Joinder of Claims

1. Under Rule 18 (a)a. If a plaintiff wants to sue a defendant, which claims may she assert?i. FRCP 18(a) a party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.a) Claims do not have to be related!b) But one claim against that party must be established.2. Under Rule 20(a)a. If the plaintiff wants to sue more than one defendant in the action, or wants to add other plaintiffs as coplaintiffs she may do so under Rule 20(a)i. FRCP 20(a)a) Plaintiffs. Persons may join in one action as plaintiffs if:1) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences.2) Any question of law or fact common to all plaintiffs will arise in the action.i. This is about efficient litigation. It is more efficient to dispose of all the witnesses, produce records, try the common issue of the cause once, than to do it multiple times. b) Same as for (a)(1)1) If some complication arises (suchas different legal standard for recovery, or defenses unique to the claim against one of the defendants), the court can always order separate trials under 42(b).3. CounterclaimsRule 13a. If a defending party wishes to assert claims against parties who bring claims against them, it is permitted under rule 13. Counterclaims are either compulsory or permissivei. FCRP Rule 13: a) A compulsory counterclaim1) In General. A pleading must state as a counterclaim any claim thatat the time of its servicethe pleader has against an opposing party if the claimi. Arises out of the transaction or occurrence that is the subject matter of the opposing partys claim; andii. Does not require adding another party over whom the court cannot acquire jurisdiction.b) Permissive Counterclaim Allows a defending party to assert any claims he has against the opposing party that do not arise out of the same events.1) Some compulsory counter claims must be includedc) In 13(h) A defendant may add a counterclaim defendant if rule 20(a) reqs. are met. d) In 13(g) a party may seek indemnification from a crossclaimee to pass on all of a claim asserted in the action against the crossclaimant.4. Crossclaimsa. A claim against a coparty by one defendant against a codefendant, or a plaintiff against a coplaintiff.i. FCRP 13(g) a) A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.1) If youre sued along with another defendant, and you have a claim against the other defendant that arises from the same underlying dispute, you may assert it as a crossclaim in the same transaction.5. Rule 14Third Party Practicea. When a defending party may bring in a third partyi. As a third-party plaintiff, a defending party may serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim.a) This is only to reimburse.1) The D may not bring in someone whom the P may sue, nor may the D bring in someone for some related damage which shes suffered.i. Usually occurs where a party is liable ofr an injury but has a right of reimbursement for the damages from another party.1. D Defective product sold to Pa. D indemnify Manufacturer for reimbursenmentii. Applies where one D has a right to forece another party to share in a judgment the P recovers. 1. 3 car wreck. P sues D, D wants reimbursement from X because X was also negligent.6. Class Actions Under Rule 19a. General rule: If you were not a party, then you are not bound by the judgment in the ruling.i. You may challenge and file your own lawsuita) Exception: Class or representative suits.1) When you have a class action, and at least some of the class are parties, it is possible that you can bind all of the homeowners even if just one of the parties represented them alli. The court says that it is an invention of equity7. Class actions with Rule 23: (a) PrerequisitesOne of more members of a class may sue if and only if:a. 1. So numerous is impracticable under rule 20Numerocityb. 2. Questions of law and fact common to the class.c. 3. Typical of the claims or defenses of the classTypicalityd. 4. Representative parties will fairly and adequately protect the interests of the class.8. (b) Types of class actions: Only if 23 (a) is satisfied.a. 1. Creating a risk of:i. a) inconsitstent/varying adjudications with repsect to individual class membersii. b) a practical matter would be dispositive b. 2. final injunctive relief or correpspnding declaratory relief is appropriatec. 3. Questions of law or fact common to class members predominate over any questions affecting only individual membersi. (Damages class actions)Pleading

1. Complainta. Rule 8 says the complaint must contain: 1. the courts jurisdiction, 2 relief being sought, 3 short and plain statement that the pleader is entitled to reliefi. The purpose is to give notice to defending parties. ii. Short and plain is probably met even if not specifically alleging each element. 1. May change depending on the judges discretion.b. In Bell v. Twombly, the Court held that the plaintiffs must allege enough to show that their claim is plausible, not just conceivable. c. In Iqbal v. Ashcroft, the Court reaffirmed the stricter pleading standards, holding a plaintiff cannot state a sufficient claim under Rule 8 if the language in their complaint is conclusory. i. 3 Step Test 1. Identify the elements of the pleaders substantive claim2. Identify and disregard conclusory factual allegations in the complaint; and 3. Analyze the remaining (well-pleaded) factual allegations to determine whether they constitute a plausible claim for reliefin light of the elements of the pleaders claim; i.e. whether the complaints allegations contain either direct or inferential allegations respecting all material elements necessary to sustain recovery under some viable legal theory.2. Answera. 8(b) requires that the D admit or deny each of the allegations. i. (b)(2) a denial must fairly respond to the substance of the allegation. (b)(6) Failing to deny constitutes an admission. If you deny part, make it clearly known. ii. (b)(5) allows D to respond that she lacks knowledge or information sufficient to form a belief about the truth of the allegationHas the effect of denial. b. D can claim anything. Under Rule 11, she must have evidentiary support for the defenses she asserts, but isnt required to stake her case on one of them.i. If you have evidence indicating that your client both did and did not do something, deny it firstly.3. Rule 11ethical parameters of pleadingsa. (b) certifies that the P made an inquiry, before taking her current position.b. (b)(2) position is warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law.c. (b)(3) after the inquiry, the allegations have evidentiary support, or are likely to have evidentiary support upon further investigation. i. Establishes two standards1. For regular factual allegations, the pleader must have evidentiary support.2. Specifically pleaded allegations may be allowed upon more opportunity to investigate.d. (b)(3) is limited if the part has had plenty of time to investigate and does not have enough proof to continue to advocate for the position.

Amending

1. Amending the Complainta. 21 days after receiving the answer or motion, a complainant may amend his complaint (supplementing or superseding). FRCP 15(a)(1)(B) b. Also, the complainant may file an amendment any time before the Defendant serves the answer. c. Additionally, these are as a matter of course, which means they are done without filing a leave of court.i. Technically, speaking, with the judges assent, an amendment may be filed even years after the answer has been served. d. New theories of recovery are also amendable. 2. Amending the Answera. As a defendant, within 21 days of serving your answer, you may amend it. FRCP 15(a)(1)(A).3. Amending with Leave of Courta. When the time of amendment as of right has past, the party will have to amend her complaint with the judges permission or consent of the other party. FRCP 15(a)(2)i. This is when justice so requires.4. Discretionary Judgmentsa. If a fact arises that one party conceded in its complaint/answer, rule 15 does not distinguish between law and fact. Therefore, though it was conceded before, as long as it is within an appropriate time frame of discovery, the Court will likely allow the party to amend with leave.i. This is especially true if the fact is crucial to a defense. 5. Relation Back of Amendmentsa. Relation back means that the amended complaint, containing the new claim, will be treated as though it had been filed when the original complaint was filed. i. This is to show that a statute of limitations is not a defense to the amended complaint any more than it was to the original complaint.1. Ex. A sues B for Tort. 3 years later he wants to add a Fraud claim. However, Fraud had a 2 year statute of limitations. The amendment will still be allowed, because a suit commenced before the statute of frauds applied. The amendment is viewed just as it would had the Fraud claim been a part of the original complaint. FRCP 15(c)(1)(B).2. Even if the new theory is a part of the same transaction, a judge does not have to allow it. It is up to her discretion. b. Relation back for an amendment to change the defendant.i. Three things must happen:1. The amended pleading must arise out of the same events as the original pleading.2. The D being added must have received such notice of the action that it will not be prejudiced in defending on the merits. FRCP 15(c)(1)(C)(i). Must have been received within the period of time it would have been received had the new defendant been sued originaly.3. The P must show that the new D broiugh in by the amendment knew or should have known that the action would have been brought against it, but for a mistake concerning the proper partys identity. (ii).

Pre-Answer Motions1. Rule 12(b) describes the Defendants options in responding to a complaint before filing an answer.a. By filing a 12(b) motion, the defendant suspends the time frame in which he must answer the complaint. Additionally, by answering the complaint, the Defendant forfeits his right to file a 12(b) motion. i. The Defendant may assert the 12(b) objections in the answer.ii. The defendant must assert the 12(b) motions at the same time. 12(g)(2) bars her ability to refile motions after failing to file them initially. iii. 12(h)(1)(A) says that if the D leaves out pj, venue, service, and sufficiency of service, then they are considered to be waved.iv. Failure to Join, subject matter, and failure to state a claim may be asserted later in trial, though not in another motion. b. 12(b) motions

1) lack of subject matter2) lack of PJ over D3) improper venue4) insufficient process (defect in summons)5) insufficient service of process (wrong method)6) failure to state a claim upon which relief can be granted7) failure to join a party under Rule 19 (person who must be made a party to the action to fairly adjudicate the case.2. Rule 12(e)a. The motion for a more definite statementi. When the claim is so incomprehensible that the responding party cannot meaningfully respond to it. 3. 12(h)1a. applies where defendant left out one of the 4 unfavored defenses. It constitutes a waver of that neglected defense.b. Applies where the D did not file a pre-answer motion. The omitted defenses in the answer are effectively waved. i. If the D raises some of the Defenses and leaves others out, the neglected ones are barred. ii. This cannot be circumvented by a Rule 15(a) amendment if it is past the matter of course stage.

DiscoverySilent objection or self-help by nonproduction is never proper. Object and use 26(b)(5) if necessary.

1. Rules 2637 a. Six devices of Discovery:i. Automatic disclosureii. Requests for production of documentsiii. Interrogatoriesiv. Depositionsv. Requests for admissionsvi. Physical or mental examinations

2. Rule 26(b)(1) a. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defenseincluding the existence, description, nature, custody, condition and location of any documents or other tangible things the identity and location of persons who know of any discoverable matter.i. Information that may not be admitted at trial is still discoverable.1. Privilege refers to info that is protected from disclosure under the Rules of Evidence.a. Such as Attorney-client. b. Privilege does not protect factual information simply because the conversation itself was privileged. ii. The party who is given a discovery request must independently determine if that request is within the scope of discoveryiii. Rule allows discovery of the existence, description, nature, custody, condition, and location of any books, documents or other tangible things. iv. Must be relevant to the claims or defenses the parties HAVE pleaded. b. If a party orders production of intrusive information, the other party may impose conditions to protect confidentiality of information, to avoid intimidation, or to limit the burden of responding.3. 26(b)(2)(C) a. A court may limit discovery because it is cumulative, of marginal relevance, obtainable in anbother way, or if the burden of production outweighs the likely value of the information, in light of the various practical realities about the case. i. The discovery may be unduly intrusive on the privacy of a party.4. 26(c) a. Movement for a protective order, barring production of the disputed information.i. If a party is suing because she contracted a STD, the defendant may seek discovery on Ps other partners, which will probably be allowed because she has made her sexual experiences an issue.ii. Seeking intrusive info to decide whether to pursue a claim may not be allowed.5. Controlling discovery under Rule 37a. A is the motioni. (a)(1) Moving party must certify that she has conferred with the objecting party, in an effort to resolve the discovery dispute without involving the court. b. B is the sanctionsi. (b)(2)(A)(v); (vi) provides the heaviest sanctions for both parties.

c. Responses to Improper discovery requesti. Negotiate limitation 29(b)ii. Object in writing 30-361. 30compelled by subpoena 2. 33Interrogatoriesa. No more than 25i. In the scope of anything in 26(b)b. Answered by the directed party; one who has the authority to give that info.c. Failure to object is a waiverd. If answer, must be signed.e. Long records may be responded byi. Asking for specificity ii. Asking for time to compile.3. 34electronic infoa. done within 30 days of receipt4. 35Mental exama. must show good cause

5. 37Failure to cooperate with discoverya. enforcing the provisions of discovery, i. (a) 2 step process1. obtain an order compelling discovery2. move for sanctions under 37(b)iii. Move to Limit 26(b)(2)iv. Move for a protective order (26(c)1. Limits who can see the information.2. Can do it even if there is not any improper discovery requests.v. Sanctions under 26(g) d. Enforcing Discoveryi. Confer with opposing counsel 37(a)(1), (d)(1)(B)ii. Move to Compel 37(a)iii. Wait for Order compelling discover 37(a)iv. Move for Sanctions if order disobeyed 37(b), (c), (d)v. Complete failure to respond to depositions, interrogatories, RFPs1. Skips steps 2,3 37(d)vi. Failure to disclose supplement admit: skip steps 1-3 and go straight to sanctions. 37(c)6. Privilegea. 26(b)(5)(A)i. parties claiming privilege must:1. expressly make the claim2. describe the nature of the document, communications, or tangible things not produced or disclosedand do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.7. Work Producta. Trial Preparation materials.b. Three Criteria under 26(b)(3):i. The materials must be documents or tangible things.ii. Prepared in anticipation of litigation or for trial.iii. by or for another party or its representative.c. Analyzing a work product claim:i. Whether the materials are presumptively protected1. Done by the 3 criteriaii. Whether the presumption is overcome in the circumstances FRCP 26(b)(3)(A)(ii):1. If the party seeking them shows a substantial need for the materials to prepare its case and cannot be obtained by substantial equivalent by other means.Step 1: Is the material a document or tangible thing?Was it prepared by or for another party?Was it prepared in anticipation of litigation?If the answer to these questions is yes, the document enjoys presumptive protection. Go on to step 2.

Step 2: Does the requesting party have a substantial need for the material?Is it unable to obtain the equivalent by other means?If yes, it will have to be produced despite presumptive work product protection.

Step 3: Would the material reveal the mental impressions, conclusions, opinions, or legal theories of counsel?If yes, it will be protected from discovery in almost all cases, despite surving 1 and 2.

Pretrial 1. Rule 16--a. (c)(2)(C) admissions and stipulations about facts and documentsb. If failure to stipulate, write an admission under rule 36i. Pressure them with attorneys fees under rule 37(d)2. Final Pretrial Ordera. 16(c) i. Every thing that you intend to prove. This controls the trial.ii. In considering a denial of a pretrial motion for 1. Prejudice/surprise to the party2. Ability to cure3. Disruption by inclusion4. Bad faith by modifying party5. Timeliness b. (e) must be attended by at least one attorney3. Rule 41: Voluntary Dismissala. Section (a) is the voluntary dismissal sectioni. (1)(A)A plaintiff may dismiss without a court order by filing a notice of dismissal1. (B) says it is without prejudice2. This is a notice, not a motion.b. (b) is involuntary4. Rule 56a. It is the motion at the end of discoveryb. (4) Affidavitsi. must be made on personal knowledge, set out fats that would be admissible in evidence, compentent to testifyc. (d) Facts Unavailable to Nonmovanti. affidavit cannot present facts essential to justify1. Defer motion, or deny2. Time to obtain affidavits or declarations or to take discovery3. Any other appropriate orderd. (f) Judment Independent of Motioni. gives notice and reasonable time to respond1. grant sum.e. (g) any material fact that is not in dispute may be listed by the court to avoid having to fight over undisputed cases.f. Is it reasonable to

Dispositive Motions: Failure to State a Claim and Summary Judgment

Motion Seeking Decision as a Matter of Law

12(b)(6)12(c) 5650(a)(1)50(a)(1) after P and Ds casefacts in thefacts in Factsundisputed factsfacts in full complaintcomplaintnotmovants and nontrial recordanswersupportedmovants materials

1. Summary Judgmenta. Rule 56i. (a) A 56(a) motion may be filed by defense before the jury receives the case. ii. There is no genuine dispute of material fact. 1. Plaintiff would respond with there is a genuine dispute of material fact and would bolster the claim by demonstration.a. Additionally, the Plaintiff may move for a 56(a) by saying that the defense has failed to make an affirmative defense.i. Usually rejected at half-time b/c Defense has not been able to call witnesses.1. Defense will respond by demonstrating that she has witnesses who will give evidence of an affirmative defense. 56(c)(1)

2. Judgment as a matter of Law FRCP 50a. Motion made on the grounds that the evidence is insufficient to support a verdict.b. Plaintiffs two burdensi. To convince the judge that her evidence is strong enough on each element of her claim to support a rational verdict in her favor.ii. To convince the jury by a preponderance of the evidence. c. 50(b) i. a 50(a) motion must be made in order for a renewed (50(b)) motion to be made. 1. Can be renewed no later than 28 daysd. Neither (a) nor (b) applies in a judge-tried case.

Jury Trial

1. Rule 38a. Always include your jury demand at the end of your complaint/answeri. If you forget, it constitutes a waiver.2. Rule 39a. Must be demanded unlessi. Stipulation by attorneysii. Court sees that, in the issues, there is no neediii. Court can appoint an advisory juryiv. If parties consent, may be a jury verdict.3. Rule 2a. Eliminates the division of law and equity in federal court. i. There is one form of actionthe civil action.

Controlling the Jury1. Rule 49 (do-over)goes beyond the questions of fact that take you into this rule. a. Special verdicti. b. Answers to interrogatoriesc. Turyna v. Martan Construction2. Rule 59:a. 1. Grounds for a new triali. (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or ii. (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in equity in federal courtb. Timing: No later than 28 days.c. 3 waysi. Jurys verdict was against the great weight of the evidence1. Phrases:a. a serious miscarriage of justiceb. A definite and firm convictionii. Procedural error that impacted or may have impacted the jurys verdictiii. Discovery of new evidence1. Rare, because courts insist that evidence was not available at the time of trial. d. Trivedi v. Cooperi. 3 claims1. Harassment (hostile work environment)2. Failure to promoted3. Retaliationii. Defendants procedure1. Judgment as a matter of law on retaliation and failure to promote. 50(a)2. Then, after jury verdict, seek renewed JAMOL. 50(b)3. Remittitur 59(e)renewed a. Shocks the judicial consciencei. based on the research that has indicated the range that other cases have revealed.b. Clearly unsupported by the evidence.c. Take the judges lowered amount or suffer a new trial. 4. New trial under 59(a)3. General Verdicta. Who won?b. How much?c. 4. Series of special verdicts under 49(a)5. Verdict for interrogatories under 49(b)

Relief from Judgment1. Rule 60: Narrowa. We have found new evidenceb. Couldnt have found it if we had been doing our job.i. Doesnt qualify under 60(b)1. If you dont make it under the first 5 of (b), you probable wont succeed. 2. No longer available after a year for the first 3.3. 60(b)(4) is one of the most common use.a. When judgment was brought up at triali. Failure to serve. P gets what it wanted, because the defendant was a no show.ii. A 60(b)(4) is filed by the D. 4. 60(b)(5), a lot of these are not taken place within a year.

Appeals Do not think of an appeal as a do-over. Not normally an opportunity to to retry the case. Alabama small claims court cases may be retried de novo. There is no de novo review in Federal Court

1. Rule 4 of Federal Appealsa. Must be filed in District Courti. Whose appealing, what theyre appealing, to whom are they appealing. b. (a)(1)(A)Must be filed within 30 days after entry of the judgment or order appealed from. c. (4)(a)(4)if there is a motion pending under 50(b), 52(b), 54, 59, 60, Then the time for appeal runs from the entry of the order disposing of the last such remaining motion. 2. 3 Ps of appeals Rule 61:a. Prejudice from the error below, persevered below, and presented above.i. Judges mistake prejudiced the jury and that is why you lost. ii. Preservation is by objection1. At the time that the judge denies your jury instruction.a. Why the court is making a mistake. iii. Presented1. Identified the issue2. Argued about it in your appellate brief.b. The court must disregard all errors that are not substantial.3. Macarthur v. University of Texas Health Center at Tylera. Appeals because the court did not give her the title 7 instruction.i. Court says that she did not argue title 7 in any way. b. Also appeals sex discrimination.i. Properly preserved them through objection.ii. Didnt talk about them in her brief.1. Court says that you cannot argue them, because you did not raise them in your brief. a. No grounds for reversing on any other basis. iii. Its like sandbagging, because they intentionally waited until the reply brief. 4. Appealability:a. Final Judgment Rule--1291, 1292i. 1291: Final Decisions of District Courts1. Jurisdiction of appeals from all final decisions of the District Courts of the United Statesii. 1292Interlocutory Appeals1. Appeal while the case is still going on.a. (a) Deals with injunctionsi. Anything done to an injunction is immediately appealable. 1. An injunction is an immediate action demanded by the court. a. Among the most powerful remedies that a court has. iii. 16511. Writ of Mandamusa. Writ of last result.i. If appeal grants you remedy, then the court will not grant Mandamus. b. In Re Recticel Foam Corp.i. 1291Have to convince the court of appeals that it has jurisdiction over the appeal. 1. From final decisionsa. Becomes final when it resolves the contested matter.2. This case is not final.a. If they paid money in, and they didnt have to, thus this case is not final.ii. Collateral Order Doctrine1. Often called the Cohen Collateral Doctrine2. Four Requirementsa. Unrelated to the merits of disputeb. A complete resolution of the issuec. A right incapable of vindication on appeal for final judgmentd. Unsettled law3. The main reason for the final order doctrine is for speed and efficiency.a. If every order was appealable immediately, the timeline for cases would extend over and over and over. i. Every overrule objection would be appealable taking years and years to resolve a dispute. 5. 54(b) possibilitya. If you have a case on multiple defendants and one squeaks out on a summary judgment, the court may make that final.b. However, courts may not want to break up those cases.6. Mandamusa. In Re Recticel Foam Corp. part 2i. What is a petition for mandamus?1. Will be directed toward the district judge a. In this case they are getting the appellate court to undo the mandate from the court. 2. It is a drastic measure to be taken in extraordinary situations.a. Must be made in the most necessary situation.ii. It is not allowed if the case can be sufficed by some other preceding appeal.1. Irreparable damage. 2. Clear entitlement of relief3. Also no other remedy will work. iii. Key words:1. Right to writ must be clear and undisputable2. Exceeded discretion a. Usurpation of power3. Rarely will the court be usurping the power. 7. Chart:

Facts found by judgeQuestions of lawClearly erroneousDe Novo Abuse of discretion

DiscretionaryordersReasonableJury

Jury verdictsComplete deferenceNo Deference

Claim and Issue Preclusion

1. Res JudicataClaim Preclusiona. RST 17a final valid judgment is complete from review excepti. 1if it is against the plaintiff, the claim is extinguished and merged in the judgment and a new claim may arise on the judgment. ii. 2if the judgment is in favor of the defendant, the claim is extinguished and the judgment bars a subsequent action on that claim. 1. The Defendant would affirmatively claim res judicata: the claim has already been tried in another court.b. RST 24Dimensions of Claim for purposes of Merger or BarGeneral Rule Concerning Splittingi. When extinguished claim is pursusant to the rules of merger or bar, the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. ii. Whether factual grouping constitutes a transaction and constitute a series are pragmatically determined, in times, space, origin, or motivation, whether they form a convenient trial unit, as it conforms to the parties expectations or business understanding or usage. 1. Transactional testc. Primary rights definitioni. 1194oldest way of looking at a claim1. Views each theory as a separate claim and therefore trial.ii. RST says it doesnt care how many labels are given to the various rights, there is just ONE accident. 1. Just treats the accident as one claim, litigating individual issues at once. 2. By 1982, the transaction test is used.a. Seen by most Federal Courts. 3. There is symmetry between how broad a joinder of claims and parties with how you bring your equitable and law claim will be. a. Once you allow broad joinder and parties, it incentivizes parties to sue at once. i. Efficiency drives the thoughts. d. Elements of Claim Preclusion: (TIP: if you see two cases and one was final, start thinking claim preclusion.)i. Same Claimii. Case 1 resulted in a valid, final judgment on the merits (incl. disciplinary dismissals and default judgments, but not lack of PJ SMJ or improper venue)iii. Same partiesand their privities. 1. Sometimes used in a strict, narrow sense.

iv. River Park v. City of Highland ParkFederal Court1. Developer says they got screwed by the city and are suing because of it. a. Case 1: River Park v. Cityi. Defendant is liable b/c he was deprived of property rights w/o Due Process. 1983Violation of property rights. 1. No state law claims. Dismissal in district and appeals. Case dies.b. Case 2: River Park v. Cityi. Sues for tortious interference, breach of implied contract, abuse of governmental power. These are all state law claims.2. Illinois had used the same evidence rule. a. If the evidence of the first suit must be used in the second, then it is the same claim. b. Elements of Res Judicatai. Final Judgment on Merits, by a Court of competent jurisdictionii. Same cause of actioniii. Same parties or privies.3. Transaction Rulea. It doesnt matter about the relief, but if it comes out of the same transaction, then it must be litigated at once. b. Court calls it more modern, more pragmatic.i. When applied to this case, evidence is barred. c. Principle: USE IT OR LOSE ITi. Its all about efficiency. e. RST 26 Exceptions to Claim PreclusionPg. 1210i. (a) Parties have agreed in terms that plaintiff may split the claim.ii. (b) court in first action expressly reserved the right to maintainiii. (c) P was unable to rely on a certain theory because of subject matter jurisdiction and P seeks relief under that theory.1. Usually seen in courts of limited jurisdiction. (Small claims courtseeking injunction)2. Campbell calls this the most important one. iv. (d) Judgment in first action was plainly inconsistent with implementation of a statutory or cons. Schemev. (e) Substantive policyvi. (f) Apparent inabilityextraordinary reasons. 2. Issue Preclusion a. Taylor v. Sturgelli. Theory of virtual representation is dead. b. RST 27(1) same issue of fact or law, (2) actually litigated, determined by (3) a valid and final judgment on the merits, and that determination is (4) essential to the judgment (cant be collateral issue that wasnt important. Court had to find in favor of that party in order for that party to win.), conclusive in a subsequent action between the (5) same parties on same or different i. Have to be able to say (1) it happened once, ii. Is arbitration considered litigation? (ASK THIS QUESTION)c. RST 28exceptions to 27 when 27 is satisfied:i. Party against whom preclusion is sought cannot obtain review of the initial actionii. Issue of lawiii. Difference of extensiveness of procedureiv. Heavier burden of persuasionv. 5. Clear and convincing need for new determination of the issue (a) b/c potential adverse impact of the determination on the public interest, interests of persons not themselves parties in the initial action (b) b/c it was not sufficiently foreseeable at the time of the initial action that the issue (c) party sought to be precluded as a result of the conduct of the adversary.1. 5(a) other party who automatically loses the subsequent case. d. Nichols v. Felgeri. Case 11. Unpaid legal fees suit. 2. Lawyer wins the suit. No malpracticeii. Case 21. Client sues lawyer a. D answers with a motion for summary judgment. i. Instead of motion for judgment on the pleadings, the D here has to give the court the case file. ii. When you go outside of the pleadings, the court must treat it as ONE pleading for summary judgment. FRCP 12(d).

e. Panniel v. Diazi. P, hospital, and Diaz all have the same insurer. ii. P files 2 cases. 1. Case 1: Panniel v. NJM (insurance)a. Is a Personal Injury Protection (PIP)2. Case 2L Panniel v. Diaz/RWJ Hospitala. Tort claimf. Cambria v. JeffreyEssential to the Judgmenti. There is a collision1. Case 1: JeffreyCambria2. Case 2: CambriaJeffreya. The finding that Cambria was negligent in case 1 was not essential to the ruling. i. Because it is not essential, it is not issue preclusive. ii. Additionally, there was no compulsory counter-claim rule. g. Blonder-tongue labs (1971)i. University of Illinois foundation was suing a man named Able for a patent violation.1. Case 1: went to jury; jury found that the patent was invalid.2. Case 2: same plaintiff Unv. Of Illinois sues Blonder-Tonguea. Non-mutual. Blonder-tongue was not a party or in privity. i. BT raises a defense that because the patent was found to be invalid, the issue should be precluded.h. Parklane Hosiery v. Shorei. Case 1: SEC v. Parklane1. Judge found that the statement was false and misleading and issued his judgment ii. Case 2: Shore v. Parklane 1. People bought stock in PLH, so because PLH lost the previous case, the people are suing PLH.a. Wanting damages, rescission, 2. Shore moves for partial summary judgment on the proxy statement issue. 3. Court says that the ruling might promote a wait and see attitude.4. It might not promote judicial economy5. iii. Remember, issue preclusion is like an estoppel. 1. Can be for either partyi. Trial court has broad discretion and may apply factors such asi. The plaintiff could have joined in the litigation earlier (wait and see)ii. It would be unfair to the defendant. j. Under Issue preclusion ask the following questions:i. Who is the victim of the preclusion?ii. Did the victim have a full and fair opportunity to raise the issue in the first case?iii.

Additional knowledge on Rules

1. Rule 2The Civil Action a. One formi. Shows the merging of law and equity. Reliefs may be obtained in the same action.2. Rule 8Rules of Pleadinga. Short and Plain Statement; elements:i. Grounds for jurisdictionii. Entitlement to reliefiii. Demand for relief3. Rule 9(b) Fraud or Mistakea. Must be stated with particularityi. Many courts require time, place, context.ii. The facts must give strong inference of fraud.iii. Can sound like fraud.4. Rule 11Signing pleadingsPurpose: Streamline the administration and procedure of the federal courts.a. Signaturei. Must be signed by one of the attorneysb. Representationi. Found when significant carelessness is identified. ii. Claims evaluated individuallyonly portions, not whole docsiii. Improper Rule 11 Motionssubject, themselves, to reviewiv. Shows reasonable inquiry.v. Standard of culpabilitysubmitting doc purports that doc has no improper purposec. Sanctionsi. Regulates who may be sanctioned under Rule 11(b)1. Attorneys, law firms, partiesii. safe harbor 1. No sanctions motions until 21 days after service of the motion.2. Changes if the motion is changed or withdrawn.iii. 3(B) Courts initiative1. If 11(b) violation, an order must be issued to show causeiv. (4) issue nonmonetary order to deter repetition of the 11(b) violation.v. (5) No monetary sanctions for (A) 11(b)(2) violations, or (B) unless a show-cause under (c)(3). d. Does not apply to discovery.5. Rule 12a. Time and procedure for serving responsive pleadings, factual and legal assertions, objections, defenses, and for making preliminary motions and motions for judgment on the pleadings. b. Failure to include all 12(b) motions with one 12(b) motion constitutes a waiver of the unincluded. c. Judgment on the pleadingsif no material facts remain at issue and dispute can be resolved on both the pleadings and those facts of which the court can take judicial notice. d. Matters outside of the pleadingsi. Motion must be treated as one for summary judgment under rule 56. ii. Court must give notice of a conversion of the materials that are outside of the pleadings. e. Motion for a more definite statement. i. If a pleading is so vague or ambiguous, the receiving party need not serve a response. ii. Generally disfavored because of Rule 8s liberal construction.iii. Burden is on moving party. iv. Bars the waivable rule 12 motions. v. May be used by claimants when the defense is unintelligible vi. Sua Sponte Motions1. The court in its discretion may strike a deficient pleading and direct the pleader to file a more definite statement. for Shotgun Pleading Deficiencies. f. Motion to strikei. Gives the court ability to strike any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. 1. Matter of expediency: time, money, effort. 2. Disfavored. ii. Test:1. Deem as admitted all nin0moving partys well-pleaded facts2. Draw all reasonable inferences in the pleaders favor3. Resolve all doubts in favor of denying the motion4. If there is ANY DOUBT, the motion will be denied. iii. Moving party must show:1. The challenged allegations are clearly unrelated to the pleaders claims2. The moving party must be prejudiced by permitting those allegations to remain in the pleading. iv. Striking defense1. If defense fails to meet rule 8 and 9 pleading standards2. Fails to give fair notice to the opponent3. Is so deficient that no evidence would be admissible towards that defense. v. Moving Party must show:1. No question of fact or law that might allow the challenged defense to succeed.2. It appears to a certainty that the challenged defense will fail regardless3. Prejudice if the defense remains in the case.g. Joining Motionsi. If a party makes a 12 motion it must include all rule 12 defenses and objections then available in a single, omnibus motion. ii. This is to avoid piece-meal litigation tactics, where the defendants seek dismissal on one ground, lose there, and then seek dismissal anew on a different ground. iii. The party may only make the omnibus motions with those that are then available to that party. 1. If another becomes available, it may be allowed. h. Waiving and preserving certain defenses.i. 12(b)(1-5) are waived if a party fails to include them in any other Rule 12 motion. ii. Prevents delaying effect. iii. If the court finds that it lacks subject matter at any time it must dismiss. 1. This is Rule 12(h)(1)(C)(3).6. 13a. authorizes persons who are already parties to an action to assert counter claims against an opposing party7. 14a. Permits additional parties whose rights may be affected by the decision in the original action to be joined so as to expedite the final determination of the rights and liabilities of all the interested parties8. 15a. governs the circumstances in which parties who have already pleaded in a case will be permitted to amend such pleadings. The rule also provides the circumstances in which the parties will be allowed to file the new pleadings describing events that have occurred since the original pleadings were filed. 9. 16a. authorizes the district court to convene pretrial conferences with the purpose of processing a case efficiently. While the court has discretion to hold such pretrial conferences, rule 16 requires the court to issue a scheduling order setting procedures for discovery and trial, unless the case falls into a category which the court by local rule has exempted from the requirement for a scheduling order. Further, if a pretrial conference is held, 16 also requires the court to issue a pretrial order after such a pretrial conference detailing the action at the conference and establishing the course of action to be followed. The order is binding unless subseaquently modified by the court.

10. 18(a)11. 1912. 2913. 2314. 2615. 3016. 33 17. 3418. 3519. 3720. 3821. 3922. 4123. 55a. Default Judgmentb. Procedure for defaults and default judgments in federal courts. B/c default judgments are not favored by the courts, Rule 55 also defines the procedure for setting aside defaults and default judgments.c. 24. 5625. 60

Forms1. Form 52Report of the Parties Planning Meetinga. (3) includes the discovery plan