CIVIL PROCEDURE OUTLINE

I. PERSONAL JURISDICTION
1. Three Traditional Types of Jurisdiction in State Courts: A court must have power to hear a case and
enforce its judgment over the parties in the dispute. There are three ways to "get the defendant into court."
[Pennoyer v. Neff (1877).]
2. In Peron!" J#r$%$&'$on( In ersonam Jurisdiction is jurisdiction gained !y consent"
presence or citi#enship.
3.Conen'( Consent occurs when a party comes into a jurisdiction and essentially
consents to !e sued there. $%oreign corporation registers in state as a condition of doing
!usiness there consents to !e sued there&. Jurisdiction when domiciled.
4.Preen&e( resence means the defendant need !e present in the state for the court to
have jurisdiction. Jurisidiction when served. The length of time spend in the state is
irrelevant" anyone traveling in the state should e'pect to !e sued there.
5. C$'$)en*$+( Citi#enship means the person is a citi#en of the state( state will always
have jurisdiction over its citi#ens.
6. ,#!$ $n Re" J#r$%$&'$on( )uasi in *em Jurisdiction is jurisdiction over the v!-#e of
property( plaintiff must attach $sei#e& defendant+s property !efore court can have jurisdiction.
7. In Re" J#r$%$&'$on( In *em Jurisdiction is jurisdiction over the property itself within the
state+s limits. In *em Jurisdiction is jurisdiction over the land" !ut not the person.
8. ,'panding-.odifying the Test for Jurisdiction: The Test for Jurisdiction has !een e'panded !y the
.inimum Contacts Test.
9. .e/$nn$n/ of 0$n$"#" Con'!&' Te'( A "!ridge" developed in !etween ennoyer and the
minimum contacts test. [1e v. P!2-o23$ (1457)( .assachusetts state court does have
jurisdiction over nonresident of .assachusetts for traffic accident !ecause of defendant+s activity
in state./
10. Conen'( 0se of a forum+s highways demonstrates consent to !e sued in that
state.
[1e.]
11. S+e&$!- A++e!r!n&e( A court has jurisdiction over a party when the party
ma1es a general appearance. If" however" the party is appearing to contest jurisdiction
only" then the defendant is not su!ject to jurisdiction.
12. S*$f' 'o 0$n$"#" Con'!&' Te'( 2eginning with International Shoe" the court
e'panded jurisdiction wherein there was miminum contacts with the state. [In'ern!'$on!- S*oe
(1467)( Corporation has !usinessmen in state" enough for jurisdiction. Court will consider 3&
e'tent of !usiness( 4& relatedness of activities to suit( 5& !enefits to employees of !eing in state( 6&
convenience( 7& state interest./
13. Sy'e"!'$& !n% Con'$n#o# A&'$v$'y( The Court re8uired that the corporation
have continuous and systematic activity in the state in order to !e su!ject to the
mimimum contacts test.
9 and 9
14. L!2#$' Ar$e O#' of A&'$v$'y( If the lawsuit arises out of the Activitity" then
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the court has jurisdiction.
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: S+e&$f$& J#r$%$&'$on( If the act is isolated" the court has jurisdiction over just
that act.
: 8ener!- J#r$%$&'$on( If defendant has many contacts and thus much activity"
then the defendant can !e sued over all matters.
5& T*e 0$n$"#" Con'!&' Te'( The .imimum Contacts Test has turned into a two prong test:
.inimum contacts occur through the use of a state+s ;ong Arm Statute" often pushed !y the state
as much as the 36
th
Amendment allows.
15. P#r+oef#- Av!$-"en'( The prong of personal availment focuses on the
activities of the defendant: the e9'en' of defendant+s commercial activities are considered(
if another :#$ne $ %$re&'-y !ffe&'e%; if defendant enjoys the :enef$' of '*e -!2 of
the forum state( foreee!:$-$'y and whether the defendant can e'pect to !e hauled into
court. [8r!y v. A"er$&!n R!%$!'or (14<1)( laintiff injured when water heater
e'ploded" manufactured all over" jurisdiction upheld in Illinois./ [.#r/er =$n/ Cor+
(1487)( <wning 2urger =ings in .ichigan head8uartered in .iami sufficient for %lorida
jurisdiction./ [>or-%2$%e Vo-32!/en (148?)( >riving ?@ in <1lahoma not sufficient
for jurisdiction in <1lahoma" !ought in AB" etc./
: [1e-$&o+'ero( Cigher mimimum contacts test is re8uired of a foreign
corporation./
16. Re!on!:-ene( In considering reasona!leness" the court will consider such
factors as whether the e9er&$e of @#r$%$&'$on $ re!on!:-e and whether the +-!$n'$ffA
$n'ere' is proper( !urden on the defendant" the state+s interest in settling the dispute(
desire to achieve efficient resolution( shared interest of several states( fairness. [=ee'on v.
1#'-er 0!/!)$ne (1486)( laintiff not local !ut jurisidiction upheld" Custler sold
3D"DDD to 37"DDD maga#ines a year in forum state./
: Bore$/n Cor+or!'$on( Jurisdiciton over foreign corporations may not !e
reasona!le. [A!*$ 0e'!- In%#'ry Co. v. S#+er$or Co#r' (1487)( arties
could settle despute in Taiwan or Japan./
17. ersonal Jurisdiction in %ederal Courts:
18. BRCP 6(3)(1)(A) C (D)( A federal courts do not e'ercise "nationwide jurisdiction."
%ederal courts can have personal jurisdiction through use of the ;ong Arm Statute of the forum
state in which the federal court is located or through a federal statute.
19. BRCP 6(3)(5)( If a plaintiff cannot reach a defendant through any individual state+s ;ong
Arm Statute" then the plaintiff can reach the defendant in federal court $usually a foreign
defendant&.
20. Challenging ersonal Jurisdiction:
21. S'!'e Co#r'( Challenging personal jurisdiction in state court varies from state to state.
.a1ing a special appearance to challenge jurisdiction is generally not a waiver. .a1ing a general
appearance and arguing on the merits is usually not a waiver" either. In some state" a general
appearance is a waiver.
22. Be%er!- Co#r'( *ule 34 a!olishes the difference !etween general and special
appearance.
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23. BRCP 15(:)( <ne may o!ject to jurisdiction along while also arguing merits.
24. BRCP 15(*)(1)(.)( Challenge to jurisdiction must !e made at outset" if
defendant loses case" defendant must challenge jurisdiction immediately( decision is
!inding.
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II. NOTICE
3& No'$&e( Aotice re8uires that the defendant receive proper "notice" of the lawsuit pending.
25. Re!on!:-e Effor'( In order to provide notice" the plaintiff+s efforts must !e reasona!ly
calculated" it must have a reasona!le prospect of giving actual notice. [0#--!ne v. Cen'r!-
1!nover .!n3( Aotifying other !an1 !eneficiaries" "means employed must !e such as one
desirous of actually informing the a!sentee might reasona!le adopt to accomplish it."/
26. S#ff$&$en&y of P#:-$&!'$on(
: Peron >$'* =no2n >*ere!:o#'( Aotice of at least first class mail is sufficient.
: Peron 2$'* A%%re Un3no2n( u!lication is sufficient.
: Re!- E'!'e( Attachment of *eal ,state and pu!lication may !e sufficient" people
usually are aware of their possessions.
27. Def!#-' R#-e( 2y default" notice should !e given !y first class mail. [0#--!ne( ".ails
today are recogni#ed as an efficient and ine'pensive means of communication."
28. No No'$&eD D#e Pro&e V$o-!'$on( If the defendant does not receive notice" defendant
can o!ject" earlier judgment will not !e !inding.
29. If No'$&e $ Con'$'#'$on!-( If notice is constitutional" and the defendant still does not
1now" judgment is still !inding.
III. SERVICE OB PROCESS
Aotice is usually service of a summons and a complaint on the defendant directing the defendant to answer or suffer
a default judgment" service should !e li!erally construed.
30. BRCP 6(%)( @aiver of Service: A plaintiff can re8uest from the defendant that the defendant
waive formal service. The defendant has a duty to avoid unnecessary costs of serving the actual summons.
If the defendant does not have good cause as to why formal service should not !e waived" the defendant
will incur the costs of the formal service. @aiver is not a !asis for default judgment.
31. BRCP 6(e)( Service 0pon Individuals: If the defendant does not waive service of process" then
service may !e pursuant to the law of the state in which the district court resides or the state in which the
service is effect [BRCP 6(e)(1)]; <* !y personal hand delivery( <* leaving the hand delivery at the
defendant+s "usual place of a!ode" with someone of suita!le age. [BRCP 6(e)(5)].
32. I""#n$'y fro" Pro&e( In some jurisdictions" witnesses" parties or attorneys or anyone
else in the state to participate in a legal proceeding is immune from process.
33. Br!#%#-en' Serv$&e( If the defendant is lured into a jurisdiction with the intent of
serving the defendant" the service is fraudulent and invalid. [>y"!n v. Ne2*o#e( laintiff lures
defendant to airport to see him "one last time."/ If the defendant is already in the jurisdiction"
however" then luring to a specific place to serve process is valid.
34. BRCP 6(*)( Service 0pon Corporations: Service can !e made on corporations in a manner similar
to those prescri!ed in 6$e&$3&( <* on officers or agents authori#ed !y appointment to receive service.
[1e--en$& C*!--en/er.]
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IV. BEDERAL SU.JECT 0ATTER JURISDICTION
%ederal Courts can only adjudicate specific types of cases or controversies.
35. %ederal )uestion Jurisdiction: Article III" E4 permits federal courts to hear all cases arising under
the laws of the 0S Constitution. This is adapted in 58 USC E 1FF1. In 58 USC E 1FF7D federal courts will
have original jurisdiction to hear all cases concerning a Congressional Act which regulates commerce. To
!ring a case in federal court" the personal jurisdiction and su!ject matter jurisdiction need to !e satisfied.
36. Cre!'$on Te'( a suit arises under the law that creates the test.
37. 58 USC E 1FF1( Actions with a federal 8uestion.
38. 58 USC E 1FF7( Actions arising under a federal law that concerns commerce.
39. 58 USC E 1665( Actions involving federal officers.
40. >e-- P-e!%e% Co"+-!$n' R#-e( The %ederal )uestion needs to appear on the face of the
plaintiffs "well9pleaded" complaint. The plaintiff does not raise a federal 8uestion just !y
anticipating a federal defense 8uestion in an answer.
41. BRCP 15(*)(F)( BS0J C!nno' :e >!$ve%D %ederal Su!ject .atter Jurisdiction cannot
!e waived" however" whenever it appears the federal court does not have jurisdiction" !y motion of
either party" court shall disimiss action.
42. S'!'e C-!$" T*!' T#rn on Con'r#&'$on of Be%er!- L!2D '*en BS0J( If a state9
created claim turns on the construction of a federal law" then the federal court has su!ject matter
jurisdiction. [S"$'*( State claim !oiled down to the issue of whether !onds the state invested in
were properly issued under federal law" so %S.J/
43. Be%er!- C-!$" T*!' T#rn on Con'r#&'$on of S'!'e L!2D No BS0J( If a federal
claim actually turns on the construction of state law" then there is no %S.J. [0erre-- Do2(
laintiff !rings several state claims" one federal claim" not enough for %S.J/ [0oore( Alleged
violation of federal standard was an element of state law tort claim" thus no %S.J./
44. >iversity Jurisdiction:
<ther than S.J" a federal court will hear a case !ecause of the citi#enship of the parties.
3& E 1FF5( D$ver$'y of C$'$)en*$+( The Complete >iversity *ule holds that there is no diversity
if any plaintiff is a citi#en of the same state as any of the defendants. >iversity is decided at the
time the case is filed.
45. In%$v$%#!-( The Feneral *ule: arty: 3& can only have one state of domicile( 4&
must ta1e up residence with the intention of remaining there( 5& if domicile is changed"
the previous one counts until a new one arises [0!.] 6& domicile unaffected if it changes
after claim filed.
: 8ener!- R#-e for A-$en( foreigner may !e domiciled in 0S" for issues of
diversity" national origin. .arriage to foreigner does not change domicile.
46. E 1FF5(&)(1)( Cor+or!'$on( A corporation can !e considered a !usiness of
multiple states. There are several tests:
: Nerve Cen'er Te' (0!$n Te')( The locus of the corporate decision9ma1ing
authority and wherever is the overall control.
G
: O+er!'$n/ Ae'GCor+or!'e A&'$v$'$e Te'( @here the corporation+s
activities mainly ta1e place.
: To'!- A&'$v$'$e Te'( 1y:r$% of .o'* Te'( ;oo1s to all circumstances to
determine the rincipal lace of 2usiness.
47. E 1FF5(&)(5)( Re+reen'e% P!r'$e( %or representative parties li1e decedents"
use the citi#enship of the party" not the representative.
48. E 1F74( Effor' 'o Cre!'e D$ver$'y( arties collusively made or joined in order
to
49. Effor' 'o Defe!' D$ver$'y( arties generally have latitude in defeating
diversity.
50. E9&e+'$on 'o D$ver$'y( ,ven if there is not true diversity" the court may find
diversity if the non9diverse parties are just formal or nominal. [Roe v. 8$!"!''$.]
51. Jurisdictional Amount:
In addition to federal su!ject matter jurisdiction and diversity of citi#enship" a federal court may hear a
case !ecause of the amount at issue.
3& E 1FF5(:)( A"o#n' $n Con'rovery( The amount in controversy must !e in e'cess of HI7"DDD(
attorneys fees can !e considered as part of the cost. Computed at the date of commencement.
52. 8oo% B!$'* !n% Le/!- Cer'!$n Te'( The claim must !e made in good"
appearing only as a legal possi!ility that the claim would actually !e less than HI7"DDD. If
it is a legal certainty that the claim will !e less than HI7"DDD" then action dismissed.
53. A//re/!'$on of C-!$"( Claims can !e aggregated to e'ceed t he HI7"DDD limit
when: 3& all claims of single plaintiff against single defendant( 4& claims of single
plaintiff against several defendants when defendants are jointly lia!le $such as joint
property owners" !ut not joint tortfeasors&( 5& claims of several plaintiffs against single
defendants if they have a common undivided ownership( 6& as for class actions" courts
are split.
54. %ederal and State Claims Com!ined $Supplemental Jurisdiction&:
In order to create judicial economy and consistency" a federal court could decide all the issues in one
proceeding.
55. Tr!%$'$on!- S#++-e"en'!- J#r$%$&'$on( Traditionally" there were two ways to get a
state claim in federal court.
56. Pen%en' J#r$%$&'$on( endent Jurisdiction occurred when the plaintiff+s
nonfederal-state claim was "appended" to the federal claim if they arise out of the same
transaction.
57. An&$--!ry J#r$%$&'$on( Ancillary Jurisdiction is the power of the court to hear
matters related to the plaintiff+s claim !y another party even though the court would not
regularly !e a!le to hear that claim.
58. E 1F<7( S#++-e"en'!- J#r$%$&'$on :y S'!'#'e( Statute codified pendent and ancillary
jurisdiction and "nucleus of operative facts." [8$::.]
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i& E 1F<7(!)( Co%$f$&!'$on( Fives federal courts jurisdiction over supplemental claims
when they arise from the same case or controversy under Art. III E 4. Thus federal courts
limited to power of Constitution. Supplemental claim need not !e federal 8uestion" just
appended to case or controversy that federal court can hear.
J
59. E 1F<7(:)( L$"$' on S#++-e"en'!- J#r$%$&'$on( @hen federal su!ject matter
jurisdiction arises solely !ecause of diversity" in a claim !y the plaintiff there is no %S.J
against those made parties !y impleader" joinder" intervention.
60. E 1F<7(&)( D$&re'$on of Co#r'( The federal courts will have discretion to hear
claims !ased on supplemental jurisdiction or to dismiss claim !ased on supplement
jurisdiction !ased on one of four named factors:
61. *emoval: *emoval is the right of the defendant to "remove" or shift a claim from state court to
federal court in the district of the state court. *emoval is a one9way street $can+t remove from federal to
state level&" case remanded to state court" not removed !ac1 to state court if removal was wrong. %ederal
counterclaims and federal defenses do not allow removal" nor the defendant+s omission of a federal claim in
the complaint.
62. E 1661(!)( Be%er!- ,#e'$on R!$e%( If a federal court would have original jurisdiction
over that case to !egin with" or the plaintiff could have originally !rought the claim in federal
court" then the defendant can remove the case.
63. E 1661(:)( D$ver$'y of C$'$)en*$+( If there is complete diversity of citi#enship" then
the defendant can remove to federal court. This allays fears of local prejudice. There can !e no
fraudulent joinder !y plaintiff to defeat diversity.
64. E 1661(&)( Se+!r!'e !n% In%e+en%en' Be%er!- C-!$"( If the plaintiff !rings a separate
and independent federal claim" along with a state claim$s&" the defendant can remove all of them"
thus the plaintiff will not join unrelated state claims to federal claim to prevent removal or "trap"
federal claim. %ederal Court would have discretion to dismiss" remand nonfederal claims.
65. Attac1s on Su!ject .atter Jurisdiction: Jurisdictional
issues must normally !e answered at the outset.
3& BRCP 15(*)(F)( O:@e&'$on 'o S0J( A defendant can o!ject to su!ject matter jurisdiction at
any time !efore trial is final.
66. D$re&' A''!&3( A defendant may attac1.
67. Co--!'er!- A''!&3( A collateral attac1 $an attac1 on a previous judgment after
the judgment has !een rendered& is considered differently in su!ject matter jurisdiction
attac1s than in personal jurisdiction attac1s. Supreme Court generally does not allow
collateral attac1s in the interest of finality" policy" res judicata. Cowever Court may
consider several factors in order to 1eep a court from overstepping its !ounds:
: If lac1 of jurisdiction over su!ject matter was clear.
: If determination of jurisdiction depended on a 8uestion of law" not of fact.
: If the court was of limited" not general" jurisdiction.
: If 8uestion of jurisdiction was not actually litigated.
68. ?enue and %orum Aon Conveniens:
@hile jurisdiction considers whether the court has power to hear the case" venue concerns where the actual
occurs. ,ven within one jurisdiction" there can !e many places to hold the trial. ?enue is a level of
protection for the defendant" or conversely" a statutory limitation on where the plaintiff can !ring the trial.
%ederal Court venue can !e waived.
69. S'!'e Ven#e( @ithin a state" venue is largely !y county.
70. Be%er!- Ven#e( As with personal jurisdiction" more than one state may have proper
venue over a suit.
K
71. E 1F41(!)( D$ver$'y J#r$%$&'$on( @hen jurisdiction is !ecause of diversity of
citi#enship" venue can !e: (1) where any defendant resides( (5) where su!stantial part of
events occurred( (F) as a fall!ac1" any district in which any defendant is su!ject to
personal jurisdiction.
72. E 1F41(:)( Be%er!- ,#e'$on J#r$%$&'$on( @hen jurisdiction is !ecause of a
federal 8uestion" venue can !e: (1) where any defendant resides( (5) where su!stantial
part of events occurred( (F) as a fall!ac1" any district in which any defendant is su!ject to
personal jurisdiction.
73. E 1F41(&)( >*en Defen%!n' $ ! Cor+or!'$on( @hen the defendant is a
corporation" venue can !e according to any judicial district in which the defendant
corporation is su!ject to personal jurisdiction( if multiple districts" venue shall !e where
contacts are sufficient and most.
74. BRCP 15(:)( O:@e&'$on 'o Ven#e( To o!ject to venue" the defendant must raise it in the
pleadings.
75. BRCP 15(*)(1)( I"+ro+er Ven#e( Improper venue must !e raised in the pleadings or it
is waived.
76. E 16?6(!)( C*!n/e of Ven#e( If the claim could have !een !rought in a different venue"
then for the convenience of the parties $a lesser showing of inconvenience than forum non
conveniens& and in the interests of justice" venue may !e changed. Cowever" to prevent the
defendant from manipulating to change venue from a place of proper venue and jurisdiction to
another place proper venue and jurisdiction" the law to the transferor court will apply.
77. E 16?<( Re"e%y$n/ In&orre&' Ven#e( @hen venue is improper" the district court shall
either dismiss the case or transfer it to a district where it could have !een !rought.
78. Bor#" Non Conven$en (In!++ro+r$!'e Bor#")( ,ven when jurisdiction and venue
are proper" a plaintiff+s choice of location for the case may !e grossly inconvenient.
i& .!-!n&e In'ere'( Courts will !alance the interests of allowing the case to !e
adjudicated in the plaintiff+s chosen forum. They will consider effect on the plaintiff"
defendant" witnesses" local interest in deciding local controversies" appropriateness.
0nless !alances is strongly against plaintiffs" plaintiff+s choice of forum will !e
dismissed.
ii& Bore$/n P-!$n'$ff( A foreign plaintiff+s choice will !e given little deference( 0S
Courts are concerned with preventing the 0S from !ecoming a litigation magnet. [P$+er
v. Reyno.]
V. T1E ERIE DOCTRINE H ASCERTAININ8 T1E APPLICA.LE LA>
A. The ,rie >octrine: The ,rie >octrine concerns the 8uestion of whether to apply state law or federal law
in a federal courts. [Er$e R!$-ro!% v. To"+3$n (14F8)( In federal court case" 8uestion of whether to apply
federal "general" common law principles or to use the common law of the state in which the case was tried"
federal court should follow applica!le common law principles of state in a!sence of Congressional statute./
Court wanted to avoid pro!lems of .-!&3 C >*$'e T!9$ C!: Co.
3& No 8ener!- Be%er!- Co""on L!2( There is no federal common law" e'cept in unusual
circumstances in which there is no federal statute and state+s law may not apply.
3D
4& 8o!- of Er$e Do&'r$ne( The ,rie >octrine is designed to a& curtail forum shopping( !& !ring
uniformity !etween federal and state courts in the same district.
79. %ederal v. State ;aw in >iversity Cases:
The *ule of ,rie is that in a federal court" state su!stantive law and federal procedural law govern. The
lines are not always clearly drawn !etween the two" however.
80. O#'&o"e De'er"$n!'$on Te'( The goal of the <utcome >etermination Test is to
ensure: a& that the outcome would !e the same in either federal or state court( !& that litigants have
another tri!unal" not another !ody of law. [8#!r!n'y Tr#' v. Ior3 (1467)( >ecision !etween
whether to apply state+s statute of limitations or federal rule of "laches" $rela'ed statute of
limitations&" decision is for state+s S<; !ecause it is of a su!stantive nature./
81. In'ere' .!-!n&$n/ Te'( The goal of the 2alancing Test is to [.yr% v. .-#e R$%/e
E-e&'r$& Coo+er!'$ve (1478)( 2etween use of federal rule re8uiring judge to decide status of an
employee and state+s rule re8uiring jury to decide" Court held for judge decision" created no real
rule !ut used !alancing test./
82. S'!'eA JS'!'eJ S#:'!n'$ve In'ere'( The court will loo1 to whether the state+s
procedural practice is !ound up in the state+s su!stantive right. [.yr%( State+s interest
minimal./
83. Be%er!- S#:'!n'$ve In'ere'( The court will loo1 to the interest in maintaining
the court+s smooth functioning" etc.
84. O#'&o"e Effe&'( As in Bor1" the court will loo1 to ma1e sure that following the
federal practice will not affect the outcome of the suit.
85. S'!:$-$)$n/ '*e Er$e Do&'r$ne( The Tests evolved into guidance !y the *ules ,na!ling
Act.
i& E 5?75( T*e R#-e En!:-$n/ A&'( >irect Collision Test: 0nder the *ules ,na!ling
Act" when a federal rule spea1s to the issue" it ta1es precedent over the issue. Cowever"
the %*C shall not: a& a!ridge" enlarge or modify and su!stantive right(" !& violate the
,na!ling Act( c& conflict with the Constitution. The Test concerns the 8uestion: >oes the
%*C really deal with rocedureL [1!nn! v. P-#"er( *ela'es strain of ,rie./ Since
3K5J" the Supreme Court has never held an %*C violates the ,na!ling Act.
ii& BRCP 6( Service of rocess is read !roadly so the rule will prevail.
iii& BRCP F( In a state !ased cause of action" state Sol applies. In a federal 8uestion
jurisdiction" *ule 5 applies.
86. Ascertaining The State+s Su!stantive ;aw:
2ecause diversity cases !y definition involve parties from different states" the federal court must decide
which state+s law to apply. The function of the federal court is to decide what the law $D not what it o#/*'
to !e.
3& Bo--o2$n/ '*e L!2( In following the state law" the federal court will decide !ased on what the
state+s supreme court would say.
87. S'!'e S#+re"e Co#r'( If the state supreme court has decided a similar issue"
the federal court+s jo! is easy.
88. S'!'e In'er"e%$!'e Co#r'( If the state supreme court has not decided such an
33
issue" the federal court might follow an intermediate court.
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89. No S'!'e Co#r' De&$$on( If no state court decision e'ists on a similar matter"
the federal court will loo1 to prior federal district court diversity cases"
90. S'!'e De&$$on O-%( If the state decision is old" the federal court may conclude
that the state supreme court would reverse the decision" and federal court would lead the
way.
91. Cer'$fy 'o S'!'e S#+re"e Co#r'( The federal court may certify the case to the
State Supreme Court so the state can resolve the issue.
4& Conf-$&' of L!2( The *ule is that the federal court will apply the law of the state in which it
sits. Inherent in this is the rule that the court will follow the conflict of law rules of that state. Thus
the federal court will do what the state law says" even if that means following the states+s choice of
law rules which re8uire following even some other state.
VI. PLEADIN8
92. The Complaint and the .otion to >ismiss: A civil action $in most jurisdictions& is commenced !y
the filing of a complaint.
93. BRCP 8( ReK#$re"en' of '*e Co"+-!$n'( 2asic notice to other party is re8uired. A
pleading with averments need only !e "a short and plain statement" of the grounds on which
jurisdiction depends and the claim for which the plaintiff see1s relief. [D$o/#!r%$( ;enient
approach allows half9literate complaint./
i& No' ! ReK#$re"en'( %acts sufficient to constitute a cause of action are not re8uired.
94. Lef' 'o D$&overy( The purpose of discovery is to determine the necessary facts" identify
!aseless claims" narrow the issues.
95. .#r%en of P-e!%$n/( Fenerally" party who has !urden of production has the !urden of
pleading.
96. 1e$/*'ene% P-e!%$n/ S'!n%!r%( Ceightened leading standards e'ist for civil rights
issues and securities issues so as to avoid frivolous suits.
97. BRCP 4(:)( P-e!%$n/ S+e&$!- 0!''er( %or special matters such as fraud and "special
damage" they must !e stated with particularity-specifically.
98. The Answer: In an answer" the defendant needs to do two things:
99. BRCP 8(%)( A%"$' or Deny A--e/!'$on( The defendant needs to admit or deny the
allegations. %ailure to deny can !e considered an admission.
i& BRCP 8(:)( S+e&$f$& Den$!-( If the defendant admits some allegations while
admitting others" he must ma1e specific denials. Sometimes a general denial may not
meet the su!stance of the averments and may !e treated as admission.
100. BRCP 8(&)( 0!3e Aff$r"!'$ve Defene( The defendant must ma1e affirmative
defenses" the list of affirmative defenses is not e'haustive. The purpose of the affirmative defenses
is so that the plaintiff is not surprised later in trial.
i& BRCP 15(:)( Defene P-e!%e% :y 0o'$on( Some defenses must !e pleaded in a
motion( if they are not pleaded in a motion" they are waived.
35
C. Amendments: 2y amending their pleading" either party may alter or e'pand the case or controversy.
101. BRCP 17(!)( A"en%"en' Pr$or 'o Tr$!-( ,ither party may amend the pleading one
time !efore a responsive pleading is served !y the other party( <* if no responsive pleading is
permitted" the party may the party may amend within twenty days after it is served.
i& Af'er B$r' A"en%$n/( After the party amends" the only other way either party may
amend is !y leave of court( other side+s permission( <* when "justice so re8uires."
102. BRCP 17(:)( A"en%"en' !' Tr$!-( After the trial has !egun" the court may favor
su!stance over form" thus promoting resolution of case on merits so amendment will reflect actual
litigation. %*C allows parties to amend !ased upon une'pected evidence. Amendments must !e
relevant and reasona!ly foreseea!le to the litigation. %ailure to o!ject to amendments is consent.
2asic 8uestion: does amendment prejudice other partyL
103. BRCP 17(&)( Re-!'$on .!&3 Do&'r$ne( If the plaintiff see1s to amend the complaint
after the statute of limitations would have run on the claim" the plaintiff can amend the complaint
if it "relates !ac1" to the date of filing of the original complaint. The amended claim will !e
allowed if the claim in the amended pleading (5) arose out of the same &on%#&'D 'r!n!&'$on or
o&&#rren&e set forth in the original pleading. (F) If adding a new party" part $4& must !e satisfied
and new party was aware of the action within 34D days of the filing" 1new or should have 1nown"
was not named !y mista1e.
104. BRCP 17(%)( S#++-e"en'!- P-e!%$n/( Supplement pleadings may !e added to cover
events which occur after the original pleading.
>. Sanctions: If a party violates a certain re8uirement" the court "!y impose sanctions. Sanctions must
give rise to level of contempt.
105. BRCP 11(!)( S$/n!'#re( ,very pleading must !e signed !y an attorney or the person
himself if the party is not represented.
106. BRCP 11(:)( Re+reen'!'$on( 2y signing the pleading" the party ma1es certain
promises. Sanctions will not !e imposed on the plaintiff for a (:)(5) violation" just attorney.
107. BRCP 11(&)( N!'#re of S!n&'$on( An attorney will have a 43 day safe har!or after the
other party moves for sanctions $!ased on an 33$!& violation&( giving the attorney time to amend
"mista1e."
VII. JOINDER
A. Joinder of Claims !y laintiff: There are rules for joining claims.
3& R#-e 18(!)( Jo$n%er of C-!$"( A party may as many claims as they have" either independent
or alternate" against the opposing party. So regardless of su!ject matter" there are no restrictions
for the joinder of claims.
108. L$"$' :y Re J#%$&!'!( The rinciple of *es Judicata prohi!its the splitting of
a single cause of action into two or more suits often compels the plaintiff to join all
related claims.
109. BRCP 5?(!)( L$"$' on 0#-'$+-e P!r'$e( @hile there are no restrictions on the
joinder of claims !y a single party against a single party" thus the joinder of claims in
multi9party cases is limited to those for which there is an independent !ases for su!ject
36
matter jurisdiction $at least one of the claims against each party must "arise out of the
same transactions" and involve a "common 8uestion of law or fact."
110. BRCP 5?(:)D 65(:)( L$"$'( J#%/e D$&re'$on on Jo$n%er of C-!$"( The
judge has discretion to split the issues into separate trials if necessary.
111. BRCP 15(*)D BRCP 51( 0$@o$n%er( .isjoinder must !e raised at start of
litigation" otherwise the defect is waived. Court may raise it on its own" however" it is not
grounds for dismissal.
112. Counterclaims: As part of the defendant+s answer" the defendant may raise claims against the
plaintiff.
113. BRCP 1F(!)( Co"+#-ory Co#n'er&-!$"( If there is a logical relationship !etween
plaintiff+s claim and a possi!le counterclaim !y the defendant against the plaintiff" arising out of
the same transaction or occurrence" the counterclaim is compulsory and must !e !rought then or it
will !e !arred. $Same transaction or occurrence means: common issues of fact or law" effect of res
judicata" use of same evidence" logical relationship !etween claim and counterclaim&.
114. T*$r% P!r'$e( Third parties over whom the court does not have jurisdiction are
not re8uired.
115. S#++-e"en'!- J#r$%$&'$on( If the counterclaim would !e ac8uired !y
supplemental jurisdiction" it may !e !rought" !ut does not need to !e.
116. Re J#%$&!'!( *es Judicata applies on each separate claim" to avoid e'tra trials"
etc.
117. BRCP 1F(:)( Per"$$ve Co#n'er&-!$"( The defendant is also allowed to ma1e other
counterclaims that do not rise out of the same transaction or occurrence. Thus if the plainitff+s
claim is due to a federal 8uestion" the defendant+s counterclaim must also !e due to a federal
8uestion or other independent ground of federal jurisdiction.
118. Cross9Claims: A cross9claim is a defendant+s claim against a co9defendant.
119. BRCP -F(/)( S!"e Tr!n!&'$onGO&&#rren&e( <ne party+s suit against another party can
only !e !rought if the claim arises out of the same transaction or occurrence.
120. BRCP 1F(*)( A%%$'$on of Ne2 P!r'$e $n CroHC-!$"( The !asic cross9claim is
against a co9defendant" however" the defendant may !ring in another party. The cross9claimant+s
claim must grow out of the same transaction" and must !e actual damages" it cannot !e for
indemnfication.
121. CroHC-!$" .e'2een CoHP-!$n'$ff( Co9laintiffs may !ring cross9claims against each
other generally only if the defendant counterclaims that plaintiff.
122. Impleader: If the defendant $as "third party plaintiff& may have a right to indemnity !y a third
party $as "third party defendant"&" the defendant may implead" or !ring in a third party" in case "third party
plaintiff" loses to the main plaintiff" "third party defendant" may !e lia!le to "third party plaintiff."
3& BRCP 16(!)( T*$r% P!r'y >*o 0!y :e L$!:-e( Allows third party plaintiff to !ring claim
against third party defendant. In doing so" third party plaintiff may ma1e claim against plaintiff"
plaintiff may ma1e claim against third party defendant.
i& E 1F<7(:)( L$"$' on S#++-e"en'!- J#r$%$&'$on( In diversity suits" the court does
37
not have supplemental jurisdiction over the plaintiff+s claim against the third party
defendant. The court only has supplemental jurisdiction over the defendant+s claim for
injuries against the third party defendant.
3G
123. Interpleader: Interpleader is a very limited use device that allows a party $"sta1eholder"& against
whom many claims are asserted to join all of the plaintiffs so as to avoid a multiplicity of suits and
judgment.
124. BRCP 6(3)(C)(1)D BRCP 55( BRCP In'er+-e!%er( Interpleader only in a diversity case"
stricter rules" !asically e'ists for those who do not meet re8uirements of statutory interpleader.
125. E 1FF7( S'!'#'ory In'er+-e!%er( ,ssentially" through statutory method" jurisdictional
limits are !roadened( a& minimum diversity is allowed" so there does not need to !e complete
diversity( !& the amount in controversy need only !e H7DD or more( c& E 5F<1( Service of process
is nationwide( d& E 1F47( venue can !e any district where claimant resided.
126. Aecessary and Indispensa!le arties: Fenerally" parties who are necessary and indispensa!le to
resolution of the dispute must !e joined. The court focuses on the practical conse8uences of a party+s
a!sence from the court. A ne&e!ry party is one the court should join" !ut if the court cannot" the court
could proceed. An $n%$+en!:-e party is one that the court must join" otherwise there is no suit.
127. BRCP 14(!)( Ne&e!ry P!r'$e >*en Jo$n%er $ Be!$:-e( "Aecessaryness:" A party
with an interest in the pending action shall !e joined as a party if: (1) in a!sence of party complete
relief cannot !e accorded( <* (5)($) a!sence of party would !e su!stantially prejudicial to that
party <* (5)($$) any person already a party would !e su!jected to inconsistent o!ligations.
128. BRCP 14(:)( Jo$n%er of P!r'y No' Be!$:-e( If the joinder of the "necessary" party is
not feasi!le $!ecause the court does not have jurisdiction over the party& then the court will decide
"in e8uity and good conscience" if the action should proceed without the "indispensa!le" party.
The court will consider several practical considerations: 3& the e'tent to which any judgment
rendered would !e prejudicial to the interests of all parties( 4& e'tent to which prejudice could !e
lessened(
129. ade8uacy ofjudgment in person+s a!sence( 6& whether plaintiff will have an ade8uate
remedy if action is dismissed for nonjoinder.
130. Intervention: Intervention allows a nonparty with an interest in the suit to join the suit 9 in a timely
manner 9 when not !rought in !y original plaintiffs or defendants. The goals of intervention are to avoid
inconsistency of results or multiplicity of litigation" !alanced however with plaintiff+s a!ility to !e "master
of his action." There are two 1inds of intervention:
131. BRCP 56(!)( In'erven'$on of R$/*'( A applicant shall !e permitted to intervene when
(1) a federal statute confers an unconditional right to intervene $E 56?F); (5) intervenor claims an
interest relating to the property or transaction" a!sence may impede intervenor+s rights.
132. BRCP 56(:)( Per"$$ve In'erven'$on( A nonparty may intervene" even if no
"intervention of right" when (1) a federal statute confers a conditional right to intervene( (5) a
8uestion of law or fact in common with the main action is part of the applicant+s claim or defense.
133. No In'erven'$on If( The court will not grant intervention if it causes an undue
delay or if it will prejuedice rights of original parties.
134. J#%/"en' .$n%$n/ on In'ervenor( Judgment is !inding on the intervenor as if
they had !een party.
VIII. CLASS ACTIONS
A. Class Certification: Soon after the commencement of a class action" the "class" must !e certified. To !e
certified as a class action" the "class" must past certain re8uirements.
3& BRCP 5F(!)( C-! A&'$on PrereK#$$'e( The prere8uisites for a class action suit are as
3I
follows: (1) N#"ero#$'y( There are so many people to !e represented that joinder of all
mem!ers of the class is impractical or e'tremely difficult( (5) Co""on!-$'y( There are common
8uestions
3J
of law or fact to the class" the 8uestions do not have to !e identical and some divergence is
allowed( (F) Ty+$&!-$'y( The claims or defenses of the representative must !e typical of the claims
or defenses as the other class mem!er. (6) Re+reen'!'$vene( The representative will ade8uately
and fairly protect the interests of the class" vigorously prosecuting the interests of the class through
ade8uate counsel.
4& BRCP 5F(:)( 8ro#n% for C-! A&'$on( The class action may !e warranted on anyone of the
following grounds:
135. : Pre@#%$&e Bro" Se+!r!'e A&'$on( A class action is permissi!le if separate
actions would result in: (A)( Incompati!le standards of conduct for defendant through
inconsistent adjudications( <* (.)( Su!stantially impair the interests of other mem!ers of
the class.
: No No'$&e ReK#$re% or left to discretion of court.
: P!r'$e C!nno' O+' O#'
136. : EK#$'!:-e Re-$ef So#/*' ! 'o R$/*' 1e-% $n Co""on( A class action is
permissi!le if relief to one plaintiff necessarily affects the whole class. ,ssentially"
declaratory of injunctive relief would !enefit the class as a whole.
: P!r'$e C!nno' O+' O#'
137. : Co""on Pre%o"$n!n' ,#e'$on( T*e C!'&* A-- Te'( )uestions of law or
fact common to the class predominate over 8uestions affecting only individual mem!ers
and a class action is the superior means to adjudicate the controversy. Court considers (A)
Interest of individual mem!ers( (.) Aature and e'tent of any litigation involving the
same controversy( (C) >esira!ility of consolidating all claims( (D) >ifficulties of
managing class action. [C!#ey v. P!nA"( Court must compare relative importance of
common 8uestions and individual 8uestions" not just num!er./
: No'$&e ReK#$re% [E$en( Individual Aotice re8uired to all mem!er who can !e
identified through reasona!le effort./
: P!r'$e C!n O+' O#'
5& BRCP(&)(1)( Cer'$f$&!'$on( After commencement of an alleged class suit" a hearing should !e
held to determine whether the action should proceed as a class suit.
138. >ue rocess: >ue rocess is satisfied and the judgment will !e !inding on all class mem!ers when
the interest of the class is ade8uately represented during the suit. Though" parties are not !ound !y
decisions in which they are not a party" the e'ception is class action suits where res judicata applies to all
mem!ers of the suit. Cowever" e'ception to e'ception is that mem!er of class not !ound if there is no due
process.
139. A%eK#!&y of Re+reen'!'$on(
140. T2o P!r' Te'( There is a two9part test to challenge the ade8uacy of
representation: 3& >id the first court correctly determine that the representative would
ade8uately represent the classL( 4& After the suit" did the representative ade8uately protect
the interests of the classL There cannot !e conflict !etween mem!ers of class for there to
!e ade8uate representation.
141. T*$r% P!r'y C*!--en/e( It is the !urden of the parties in the litigation to use
mandatory joinder to !ring 5
rd
parties in.
142. BRCP 5F(&)(5)( D#e Pro&e No'$&e( 0nder a %*C 45$!&$5& class action" notice is
re8uired.
3K
143. .ass Tort Class Actions: Fenerally" courts have !een reluctant to apply class action device to
mass tort claims !ecause all the plaintiffs have individual interests" are see1ing differing damages.
[A"&*e"( Court certifies class action for as!estos mass tort claim" anyway./
4D
>. Jurisdictional Complications: There can !e jurisdiction in the class action suit !ecause of either %ederal
Su!ject .atter Jurisdiction or personal Jurisdiction.
144. Be%er!- S#:@e&' 0!''er J#r$%$&'$on( %ederal court may have !y %S.J.
145. D$ver$'y of C$'$)en*$+( Accommodates laintiff: >iversity of Citi#enship is
!ased upon the named parties only. The class mem!ers citi#enship is irrelevant" only the
representative+s is important.
146. A"o#n' $n Con'rovery( Accommodates >efendants: Courts are currently
split" some say that the every mem!er+s claim need to !e more than HI7"DDD" while others
say representative+s claim need !e HI7"DDD and the other claims will come under
supplemental jurisdiction.
147. Peron!- J#r$%$&'$on( A state court may have jurisdiction if the parties in the class has
the opportunity to opt out !ut chose not to do so.
IL. DISCOVERI
148. Feneral Scope of >iscovery: According to the Supreme Court" discovery is availa!le only with
regard to matter "relevant to the claim or defense of any party."
149. BRCP 5<(:)(1)( In 8ener!-( The information sought must !e reasona!ly calculated to
lead to admissi!le evidence. This is !roader than admissi!le. arty can get information even
thought it is not admissi!le at trial. In suing for !reach of =" party can not get net worth. In suing
for tort" possi!ly.
150. BRCP 5<(:)(5)( L$"$'!'$on( Court may ma1e limitations on the num!er of depositions
or interrogatories if: ($) discovery is unreasona!ly cumulative( ($$) the party has already had
opportunity for discovery( ($$$) discovery is unduly !urdensome and those !urdens outweight any
li1ely !enefit.
3& BRCP 5<(&)( Pro'e&'$ve Or%er( A party can get a protective order to protect privacy of parties
or information.
151. BRCP 5<(%)( T$"$n/ !n% SeK#en&e of D$&overy( .ethods of discovery may !e used
in any se8uence" ad judicial discretion" for the convenience of witnesses" parties" in the interest of
justice and in accordance with BRCP 5<(f) in which parties meet to lay out discovery plans.
152. >iscovery >evices:
153. BRCP F?( Or!- De+o$'$on( A deposition is an e'amination of a witness under oath in
the presence of a court reporter. These can !e used to get info from the other party. BRCP
F1concerns written depositions. 0se of depositions can lead to greater judicial efficiency when
deposing a witness is more cost effective for the case or than in having a witness" or su!mitting
and re9su!mitting interrogatories.
154. BRCP FF( In'erro/!'or$e( Interrogatories may sometimes !e a !etter discovery tool
than a deposition. An interrogatory is form of written 8uestions from one party to another
re8uiring written responses in return. Interrogatories: a& find facts( !& find issues in contention( c&
can avoid unnecessary testimony and wasteful preparation. Interrogatories can only !e addressed
to a party. The court may grant an e'tension of time" etc.
155. BRCP F6( Pro%#&'$on of T*$n/( The court construes a person+s control over things
43
li!erally" "with reasona!le particularity." The party is re8uired to produce the thing if they are in
44
possession" custody or control. Things must !e turned over in a reasona!ly usa!le form and in the
order in which they are 1ept during the ordinary course of !uiness. If they cannot have person do
it" they can use BRCP(&)(1).
156. BRCP F7( P*y$&!- !n% 0en'!- E9!"$n!'$on( In order to get a physical or mental
e'amination( a& the physical or mental condition of a person must !e in controversy( !& there must
!e good cause needing a higher showing of cause than with other motions( c& e'aminations are
limited to a party or person to the controversy" thus an eye witness cannot !e su!ject to a physical
or mental e'amination.
157. BRCP F<( ReK#e' for A%"$$on( A re8uest for admission is a written re8uest for
admission or denial of a fact and helps narrow the issue( court can compel a response( response is
conclusive unless later withdrawn and cannot !e contradicted at trial( party responds under oath(
party can o!ject to a re8uest.
158. .andatory >isclosure:
3& BRCP 5<(!)(1)( 0!n%!'ory D$&-o#re( At three different times the party must produce
evidence" even if it is not re8uested. This is very controversial.
159. @or1 roduct rivilege:
3& BRCP 5<(:)(F)( >or3 Pro%#&' Pr$v$-e/eGTr$!- Pre+!r!'$on( Certain material is off9limits.
<nly way to get is if: 3& There+s a su!stantial need( 4& The information is not otherwise availa!le.
The goal of this rule is: a& +ro'e&'$on of the individual+s privacy and attorney+s legal conclusions"
thoughts" mental impressions" theories( !& +reven'$n/ freeHr$%er !y discouraging opposing
counsel from not doing any wor1 and then relying on the other counsel( c& !-'ern!'$ve could !e
used such as interrogatories" etc.
160. Sanctions: Sanctions may !e made due to two factors.
3& BRCP F7( 8ro Ne/-$/en&e( Fross negligence !y an attorney in failure to o!ey an order
compelling discovery can justify sanctions. Courts ta1e sanctions seriously to cur! attorney who
drag out litigation or run up legal fees.
L. ADJUDICATION >IT1OUT TRIAL
161. Summary Judgment:
3& BRCP 7<( S#""!ry J#%/"en'( The purpose of summary judgment is to screen out cases
that do not need a trial. The party must show a& that there is no dispute as to material fact( !& they
are entitled to judgment as a matter of law. Courts ta1e great pains to favor nonmoving party. If
summary judgment granted" party gets Judgment as a .atter of ;aw.
162. .#r%en of Proof( The moving party has the !urden to show that there is no
factual dispute" even if nonmoving party would !ear !urden of persuasion during trial.
The nonmoving party just need show that there is an issue.
163. BRCP 7<(&)( D#'y 'o Re+on%( The nonmoving party only has a duty to
respond when the moving party has esta!lished facts
164. >efault Judgment:
3& BRCP 77( Def!#-' J#%/"en'( >efault judgment operates to punish the defendant. >efault
judgment is not availa!le when one party has appeared at trial !ut other fails to appear. *ule
45
authori#es default when a party fails to plead or otherwise defend.
46
i& BRCP <?(:)(1)D (6)( 0$'!3eGVo$%( Case may come alive again for various reasons.
LI T1E TRIAL STA8E
165. Trial !y Jury:
166. T*e R$/*' 'o ! J#ry Tr$!-( There almost always is a right to a jury trial" unless the case
is in e8uity or if there is a comple'ity e'ception.
167. BRCP 65(:)( D$&re'$on of Co#r'( The >iscretion of the court is very limited
and should !e e'ercised to preserve the right to a jury trial(
168. De'er"$n$n/ R$/*' 'o ! J#ry Tr$!-( To determine the right to a jury trial" court
loo1s at how case would have !een !rought in 3IK3( !ased upon I
th
Amendment( judge
may decide an e8uita!le claim first( type of relief sought may also !e determinative
$declarative" specific" compensatory&.
169. BRCP 68( N#":er of J#ror( The num!er of jurors must !e !etween G and 34"
unless parties otherwise agree" verdict must !e unanimous.
170. J#ry Se-e&'$on( ,vidence of !ias or prejudice may dis8ualify a juror. The !ias must
affect the juror to such a degree that it renders them incapa!le of impartiality.
i& Vo$r D$re( Challenges can !e made" !ut only for good cause.
ii& E 18<F(:)(7)(A)( E9&#!- fro" J#ry Serv$&e( A juror is e'empt from service in
the
cases of undue hardship and e'treme inconvenience.
171. Judicial Control <ver Jury >ecision:
172. T*e Prov$n&e of '*e J#ry( The jury decides facts" judge decides law. In a dispute as to
who should answer a particular 8uestion 9 judge or jury 9 it is !est left up to judge as lone judicial
actor. Court must also !alance need of letting society decide.
173. BRCP 64( J#ry 0$&on%#&'( @hen a jury verdict is am!iguous" court may throw it out
or give interrogatories" which may !e preferred so as to 1now why jury decided as such.
i& A2!r% Aver!/$n/ : Award Averaging is grounds for reversal. [=$":-e.]
174. J#%$&$!- Po2er 'o Overr$%e J#ry(
175. BRCP 7?(!)( J0OL (for"er-y 2! D$re&'e% Ver%$&')( The judge has the
power to ta1e the case away from the jury if" in light most favora!le to nonmoving party"
there is no evidence on which a reasona!le person could conclude against the moving
party. Judges usually do not li1e to grant" if reversed on appeal then there will !e a re9
trial.
176. BRCP 7?(:)( Rene2e% J0OL (for"er-y 2! JNOV)( Jury returns verdict"
judgment is entered" loser !rings renewed J.<;.
177. BRCP 74(!)( 0o'$on for Ne2 Tr$!-( Judge may grant a new trial if there is a
concern a!out a possi!le error. ;ess radical than J.<;. ?erdict may !e set aside and new
trial granted if verdict is against the weight of the evidence of if there was no reason for
47
J.<;.
4G
: A%%$'#r( Judge will grant plaintiff+s motion for a new trial unless %efen%!n'
!&&e+' !n $n&re!e in the award.
: Re"$''$'#r( Judge will grant defendant+s motion for a new trial unless plaintiff
accepts a decrease in the award.
C. ,'traordinary *elief from Judgment:
3& BRCP <?(:)( Judge may grant if concerned a!out prejudice to opposing party" length of delay
and impact on proceedings" reason for delay" whether moving party acted in good faith.
LII. T1E .INDIN8 EBBECT OB DECISIONS
178. *es Judicata $Claim reclusion&: Claim preclusion prevents a plaintiff from re9asserting a claim
that it %$% :r$n/ or &o#-% *!ve :o#/*' and it saves parties from having to relitigate claim again and again.
3& J#%/"en' on '*e 0er$' : In order to have preclusive effect" the judgment must have !een on
the merits. It must !e a final" valid decision. The parties in the second suit must !e identical to the
parties in the first suit and claim in second suit must have !een properly concluded in first suit.
laintiff cannot split claims and wait( fairness may overloo1 claim preclusion. laintiff should
present all legal theories in first suit" if law changes after first decision" tough" plaintiff should
have appealed.
i& Tr!n!&'$on!- Te'( Second claim is precluded if it was part of same transaction as
previously litigated claim.
179. Collateral ,stoppel $Issue reclusion&: Issue preclusion is narrower than res judicata and prevents
a plaintiff from raising an issue that actually was litigated in a previous suit !etween the two parties and
was "essential to the judgment."
3& Co--!'er!- E'o++e- Te' :
i& revious case must have ended in valid judgment on the merit.
180. Same issue was actually litigated and determined in the first case.
181. Issue was essential to the first case.
182. Collateral ,stoppel can only !e asserted against someone who was a party in the
first case.
183. Ao offensive collateral estoppel: couts generally do not li1e it when the plaintiff
is the party asserting collateral estoppel" !ut instead" the defendant" "Aon mutual
defensive collateral estoppel."
4I