamental requisite of due process of law is the opportunity to be heard.

Notice must be reasonably calculated under all circumstances to apprise interested parties of the action and afford them an opportunity to present their objections.

Due process does not specifically require personal service or publication - but a form of notice reasonable under the circumstances

Rule 4

Summons

4c service

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. 

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

 (3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court.

4d waiving service

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.

4k Territorial Limits of Effective Service

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant: 

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; 

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or 

(C) when authorized by a federal statute.

Waiver of service

mail complaint to defendant with a request to defendant to return a form by mail waiving formal service and summons.

Defendant has duty to avoid unnecessary expenses of service and summons.

“Good cause” does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant’s property.

Venue

In which specific county or in which federal district within the state can the case be filed?

1391 Venue

1. Provides venue provisions for all civil actions brought in district courts of the US (unless a specific statute provides otherwise)

2. Venue in general, a civil action may be brought in:

1. A judicial district in which any defendant resides if all defendants are residents of the state in which the district is located

2. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred

3. If there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action

residency for venue

1.Natural person, including aliens lawfully admitted for permanent residence in the US, shall be deemed to reside in the judicial district in which that person is domiciled

2. An entity shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question

3. Non resident of US may be sued in any judicial district

1404 change of venue

Change of venue when original venue is correct

1. For the convenience of parties and witness in the interest of justice, a district court may transfer any civil action to any other district or division where it could have been brought into a district or division to which all parties have consented

Forum non convenies

Can’t transfer from federal court to state court or another country

1406 wrong venue

When original venue is incorrect

1. The district court of a district in which is filed a case laying venue in a wrong division or districts shall dismiss or if it is in the interest of justice, transfer such cases to any district or division in which it could have been brought

subject matter jurisdiction

Original jurisdiction limited to:

•  federal question - claims arising under the constitution, laws, or treaties of the US

• diversity - claims that exceed $75k, and involve parties that are not citizens of the same state

• Supplemental jurisdiction - can only use if one of the other claims is present

Some federal statues expressly give federal courts jurisdiction over claims involving those statutes (ex. bankruptcy) (specific grant of jurisdiction)

1331 federal question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

• Gives district courts jurisdiction over cases arising under the constitution, statues, or treaties of the federal government

• Well pleaded complaint rule - focus is on the plaintiff’s statement of their own cause of action, potential defenses of defendant not considered

• Only when plaintiff’s statement of their own cause of action shows that it is based upon those laws or constitution

• It is not enough that the plaintiff alleges some anticipated defense to their cause of action and asserts that the defense is invalidated by some statute or law or constitution

well pleaded complaint rule

A suit arises under the constitution and laws of the US only when the plaintiff’s statement of action shows that it is based on those laws or constitution.

1332 diversity jurisdiction

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — 

(1) citizens of different States; 

(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; 

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and 

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

diversity of citizenship

• etween citizens of different states

• Between a state of citizens and foreign states, citizens, or subjects

• Jurisdiction in civil activities between citizens of different states, between US citizens and foreign citizens, or by foreign states against US citizens, except for subjects of foreign states who are lawfully admitted for personal residence in the US and are domiciled in the same state

• Need complete diversity among the parties, can’t have same state on both sides

complete diversity

no same citizenship on both sides

Citizenship

• omicile plus intent to stay in the state

• Diversity of citizenship is determined at the commencement of the claim, upon filing date

• Subsequent changes in domicile of the original parties does not affect diversity  

principal place of business

for diversity

Place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities - Nerve Center Test 

Principal place of business = nerve center = headquarters

Where officers direct, control, and coordinate the corporation’s activities 

Partnerships and unincorporated entities are treated as collections of individuals, thus each member’s citizenship must be considered.

nerve center test

Place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities

Amount in Controversy

• Requires amount to be greater than $75k in controversy for diversity jurisdiction

• Amount in pleading is controlling

• Includes actual damages, pain and suffering, and punitive damages

• Punitive damages cannot be the basis entirely

• Inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show bad faith or oust the jurisdiction

• If legal certainty plaintiff cannot recover that amount, then it will be dismissed

aggregation of claims

A single plaintiff can aggregate claims over a single defendant

1367 supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

exceptions for supplemental jurisdiction

(1) the claim raises a novel or complex issue of State law, 

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, 

(3) the district court has dismissed all claims over which it has original jurisdiction, or 

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

supplemental jurisdiction

• Not an independent basis for subject matter jurisdiction

• Must have subject matter jurisdiction over each claim

• Can be over the second claim if it arises out of the same case or controversy as the first if it qualified for federal jurisdiction

• Stretches federal jurisdiction to cover parts of cases that if brought independently would not have fit within district courts’ subject matter jurisdiction

• Claims that are so related to claims in the action with such original jurisdiction that they form part of the same case or controversy under Art. 3 of the Constitution to allow joining of related claims

• Must derive from a common nucleus of operative fact (Gibbs Case)

• Even when supplemental JD is permitted, court can decline to exercise supplemental JD

• Needs and anchor claim

• Can bring joined claims under supplemental JD

There is supplemental jurisdiction over state claims that are so related to claims in the action with original jurisdiction they form part of the same case

Can the state claims be resolved or dismissed without affecting the federal claims?

1441 removal

1. In cases where case brought in state district courts do have original jurisdiction, can move from state court to federal court of the same state 

2. Exception

   1. A civil action otherwise removable solely on the basis of jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought

time for removal

Must be filed in the specific time frame

Can’t be removed due to diversity more than a year after the case is commenced

Allows removal after a year if plaintiff has acted in bad faith to block removal.

Notice of removal filed within 30 days after the defendant receives the initial pleading

While case may not initially be removable, notice of removal can be filed within 30 days of receipt by the defendant.

Courts interpret statutory time period.

1446 procedure for removal

1. Defendant files notice of removal with a short and plain statement on the grounds of removal, together with a copy of all process, pleadings, and orders served upon such defendant

2. Defendant must file within 30 days after receipt of initial pleading

b3) if plaintiff amends pleading, defendant has 30 days after receipt to file removal if amendment adds a reason for removal 

3. Requirements for removal based on diversity can’t be done after more than 1 year after commencement unless court finds plaintiff acted in bad faith

1652 rules of decision act

The laws of the several states, except where the constitution or acts of congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the US, in cases where they apply.

In diversity cases, federal courts must treat state court decisions as a source of law when looking at substantive law issues that apply to a case.

Except in matters governed by the federal constitution or by acts of Congress, the law to be applied in cases is the law of the state.

erie

A federal court sitting in diversity or supplemental jurisdiction must apply state substantive law, both statutory and common law.

Laws of the several states must include state common law

Applies to claims over which the courts assert supplemental jurisdiction.

Except in matters governed by the federal constitution or by acts of Congress, the law to be applied in cases is the law of the state.

Holds only that general federal common law may not displace that of the states in areas in which the constitution rests lawmaking power in the states.

erie analysis

When a federal court sits in diversity jurisdiction, (state law claim), should state law or federal law apply? What law applies?

P and D, P sues for federal law claim and 3 state law claims from the same case or controversy/common nucleus of operative facts.

Court applies federal law to the federal claim, under Erie, court applies state law to the substantive state claims

Outcome-determinative test

Does it significantly affect the result of the litigation for a federal court to disregard a law of a state that would be controlling in a state court?

In all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be the same as the state court outcome.

In all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same so far as legal rules determine the outcome as it would be if tried in a state case.

Outcome determinative unless there are affirmative countervailing consideration/federal interest/policy in this case, trial function distributions between judge and jury

(judge jury relationships in federal courts)

Procedural Law

A federal court sitting in diversity applies federal procedural law

What makes something substantive law or procedural?

Procedure - manner and means by which a right to recover is enforced

When a situation is covered by one of the federal rules, then court has been instructed to apply the federal rules and can refuse to do so only if this court and congress erred in their prima facie judgement that the rule in question transgresses neither the terms of the enabling act or constitutional restrictions.

In a conflict between a procedural rule in the FRCP and state law, the federal rule shall prevail. Supremacy clause of constitution specifies that the constitution along with all laws made in conformity with it are supreme over any law in conflict with them 

substantive

• bound up in state created rights and obligations of the parties

procedural

• manner and mode/means of enforcing a right/litigation

Hanna analysis

1. Is the rule promulgated under the authority of the Rules Enabling Act?

2. Is it a rule of practice or procedure(means and manner of enforcing the litigation)?

3. If yes, does the procedure established by the rule violate the Constitution?

Affirmative countervailing considerations

In cases involving the manner and mode/means by which a right is enforced (procedural) court has an additional consideration, even if outcome determinative, whether countervailing federal policy could outweigh the application of state law.

Certification

Federal court asks the state court (highest) for an answer to a question of state law

Joinder

Allows parties to combine various claims

Allows a court in one lawsuit to adjudicate multiple claims against multiple parties

But need to be mindful of implications and other procedural issues (subject matter jurisdiction, etc.)

18 joinder of claims

In general a party asserting a claim, counterclaim, crossclaim, or third party claim may join as independent or alternative claims as many claims as it has against an opposing party

Permits joinder but does not compel it. But may be barred from bringing a claim later if they do not join and a claim is found to be related to an adjudicated claim on grounds of claim preclusion. 

Can raise jurisdictional questions (in context of supplemental jurisdiction)

supplemental jurisdiction

same case or controversy with common nucleus of operative facts

Permissive joinder

requires right to relief relating to or arising out of the same transaction or occurrence, or series of transactions or occurrences, and same question of law or fact common to all parties

Compulsory counterclaim

a pleading must state as a counterclaim any claim that at the time of service, pleader has against an opposing party if the claim:

1. Arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and

2. Does not require adding another party over whom the court cannot acquire jurisdiction

If defendant fails to assert compulsory counterclaim, waives right to recover

Permissive claims

must have independent basis for jurisdiction  or fall under supplemental jurisdiction

Permissive joinder requires right to relief relating to or arising out of the same transaction or occurrence, or series of transactions or occurrences, and same question of law or fact common to all parties

crossclaim

is a claim by one party against a coparty arising out of the original complaint

13 crossclaim and counterclaim

(a) Compulsory Counterclaim. 

(1) In General. A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: 

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and 

(B) does not require adding another party over whom the court cannot acquire jurisdiction. 

(2) Exceptions. The pleader need not state the claim if: 

(A) when the action was commenced, the claim was the subject of another pending action; or 

(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule. 

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

14 third party plaintiff

(a) When a Defending Party May Bring In a Third Party. 

(1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer. 

(2) Third-Party Defendant’s Claims and Defenses. The person served with the summons and third-party complaint — the ‘‘third-party defendant’’: 

(A) must assert any defense against the third-party plaintiff’s claim under Rule 12; 

(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); 

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and 

(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.

14 plaintiff’s third party claims

The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).

14 non party

third-Party Defendant’s Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.

(b) When a Plaintiff May Bring In a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

14 impleader

Allows defendant in an action to bring a claim against a nonparty who is or may be liable to it for all or part of the claim against it

Must have legal basis to bring third party claims

Defendant in original action becomes third party plaintiff

Non party becomes third party defendant

joinder of claims

Need same case or controversy with common nucleus of operative facts as federal claim for supplemental jurisdiction

Have to have personal jurisdiction over both defendants

Both subject matter and personal jurisdiction needed over all defendants and claims

19 required joinder

(a) Persons Required to Be Joined if Feasible. 

(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: 

(A) in that person’s absence, the court cannot accord complete relief among existing parties; or 

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: 

(i) as a practical matter impair or impede the person’s ability to protect the interest; or 

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. 

19 joinder not feasible

If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: 

(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; 

(2) the extent to which any prejudice could be lessened or avoided by: 

(A) protective provisions in the judgment; 

(B) shaping the relief; or 

(C) other measures; 

(3) whether a judgment rendered in the person’s absence would be adequate; and 

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

19 required joinder

 tortfeasor with the usual joint and several liability is merely a permissive party to any action against another with like liability so not required to name all tortfeasor in a single claim.

19. Certain parties are required:

1. One whose participation is so desirable or important that the party must be joined so long as they are subject to service or process and joinder will not deprive the court of subject matter jurisdiction

2. consider whether, “in equity and good conscience,” the party is one without whom the action between the remaining parties cannot proceed, whether the absent party is “indispensable.

Four facts to consider for non feasible joinder

1. Extent to which a judgement rendered in the person’s absence might prejudice that person or existing parties

2. the extent to which any prejudice could be lessened or avoided by: 

   1. protective provisions in the judgment; 

   2. shaping the relief; or

   3.  other measures; 

(3) whether a judgment rendered in the person’s absence would be adequate; and 

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

20 permissive joinder

a) Persons Who May Join or Be Joined. 

(1) Plaintiffs. Persons may join in one action as plaintiffs if: 

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and 

(B) any question of law or fact common to all plaintiffs will arise in the action. 

(2) Defendants. Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants if: 

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and 

(B) any question of law or fact common to all defendants will arise in the action.

24 intervention

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: 

(1) is given an unconditional right to intervene by a federal statute; or 

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. 

(b) Permissive Intervention. 

(1) In General. On timely motion, the court may permit anyone to intervene who: 

(A) is given a conditional right to intervene by a federal statute; or 

(B) has a claim or defense that shares with the main action a common question of law or fact.

intervention of right

Given to those with strong interest in the litigation to justify joinder

(1) is given an unconditional right to intervene by a federal statute; or 

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. 

permissive intervention

Weaker basis for joining

Can be allowed to join at judge’s decision

(1) In General. On timely motion, the court may permit anyone to intervene who: 

(A) is given a conditional right to intervene by a federal statute; or 

(B) has a claim or defense that shares with the main action a common question of law or fact.

Claim preclusion

forbids a party from litigating a claim that was or could have and therefore should have been raised in former litigation

claim preclusion

Effect of a judgement in lawsuit in subsequent litigation

First action resulted in judgement on the merits

Forbids a party from litigating a claim that has been or could and should have been raised in the former litigation

Bars an entire separate action

Occurs when the case concerns the same claim as a prior action and the first action resulted in a final judgment on the merits

Precludes the same claim from relitigation

same parties needed

Same claim

The current lawsuit arises from same transaction for occurrence as the prior lawsuit

Valid final judgement on the merits

Final judgement - case is done

On the merits - non merits = (lack of jurisdiction, venue)

Transaction and series

determined pragmatically, giving weight to dual consideration as to whether the facts are related in time, space, origin or motivation, whether they form a convenient trial unit and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage

claim preclusion

One suit precludes a second where the parts and cause of action are identical, causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first, and where the causes of action are based upon a common core of operative facts. 2 suits can entail the same cause of action even though they present different legal theories, the first suit operates as an absolute bar to a subsequent action… “not only as to every matter which was offered and received to sustain or defect the claim or demand, but as to any admission matter which might have been offered for the purpose. 

claim preclusion

Must have been a valid claim at the time of the first suit

Prevents claim preclusion if the court rendering the first judgement lacked jurisdiction over an allegedly precluded claim

Doesn’t apply to different parties even in same incident

Federal court uses the law that would be applied by the state courts in state for claim preclusion in a diversity case.

Language only prevents plaintiffs from refiling a claim in the same court.

In diversity cases, the court should apply claim preclusion law of the state law in which the diversity court sits unless application of state laws is incompatible with federal interests

Between same parties

Claim preclusion usually only operates between those who were the parties to both the first and second lawsuits

Different parties possess different claims for preclusion purposes even when those claims arise out of the same transaction

Someone not formerly named as apathy can be so closely connected with a suit that it is appropriate to treat them as if they were 

“In privity” - party bound by first suit

A person who was not a party to a suit generally has not had a full and fair opportunity to litigate the claims and issues settled in the suit

6 exceptions for same parties in claim preclusion

1. Agreement by the parties to be bound by a prior action

2. Preexisting substantive legal relationships (such as preceding and succeeding owners of property)

3. Class actions and other situations involving adequate representation by someone with the same interests as a party

4. A party assuming control over prior litigation

5. Relitigation through a proxy,

6. Special statutory schemes such as bankruptcy and probate proceedings 

adequate representation for a non party in claim preclusion

1. Interests of non party and representative are aligned

2. Either the party understood themself to be acting in a representative capacity or original court took care to protect the interests of a non party

3. Notice of original suit to the persons alleged to have been represented

Reasons to decline to apply claim preclusion

1. When the parties have expressly or implicitly agreed to allow claim splitting 

2. Where a court has in the first case, reserved a plaintiff’s right to bring the case

3. Or where jurisdictional limitations prevented plaintiff from seeking certain forms of relief now sought

Issue preclusion

when a claim is not barred from subsequent litigation but some issue involved in that claim was previously litigated

issue preclusion

A specific issue included in the claim was previously litigated

More narrow than claim preclusion - only applies to issues

Bars relitigation only those issues actually litigated and determined 

Was the issue in the current suit actually litigated and determined in the prior suit?

Means that the claim lawsuit 2 can be brought suit but bars relitigation of issues decided in case 1

Applies when:

An issue of law or fact is actually litigated and determined by a valid and final judgement

The determination is essential to the judgement

Party against whom preclusion is asserted must have been a party to the earlier preceding and had a full and fair opportunity and incentive to litigate an issue in the earlier proceeding - if all of these apply, issues is precluded on the same claim or different claim

issue preclusion

When:

1. An issue of fact or law is

2. Actually litigated and determined by

3. A valid and final judgment

4. And the determination is essential to the judgment

The determination is conclusive in subsequent action whether on the same or a different claim

5. Party burdened with issue preclusion must have been a party to the earlier proceeding and must have had an adequate opportunity and incentive to litigate the issues in that forum

Issue of fact or law

Civil and criminal proceedings operate under different burdens of proof

Same word or phrase can shift meanings in different contexts

An issue actually litigated and determined

Was the issue actually litigated and determined in the first case?

Issue preclusion insists that the issue to be precluded actually has been litigated and determined in the prior case

By a valid and final judgement

Assumes court remedy to judgement had jurisdiction over the subject matter and party and that the party received adequate notice of proceeding

Judgement provided opportunity for party to challenge the court’s jurisdiction and the adequacy

Determination of the issue is essential to judgement

When alternative grounds for decision neither should be binding in subsequent litigation

Determination in the alternative may not have been as carefully or rigorously considered as it would have it it had been necessary to the suit

If an appellate court upholds one of these determinations as sufficient but not the other and accordingly offers judgement, the judgement is conclusive to the first determination and not the second

Against a party to the first case who has adequate incentive and opportunity to litigate the issue

Biologically separate individuals possess separate claims and no rule compels them to present their cases together, even when married 

Mutuality - same parties

Requirement for both claim and issue preclusion

Some courts allow it for different parties

Extension of the preclusion - victim of issue preclusion had a full and fair opportunity to litigate the issue in the first suit

issue preclusion

allows the judgement in a prior action to operate as an estoppel as to those facts or questions actually litigated and determined in the prior suit only when it appears that the judgment could not have been rendered without deciding the particular matter brought in question

In cases where a plaintiff could easily have joined in the earlier action or where the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive estoppel

Existence of newly discovered evidence that was not available to the litigant at the time of the first trial does not provide a basis for denying preclusion unless it appears that evidence would have had a significant effect on the outcome

pleadings

the plaintiff’s complaint and the defendant’s response to that complaint

Motion - request for a court order

7 pleadings

(1) a complaint; 

(2) an answer to a complaint; 

(3) an answer to a counterclaim designated as a counterclaim; 

(4) an answer to a crossclaim; 

(5) a third-party complaint; 

(6) an answer to a third-party complaint; and 

(7) if the court orders one, a reply to an answer. 

7 motions

(1) In General. A request for a court order must be made by motion. The motion must: 

(A) be in writing unless made during a hearing or trial; 

(B) state with particularity the grounds for seeking the order; and 

(C) state the relief sought.

8 claim for relief

A pleading that states a claim for relief must contain: 

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; 

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief. 

8 response to pleading

Admissions and Denials. 

(1) In General. In responding to a pleading, a party must: (

A) state in short and plain terms its defenses to each claim asserted against it; and 

(B) admit or deny the allegations asserted against it by an opposing party. 

(2) Denials — Responding to the Substance. A denial must fairly respond to the substance of the allegation. 

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading — including the jurisdictional grounds — may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. 

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. 

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

12 defenses

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: 

(1) lack of subject-matter jurisdiction; 

(2) lack of personal jurisdiction; 

(3) improper venue; 

(4) insufficient process; 

(5) insufficient service of process;

 (6) failure to state a claim upon which relief can be granted; and 

(7) failure to join a party under Rule 19. 

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

failure to state a claim

A court should not dismiss a complaint for failure to state a claim unless it is clear that the plaintiff can prove “no set of facts in support of their claim which would entitle them to relief.