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Civil Procedure II: The Procedure Strikes Back

I. Class Actions

A. Characteristics:

1. Large number of plaintiffs

2. Stops defendants from bad behavior.

3. Typically caused by a negative value lawsuit because the recovery will be less than the

attorney's fees or court filing fees.

a) Negative value- Attorney would not be able to recoup fees by single case.

B. Class actions cause a due process problem because the members of the class may not be able to

have their day in court.

1. Since there is an option to Opt Out of the class action there is less consideration for due


C. Rule 23 Functions:

1. Define the class sufficiently

2. Ensure that the proposed representatives satisfy the definition.


1. Objectively ascertainable class (a defined class is implied by the rule); (In Re Teflon)

2. Numerosity: the class is so numerous that joinder under Rule 20 of all members is

impracticable (Rest are Hansberry)

3. Commonality: of law or fact

4. Typicality: The claims or defenses of the representative parties are typical of the claims

or defenses of the class for all possible parties involved.

5. Adequacy of counsel and class representatives: the representative parties will fairly and

adequately protect the interests of the class

a) Becomes a competitive process between counsels. Generally who has the most

potential clients in the likely lawsuit gets more counsel assigned.

E. Due Process in Class Action under Hansberry

1. Satisfied re: absent class members if they are represented by a representative party:

a) With common interests,

b) Who adequately represents their interests, and

c) Who is formally designated a class representative by the court

II. Supplemental Jurisdiction - How to get jurisdiction over joined claims. Looking at Rules 14, 19, 20, 24

A. Overview

1. A federal court can exercise supplemental jurisdiction over a secondary claim when it has

original jurisdiction over a claim and the two claims arise out of a common nucleus of

operative facts.


B. A court should decline to exercise supplemental jurisdiction where it otherwise is permissible IF:

1. The federal claim is dismissed early in the litigation

2. The case would require the court to make needless decision on sensitive state law issues

3. The state law issues substantially predominate the litigation OR

4. To avoid potential jury confusion

C. 28 USC 1367

1. (a)[GIBBS CODIFIED]Except as provided in subsections (b) and (c) or as expressly

provided otherwise by Federal statute, in any civil action of which the district courts have

original jurisdiction, the district courts shall have supplemental jurisdiction over all other

claims that are so related to claims in the action within such original jurisdiction that they

form part of the same case or controversyunder Article III of the United States

Constitution. Such supplemental jurisdiction shall include claims that involve the joinder

or intervention of additional parties.







2. (b)[OWEN V. KROGER CODIFIED]In any civil action of which the district courts

have original jurisdiction founded solely on section 1332 of this title [28 USCS § 1332],

the district courts shall not have supplemental jurisdiction under subsection (a) over

claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the

Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as

plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24

of such rules, when exercising supplemental jurisdiction over such claims would be

inconsistent with the jurisdictional requirements of section 1332 [28 USCS § 1332].

a) Antiquated, but helpful terms

(1) Pendent Jurisdiction: Case in which an original plaintiff asserted a federal

claim and added a related state law claim. (asserted by the original


(2) Ancillary Jurisdiction: The right of a court that can aid and regulate

decisions reached in an original suit but in a different court. (added by

defending parties).

3. (c)[GIBBS CODIFIED]The district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if--

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

b) (2) the claim substantially predominates over the claim or claims over which the

district court has original jurisdiction,

c) (3) the district court has dismissed all claims over which it has original

jurisdiction, or

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


4. (d) The period of limitations for any claim asserted under subsection (a), and for any

other claim in the same action that is voluntarily dismissed at the same time as or after

the dismissal of the claim under subsection (a), shall be tolled while the claim is pending

and for a period of 30 days after it is dismissed unless State law provides for a longer

tolling period.

a) LAYMAN’S TERMS:There is a 30 day grace window for the plaintiff to refile

in state court after the dismissal of the state law claims in federal court. This

allows district courts to have some leeway in the dismissal of cases so that justice

can be served and that the plaintiff doesn’t run into claim preclusion.

D. Supplemental Jurisdiction Analysis Flowchart Provided by Schaffzin

1. Is there original jurisdiction - federal question or diversity - over one claim?

2. Does court have federal question or diversity over extra claims? If no, continue.

3. Does court have supplemental jurisdiction over extra claim?

a) 1367(a)/Gibbstest - common nucleus of operative fact such that we have "one

constitutional case"

4. Does 1367(b)take away supplemental jurisdiction over extra claim?

a) Is original claim (question 1)solely based on diversity jurisdiction?

b) Is the extra claim a claim by a plaintiff?


Is extra claim inconsistent with diversity requirements (complete diversity and

amount in controversy)?

(1) If yes to all three, court does not have supplemental jurisdiction under


(a) EXXON EXCEPTION- Where complete diversity is satisfied

and at least one plaintiff satisfies amount in controversy, court may

exercise supplemental jurisdiction over additional plaintiffs whose

claims do not satisfy the amount in controversy, but arguable only

in cases where there is a single defendant.



Should court decline to exercise supplemental jurisdiction under 1367(c)?




Caprera is arrested by Epstein and Ruiz who are two police officers. He claims the

officers assaulted him during the arrest and sues under 42 U.S.C. Section 7983, alleging

federal constitutional right to be free of unreasonable seizures and has been violated. He

also asserts a state law claim for battery against each defendant. Asserts 4 separate


a) Rule 20(a)(2) properly joins the officers as co-defendants arising from the same

arrest, and there will be a question as to who assaulted Caprera.

b) Rule 18(a) allows him to assert multiple claims

c) Since it is originally a federal question he can add the state. Caprera’s right to

litigation is governed by the doctrine of supplemental jurisdiction.


III. Discovery - where civil litigation attorneys make their money (fact gathering, leverage gathering -

III. Discovery - where civil litigation attorneys make their money (fact gathering, leverage gathering -

Donald Trump Example)

A. FRCP 26(b) - Scope of discovery



2. That is nonprivileged and

3. Relevant to any party’s claim or defense and

4. Reasonably calculated to lead to the discovery of admissible evidence.

a) May have more information than what can be brought before the jury. Just has to

lead to the discovery of admissible evidence.

B. Attorney-client privilege

1. What is covered?

a) Communication - not things that are not communications.

(1) Hypo- Person bringing a gun from shooting his wife is not a


b) Between lawyer and client(s) - Must be made between privileged persons and can

go either direction.

c) Made in confidence - has to be between the two parties.

(1) Hypo - Kid sitting in the office - breaks attorney- client privilege.

d) For the purpose of obtaining or providing legal advice

2. Exists independent of the litigation at hand.

3. Protects only communications between privileged persons (attorney and actual client)

a) Example: go into attorney's office, say I just shot someone and here's the gun.

Gun not covered by privilege.

4. Bubble can be popped by communicating with someone outside of the privileged

persons bubble. Example: husband is suing someone, talks with lawyer, if wife/kid is

there, no attorney-client privilege. Make them sit outside of the room. CONFIDENCE

FACTOR IS HUGE. Just between privileged parties.

5. Who is the client when the client is a corporation/business?

a) RULE: When an attorney is retained to represent a corporation, the attorney-client

and work product privileges may extend to every employee in that corporation,

even the low level employees. The communication may be made by a

higher-level-non-attorney-employee to obtain the communication from the lower

level employees (UPJOHN)

(1) UPJOHN Internal investigations for ACP (PG 784)


Communications made by employees


At direction of corporate superiors


To general counsel or other lawyer acting as such


Of information which employees knew to be needed for obtaining

legal advice


Regarding matters within scope of employees' corporate duties

(2) Upjohn note: Addresses both work product and attorney client privilege.


If employees were engaging in illegal bribes with foreign

governments. Wanted to find out if alleges had been true before

they decided what to do. General council distributed a

questionnaire to low level employees seeking information.


Communications that were seeking to be protected were the

questionnaires. Could these low level employees be clients

protected? Yes they can.

6. How to assert attorney client privilege (or a privilege in general).

a) Rule 26(b)(5): must describe the nature of documents to the requesting party.

(1) A privilege log will usually satisfy this requirement. A privilege log


(a) Bates range, date, from, to, CC, subject, document type,

description, privilege asserted


To and from is the most important part because that’s how

a privilege is established


CC must be a privileged person

b) If privilege challenged, the judge will look at it in camera (private) and then make

a call. Generally, if you have a good reputation, you're not gonna get challenged

C. Work Product Doctrine - doctrine not a privilege. Opposing counsel may still be able to get their

hands on it.

1. Types of Work Product.

a) Opinion Work Product or Fact Work - Anything that contains attorney opinion.

(1) Private investigator - is further removed after reading the report

b) Non opinion work product or fact work product - More attenuated from the

attorney’s brain and more facts.

2. Policy: Do not allow because

a) Steal the expertise from the other - Discourages Free Ride.

b) End up with lawyers being called as witnesses (role confusion for jurors).

c) Undermines the profession as professionals don’t write down as much.

3. Accidental disclosure

a) More protected than it used to be. More protective now. Accidentally turn over

something that was protected.

(1) Inadvertent disclosure still tips off party from other possible avenues of


4. Two tests to determine if something was created in anticipation of litigation.

a) Specific claim test - see if a specific claim has been raised. (filing a claim will

manifest a claim. Demand letters to see about settling and possibly putting

everyone on notice that litigation is happening.)

b) Ad Hoc approach - More subjective. Not requiring that some litigation is coming.

But looking to protect the integrity of the attorney’s work. Protecting one

attorney take a free ride. Any time this would manifest, then it will cover. Only

way to apply is to work backwards in hindsight.

c) Both require what the primary purpose of creating whatever it was. Is the primary

purpose is litigation? If so then it is in anticipation of litigation. If not then it is

not in litigation.

(1) Becomes murky when talking about insurance companies. Arguably

everything insurance companies does is in anticipation of litigation. They

are always doing anything with mindset of covering their butts. Where the

business is no longer primary purpose.

5. Case - Hickman v. Taylor: The case where a ship sank and a lawyer was hired to protect

against future litigation stands for the proposition that while the protective cloak of

attorney-client privilege does not extend to information that an attorney secures from a

witness while acting for his client in anticipation of litigation, an attempt, without

necessity or justification, to secure written statements, private memoranda and personal

recollections prepared or formed by an adverse party’s counsel, falls outside the arena of


D. Expert Witnesses - FRCP 26(a)(2) - Testifying Experts and Reports

1. Testifying Experts are discoverable.

2. Non-testifying experts are not. Unless exceptional circumstances occur.

a) Facts are discoverable.

b) Courts held that you cannot get information from them, but you can subpoena

them to appear in court.

3. A consulted but not retained expert is not discoverable, but the rules are silent on this,

4. Unconsulted experts are not mentioned in the rules, but are discoverable.

IV. Discovery Tools

A. Conferring with other opposing counsel for discovery

1. Rule 26(f): As soon as is practicable, but at least 21 days before a scheduling conference

is to be held or a scheduling order is due under Rule 16(b).

a) Talk about required disclosures.

(1) And any objections to them.

b) Talk about electronic discovery

c) Talk about claims and defenses

d) Discuss other aspects of discovery.

e) Report on what you met and conferred about (rule 26(d)).

2. Rule 16(b): Scheduling order:

a) Except in categories of actions exempted by local rule, the district judge or

magistrate judge when authorized by local rule - must issue a scheduling order:

(1) After receiving the parties’ report under Rule 26(f) or

(2) After consulting with the parties’ attorneys and any unrepresented parties

at a scheduling conference.

b) Strategy: ask for more than you need so that you can settle for somewhere in the


c) (b): required and permitted contents. Generally a lot of the permitted contents will

be included, like date for trial. - judge will pick the trial date and work backwards.

(1) Modify the timing of disclosures under Rules 26a and 26e1

(2) Modify the extent of discovery

(3) Provide for disclosure, discovery, or preservation of electronically stored


(4) Include and any agreements the parties reach for asserting claims of

privilege or of protection as trial-preparation material after information is


(5) Direct that before moving for an order relating to discovery, the movant

must request a conference with the court;

(6) Set dates for pretrial conference and for trial; and

(7) Include other appropriate matters.

B. Initial disclosures: due by 113 or 83 days after filing of complaint

1. Rule 26(a)(1)(A): everything that you have to disclose up front. And if a witness comes

forth that could support your claim or defense, you have to disclose. It's an ongoing duty.

a) the name and, if known, the address and telephone number of each individual

likely to have discoverable information—along with the subjects of that

information—that the disclosing party may use to support its claims or defenses,

unless the use would be solely for impeachment;

b) a copy—or a description by category and location—of all documents,

electronically stored information, and tangible things that the disclosing party has

in its possession, custody, or control and may use to support its claims or

defenses, unless the use would be solely for impeachment;

c) a computation of each category of damages claimed by the disclosing party—who

must also make available for inspection and copying as under Rule 34 the

documents or other evidentiary material, unless privileged or protected from

disclosure, on which each computation is based, including materials bearing on

the nature and extent of injuries suffered; and

d) for inspection and copying as under Rule 34, any insurance agreement under

which an insurance business may be liable to satisfy all or part of a possible

judgment in the action or to indemnify or reimburse for payments made to satisfy

the judgment.

2. If a party fails to disclose required disclosures, they can be sanctioned for doing so and

they won't be able to use the defense/claim support in trial.

a) Rule 37(c)(1) gives authority for sanctions

C. Interrogatories

1. Governed by Rule 33

a) 25 written interrogatories, including subparts

b) Upon meeting under 16(b), you're both on the same side going against the court

trying to get more time and more discovery.

c) Respond in writing, done by the client. (generally there is some wordsmithing

done by the attorney)

(1) If corporate client, anybody in the corporate who can answer the question

can answer

d) 30 days to respond.

(1) Can be granted extra time by other party.

e) Signed by the party.

(1) If there are objections, signed by attorney as well.

f) If questions posed can be answered with a document, you can turn over the


(1) Pushes burden onto the opposing party.


Request for production of documents

1. Governed by Rule 34

a) Must ask with reasonable particularity

b) Limited to documents within the possession, custody, or control of the responding


c) If there is a privilege, objection must be stated

2. Rule 34(b)(2)(E)(i): document must be produced as they are kept in the usual course of


E. Subpoena

1. Governed by Rule 45(a)(1)(D)

a) As an attorney, you can command a non-party to produce documents as an officer

of the court.

V. E-Discovery & Other Discovery Tools 26, 36 -request for admission, 30

A. Zubulake: To what extent is an accessible electronic data discoverable, and who should pay for

its production?

B. Cost-shifting moves burden to requesting party. The closer to the information is to being

accessible online, the more likely cost-shifting occurs. The further the information is to being

accessible online, the less likely cost-shifting occurs.

C. Factors to Consider in Cost-Shifting Analysis (weigh in this order)

1. Extent to which the request is specifically tailored to discover relevant information

2. Availability of such information from other sources

3. Total cost of production, compared to the amount in controversy

4. Total cost of production, compared to the resources available to each party

5. Relative ability of each party to control costs and its incentive to do so

6. The importance of the issues at stake in the litigation


Relative benefits to the parties of obtaining the information.


1. Step 1: Identification

2. Step 2: Preservation & Collection

3. Step 3: Processing, Review, & Analysis

4. Step 4: Production

5. Step 5: Presentation

E. Hypo:


4. Step 4: Production 5. Step 5: Presentation E. Hypo: 1. a) Recommend a litigation hold

a) Recommend a litigation hold (e.g., stop destroying documents, regardless of

document retention policy)

b) Oversee the litigation hold (attorney has a duty according to Zubulake 5)

(1) Explain the hold

(2) Ensure that they are complying with the hold.

c) Think of some type of grounds to object (ensure the other side is following Rule


d) Evaluate the information that your client has

e) Consider whether the e-data is accessible

f) Produce what is readily accessible

g) Don't produce was is inaccessible

h) When you get the motion to compel: unreasonable because cost or burden, then

argue cost-shifting.

F. Physical/Mental Health Exams Rule 35


In order to request, the physical or mental condition has to be in controversy and in good



The plaintiff has to put physical or mental condition in controversy by claiming



Requires a court order.


Not available against a non-party

2. CASE: Sacramona v. Bridgestone/Firestone, Inc.: Under Rule 35 of the FRCP a court

will not order a party to submit to an HIV test if the party’s potential HIV status is

relevant only to the issue of future damages.

a) Plaintiff was hurt when the tire he was mounting exploded. Plaintiff was accused

of sharing needles and homosexual sex and Bridgestone wanted to test Sacramona

for damages costs because HIV would decrease life expectancy.

G. Request for Admissions Rule 36

1. Once admission made, at trial, the fact is taken as true. This helps narrow the issues in

dispute at trial.

a) Defendant can admit a lot and still win. All you have to do is disprove one point

at trial

b) Plaintiff can admit stuff and still win. Burden is still on plaintiff to prove

c) Only way a party will admit a fact is if they can't deny it.

(1) If you have an argument that you could contest the fact, you won't admit,

even if the evidence is overwhelming that is likely true. You want to put

the burden on the other party.

H. Depositions: Requiring oral answers to questions under oath Rule 30

1. One day of seven hours for each deposition. Can't span more than one 24 hour period.

a) Can ask for more


Limit of ten depositions.

a) Can ask for more

3. Requirements

a) Court reporter

(1) Costs born by the party taking the deposition

b) Notice of deposition

(1) Time and location

(2) Documents requested

(3) Method of recording

(a) Do you want to record it?

(4) Name and address of the person that we are deposing

c) You probably want to use your own office. Very rarely would you want to do it in

your adversary's office.

(1) You have home field advantage. Room set up, access to your offices,


(2) Your deposition, your terms. It's only a favor to give opposing counsel

questions. It is the deponent's deposition, not the opponent

d) You want to get the most knowledgeable person for the subject you need.

(1) The request can say "most knowledgeable person"


They opposing company can send multiple people as the most

knowledgeable person for each different subject.


Must identify that person, can't be some punk from the mail room.

I. Discovery Abuse 1. Discovery happens all on your own, without the court overseeing it.

I. Discovery Abuse

1. Discovery happens all on your own, without the court overseeing it. So that leads to a lot

of discovery abuse and douchebaggery between each party's attorneys.

2. 3. 4. You have to prove the existence of documents that you are asking
You have to prove the existence of documents that you are asking for before you can
request them. That knowledge usually comes through depositions.
Rule 37(a)

a) Make a good faith effort to resolve dispute first, because the court does not really

want to get involved in discovery.

b) Then file a motion to compel. I know you don't want to hear from me, but I've

tried my best and it's the other attorney's fault.

(1) Attach some exhibits to show evidence that you've tried to resolve a



Objections to discovery


Affidavit swearing under oath that you did your best effort


Emails sent to opposing counsel

c) Sanction: Loser for the motion to compel has to pay for attorney's fees, unless the

court says you were substantially justified in your objections.

(1) If you were substantially justified in filing motion to compel, and you lose,

you don't have to pay for response to motion to compel.

d) If you win the motion to compel and the other party doesn't comply, then you

have to file a motion to sanctions. SANCTIONS UNDER RULE 37 ARE


(1) Monetary sanctions

(a) Pay opposing counsel's attorney's fees.

(2) Issue sanctions



Hurt a party's position in this case.

Default judgment


Dismiss the case altogether in whole or in part

(d) Strike pleadings


Can't use arguments at trial





Court consider something as true.

Make evidence inadmissible

Staying further proceedings until the order is obeyed (plaintiff)

further proceedings until the order is obeyed (plaintiff) 6. Ethical violation to fail to make a

6. Ethical violation to fail to make a reasonably diligent effort to comply with a legally

proper discovery request


Ethical violations under discovery: It is a violation to obstruct a party's access to

evidence. It is a violation to hide a document that has evidentiary value (e.g., putting a

correspondence document with the invoices)

8. Abuse Tools

a) State objections in writing

(1) Overly broad, vague, ambiguous, and unduly burdensome.

(2) Would be the end, unless plaintiffs file a motion to compel. Then the court

has to rule on the objection. The court issued orders compelling discovery

without ruling on the objections.

(3) If no objections are stated in writing, then sanctions can happen


b) Protective Order: court order to not be a douchebag

c) 12(b)(6) for the fraud claim

(1) Use to limit scope of discovery because the scope of the case would be


(2) Heightened pleading, can narrow discovery if fraud is thrown out.

d) Withhold info without objection

e) 26(g)(2) is the rule 11 sanction equivalent for discovery.

9. Chudasama: The fraud claim greatly expanded the scope of discovery in the case. Mazda

had two options to limit discovery:

a) Motion to dismiss fraud claim

b) Motion for protective order

(1) Good faith effort to resolve dispute without court action.

(2) Protect a party from: Annoyance, embarrassment, oppression, or undue

burden or expense (FRCP 26(c)), based off the following


forbidding the disclosure or discovery;


specifying terms, including time and place or the allocation of

expenses, for the disclosure or discovery;


prescribing a discovery method other than the one selected by the

party seeking discovery;


forbidding inquiry into certain matters, or limiting the scope of

disclosure or discovery to certain matters;


designating the persons who may be present while the discovery is



requiring that a deposition be sealed and opened only on court



requiring that a trade secret or other confidential research,

development, or commercial information not be revealed or be

revealed only in a specified way; and


requiring that the parties simultaneously file specified documents

or information in sealed envelopes, to be opened as the court


c) Discovery has to be for a proper purpose. A party can't get more than they need in

discovery: Rule 26(g) sanctions:

(1) (B) with respect to a discovery request, response, or objection, it is:

(a) (i) consistent with these rules and warranted by existing law or by

a nonfrivolous argument for extending, modifying, or reversing

existing law, or for establishing new law;


(ii) not interposed for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of

litigation; and


(iii) neither unreasonable nor unduly burdensome or expensive,

considering the needs of the case, prior discovery in the case, the

amount in controversy, and the importance of the issues at stake in

the action.

(2) Most people skip rule 26(g) sanctions and go straight for the rule 37.

VI. Erie Doctrine: Statutory Authority is the Rules of Decision Act: 28 USC 1652: "The laws of the several


shall be regarded as rules of decision in civil actions in the courts of the United States



Choice of Law Doctrine

1. Basic Rule

a) Apply State law to substantive issues

b) Apply federal law to procedural issues

2. Does the state law directly conflict with federal law?

a) Is the federal law sufficiently broad to control the issue? (Walker)

(1) TIP FOR THIS QUESTION: Is the Federal Rule sufficiently broad to

address the issue? If you have to reach for more laws to justify application,

then no good. The Federal Rule is what is tested, not the FEDERAL


b) If yes, apply the federal law so long as the rule is valid under the Rules Enabling

and Constitution

(1) Is it rationally capable of classification as procedure?

(2) If no, apply Erie



Did Congress have authority to do this? (Example: to regulate

service of process in federal courts)


Did Congress delegate that authority to the Supreme Court? (to

make rules to do such thing)


Is Rule XX within that power?

3. Is the rule outcome-determinative? (York)

a) If yes, balance with “other considerations” (Byrd)like discouraging forum

shopping and avoiding the inequitable administration of justice (Hanna)

b) Apply state law unless there is an important federal policy

c) If there’s an important federal policy, attempt to apply both state and federal law




1. Fork in the road analysis: SHADY GROVE

a) NY law said can't file a class action when you are seeking a penalty (some sort of

punishment, fine, or jail time).

(1) The NY law was a civil procedure rule conflicting with FRCP 23

(a) Legislative motive was probably to ensure that attorneys weren't

making out like bandits

(i) The interest here would be like $48, so yeah, no teeth, that's

why it was probably filed as a class action



The court couldn't figure out how the hell to apply Hanna.


Cite whatever justice's opinion works best for you.


Have to understand the arguments behind whether there is a

direct conflict or not.

(ii) Be able to understand the convincing arguments and



Scalia’s Argument



Rule 23 and 901(b) have a direct conflict and you have to

apply Hanna (apply the Federal rule so long as it falls

within the REA and the Constitution)



Rule 23 was intended by SCOTUS & Congress and


intent was to not exclude cases involving penalties.



Therefore, R23 was sufficiently broad to control the





Arguably procedural because it was good under the





Scalia couldn't figure out how to apply 2072(b)


Ginsburg’s Argument

(i) Rule 23 & 901(b) provide rules for class certification and

there was no direct conflict. She has to apply Erie


However, Rule 23 did not provide exceptions like

NY 901(b) did


Therefore, R23 was not sufficiently broad to control

the issue because the silence on the exceptions says

that it is not broad enough.


Didn't have to address 2072(b) because she took the

Erie route.

(e) Stevens’s Argument


We have a direct conflict and have to do more than pay lip

service to 2072(b).


Tried to apply 2072(b) and couldn't do it very


(a) State substantive rights


If you apply Erie--->you're gonna apply State law


If you apply Hanna--->you're gonna apply federal law

C. More General Erie things to know

1. Lex loci delicti: use the law of the place where the delict [tort] was committed

VII. Adjudication without a trial

A. Dismissal of Actions (Rule 41)

1. Voluntary dismissal - FRCP 41(a)

a) No winner/loser

b) Voluntary dismissal without prejudice is a do over

(1) Motivation to file complaint sooner

(2) Statute of limitations still applies.

(3) Kind of promotes judge shopping.


If you hate the judge, probably re-file


If you’re okay with the judge, don't refile


If you love the judge, definitely don't re-file

(4) When you re-file the complaint, you probably bolster the quality of the


(5) You only get one shot at a voluntary dismissal.

(6) If voluntary dismissal is filed an hour before a motion to dismiss hearing,

then the voluntary dismissal stands.

(7) Voluntary dismissal without prejudice is still subject to statute of

limitations UNLESS the court says otherwise. You're gonna have to have

a good reason to get the court to do that.

(8) Voluntary dismissal is barred by an answer and a motion for summary


c) Can be done by:

(1) A notice of dismissal before the opposing party serves either an answer or

a motion for summary judgment OR

(2) Stipulation of dismissal signed by all parties who have appeared

d) Case: In re Bath and Kitchen antitrust litigation

(1) Plaintiff was going to lose if complaint was not amended.

(2) Plaintiff could not amend complaint prior to discovery.

(3) Discovery comes after motion to dismiss.

(4) Plaintiff voluntarily dismissed under 41(a)(1)(A)(i)


One time dismissal without prejudice


More than once, with prejudice.

(5) Rule 41(a)(2) - plain legal prejudice

(a) Defendant has already spent a ton of money

(6) Rule 41(a)(1)(A)(ii) - Both parties may agree to voluntarily dismiss

whenever they want.

(7) File motion for summary judgment too early and court will deny it

because not enough facts yet.

2. Involuntary Dismissal - FRCP 41(b)

a) No winner/loser

b) Can be done on the court’s own volition or by motion by the defendant.

c) Involuntary dismissals are with prejudice.

d) Can be done because the plaintiff

(1) Failed to prosecute

(2) Failed to comply with the federal rules

(3) Failed to comply with a court order

3. Summary Judgement - FRCP 56

a) Rule: The court shall grant summary judgment if the movant shows that there is

(1) No genuine dispute of material fact and

(2) The movant is entitled to judgment as a matter of law.

b) Winner is declared by the court.

c) Types of Summary Judgment

(1) Proof of the elements SJ: Elements that have to be proved at trial must be

proven on a motion for summary judgment.

(2) Absence of proof SJ: The nonmoving party does not have proof for one of

their elements. (Celotex Corp.) - Absence of proof motion is not a “show

me” motion.


Rule 56(c)(1)(B): A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by showing that the

materials cited do not establish the absence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to

support the fact


Movant must demonstrate from record and available facts that

there is no proof in the record to show the elements.


Show that you asked in discovery and no one was able to

produce the things you asked for,


Interrogatory - What witnesses and documents support your

claim of damages and causation.


Rule 56(c)(2) - Substance of evidence must be admissible

at trial. The form does not. Ie. hearsay.

(c) Rule 56(c) TEST - Moving party must point to where in the record

the proof could be found if it existed.

(i) Non-moving party must cite to admissible evidence.

(3) Disproof of an element SJ: Not only do they not have evidence, but we

(the moving party) can prove the opposite

VIII. Judgement as a Matter of Law (Rule 50 Motions)

A. Directed Verdict

1. Rule 50(a) motions before jury - during trial

a) Directed verdict or demurrer (state courts), but this term isn't used in federal court


(1) No more direction from judge to jury. Takes the case away from the jury

2. Same legal test as summary judgment, only difference is the timing.

B. Judgement Notwithstanding the Verdict

1. Rule 50(b) motions after jury

a) Judgment notwithstanding the verdict or judgment n.o.v.

2. Same legal test as summary judgment, only difference is the timing.

3. You can't file a 50(b) motion if you have not filed a 50(a) motion

a) You always file a 50(a) motion. Motion is made on the fly in the middle of trial.

(1) Logically made after the plaintiff rests.


You have seen all of the evidence that the plaintiff has made to the



50(a) motions are rarely granted because if they are overturned on

appeal, you have to go through a completely new trial

(i) In reality, what really happens on overturned appeal is


b) You make a 50(b) motion when the defendant rests.

(1) 50(b) motions are granted more frequently because you don't have to go

through a completely new trial.

C. Standard to look at for Rule 50 motions:

1. Summary Judgment standard AND

2. Could a reasonable jury find in favor of a nonmoving party?

a) If yes, then the motion should be denied

b) If no, then the motion could be granted

IX. Final Judgement

A. Finality Doctrine - 28 U.S.C. 1291 “The courts of appeals… shall have jurisdiction from all final

decisions of the district courts of the United States…” - No Interlocutory Appeals.

1. Final decision or final judgment ends litigation on merits leaving nothing but

enforcement and attorney’s fees.

2. Once litigation has ended, appeals can be made

3. Case: Recticel Foam Corp.

a) Case Management Discovery Order to split costs for discovery is not a final order.

b) Does not resolve the case,

c) Appeal can be made after final judgment.

B. Exception to Finality Doctrine: Collateral Orders


Collateral order exception elements:

a) An issue essentially unrelated to the merits of the main dispute, capable of review

without disrupting the main trial

b) A complete resolution of the issue, not one that is "unfinished" or "inconclusive"

c) A right in capable of vindication on appeal from final judgment

d) An important and unsettled question of controlling law, not merely a question of

the proper exercise of the trial court's decision.

e) Example: Nixon v. Fitzgerald

(1) Failure to resolve issue would cause irreparable harm.

(2) Not based on merits of the case.

C. Other Exceptions to Finality Doctrine

1. Injunctive Relief - 1292(a)

a) Preliminary restraining order

b) Temporary injunction

2. Discretionary review of certified questions - 1292(b)

a) Trial court certifies judgment making them satisfy the collateral order doctrine

3. Mandamus

a) Writ of mandamus - compels to take action

b) Writ of prohibition - precluding someone for acting

c) Writ of habeas corpus - prohibition of individual in detention

d) Not a substitute for an appeal

e) Extraordinary relief

f) Requirements

(1) Irreparable harm

(2) Clear entitlement to relief

4. A court can declare an interlocutory order to be final under Rule 54(b)

D. Policy for Finality Doctrine:

1. Reasons to not allow appeals of non-final issues

a) Congestion

b) Duplication

c) Delay

d) Expense

e) Trial courts would become obsolete.

X. Claim Preclusion

A. Requirements/Elements

1. Claim must be the same as the claim that was litigated in a previous case

2. The previously litigated claim must have resulted in a valid, final judgement on the


3. The parties who litigated the previous claim must typically be the same parties who are

litigating the current claim.

B. Policy

1. Efficiency

2. Repose - not knowing if things are settled for defendant

3. Inconsistent results - only if the claims are the same time

C. Case:

1. River Park, Inc. v. City of Highland Park - explains what the same claim means

a) Under Illinois law, res judicata prohibits the same parties from asserting a claim

arising out of the same transaction or the same set of operative facts after there

has been a final judgement on the merits.

(1) On the merits


Judgement entered after full trial


Summary judgement


JMOL - judgement as a matter of law


Dismissals “with prejudice”


Rule 41b Involuntary dismissal for failure to prosecute


Failure to state a claim UNLESS court specifies “without


(2) Not on the Merits(nothing to do with outcome)


Lack of SMJ


Lack of PJ


Improper Venue


Nonjoinder/Indispensable party Rule 19b


Voluntary dismissal “without prejudice”


SOL grounds?

b) Apply One of two tests depending on jurisdiction.

(1) Same evidence test: two suits involve the same claim only if the evidence

needed to sustain the second suit would have sustained the first, or if the

same facts were essential to maintain both actions.

(a) Rejected in this case for two reasons:


Own precedents revealed a preference for transactional


Trend to favor transactional test.

(2) Transactional test: different theories of recovery constitute a single claim

if they arise out of the same “group of operative facts” or arise out of the

same underlying transaction or occurrence.

(a) Why transactional test?


Less complex


Less likely to give different results


Precludes more and promotes efficiency


Fairer to defendant


Same evidence is easier for plaintiff.


Problem with transactional test


If plaintiff overlooks something not fair to them.


When in doubt throw it in, so creates extra claims



Less efficient.


Privity exceptions


Agreement to be bound


Legal relationships



Preceding/successful property owner






Adequately represented by party with same interests



Class action








Assumed control of earlier litigation


Designated representative


Special statutory scheme

D. Other parties

1. Typically a judgement does not preclude non-parties from litigating identical claims.

a) Exception: If that non-party was in "privity"with one of the parties who

actually litigated the original case or had some other legal relationship with a

party such that it would be fair to conclude that the non-party's interests were

fairly litigated. (exploited exception found in Taylor).

b) Taylor v. Sturgell: A claim cannot be precluded if the previous litigant is a

different party and there is no legal relationship between the current and

past litigants.

(1) Two aircraft enthusiasts trying to get plans for engine.

2. Six existing categories of non-party preclusion - involve either an express or implied

legal relationship between the non-party and the party who litigated

3. Virtual representation - subjects a non-party to preclusion in the absence of such a


a) Most similar to the category which : gives preclusive effect to non-parties who

were adequately represented by the named party in the original suit.

b) Problematic more so than recognized categories of non-party preclusion because

(1) Virtual representation does not give non-parties key procedural


(a) such as notice that their rights might be affected in the pending

litigation or that they have the right to opt out of the litigation and

pursue claims on their own.

(2) Potentially applies to a broad range of cases and thus conflicts with the

notion that non-party preclusion should apply in narrowly defined

circumstances through the "amorphous balancing test"

(3) Undermines claim preclusion's key objectives of promoting efficiency.

(a) Burdens courts by having them apply a more complicated test to

determine an outcome.

c) The counterclaim problem: Claim preclusion will not bar plaintiff and defendant

in one case to swap sides in a subsequent case as the claim would be different.

(1) Most states will have a compulsory counterclaim rule that will have the

same effect as a claim preclusion.

(a) Federal Rule of Civil Procedure 13(a) requires a party to "state as a

counterclaim any claim that…the pleader has against an opposing

party if the claim: (A) arises out of the transaction or occurrence

that is the subject matter of the opposing party's claim; and (B)

does not require adding another party over whom the court cannot

acquire jurisdiction."

E. Exceptions to claim preclusion as defined by the Supreme Court

1. A person who agrees to be bound by the determination of issues in an action between

others is bound by the terms of the agreement.

2. Substantive Legal Relationships

3. Non-party bound because party is adequately represented.

4. Assumed control over litigation. Even though not a party to the litigation.

a) Subsidiary controlled by a larger corporation.

b) Non-party gets to tell the party what to do.

5. Party bound by a judgement may not avoid its preclusive force by relitigating through a


6. Circumstances of a special statutory scheme that regulates the litigation.

XI. Issue Preclusion

a) Bankruptcy or probate.

A. 5 elements of issue preclusion

1. Same issue

2. Actually litigated

3. Full and fair opportunity to litigate

4. Actually decided by a valid, final judgement on the merits

5. Determination of issue was necessary to court's judgement. (Cambria v. Jeffery)

B. Case:

1. Felger v. Nichols: Under Maryland law, the doctrines of direct estoppel by judgement

and collateral estoppel bar parties from relitigating issues or claims that were fully heard

in a previous lawsuit.

a) Maryland does not require defendants to assert counterclaims that arise out of the

same transaction or occurrence.

b) Claim preclusion = estoppel by judgement

c) Issue preclusion = collateral estoppel

2. Panniel v. Diaz: Under New Jersey law, the doctrine of collateral estoppel may be used to

bar relitigation of an issue fully litigated and decided in an earlier binding arbitration,

provided it is fair to do so.

a) Cut attributed to diabetes.

3. Cambria v. Jeffery: Issue preclusion only prohibits the litigation of a fact that was a basis

of the relief, denial of relief, or other ultimate right established by the judgement

a) Car accident and servant’s negligence.

b) Has to be essential to the judgement.

(1) Instinctually the case was already litigated and decided - Cambria’s

negligence was not relevant because it didn’t make a difference


Once plaintiff is found to be guilty doesn’t need to be decided, if

there is an appeal then it won’t be redecided even though decision

could be altered.


Judge might not have considered it.


Default against issue preclusion - courts want to give the parties

their day in court.

(2) Promotes efficiency

(a) If there is something tied into the winner than they would

proactively appeal cases and efficiency would be lost.

C. Notes:

1. Issue preclusion applies even if the first court got it wrong.

D. Exceptions (laid out in Panniel v. Diaz)

1. The party against whom preclusion is sought could not, as a matter of law, have obtained

review of the judgement in the initial action

2. The issue is one of law and

a) The two actions involve claims that are substantially unrelated, or

b) A new determination is warranted in order to take account of an intervening

change in the applicable legal context or otherwise to avoid inequitable

administration of the laws

3. A new determination of the issue is warranted by differences in the quality or

extensiveness of the procedures followed in the two courts or by factors relating to the

allocation of jurisdiction between them; or

4. The party against whom preclusion is sought had a significantly heavier burden of

persuasion with respect to the issue in the initial action than in the subsequent action; the

burden has shifted to his adversary; or the adversary has a significantly heavier burden

than he had in the first action.

5. There is a clear and convincing need for a new determination of the issue

a) Because of the potential adverse impact of the determination on the public interest

or the interests of persons not themselves parties in the initial action,

b) Because it was not sufficiently foreseeable at the time of the initial action that the

issue would arise in the context of a subsequent action, or

c) Because the party sought to be precluded, as a result of the conduct of his

adversary or other special circumstances did not have an adequate opportunity or

incentive to obtain a full and fair adjudication in the initial action.

E. Non-Mutual Issue Preclusion

1. Kind of issue preclusion, it requires all of issue preclusion elements to be met.

2. Non-mutual - not same parties. One party that is different. One party has to be involved

in the litigation.

3. Case;

a) Blonder Tongue

(1) Illinois Foundation v. Infringer A (1st case)


A argues Foundation’s patent is invalid


Jury finds patent invalid

(2) Illinois Foundation v. Blonder-Tongue (2nd case)

(a) BT asserts estoppel precluding Foundation from arguing patent is


(3) Non mutual because Blonder Tongue was not involved in first case

(a) Also known as defensive issue preclusion - protecting self

(i) Non-mutual defensive issue preclusion

(a) Court ruled that this is a correct way of using issue


(4) General Idea: can’t bar someone from having their day in court.

(a) If Blonder Toungue with a twist and jury found patent valid.

(i) Defendant did not have a chance to litigate.


Can bind the party that is the same but cannot bind

someone who wasn’t a part of the action.


It is an asymmetrical rule in the sense that the party

that who was not bound by it can use it against the

party that was bound by it.

b) Parklane Hosiery Co. v. Shoe: A litigant who was not a party to a prior

judgement may nonetheless use that judgment offensively to prevent a defendant

from relitigating issues resolved in the earlier proceeding, provided that

(1) The plaintiff could not easily have been joined in the earlier action and

(2) Use of the judgement will not result in unfairness to the defendant


Discretionary factors to consider to see if unfair


May be unfair to a defendant in cases where the defendant


was sued for nominal damages in the first action and did

not vigorously defend,



Denied certain procedural advantages in the first action, or


Where the judgement relied upon as a basis for the estoppel


is inconsistent with one or more previous judgements in the

defendant’s favor.


Trial courts should be granted broad discretion to determine when

offensive collateral estoppel should be applied.

(c) Biggest idea and problem is that it would lead to a wait and see

approach to litigation. This is not efficient

(i) Practical reasons why test cases don’t happen


May join together in a class action


Defendant is going to settle with other cases (won’t

bog down the courts)

c) Main takeaways and exam notes

(1) Non mutual issue preclusion whether offensive or defensive are only

assessed after decided issue preclusion exists

(2) Does not matter whether the court you are in accepts mutuality, requires

mutuality. No court is going to preclude a party that hasn’t had a chance

to litigate the issue. You have to lose before the court is going to bind you

to the decision.

Side: Erie

1. Is federal subject matter/ supplemental jurisdiction based on diversity? (28 USC Section 1332)

2. Is there a federal law directly in conflict with a state law? (Walker)

a. Is federal law sufficiently broad to control the issue?

i. Yes → DC → Hannah pt 2 (Procedural/ Federal)

ii. No → no DC → Erie/Hannah pt. 1 (Substantive/State)

Hannah pt 2 (Federal)

- Federal court must apply federal rule if it is valid under REA and constitutional (Hannah Pt.

2/Supremacy clause) In the Rules Enabling Act, Congress authorized the Supreme Court to promulgate

rules of procedure subject to the Court’s review. 28 USC section 2072(a). The limitation is that the

rules “shall not abridge, enlarge or modify any substantive right,” section 2072(b).

- Did Congress have the authority to create the rule?

- Did it delegate that authority to SCOTUS?

- Is the rule within that authority?

Erie/Hannah pt 1 (State unless exception applies)

- Federal court must apply state substantive law (Erie)

- To determine which state’s law to apply, apply choice of law state in which district court sits


- If plaintiff and defendant from different states and transfer from one state to another.

Does the law transfer too or do you apply the state's law of where it was transferred.

(Van Dusen) (only need if applicable)

- Two different states applying state law. Can still make common law federal issue to deal

with a river that separates two different states. (Hinderlider)

- Under modified outcome determinative test, law is substantive if applying it would lead to

different outcome than applying federal law. (York) Twin aims

- Court must apply modified outcome determinative test prospectively (Hannah pt. 1)

- Exception = Federal court must apply state substantive law, unless a public policy outweighs

policy interest in uniformity of federal/state court decisions (ie 7th Amendment) (Byrd).