shorter outline

8/8/2019 Shorter Outline

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In personam-

1. physical presence- makes party subject to general jurisdictionbased on

their presence in that forum at the moment of service- under pennoyer

this is presumptively sufficient

Transient rule- can be served no matter how fleeting forumpresence

Harris v. Balk- MD has PJ over harris through personal

service while Harris was visiting MD (regardless of himbeing there only temporarily

Constitutionality upheld in Burnham v. Superior Court (

even though suit unrelated to defendants activites instate)- However you have to be careful because this

may not be enough if defendants presence in state was

not intentional or voluntaryBurnham v. Superior Court-

Scalia- physical presence alone is enough

Brennan- must also apply min contacts test and see ifpurposeful availment

2. Voluntary appearance- submits to courts jurisdiction by voluntarily

appearing to defend lawsuit

3. Consent to service-Express- expressly designates an agent for process within state

or had a contractual agreement stipulating jurisdiction

o Ex- forum selection clauses, Carnival Cruise lines

v. shute

-Implied- state may provide a public officer to be designated

for that purpose

Ex- non resident motorist statute

4. Domicile

- Where party intends to stay, agrees to laws of state in which they

reside

1.Four categories of Minimum Contacts-should be evaluated with reference to whether they are continuous and

systematic or single and isolated and with whether give rise to action or are

unconnected1- contacts are systematic and continuous and give rise to claim- always

jurisdiction

2. systematic and continous contacts that are unrelated to cause of

action (come to represent are of general jurisdiction)- jurisdiction is appropriate if


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contacts are substantial

-exp- extensive corp activity, management, admin activity and

state3. Isolated and sporadic contacts giving rise to cause of action (specific

jurisdiction cases)- most cases are found in this category- jurisdiction is

appropriate if defendant purposely availed themselves to the laws of the state

purposeful availment- looks to some voluntary action by the defendant

establishing a relationship with the forum state- formula for finding what constitutes purposeful availment, but rather case-by-

case

- 4 Categories:

o entered state and conducted activity there

o entered into contractual relationships with forum residents

o s whose products enter the forum through stream of commerce

o s whose out-of-state conduct caused an injurious effect in forum state

a. Contractual Relationships

Rule: Passive Purchaser- no personal Jurisdiction

Active vs. Passive Purchasers: distinguishes consumer from company

o Active:Burger King

s dictate or negotiate contract, inspects facilities, etc

o Passive: Chalek

-Merely places order by mail or phone, accepts price from ad orsolicitation

-contracts plus analysis- Entering into a contract with a forum resident

may be sufficient- take into account place of negotation, execution, andperformance of contract.

- Unilateral actions of plantiff or third parties- does

not constitute purposeful availment

b.Stream of commerce-

-personal jur. over corp. that delivers products into stream of commerce with

expectation they will be purchased by consumers in forum state- WWVolkswagen- However court went other way on this issue inAshai Metalso thisissue remains unclear (lower courts seem to favor oconners opinion in ashai)

-oconner standard- defendant must have intended for its product to be

marketed in the forum state in order to satisfy the purposeful availmentrequirement

- brennan standard- the defendant merely must have been aware that its

product would be marketed in the forum state in order to satisfy the purposeful


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availment requirement

-forseeability - ensures that defendants will be on clear notice regarding when

conduct will subject them to jurisdiction-reasonably anticipate being haled into

court there (WW Volkswagen v. Woodson)- mere forseeability that ones actionswill cause injury in forum insufficient to establish personal jur.

c. - Calder effects test -Intentional wrongful conduct that has effects in state-sufficient for personal jur. (calder v. jones-defemation claim but has been applied

to other intentional torts) -directed at forum state is kind of a forseeability

argument- you would argue that the harm was foreseeable therefore it was

targeted

"purposeful direction," which requires

(a) an intentional action, that was

(b) expressly aimed at the forum state, with(c) knowledge that the brunt of the injury would be felt in the forum state.

4. isolated but unrelated contacts- no personal jurisdiction

2. Reasonableness--once it is determined minimum contacts exist must determine whether assertion

of PJ would be reasonable (whether assertion of jurisdiction comports with fairplay and substantial justice)

-Justice brennan has suggested IS test is sliding scale- more substantial

minimum contacts make up for lesser showing of reasonableness prong

Five Factor Analysis- (Gestalt Factors) - first three are more significant

and Court not really clear how to apply last 2 (Burger King v. Rudezewicz)

1. The burden on the defendant

2. the forum states interest in adjudicating the dispute

3. plantiffs interest in obtaining convenient and effective

relief4. interstate judicial systems interest in obtaining the most

efficient resolution of controversies

5. shared interest of the several states in furtheringfundamental substantive social policies

Inconvenience Argument: must show that the forum is so gravely inconvenient that is at a severe disadvantage in litigation.

3. Personal Jurisdiction in Federal Courts


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-Rule 4(k)(1)(A):

-Fed. Courts may exercise jurisdiction over a defendant who could be

subjected to the jurisdiction of a court of general jurisdiction in the state in which thedistrict court is located.

- Conversely, if a state court could not obtain jurisdiction, neither could

the federal court.

4. Diversity Jurisdiction

governed by 28 U.S.C. 1332

Two requirements-

- litigation between citizens of different states (or between a citizen of astate and an alien

- amount in controversy must be more than 75k

A. Diversity of State Citizenship

1.Complete Diversity Rule- no diversity if any plaintiff is a citizen of the same

state as

2, Citizenship of the Parties-

i. Individualscitizenship for individuals is determined based on their

domicile. To establish domicile:

- must be physically present in a place-have the intention to remain there indefinitely

ii. Corporations- defined by 1332(c)(1): a corporation is a citizen ofstates where:

- it is incorporated

-where it has its principal place of business

-the test for PPB is the nerve center test- Nerve Center:look to locus of decision-making authority. Usually HQ. Hertzv. Friend - where corp's officers direct, control, andcoordinate corp's activities.

iii. Partnerships and Unincorporated Associations- citizens of everystate and country of which its partners or members are citizens

iv. Legal Representatives- legal representatives are deemed citizens onlyof the state of the party whom they represent 1332(c)(2)

B. Amount in ControversyJoint and several liability-

At times multiple defednats may combine to cause a single injury

-under these circumstances amount in controversy is satisfied as to the claims


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against all defendants because under the substantive law either can be held liable for the

entire injury

Good Faith Test

- The amount claimed by will be accepted as being the true amount in

controversy if it is apparently made in good faith- Test will not be met if the can demonstrate that inflated the amount claimed

merely to be able to bring suit in federal court

Legal Certainty Rule

- But under the good faith test, jurisdiction does not exist if it is shown to a legal

certainty that cannot reach jurisdictional minimum

Subsequent events versus subsequent revelations: Subsequent events that alter the

amount in controversy will not affect a courts subject matter jurisdiction as long as the

jurisdictional minimum was met at the time suit was filed. These events includeabandonment/dismissal of some of plaintiffs claims or defendants payment of portion of

plaintiffs demands. Subsequent revelations as to what the amount in controversy waswhen suit was commenced will affect the courts jurisdiction if they establish plaintiffs

lack of good faith.

Aggregation of Claims

- can aggregate all of his claims, even if the claims are unrelated

- Aggregation is normally only allowed for one against one

o If more than one , each must individually satisfy the amount

requiremento If more than one , must establish amount requirement as to each

5. Federal Question Jurisdiction

A. Article III Arising Under Jurisdiction

B. Statutory Arising Under Jurisdiction (28 U.S.C.)

- 28 U.S.C. 1331: Grants subject matter jurisdiction over federal question cases in

generalo Uses similar arising under language as Article III

But arising under construed much more narrowly than Art. III

Tests-

1. Holmes Creation Test- cause of action created by fed. law- under

inclusive2.Well pleaded complaint rule- Louisville and Nashville Railroad v.


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Mottley fed question must appear in well pleaded complaint- fed. Questions that

appear in answer or may be used as defense will not suffice

3. Federal IngredientTest- Smith v. Kansas City - Turns on construction offederal law

.4. Merrel Dow v. Thompson- Implies that unless fed. Question is

substantial fed. Courts should decline to exercise jurisdiction (may beproper if sub. Fed. Question)

5. Grable Test (Substantial Federal Issue)- Grable & Sons MetalProducts v. Darue Engineering

-Is there a contested federal issue (disputed)?-Is it substantial?-is it necessary to resolution of claim?-If all these are met must decide of it will disturb

balance between federal and state courts (dont want toflood federal courts)

5. Supplemental Jurisdictiondefinition- Ability of the federal court to hear additional claims and parties,

where the court would otherwise lack SMJ over those claims and parties independently.

- 1367 (a): incorporates Gibbs recognition that a federal courts ability to hearclaims over which there is no independent basis of jurisdiction is limited to claims

that are party of the same constitutional case; common nucleus of operative fact

Some courts give it broad reading, as long as there is a loose factual connection

Discretionary decline of jurisdiction (1367(c))-authorizes district courts to decline

jurisdiction in certain circumstances that largely implement discretionary factorsidentified in United Mine Workers

-Grounds to decline- only on the basis of one of the following four grounds

1.Novel or complex issue of state law- law to be applied is uncertain somay decline so parties can get a surer-footed reading of applicable law from a state

court

2. Nonfederal claim substantially predominates- non federal claim is the

real body of the case. Court should not tolerate a litigants effort to impose upon it whatis in effect only a state law case. (United Mine Workers)

3. All original jurisdiction claims dismissed- if all claims over which fed

court had original jur. are dismissed, court may dismiss nonfed claims4. Extraordinary circumstances- may decline in these circumstances if

there are other compelling reasons for declining jurisdiction

6. Removal Jurisdiction

definition- allows a defendant to shift a case from state court to federal court when


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plaintiff has chosen to sue in state court (1441(a))

Removal Under 1441(a) and (b)

- Need BOTH parts (a) and (b) to remove a case

- 1441(a): allows a case to be removed if it is one over which the district court

would have had original jurisdiction- 1441(b):bars removal in diversity cases if any is a citizen of the forum state

(unless jurisdiction founded on claim that arises under fed. law)

o local defeats removal

- 1441 (c)- provides that parties who believe removal is erroneous can then move in

fed. court to remand the issue to state court (as long as motion is made within 30days of filing of notice of removal)

Rules of Removal:

1. One way street: only from state court to federal court

2. Only s can remove can neverremove a case

3. All s must agree to removal (see McCurtain County Production Corp. v. Cowett)4. Can only remove to federal court that embraces the state court where suit was

filed

5. Removal must occur within 30 days of service

6. Can only remove if case has federal subject matter jurisdiction

Notes:

- A defendant who removes a case to federal court does not thereby waive anobjection under Rule 12(b)(2) to lack of personal jurisdiction.

- When a case is removed, the federal court must immediately determine whether

or not it has subject matter jurisdiction. Section 1447 (c) provides that if at any

time therefore but before final judgment, the court concludes that it lacks subjectmatter jurisdiction, the case should be remanded.

7. Venue in Federal Courts

A. General Venue Statute: 28 U.S.C. 1391

- venue statutes in the federal system limit the federal districts in which suit maybe brought

- if a special venue statute other than 1391 applies than 1391 is either inapplicable

of supplementary depending on language of special statute

-removal actions (1441a) and claims qualifying for supplemental jurisdiction donot have to satisfy the terms of general removal statute

- Venue can be waived either by prior agreement or by failing to challenge

improper venue intitially (12h1)

Two Choices of Venue in ALL Cases

1. May lay venue in any district where any s reside.


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o 1391(a)(1) and (b)(1)

o If all s reside in different districts of the same state, you may lay venue

where any one of the s resides (provided they all reside in same state)

o Definition of resides:

For human beings: the district in which you are domiciled

For corporation: corporations residence 1391(c): Corporation resides in all districts where it is subject to

personal jurisdiction

2. May lay venue in any district where a substantial part of the events or

ommisions giving rise to the cause of action claim occurred (if property at

issue- venue is proper in district where substantial part of property is located)

o 1391 (a)(2) and (b)(2)

- 1391: use a if actions founded solely on diversity and use b to apply to all other

actions, including those founded on federal question jurisdiction.- In federal jurisdiction, when objection to venuetwo remedies:

o 1. Dismissal of case for improper venue

o 2. Transfer case to proper venue (U.S.C. 1406)

Fallback Provisions- if neither of these tests can be satisfied and give you proper venuethen venue approp. As determined by fallbacks

Diversity only actions- venue is proper wherever any defendant can be subject to

personal jurisdiction (1391(a)(3))Non diversity cases- venue is proper simply in any district where the defendant

may be found (1391(b)(3))

B. Transfer of Venue in Federal Court

1404 Transfer-proper venue to another proper venue

- transfer is about convenience of parties and witnesses and the interest of justice

- Transfers can only be made to districts where the case could have originally been

brought, regardless of whether the defendant now consents to suit in alternate

forum- decision to transfer is within discretion of court- Factors use:

o Strong preference for plaintiffs choice of forum

o Ease of access to sources of proof

o Availability of compulsory process for unwilling witnesses

o Cost of obtaining attendance of willing witnesses

o Practical problems that make trial of a case easy, expeditious andinexpensive

o Public interest factors (congestion, choice of law, relationship of

community in which courts/jurors are required to service)

1406 Transfer- improper to proper venue- Court has authority to transfer in the interest of justice, or can dismiss (defendant

can move for dismissal under 12(b)(3).


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8. Forum Non Conveniens

- Rule- common law doctrine that permits the dismissal of a case over which acourt has jurisdiction and venue on the ground that practical factors indicate that it should

be heard in another court and that court is outside of the same judicial system (often

employed when appropriate court is in a foreign country).-rational-courts not required to make their jurisdiction available to parties who

engage in unfair forum shopping and impose substantial inconvenience on other parties

and expense and burden on courts

In order to obtain dismissal on forum non conveniens grounds two Factors must besatisfied

1. Must be an adequate alternative forum available for case-

- applicability of less favorable law will not undermine status of analternate forum as adequate (Piper Aircraft Co. v. Reyno)

2. Must be a showing that interests of convenience to the parties and certainpublic interests argue in favor of alternative forum notwithstanding plantiffs choice of

current forum (Gulf Oil Corp v. Gilbert)

Note: Most courts have found that an alternate forum is adequate so long as it provides

some remedy for the plaintiff; unless the foreign forum provides no remedy at all, it isunlikely that a federal court will find the alternative forum unavailable.

Factors Relevant to Determine FNC:

- Private Interests of Litigants:

o Ease of access to evidence and witnesseso Enforceability of a judgment

o Advantages/obstacles to a fair trial

o Existence of an alternative forum that will provide adequate relief

- Public Interest:

o Administrative difficulties of courts

o Burden on community of an unrelated forum for jury duty

o Interest in trying the case locally rather than in a distant forum

o Interest in avoiding interpretation of foreign law

Important Note: usually substantial weight is given to plantiffs choice of forum (wherevenue and jurisdiction are proper). However, when plantiff is foreign that deference is

not warranted (Piper Aircraft).

9. NOTICE PLEADING & F.R.C.P.

Questions to ask for complaint -- does complaint adequately allege grounds for courts subject matter


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jurisdiction- does complaint adequately state a claim showing pleader is entitled to relief- Did the defendant sufficiently plead damages under FRCP

Questions to ask for answer--Was answer filed within required amount of time

-Did defendant adequately admit of deny all allegations?-Has defendant adequately pleaded any affirmative defenses?

Questions to answer for Amendments--Is amendment one that requires court permission?- If amendment involves a claim or defense does it arise out of same conduct,transaction or occurrence set forth in original pleading?

- Three Requirements for Complaint Under Rule 8(a):1. Short and plain statement of the grounds for jurisdiction [8(a)(1)]2. Short and plain statement showing that party is entitled to relief

[8(a)(2)]3. Demand for the relief sought [8(a)(3)]

- Exceptions to Rule 8(a): Heightend Pleading Standards1. Claims offraudor mistake must be stated with particularity (Rule

9b)

Policy purpose: to prevent meritless claims about a personsreputation

a party must state with particularity the circumstancesconstituting fraud or mistake

Not meant to impose a significantly more burdensome pleadingstandard-deatiled evidence need not be pleaded; rathersufficient information must be provided identifying thecircumstances of the fraud (or mistake) such that the defendantwill be able to form a response (see footnote seven pg 91acing)

Special damages must be specifically stated in order to beclaimed (protects opposing parties from being surprised at trialby claims of damge that would not reasonably foreseeable fromalleged event)

2. Statutory Exceptions3. Common Law Exceptions

Created by courts imposing heightened pleading requirementsin certain types of action deemed disfavored ie, libel,slander, defamation. (Similar policy reason as fraud/mist.)

Also in civil rights claims, anti-trust actions, suits againstgovernment, and complex litigation- imposed heightenedpleading standard in order to reduce number of frivolous claimsthat enter system

Supreme court has intervened on some occasions to overturnsuch practices- indicating inappropriate for lower courts toimpose heightened standards not set of in rules (e.g.Leatherman)

However, Bell Atlantic suggests courts may allowed to nowimpose some degree of factual substantiation at pleading stagealthough Court denys that this rises to level of heightenedpleading


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Requirements for s Answer:- Three types of responses- Denials, defenses, and counterclaims

- Rule 8(b) must either admit or deny each claim asserted in scomplaint

If fails to respond to a claim, then it is inferred that admitsthat claim [8(d)] (see king vision pay per view v. J.C. Dimitris)

General vs. Specific Denials [8(b)(3)]

General: when generally denies all allegations in thecomplaint

Specific: if does not want to deny all the allegations, must either:

o Specially deny designated allegations, or

o Generally deny all allegations except those

specifically admitted.

Denying Part of a Claim if only wants to deny a part oraspect of a claim, he must admit the part thats true and denythe rest. (ie: yes, I was hit by a car, but it was blue not red.)

Lacking Knowledge or Info must state if he does not haveinfo about an allegation

This statement of lack of knowledge has the effect of adenial

Specificity some denials mus9(a) and (c)]

Affirmative Defenses answer must also contain any affirmativedefenses [8(c)]- defenses available are discussed in Rule 12

Rule 12(a)- defendant generally has 20 days to respond to complaint

if defendant has waived service of process pursuant to plantiffsrequest will have 60 days (90 days for foreign defendants

Amendments

--F.R.C.P. 15: Allows party to amend a complaint to conform to the evidence,even after judgment is entered!

Amendments by Right 15(a)Rule 15(a)- allows parties to amend pleadings as a matter of right as long as it

is done within 20 days from the time of the filing of the pleadingPermissive Amendment- 15(b)

o freely give leave as justice requires standard for court to

grant leave to amend

court is not required but evaluates the totality of thecircumstances balancing interests of both parties todetermine whether justice would be furthered by

permitting the amendment 15(a) creates a strong presumption in favor or granting

amendment-15(b)(1) If objects that evidence at trial isnt within issues

raised in the pleading, court should freely permit to amend theircomplaint if doing so would aid in presenting the merits, and fails toshow that the new evidence would prejudice them

Burden on to convince the court notto permit theamendment b/c of prejudice


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Usually, if a truly unexpected issue comes up, the court will allowamendment, but also give more time for discovery regarding thenew issue

-15(b)(2) When an issue is raised at trial that was not in thecomplaint, if doesnt object to that issue, then he gives his impliedconsentto the amended pleading that includes that issue

Doesnt matter if actually amended or not if doesntcomplain to the issue, then it is considered part of the originalcomplain

If objection is made is made courts are instructed to permit theamendment freely unless the objecting party can showprejudice

- Relation Back Doctrine: Rule 15c- allows amendment of a pleading, even if thestatute of limitations has run

o Court will treat the amended complaint as if it were filed on the same

date as the initial complainto Requirements:

When doing so is permitted by the law that provides therelevant SOL

Claim/defense asserted in the amended pleading must arise outof the same conduct, transaction or occurrence that was setforth of attempt to be set forth in the original pleading

o Relation back can be deniedif the amended pleading differs so

substantially from the initial pleading that was not given notice of thenew claim at the time of the original pleading

-Situations in which the court may decide not to permit proposed amendment1. When allowing would unfairly predjudice adverse party

-example- if amendment is being made at time when adverse partywould not be able to prepare adequate response

2. Party seeking amendment was previously aware of the information forming

the basis for the amendment or failed to become aware of such info due to lack ofdiligence-party doesnt have unreasonable duty but rather if an ordinary and

expected investigation would have revealed info more recently discovered makesargument in favor of permitting amendment less strong when balanced w/ theburden placed on the other party

-Remedies for Opposing a Complaint that Fails to State a Claim under Rule 8:1. Do nothing, ignore the defect2. Move to dismiss for failure to conform to Rule 8(a)(2)

But court will typically grant leave to amend complaint underRule 15(a)

3. If complaint is vague/ambiguous, can move for a more definite

statement under Rule 12(e)

Rule 11- Counsel stating claims are not frivolous-Pleadings and other papers filed with court must be signed by

counsel w/ representation that allegations and arguments therein arenot frivolous, have or potentially have some evidentiary support, andare not being made for improper purposes (does not apply to discovery


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filings-governed by diff rule)- if counsel runs afoul of rule eleven other party may make

motion for court to impose sanctions-By signing counsel is indicating to court three things

1. filing not for improper purposes-

-harass, cause unnecessary delay, or needlesslyincrease the cost of litigation2. legal connotations contained in filing warranted by

existing law or by nonfrivilous argument for extending, modifying, orreversing existing law or for establishing new law

3. factual allegations or denials in the filings are supportedby evidence or are likely to have evidentiary support after furtherinvestigation

Rule 12(b) Motions to Dismiss- Rule 12 Motions: Allows to raise certain specified defenses by motion

before filing their answero Most motions to dismiss do not deal with the merits of the action

7 motions: (1) lack of subject matter jur, (2) lack of personaljur, (3) improper venue, (4) insufficient process, (5) insufficientservice, (6) failure to state a claim upon which relief can begranted, (7) failure to join a party under Rule 19.

10. Discovery

Limits to Scope-courts have discretion to broaden or limit scope discovery as provided by the rules

-Rule 26- must limit if court makes any of followingdeterminations-

1.discovery sought is unreasonably cumulative orduplicative

2. discovery sought is more easily obtained from othersource that is more convenient, less burdensome, or less expensive

3. the party seeking discovery has had ampleopportunity from discovery to obtain the information sought

-4. the burden or expense of the proposed discoveryoutweighs its likely benefit -taking into account-

a. needs of case

b. amount in controversyc. parties resourcesd. importance of issues at stakee. importance of proposed discovery in resolvingthe issues

5. can also limit for other reasons such as to protectprivacy or to prevent harassment of undue delay


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3 Essential Components:1. Discovery Relevance

A matter is relevant if it is reasonably calculatedto lead todiscovery of admis. evidence

Disc. is allowed if there is any possibility that the info will leadto admis. evidence at trial

Idea: the liberal disclosure of info will lead to a more justadjudication of the case

2. Standard for Attorney-Managed Discovery = Relevance to a claimor defense

More narrow/strict standard for discovery: discovery is only ofinfo relevant to the claim

Claim = group of facts relating to the same transaction oroccurrence, and giving rise to one or more rights of action

3. Standard for Judicially Supervised Discovery = Subject matterstandard

More lax standard for discovery: info has to be relevant to thesubject matter of the dispute

This standard is only triggered if a party is denied discoveryunder the claim/defense std.

Process of discovery-1. initial discovery2. discovery request3. Initial Refusal- must confer with dislosing party to try and

reach agreement regarding request4. No resolution-

motion to compel- if granted would order resisting partyto disclose

protective order- court orders info is protected fromdiscovery and either need not be disclosed or be disclosed in some limited

fashion that addresses partys concerns5. Duty to supplement- oncer material is disclosed pursuant to

discovery obligations parties have a continuing obligation to supplement ifinfo becomes incomplete due to new info or discovery that info was incorrectin some way

Privilege

- Privilege = judicially recognized right to refuse to disclose otherwise relevantinfo

o Rule 26(b)(1) expressly limits the scope of discovery to matters not

privileged

Rational:-Public Policy Reasons free communications in important social and

legal relationships is deemed to be a superior societal interest than the abilityto have such info available as evidence in litigation

- 4 Types of Privilege:1. Created by federal common law2. Created by state law


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3. Created by the Constitution4. Created by federal statute or rule

-1. Psychotherapist-patient privilege

- Jafee v. Redmondo Rule: Court established a psychotherapist-patient privilege

2. Attorney-Client Privilege- Upjohn Company v. U.S. [Part I]

o Rule: application of the attorney-client privilege in the corporate

setting.

2-Way Street:The privilege extends not only to the giving ofadvice/info from the attorney, but also the giving of info to theattorney to enable him to give sound and informed advice

Communications vs.Facts: privilege only protects disclosure of

communications, it does NOT protect the underlying facts Ie, Witness at trial cant refuse to answer a question

about a fact that was mentioned in a communication that fact is open to inquiry under the normal system

o Court found that the lower courts control group (only extending

privilege to higher officers) was too narrow because lower employeesoften have info needed by a corporations lawyers

a. The Work Product Doctrine

- Work Product Doctrine: protects the preparation an attorney undertakes onbehalf of his client in anticipation of litigation or trial.

- Two Kinds of Attorney Work Product:

1. Fact Work Product written statements by witnesses about thefacts

This info is discoverable by a showing of necessity + hardship[26(b)(3)(A)]

2. Opinion Work Product the attorneys personal notes orimpressions about the statements made by witnesses

This info is rarely if ever discoverable [26(b)(3)(B)]

Cant force an attorney to share his internal mental processesand personal evaluations

- Hickman v. Taylor

o Rule: Access to fact work product requires a showing ofnecessity AND

hardshipo failed to show hardship or necessity to warrant granting access to

attorney fact work product- Upjohn Company v. U.S. [Part II]

o Rule: Access to opinion work product is rarely if ever discoverable

o Court doesnt make an absolute rule of such work product, but it would

require a higher showing of good cause. The necessity/hardshipstandard of fact W.P. is insufficient.


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- Expert Testimony: -655-666o If expert will testify at trial: Rules allow for generous discovery of facts

known and opinions held by that expert [26(b)(4)(a)]

o If expert is not expected to testify at trial: More limited discovery

Discovery is only allowed upon a showing of exceptionalcircumstances under which it is impracticable for the partyseeking discovery to obtain facts or opinions on the samesubject by other means [26(b)(4)(B)]

Purpose: prevent one party from relying exclusively on the workdone by another

2 circumstances where burden might be satisfied:1. when investigation done by the expert cant be

replicated b/c object of study is no longer observable2. when the expense of replicating the study is

prohibitive

Formal Discovery in Federal Court

b. Mandatory Conference & Mandatory Disclosures- Discovery Conference: Rule 26(f) discovery cant commence until theparties first meet (without court supervision) and confer to consider thenature and basis of their claims and defenses, and the possibility ofsettlement

o Also to arrange for a discovery plan

At the end of the conference parties must submit to the court awritten report outlining the plan. Failure to participate inplans creation/submission can = sanctions [Rule 37(g)]

- Mandatory Disclosure: Rule 26(a)(1) -- imposes an initial disclosurerequirement on all parties withouthaving to wait for a request for discovery.

o These initial disclosures must be made within 14 days of the Discovery

Conferenceo Purpose = to accelerate the exchange of basic info about the case and

to eliminate the paperwork involved in info requestso Info Required:

1. IDs of all potential witnesses2. ID of all docs, data, or tangible things that may be used as

evidence3. Computation of damages4. Copies of insurance agreements

- Court Supervision of Discovery Process: Court has 3 tools to supervise 1. Protective order2. Order to compel disclosure3. Sanctions

11. Joinder of Claims By s and s1. Claims and Counterclaims- Rule 18: can join as many claims as it has against (applies to parties making

original claims, counterclaims, crossclaims, or third party claims)

o Claimants must first successfully assert a claim against a party under one

of the rules before it will be able to join other claims against same party


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o The decision to join additional unrelated claims under rule 18(a) is

discretionary; thus a party failing to join such claims is free to raise them

in a subsequent action.

o Must independently satisfy jurisdictional and venue requirements

- Permissive Counterclaims: Rule 13(b)o may be raised by the party but need not be

o claims a defending party has against an opponent that do not arise out of

the same transaction or occurrence

o Must independently satisfy jurisdictional and venue requirements

- Compulsory Counterclaims: Rule 13(a)o Requirements for Compulsory Counterclaims

1. Claim must exist at the time of pleading

2. Must arise out of the same transaction/occurrence as the opposing

partys claim-Logical relationship test- claims that are logically related to

one another satisfy same transaction/occurrence standard- logical relationship exists when claims are offshoots of

same basic controversy between parties or otherwise related in

such a way that separate trials on each of claims would involvea substantial deuplication of effort and time by the parties and

the courts or the presentation of similar bodies of evidence

-Note: although this test does not present a bright line rule

cause in the way it has been inconsitently applied- the policy ofthe underlying standard of efficient use of judicial resources,

minimizing burden on litigants, and avoiding unnecc.Impositions on witness help to apply standard.

3. Must not bring in parties over whom the court doesnt have

jurisdiction (Must also independently satisfy jurisdictional andvenue requirements- since compulsory counterclaims rise out of

same transaction of occurrence- generally be supplemental

jurisdiction)

First-to-File Rule (Semmes Motors v. Ford Motor Co.) If fails to assert a

compulsory counterclaim in Suit 1 in Court 1, and then brings that compulsorycounterclaim in Suit 2 in Court 2, Court 1 can enjoin the second action.

Supplemental Jurisdiction:


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o Permissive vs. Compulsory Counterclaims: federal courts have SMJ over

compulsorycounterclaims, butpermissive counterclaims require their own

jurisdictional basis.

Permissive dont fall within courts SMJ, require independent basisfor jurisdiction

o SMJ Under 1367: Part A: the court has SMJ over all claims if they are part of the

same case or controversy unlesspart B takes that away.

Part B: if SMJ is based on diversity jurisdiction, the court does

NOT have SMJ over claims underRules 14, 19, 20, or 24.

Cross-Claims

- Rule 13(g): Cross-Claims = Claims asserted by a party against a co-partyo Cross-claims may be asserted if:

It arises out of the same transaction/occurrence as the original

action, or

It relates to property that is the subject matter of the original action

12. Permissive Joinder of Parties

Requirements for Joinder: Rule 20(a) 1. Claims involve the same transaction/occurrence2. There is at least one question of law or fact that is common to all

the claims

13. Compulsory Joinder of Parties: : NECESSARYAND

INDISPENSABLE PARTIES- Rule 19: Required joinder. 3-pronged analysis. Must meet at least one prongto

make joinder mandatory.

1. Necessary Party Status -Is the absentee a necessary party whom must

join? YES if lack of joinder would result in 3 prong analysis-

a. the court could not accord complete relief among the existing parties

b. the persons interest would be prejudicedc. existing parties would be harmed by exposure to a substantial risk of

incurring multiple liability

2. Feasability of Joinder - Assuming the absentee is necessary, is it feasible for to bring them into the suit?

a.Personal Jurisdiction-can court obtain personal jurisdiction over

necessary party

b. Subject Matter Jurisdiction- will joinder of the party deprive court of


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subject matter jurisdiction over the action

c. Venue- has the necessary party objected to venue- if yes does joinder of

party render venue improper

If yes, then must amend her complaint to join absentee as additional

or - If one of these factors is not meant joinder is not feasible and proceed to nextquestion to seem if party is indispensable

3. Indispensability of Party - it is not feasible to join absentee, can the action

proceed among the existing parties, or should it be dismissed? Factors for thecourt to consider:

a. Extent to which judgment rendered without absentee might prejudice

that person or existing partiesb. Extent to which that prejudice could be avoided or lessened

c. Whether judgment rendered in that persons absence would be

adequate

d. Whether would have an adequate remedy if the action were

dismissed for nonjoinder.

14. JOINDEROF THIRD PARTIESBY S

2 Ways Can Assert Claim against Party Not Already in Suit:

1. Rule 13(h) who has filed a counterclaim or cross-claim to join a new party tothat claim

o Ask would Rule 20 or 19 allow such a joinder? If yes, then proper.

2. Rule 14(a) can file a third-party complaint against a nonparty who is or may

be liable to indemnify the for all or part of s claim against

Joinder of Third Parties Under Rule 14- 3 Types of Claims under 14(a):

1. Impleader/indemnity claim by against the third-party .2. Claims by the third-party against

3. Claims by against the third-party .

**Note: 14(a) also allows the third-party to file any counterclaims he may

have against under Rule 13- Joining Third Parties:

o may bring in third party who may be liable to him for all or part of

s claim against , any time after commencement of the action against

him

o may bring in third party only when a counterclaim is asserted against

him

Rule 13(h) Joinder vs. Rule 14(a) Joinder

- Both rules allow a to bring in new parties to the action, but a 13(h) claim mustbe part of a counterclaim or cross-claim being asserted against the existing party.

o A 14(a) claim is asserted solely against the new party to the suit.


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- Joinder under 14(a) is limited to indemnity claims, but 13(h) joinder may seek anyform of relief.

15. Intervention

- Mandatory Intervention under(a)(2) vs. Permissive Intervention under(b)(2) o A. Mandatory:Pitney Bowes Test. To intervene as of right under Rule

24(a)(2), intervenor must show:

1. A timely motion

Factors to consider for timeliness issue:

Length of time during which intervenor actually knew or

reasonably should have known of its interest in the casebefore it petitioned to intervene

Extent of prejudice the existing parties may suffer from

timing/delay

Extent of prejudice intervenor may suffer if intervention isdenied

Best gauge for timeliness2. An interest relating to the property or transaction that is the subject

matter of the action

Interest must be direct, substantial, and legally protectable (notremote or contingent)

3. Impairment of that interest without intervention

4. The movants interest is not adequately represented by the other

parties to the litigation

Adequate representation is presumed when the intervenorshares

same objective as a party to the suit Presumption can be overcome by intervenor showing that

collusion, nonfeasance, adversity of interest, or incompetence on

the part of the named party sharing the interest.

o B. Permissive: may be granted when intervenors claim or defense and the

main action have a question of law or fact in common.

Principle consideration of the court: whether intervention will

unduly delay or prejudice the adjudication of the rights of the

original parties

Interest in preventing intervention to be used as a means to inject

collateral issues

Factors court may consider:

nature/extent of intervenors interest

whether those interests are adequately represented by the

parties

whether intervening party will significantly contribute to the full development of the


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underlying factual issues in the suit, or to the just/equitable adjudication of legal ques

16. INTERPLEADER

- Interpleader: Joinder device that comes into play when 2 or more parties claimright to one property/stake

o Stakeholder may bring action against allof the claimants, forcing them to

interplead and fight it out amongst themselves to determine which of

them is entitled to the stake

o Stakeholder interests advanced by interpleader

Spares the stakeholder the vexation of multiple lawsuits with

respect to the same property

Eliminates the risk that in separate suits the stakeholder might be

found liable to more than 1 claimant for the same property

o Interpleader can even be used by stakeholder who has already been sued

by 1 or more claimants

If SH was already sued by C1, and later C2 brings suit, SH can

interplead defensively by filing a counterclaim for interpleader

against C2 under 13(a) and enjoin suit- Steps for Interpleader:

1. Court decides whether anyone other than stakeholder is entitled to the

stake (making interpleader appropriate remedy). If yes, then

2. Adverse claimants litigate against each other to see which of them isentitled to the stake.

17. Summary Judgment- Rule 56:- Either party can move for summary judgment on the ground that there is no

genuine issue of material fact

o Evidence must be substantial enough for a reasonable jury to render a

verdict in the nonmovants favor; otherwise, SJ will be granted for the

moving party.

o Question presented when summary judgment motion is made is whether

there is a genuine issue as to any material fact and if the movant is

entitled to judgment as a matter of law

o After moving party meets initial burden Party opposing SJ must set forth

specific facts showing that there IS a genuine issue for a trial.

1. Summary Judgment Sua Sponte

- Courts may enter SJsua sponte, or on their own motion, so long as the losingparty was on notice that they had to come forward with all of their evidence.

o Rule 56(c): When SJ motion is made, non-moving party must have

minimum 10-days notice


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18. DEFAULT JUDGMENTS

- Rule 55 if is properly served w/ complaint, and fails to respond within timeallowed (usually 20 days, per R12), then may move for default judgment

[55(a)]

19. DISMISSALOF ACTIONS

Voluntary Dismissal under Rule 41(a)

o Usually result from the parties reaching a settlement and drops the suit

Or, can voluntarily drop the suit if he learns through discovery

that he lacks sufficient evidence

might also drop the suit to be able to refile in a more favorable

court

o Rule 41(a)(1) may voluntarily drop the suit without court approval if hasnt answered complaint yet

Rule 41(a)(2) all other voluntary dismissals require courtapproval!

Court can refuse to allow a dismissal if can show

prejudice. Refusal under this is liberal.

Even if dismissal is granted w/o prejudice (so can sue

again), court can force to reimburse for court costs and

attorneys fees

Court will NOT grant s motion to dismiss in order to

defeat SMJ for s counterclaim

1. Dismissal for Failure to Prosecute under Rule 41(b)o Allows a to file a motion seeking involuntary dismissal for s failure to

prosecute

If dismissal is granted, it is treated as a judgment on the merits,

barring from refilling same claim

Regarded as a sanction only taken in cases of egregious abuse,especially since it bars future litigation

o Rule 41(c): Gives courts authority to dismiss counterclaims and cross-

claims where failed to prosecute.

o Factors Courts Consider in Deciding Whether to Dismiss for Failure to

Prosecute:

Was the failure due to the partys willfulness, bad faith, or fault?

Does the failure prejudice the opposing party?

Was adequate warning given that such a failure could lead to

dismissal?

Is dismissal needed to deter future misconduct?

Are less drastic sanctions available or appropriate?

What was the length of time that the party didnt act?


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Dismissal as a Judicial Sanction under Rule 41(b)

o Authorizes dismissal as a sanction for failure to comply with federal rules

or the courts order.

o Other rules that allow dismissal as a sanction: 4(m), for failure of service;

16(f) for failure to comply with pretrial conference; 37(b)(2) for failure to

comply with discovery orders.

o Factors Courts Consider in Deciding Whether to Dismiss as Sanction:

Did act intentionally, or only accidentally or involuntarily?

Is s action part of a pattern of misconduct, or just an isolated

incident?

Was warned by the court that he was skating on thin ice and

facing dismissal?

Are any less drastic sanctions available or appropriate?

JML: Rule 50

-may be made at any time prior to the submission to the jury, but only after aparty has been fully heard on the issue, but can be renewed after the jury returns

its verdict [50(b)]

o Party is entitled to JML if, on the evidence submitted, no reasonable juror

could find against the party (evidence is legally insufficient)

JML (Rule 50) vs. SJ (Rule 56):

-Identical std for BOTH! Party entitled to JML or SJ if no reas. jurorcould find against it

o SJ decision must be made BEFORE the offset of trial, while the JML can

come post-trial

o JML can be more advantageous because the court has had a chance to hearthe evidence more completely

Motions for a New Trial- Rule 59

Party can challenge an adverse judgment by moving for a new trial, filed in lieu of

or as an alternative to JML

o Time limitation = no later than 10 days after entry of judgment [Rule

59(b)]

o Unlike JML under Rule 50, this motion calls on the court to decide

whether a seriously erroneous result happened such that it was a

miscarriage of justice. Different from JML in 2 ways:

1. Specific remedy sought is a new trial, not a judgment in favorof the moving party

2. Therefore, the standard for granting a new trial are significantly

more flexible than JML

o Trial court is given broad discretion to determine whether the purported

error has so infected the trial process as to render the judgment or process

fundamentally unfair


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o Motion will only be granted to redressprejudicial errors that affect

fundamental fairness. Typical grounds:

Errors in the jury selection process

Erroneous evidentiary rulings

Erroneous verdict instructions

Misconduct by judge, jury, parties or witnesses Newly discovered evidence

20. Claim and Issue Preclusion

- Rule of Finality Generally, claims/issues resolved and decided by a judgmentmay not be the subject of further litigation between the same parties.

o Policy: assures parties of finality, and conserves judicial resources.

Claim Preclusion/Res Judicata: refers to the treatment of a judgement as the

full measure of relief to be awared between same parties on same claimdefines when a claim or cause of action resolved in one case may

preclude further litigation on that claim in a subsequent case.

o prevents a party from asserting anypart of a

previously resolved claim, including thoseaspects of the claim that may not have beenlitigated in the initial suit!!!

o Key = identity of the parties, and whether cases

involve the same claim.Issue Preclusion/Collateral Estoppel: doctine that bars relitigation of issues

that were actuallylitigated in a prior action, provided the adjudication of those issueswas essential to the judgement.

defines the extent to which discrete issues decided in a prior suit may be

binding in subsequent litigation involving different claims.o Not dependent on the claim litigated, but on the

discrete issues decided.

Difference between claim and issue preclusion-

-Res judica bars A from suing B for any kind of relief arising from a particulartransaction or occurrence if smith had previously brought an action against

jones based on that transaction or occurrence and the prior action was on themerits. Res judica bars any relitigation of As rights against B based on thoseevents, including not only the claims that Smith did raise the first time aroundbut also any other claims arising out of the same set of facts that A couldhave raised (but did not) in the first action.-Collateral estoppel is more narrowly focused. It precludes A from

relitigationg issues that were actually litigated and decided in a prior action with B. Ifan issue could have

CLAIM PRECLUSIONOR RES JUDICATA-THINKWASITTHESAMETRANSACTION- VERYLIBERAL-BASEDON IDEASTHAT

- if party had right to join two claims for relief arising from sametransaction, it is reasonable to require her to do so, instead of bringing two suits thatwill rehash same facts


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- under same transaction or occurrence test preclusion turns on theright to join a claim in the original action, bot on whether claim actually was asserted(only need to have been available to plaintiff) (advantage of same transaction andoccurrence test it is less ambiguous cause it focuses on the same set of facts)

-it doesnt matter if claim is based on different legal theory if the claimarises out of the same occurrence as first it wil be barred.

- Three elements of the defense of claim preclusion:

1. The claim in the 2nd suit must be the same claim or cause of actionas the first suit

2. The judgment in the first suit must have been final, valid, and onthe merits

3. Both the first and second suits must involve the same parties orthose in privity with them

1. Same Claim-

I. Transactional Test defines a claim to be defined as a group ofoperative facts giving rise to one or more rights of action

Promotes efficiency, but potentially at the cost of unfairness

II. Restatement Transactional Test Tempers the reach of thetransactional test by imposing commonsense limitations on whatmay constitute a transaction. Adds considerations for court toconsider:

a. Whether facts are related in time, space, origin, ormotivation

b. Whether they form a convenient trial unitc. Whether their treatment as a unit conforms to the parties

expectations

2 Final, Valid, and on the Meritsa. Finality

Finality: Trial cts decision is the final decision untilreversed/altered on appeal. Incl. injunctions

some courts only give res judica effect to judgements ifthe time for appeal has based or the case has been fullyresolved by the appellate court.

Exception: a decision imposing liability but not assessingdamages final.

b. Valid

Judgment = VALID if:

had proper notice

If personal jurisdiction was satisfied, and

If the rendering court had subject matter jurisdiction

over the controversy.c. On the Merits

Merits of the claim are in fact adjudicated against the aftertrial of the substantive issues

Judgment for Plaintiffs Every final judgment in favor ofa is on the merits, including defaults, SJ and directed

verdicts despite the lack of an actual trial. ClaimPreclusion


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Judgment for Defendants Not so clear-cut for s.

o Judgment = on the merits if it is on s

substantive claims Claim Preclusion.

o Judgment on the merits and does NOT trigger

claim preclusion if its clearly premised onnonsubstantive grounds. Not on the merits if:

Judgment is for dismissal for lack ofjurisdiction, venue, or misjoinder

d. Same Parties of Those in Privity With Themo Claim preclusion only binds/benefits the parties to the previously

decided action, or those in privity w/ them!

Party = person who is named as a party to an action andsubjected to courts jurisdiction

Privity = person in such a relationship with a party to a suitthat he can be treated as a party for RJ.

3 relationships in privity:a. Owners and successive owners of real property

b. Relationships that intertwine substantive legalinterests of party and nonparty

Vicarious liability relationships!

Ex: V gets in a car crash with pizzadeliveryman if V sues the pizzacompany you cant sue the pizza driver aswell for additional damages.

c. Relationship premised on a representationalrelationship b/w party and nonparty

Ex: administrator of an estate for thebeneficiaries of the estate

Virtual Representation some courts haveattempted to enlarge representational

category to find privity when a party tothe suit can be said to have adequatelyrepresented the nonparty, due to theirshared interests

o Richards v. Jefferson County

Rule: Virtual Representation Virtual representation does notpreclude rights of strangers!

Issue Preclusion or Collateral Estoppel- Claim v. Issue Preclusion

o Claim precl. extinguishes the entire claim, including the aspects of a

claim that were not previously litigated

Most often applies when a splits a claim by failing to allege itentirely

o Issue preclusion focuses on discrete issues, and prevents their

relitigation

4 Elements of Issue Preclusion1. The same issueis involved in both actions2. The issue was actually litigatedin the first action


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3. The issue was decidedand necessaryto the judgment in thataction

4. Both actions involve the same parties or those in privitywiththem

Note: Issue preclusion only bars issues actually ligitgated and decided in the

prior action; it does not affect claims or defenses that could have been raisedbut were not (example-defense of mutual mistake)

1. Same IssueThink different factual issue

o Sameness = enough of a factual/legal overlap b/w the issues that it is

reasonable to treat them as the same

Reasonableness should take into account:

Factual and legal similarities

Nature of the underlying claims as to each

Substantive policies that may argue for or againstapplication of issue preclusion

Extent to which applying issue preclusion will promote orundermine fairness/efficiency

o Commissioner of Internal Revenue v. Sunnen

Rule: Narrow construction of the same issue under IssuePreclusion.

Here, court found NO issue preclusion because 2nd claim wasbased on a different tax year

1st suit b/w IRS and didnt preclude this 2nd suit b/c itwas under a different years tax K.

o Lumpkin v. Jordan

Rule: A federal trial can issue preclude the need for a later statetrial, when the state case is based on the same issues of fact orlaw as the federal case was decided on.

Here, issue preclusion prevents from bringing claim in statecourt re: discrimination issues previously litigated and finallydecided in a federal court: (1) same issue of discrim., (2)actually litigated, (3) discrim. issue was both decided andnecessary to Suit 1, and (4) same parties involved.

2. Actually Litigated

o If the same issue is presented in both cases, the party asserting the

issue preclusion must also establish the issue was not merely present but was actually litigatedthere.

o Requirements for Actually Litigated:

Properly raised Formally contested between the parties

And submitted to the court for determination

o Parties must formally oppose one another on the issue at some point in

the litigation process and submit the issue to the court for resolution (ie, it does NOT have to be adversarial, can be solely on paper, like SJ.)

Heres the difference from Claim Preclusion!

o Claim preclusion applies even to aspects of a claim that were never

raised or disputed (ie, that were never litigated). But issue preclusion


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DOES require actual litigation.

3. Decided and Necessaryo A party asserting issue preclusion must establish that the issue was

both:

Previously resolved (decided) as a part of a final judgment, and

That the resolution was essential (necessary) to that judgmento Ex: A sues B for breach of K. Bs sole defense is that A procured K

through fraud. Judgment is for A.

Absence of fraud was both decided and necessary to the judgment

Even though there was no specific findings on the fraud issue, adecision that no fraud occurre4d = implicit

o Cuningham v. Outten

Rule: For issue preclusion to be appropriate, the issues must befully decidedin previous suit.

Here, s conviction of Inattentive Driving in Suit 1 does notpreclude him from bringing Suit 2, which is based onnegl/liability, since s comparative negl/liab were not fully

decided in Suit 1.o Aldrich v. State of NY

Rule: If the issue was squarely addressed and specificallydecided in Suit 1, precluded from Suit 2.

Here, Suit 1 found that a bridge was not negligently engineered

precludes Suit 2, which is claiming that the bridges faultydesign is to blame for a flood.

4. Same Parties or Those in Privity with Themo Three Categories of the Same Party:

i. Party = person named as a party to the actionii. Person in Privity = someone whose relationship w/ party

enables him to be = a party

iii. Substantial Participator = a person who substantiallyparticipates in a prior litigation will also be treated as aparty as to those issues over which he assertedcontrol/participation.

o Mutuality Principle only a person bound by a judgment may benefit

from it.

Therefore, only a party (or in privity w/ a party) may use ajudgment in a preclusive manner in a subsequent proceeding.

A stranger to the case (not bound by it) cant legally benefitfrom it either

o Bernhard v. Bank of America

Rule: Nonmutual CollateralEstoppel: exception to MutualityPrinciple is justified when it would be unjust to permit a party to

reopen identical issues merely by switching adversaries. Here, Probate Court found against (heirs) that Cook didnt

steal from their old mother, but now bringing suit against thebank where Cook deposited and pilfered the money

Court: mutuality principle does NOT preclude bank fromusing defensive collateral estoppel!

Even though bank was not a party to Suit 1 (ProbateSuit), it can use Suit 1s holding to prevent from suingthem. Based on fairness already had their day in


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court re: the estate, and they lost.

Issue as to the ownership of the money was already finallydecided in the probate court.

o Nonmutuality Principle: Jurisdictions abandoned mutuality principle

with exception caveat:

A stranger may invoke issue preclusion against a party only if

that party had a full & fair opportunity to litigate the issue &had an incentive to do so.

***Due process entitles everyone to their day in court (7th

amendment) and the abandonment of the mutuality principlehas not changed this basic tenant of our court system. In everynon mutual estoppel situation the estopped party must havebeen a party in the first suit and therefore had his chance tolitigate the issue.

Restatement: Nonmutual Issue Preclusion should NOT beallowed when

i. It would be incompatible w/ scheme ofadministering remedies in actions involved

ii. If forum in Suit 2 provides procedures that wouldlikely lead to a different determination and whichwere not available in Suit 1

iii. If person invoking preclusion could have easilyjoined in Suit 1

iv. If decision may have been affected by therelationships among the parties to Suit 1

v. If the decision was based on a compromiseverdict.

o Parklane Hosiery Co. v. Shore (supreme court held offensive does not

violate due process- already had day in court)

Rule: Offensive Collateral Estoppel: seeks to use theholding from Suit 1 offensivelyin Suit 2 against the same that

lost in Suit 1. wants to estop from relitigating issues healready lost to!

Court has broad discretion whether to allow the use ofoffensive collateral estoppel.

Offensive collateral estoppel should NOT be allowed if:o could have easily joined in the other action, or

o The application of offensive collateral estoppel

would be unfair to .

Note: Courts will- usually allow use of use ofdefensive non mutual estoppel in cases where they areconvinced the party being estopped had a full opportunity andincentive to litigate the issue of his neg. in the first action.However, this is still discretionary


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o


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shorter outline

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