Civil Procedure Outline PDF

A federal court can hear a claim when: 1. personal jurisdiction 2. subject matter jurisdiction 3. venue Policy behind FRCP: Purpose is to secure the just, speedy, and inexpensive determination of every action. Life Of a lawsuit: 1. initial pleadings filed and served a. plaintiff file...

A federal court can hear a claim when: 1. personal jurisdiction 2. subject matter jurisdiction 3. venue Policy behind FRCP: Purpose is to secure the just, speedy, and inexpensive determination of every action. Life Of a lawsuit: 1. initial pleadings filed and served a. plaintiff files complaint and defendant response (either in an answer or a rule 12 motion) 2. determine jurisdiction b. parties assert court has complete jurisdiction or that the court lacks jurisdiction i. personal jurisdiction, subject matter jurisdiction, venue 3. litigation c. discovery; the exchange of information between parties d. pleadings and motions ii. motions to dismiss, amending pleadings, etc e. joining claims and parties 4. Pre-Trial adjudication? 5. Trial and judgment f. Jury selection, jury instructions, etc 6. post-trial motions g. motions for judgment as a matter of law, motion for new trial, etc 7. appellate review **[Personal Jurisdiction (PJ)]** - Personal jurisdiction involves a courts ability to exercise authority over a person or entity involved in a lawsuit - personal jurisdiction must exist for a court to determine the rights and liabilities of a party before it - the core concept is fairness; Is it fair for this court to exercise jurisdiction (JX) over this defendant? Three types of personal jurisdiction: 1. In personam jx: jurisdiction over people (most commonly tested) 2. in rem jx: jurisdiction over property 3. quasi in rem **In rem jx:** Jurisdiction over property or status, including ownership disputes - Gives a court the authority to determine title to an object or real property located in the courts forum state - judgment is binding as to the disposition of property rights, but not as to the parties personally - often involves estate issues, business proceedings, property disputes, etc **Quasi in rem:** jurisdiction over persons where property is attached - permits a court without personal jurisdiction to determine certain types of disputes between a plaintiff and defendant regarding property located in the forum state - use to force a litigant to appear in court by attaching the litigants property - an action may be brought against defendant as well as his assets due to fears defendant will flee the state - court cannot compel attendance by the litigant, but can indirectly do so by forcing the litigant to choose between losing his property or appearing in court - court may render judgment as to persons with respect to property (rather than judgment over person or property itself) **In personam jx:** must be statutorily authorized and constitutional - [statutory:] a state law must authorize JX - Most states have statutes granting their courts in personam jx in certain situations, which fall into 4 categories: - [1. domicile:] defendant is domiciled in the forum state - Domicile = defendant maintains a permanent home in the forum state - Court can express personal jurisdiction over domicile person even if they are not physically present when served with notice of the lawsuit - [2. Consent:] defendant consents to JX in the forum state - consent can be express (by contract) or implied (by appearing in court without objecting to personal jurisdiction) - [3. Presence:] defendant is served with notice while present in the forum state - exception: not applicable if defendant is tricked into coming into the forum or into the forum state for purposes of opposing JX - [4. Long arm statute:] defendant acts well under the forum states long arm statute that grants in personam JX 2 and limited or unlimited extent (card 7) - [Types of long arm statutes:] - Limited: Most states have long arm statutes that specify situations in which their courts can exercise JX - statute that permits JX over parties when "a tort occurs within the state" or if "The cause of action arises out of transaction of business within the state\" - unlimited: some states have long arm statutes that authorize JX to the extent permitted by the US constitution - if the state has unlimited Long arm statute, statutory requirements for PJ will almost always be satisfied - most likely to be tested - if personam JX has not been satisfied through domicile, consent, or presence, a long arm statute must give the forum state power to exercise JX over defendant - in addition to statutory authorization, PJ must also satisfy constitutional requirements (8-12) - [constitutional:] JX must satisfy due process; To do so, these requirements must be satisfied: - [1. Minimum contacts:] defendant must have minimum contacts with the forum state such that exercise of JX is fair and reasonable (cards 8-9) - factors include defendants level of purposeful availment and the foreseeability of JX given defendants contacts in forum - Two-part inquiry that focuses on 1. Defendants level of purposeful availment and 2. The foreseeability of personal jurisdiction being granted over a defendant giving defendants contacts in the forum state - That was part of the constitutional requirement for PJ, defendant must have minimum contacts with forum state - establishing minimum contacts focuses on two requirements: - 1\. [Purposeful availment] - Defendant must purposefully (not accidentally) avail himself of benefits of conducting activities in the forum state - privileges and benefits: did defendant take advantage of privileges and benefits normally enjoyed by forum state residents? - Ex: Using the states courts, using states resources, doing business in state - Stream of commerce (business merely placing item into stream of commerce which ends up in forum state) is usually insignificant to satisfy the requirement - 2\. [Foreseeability ] - defendant must know or reasonably anticipate that his inform activities make it foreseeable that he may be held accountable in the forum states courts - if defendant sells and markets products in the forum state and the product is defective, defendant can reasonably foresee being sued in the forum state - [2. Relatedness:] The nature and quality of defendants contacts must be sufficiently related to the forum state - nature of relatedness will determine whether JX is general or specific - Level of relatedness will implicate whether JX is general or specific - As part of constitutional requirement for PJ, the nature and quality of defendants contacts with the forum state must be sufficiently related to plaintiffs claim - relatedness test: ask whether plaintiffs claim arises from defendants contacts with the forum state - Requirement will be satisfied as long as defendants contacts are in state activities directly or indirectly concerned or gave rise to plaintiff\'s claim - general versus specific JX: the level of relatedness between plaintiffs claim and defendants contacts with the forum state will determine whether JX is general or specific - [specific JX:] activity giving rise to the suit occurred in the forum state - PJ will be proper only four claims arising from defendants in state activities - [general JX:] defendants in state contacts are so systematic and continuous that defendant is essentially at home in the forum state - if established, defendant can be held accountable in the forum state for any claim arising in or outside the forum - [3. Fairness:] The exercise of jinx must not offend traditional notions of Fair play and substantial justice - factors include convenience to parties and the forum state\'s interest and providing redress for its residents (asahi factors) - the exercise of PJ must be fair - As part of the constitutional requirement for PJ, the exercise of JSX over defendant must be fair (must not offend traditional notions of Fair play and substantial justice, which involves weighing several factors - to determine if exercise of PJ defendant is fair: - 1\. [Inconvenience to defendant:] wood exercising JX over defendant in forum severely disadvantaged defendant? - Must be so inconvenient and difficult that plaintiff is inherently put at a disadvantage compared to plaintiff - 2\. [Plaintiffs interest:] evaluate plaintiffs interest in obtaining convenient and effective relief - consider the cost to plaintiff of litigating in defendants domicile and difficulty of travel to defendants domicile - 3\. [Forum state interest:] evaluate whether the forum state has an interest in providing redress for its residents or an interest in the outcome of the case - 4\. [Judicial efficiency]: evaluate ease of litigating in forum state - Consider location of witnesses, evidence, etc - [4. Notice:] defendant must be reasonably notified of the pending lawsuit - Due process requires that defendant must be sufficiently notified of a pending lawsuit - requirement: notice must be reasonably calculated under the circumstances to apprise defendant of the pendency of the action and afford defendant and opportunity to be heard - Notice is a procedural due process requirement for exercise of personal jurisdiction (other PJ requirements include minimum contacts, relatedness, fairness -- are substantive due process requirements) - methods of giving notice: - traditional methods of service of process will satisfy due process - ex: personal service, registered mail, delivery to an appointed agent - if the plaintiff knows that notice was not received by defendant, plaintiff cannot proceed - the each of the above factors and evaluate whether overall it would be fair for the court to exercise JX over D - constitutional requirements must be satisfied, meaning the exercise of PJ they were defendant must not offend traditional notions of Fair play and substantial justice - requirement established in international shoe - Statutory requirements for PJ\'s and constitutional requirements for PJ must be satisfied [Challenging, waiving, and consenting to PJ: ] - Defendant may consent to personal jurisdiction even if defendant would not be subject to personal jurisdiction - alternatively, defendant may raise lack of personal jurisdiction as a defense to plaintiffs complaint challenging pj: - Can challenge personal jurisdiction as a defense in defendants answer or other first responsive pleading to plaintiffs complaint - Ex: Defendant may file a motion under FRCP rule 12(b)(2) challenging PJ before filing an answer to plaintiffs complaint Waiving pj: - Defendant may waive lack of personal jurisdiction in various ways but most notably by failing to raise it as an issue in defendants answer to plaintiffs complaint - defendant can also waive lack of personal jurisdiction by appearing in court without challenging personal jurisdiction **Subject Matter Jurisdiction** - A federal court must have authority over a claim before it (as opposed to the parties are property, which is the concern of PJ) - subject matter jurisdiction (SMJ) refers to a courts ability to exercise that authority [Basic ideas: ] - Federal courts are courts of limited JX (Congress has limited the types of actions federal courts can hear) - SMJ cannot be waived - D can raise lack of SMJ at anytime; court may raise it as sua sponte (on its own) At anytime [Types of SMJ: ] 1. Federal question JX 2. diversity JX 3. supplemental JX 4. removal JX c20 1. **Federal Question Jurisdiction** - If a claim arises under federal law, the US constitution, or a treaty, the court will have federal question JX (FQJ), which is a type of SMJ - Requirements: A claim must involve a right or interest substantially founded on federal law to satisfy FQJ requirements - plaintiffs complaint must clearly raise a claim arising under federal authority - FQJ must arise based on plaintiffs allegations - it cannot arise based on a defense or counterclaim raised by defendant - determining whether FQJ exists: ask if plaintiff is seeking to enforce a federal right (it arises under a federal law, US constitution, or treaty) - if not, no FQJ exists [Exclusive federal jx:] - Federal courts have exclusive JX over the following matters (must be heard in federal court): - 1\. Bankruptcy - 2\. Patent, copyright, and trademark - 3\. Admiralty - 4\. Antitrust - 5\. Securities and banking regulations - 6\. Suits between states 2. **Diversity Jurisdiction:** - Diversity JX gives federal courts authority over controversies between citizens of different states, even where claims do not arise under federal law - the idea is that citizens of different states should not be forced to litigate in one party\'s home state [Requirements: ] 1. [Complete diversity:] every plaintiff must be of diverse citizenship from every defendant [ ] - No plaintiff can be a citizen of the same state as any defendant - Does not require that all parties be from different states; just no plaintiff and no defendant can be from the same state - EX: two plaintiffs can be from Utah if no defendant is from Utah - Under diversity JX, every plaintiff must have diverse citizenship from every defendant - [Determining citizenship:] - [people:] citizens in the state where they are domiciled - domicile = where a person maintains a permanent home and intends to remain - to determine intent to remain, look at things such as location of voter registration, place of work, etc - a person cannot have more than one domicile - citizenship is examined at the time of filing; Diversity need not exist when issues giving rise to the claim arose - [corporations:] are citizens of every state where incorporated and where corporation maintains a principal place of business (PPB) - Determining PPB: look at where directors, officers, executives make decisions - corporation can have multiple states of citizenship - [unincorporated businesses] (LLC, LLPs, etc): citizens of states in which any partner or member is a citizen 2. [Amount in controversy:] total amount in controversy must exceed \$75,000 - Plaintiffs complaint must include a good faith allegation that her claim is worth more than \$75,000 - for a case to qualify for diversity JX, plaintiffs complaint must allege in good faith that the damages and controversy exceeded \$75,000 - [requirements:] - 1\. Plaintiffs claim must exceed \$75,000 - even one sent over is sufficient - 2\. Good faith: it must appear legally plausible that the recovery would exceed \$75,000; Fairly easy standard to satisfy - if there is no legal possibility that plaintiff will recover more than \$75,000, the court can dismiss - Amount actually awarded is irrelevant - only matters what plaintiff might plausibly recover based on plaintiffs complaint - [Aggregating claims:] multiple claims can be combined by a single plaintiff to satisfy the \$75,000 requirement - To aggregate multiple claims, must be one plaintiff versus 1 defendant - Ex: If plaintiff has three claims against defendant, each asserting damages of \$30,000, plaintiff can aggregate claims to satisfy requirement - exception: if not one plaintiff versus 1 defendant, plaintiff can aggregate if: - a\. One plaintiff has joint liability claims against multiple defendants, or - b\. Multiple plaintiffs seek to enforce a title or write in which they have a common, undivided interest (rare) [ Exceptions to diversity JX: ] - Federal courts will not hear actions involving divorce, alimony, child custody, or probate, even if diversity requirements are otherwise satisfied 3. **Supplemental jx** - Supplemental JDX allows parties to attach a claim over which the court does not have original SMJ (no diversity or FQJ) to one that does - not an individual basis for JX; only allowed for additional claims attached to claims for which F QJ or diversity exists - often arises with cross claims, counterclaims, joinder, and intervention of additional parties c.38-43 [Requirement:] common nucleus of operative fact (CNOF) - each supplemental claim must share a common nucleus of operative fact with an existing claim that invoked original subject matter jurisdiction - satisfied if supplemental claims arise from the same transaction or occurrence as the underlying claim - note: in diversity cases, supplemental claims involving additional parties may destroy diversity [Denial:] Court may refuse a supplemental claim if: a. original JSX claims are dismissed early and only supplemental claims remain, b. supplemental claim raises novel/complex state law issues, or c. supplemental claim substantially predominates over original claim Limitation: in diversity cases, plaintiff cannot use supplemental JX to overcome a lack of complete diversity (this does not apply to defendant) - plaintiff can use supplemental JDX to overcome insufficient amount in controversy (aggregating claims) 4. **Removal Jurisdiction** - Removal involves moving a case filed in state court to federal court - defendant can remove a case originally filed in state court to federal court if the federal court would have SMJ (diversity or FQJ) over the case had it been filed originally in federal court - If plaintiff could have filed her case in federal court, but instead filed it in state court, defendant can remove the case to federal court [Requirements: ] 1. A case may only be removed to federal court if it could have been originally filed in federal court 2. only defendant can remove and, if there are multiple defendants, all defendants must agree to removal 3. removal is only proper to a federal district embracing the state court in which the case was originally filed [Diversity jx limitations: ] - Defendant cannot remove if plaintiff filed suit in defendants home state (no removal if any defendant is a citizen of the forum state) - Removal is barred starting one year after the case was filed in state court Remand: if removal is improper, the federal court can remand the case back to state court [Challenging SMJ:] - Any party may challenge the courts SMJ at anytime by filing a rule 12(b) motion - The court may also raise the issue of lack of SMJ sua sponte [Attacking SMJ: ] - Defendant may attack SMJ based on the face of the complaint or other evidence showing plaintiffs claims lack SMJ - Two ways to attack: - 1[. Facial attack:] defendant claims the court lacks SMJ because plaintiff fails to plead a required element of SMJ (failure to plead diversity or FQJ) - 2\. [Factual attack:] defendant brings in evidence to show that diversity or F QJ requirements are not satisfied Timing: SMJ may be challenged at any time during the lawsuit, even on appeal - challenges during litigation: both plaintiffs and defendants can challenge SMJ at any time by filing a rule 12(b) motion - distinguish from challenges to PJ and venue, which can only be raised by defendant - challenge after judgment: plaintiff or defendant can file a rule 60(b)(4) motion to render the judgment void for lack of SMJ - parties cannot consent to or waive SMJ **Erie Doctrine:** in diversity cases, federal courts most generally apply state substantive law and federal procedural law. However, when a federal law substantively conflicts with state law, the court should apply federal law. - Procedural law = the rules by which a case will be heard - substantive law = how the facts of the case will be interpreted Basics: - Erie issues arise primarily in diversity cases - federal courts must follow state substantive law unless there is a directly relevant federal law that conflicts with state law - federal courts will always apply federal procedural law the following will always be governed by state substantive law: 1. elements of a claim or defense 2. statute of limitations 3. conflict/choice of law rules 4. rules for tolling statute of limitations the following will always be governed by federal substantive law: 1. federal questions 2. cases where the federal Gov is a party 3. international relations, Admiralty, and maritime claims erie analysis: - in diversity cases where an eerie issue arises (federal and state substantive law conflicts), use the below analysis to determine if state or federal substantive law applies - 1\. Is there a valid federal law that is on point and directly conflicts with the state law in question? - If yes, apply federal law - 2\. If there is a federal and a state law and it is unclear whether the federal law is on point or conflicts with state law, analyzed under these tests: - A. outcome determinative: would applying or ignoring the state rule affect the outcome of the case? - If yes, apply state law - B. Balance of interests: does either the federal or state system have a strong interest in applying its rule? - If one clearly has a stronger interest, apply that law - C. Forum shopping avoidance: if the federal court ignores state law, would it make litigants flock to federal court? - If yes, apply state law **Venue** - Venue involves determining the federal judicial districts in which plaintiff may bring suit - more than one states districts may have proper venue over a suit - the main consideration is convenience [general rules for venue:] in federal court, venue is proper: a. in any district where any defendant resides (if all of the defendants reside in the same state where the district is located) b. in any district in which a substantial part of the claim arose or in which a substantial part of the property that is subject to the action is situated, or c. if no district in the US can satisfy A or B above, venue is proper in any district in which any defendant is subject to personal jurisdiction [residency for venue purposes] - [people:] residency determined by domicile - [non corporation business:] resident of all districts that it is subject to personal jurisdiction (broader standard than PPB) - [corporations:] reside in any state district in which its contacts are sufficient to subject the corporation to personal jurisdiction - slightly different than residency/ citizenship rules for diversity citizenship **Venue Transfer** - A case may be transferred from one federal district to another if the transferee district is one in which the case could have been filed originally; any party may move to transfer - can transfer to any district with proper venue, PJ, and SMJ [If venue in original district is proper:] transfer is discretionary - court may order transfer based on convenience of parties and witnesses, and/ or in the interest of justice - Courts discretion is based on both public and private factors: - [public factors:] what law applies, which community should be burdened with jury service, ease of enforcing judgment, judicial efficiency, and local interest - private factors: convenience (Location of witnesses, evidence), where the claim arose [if venue in original district is improper:] court may transfer in the interest of justice or dismiss the case [Choice of law]: transfer record applies laws of the original court, regardless of which party sought transfer - exception: transferee court will apply its own laws if original venue was improper **Forum non conveniens:** - If there is a more appropriate court system that should hear a case (separate judicial system, foreign country), the court in which the case was filed may decline to exercise JX despite JX being proper - under forum non conveniens, A court may dismiss an action if a far more appropriate venue exists - often arises where a foreign court would be more appropriate [Factors: ] - court evaluates convenience based on same [public] and [private] factors As for venue transfer - Requires strong showing of public and private factors to dismiss or stay the proceeding options for court upon granting forum non conveniens: A. stay the preceding, or B. dismiss the case - usually dismissed without prejudice to allow plaintiff to sue in the more appropriate forum - dismissal often occurs because transfer to the more appropriate forum is impossible (bc it is in a different judicial system or country) Summary of jurisdiction: Analysis to show whether a court has jx over a case: (use this approach) 1. Personal jurisdiction a. statutory authorization: is there a state statute that authorizes PJ\'s over the parties? Look for long arm statute b. constitutional test: does establishment of PJ\'s over party satisfy requirements? Inquiry focuses on: i. minimum contacts: purposeful availment and foreseeability ii. relatedness - implicates whether JX will be general or specific iii. fairness factors - inconvenience to defendant, plaintiffs interest, states interest, judicial efficiency iv. notice 2. subject matter jurisdiction - does SMJ exist? c. Federal question jurisdiction d. diversity jurisdiction - complete diversity, amount in controversy v. erie issues e. Supplemental claims? f. Removal? 3. Venue - is venue proper? Transfer issues? **Service of Process** - Service of process is the delivery to defendant of the summons and complaint, which satisfies the notice requirement [Service requirements:] - defendant must be served with: - 1\. Summons: formal notice of the suit - must identify the court and the parties, be directed to defendant, state the name and address of plaintiff\'s attorney, tell defendant when and where to appear; Must also bear the court\'s seal be signed by a court clerk - 2\. Copy of the complaint - [who may serve]: any non party aged 18 or older - [timing]: service must be within 90 days of filing the case - [location]: defendant may be served anywhere in the forum state [Exceptions to service of process requirements:] - presence due to separate case: defendant cannot be personally served if in the state solely as a party or witness in another civil case - subsequent papers: subsequent papers filed with the court (answers, discovery requests) do not require formal service - may be mailed to a party or party agent (attorney) **Notice** - [Notice:] defendant must be reasonably notified of the pending lawsuit - Due process requires that defendant must be sufficiently notified of a pending lawsuit - requirement: notice must be reasonably calculated under the circumstances to apprise defendant of the pendency of the action and afford defendant and opportunity to be heard - Notice is a procedural due process requirement for exercise of personal jurisdiction (other PJ requirements include minimum contacts, relatedness, fairness -- are substantive due process requirements) **Methods of Service** - The appropriate method of service of the summons and complaint depends on the type of defendant: individual or business [individual:] may use any of the following methods: g. personal service delivering summons and complaint to individual personally h. substituted service: left with third party at defendants usual abode i. service upon defendants authorized agent: serving defendants attorney j. mail: plaintiff sends by mail along with waiver form, which defendant must return k. Any other method permitted under state law: allowed if state is where federal court sits or where service is effectuated [business:] may use any of the following methods: a. Any method prescribed above for serving an individual b. delivering summons and complaints to an officer, managing agent, or general agent c. by mail, if authorized - [Waiver of service: ] - Plaintiff may request the defendant waive formal service by mailing defendant complaint along with a formal written request - if defendant denies or fails to respond, plaintiff must serve through other methods - waving service gives defendant additional time to respond to complaint **Complaint** - The complaint is the initial pleading in a lawsuit, filed by plaintiff, which formally begins an action [Requirements:] complete must contain: 1. [statement of JX:] short and plain statement of the grounds upon which the court has JX over the parties and claims - To the court in which the complaint was filed has jurisdiction 2. [statement of the claim:] a shortened plain statement of plaintiffs claims, showing that plaintiff is entitled to relief - [notice pleading standard:] complaint must give enough information to allow the adverse party to be on notice and make a reasonable response - detailed facts are not required: allegations must only be sufficient for the court to plausibly infer that defendant could be liable if allegations are true - [exceptions:] certain claims/issues must be pleaded with particularity, including - A. Fraud or mistake - B. Special damages - C. Judgment or official documents upon which the pleading party will rely 3. demand for judgment for relief sought: description of relief sought by plaintiff - money damages, injunction, etc **Answer** - Defendants response to plaintiffs complaint, in which defendants states defenses to each claim asserted and admits or denies each of plaintiffs claims - Defenses can be pleaded in the alternative - Ex: In breach of K claim, defendant Ken denied Kay existed but also answered that if a K did exist, defendant performed under the K [Timing: ] - Must be filed within 21 days of service of process (unless defendant waived service) OR 14 days after a ruling on a rule 12 motion [Counterclaims:] defendant may raise counterclaims against plaintiff and defendants answer - defendant must raise compulsory counter claims or otherwise the counter claim will be deemed waived - defendant may raise permissive counterclaims, but is not required to do so [Rule 12 defenses: ] - defendant may raise certain affirmative defenses in her answer rather than filing a separate rule 12 motion containing these defenses [Answer Requirements: ] 1. [Respond to allegations of the complaint]: defendants available responses: a. admit allegations b. deny allegations i. failure to deny can constitute admission on any issue except damages c. state that defendant lacks sufficient information to admit or deny allegations 2. [Raise affirmative defenses:] The defendant must explicitly assert certain defenses in his answer; Otherwise they will be deemed waived, including the following: d. contributory negligence e. claim preclusion f. statute of frauds g. fraud h. statute of limitations i. self-defense **Rule 12 Motions** - Defendant may attack plaintiffs complaint through a rule 12 motion, which can be used for a variety of reasons, but is most commonly deployed by defendant to attack JX and/or argue that plaintiffs answer fails to state a claim Rule 12(b) defenses: 1. Lack of SMJ 2. lack of PJ 3. improper venue 4. insufficiency of process 5. insufficiency of service of process 6. failure to state a claim 7. failure to join a necessary party - these defenses are waived if not included in defendants rule 12 motion, provided they were available - rule 12(b) defenses may be raised by motion or in the answer motion for a more definitive statement (rule 12(e)): - If complaint is so vague or ambiguous that defendant cannot reasonably prepare a response, defendant may move for a more definitive statement from plaintiff motion to strike (rule 12(f)): - defendant may move to strike from the complaint (or court may strike on its own) any redundant, immaterial, impertinent, or scandalous material **Amending pleadings** - Once a pleading is filed, parties may amend their pleadings subject to certain restrictions - parties may always amend ones as a matter of course - additional amendments may be granted with consent of other parties or court permission (Amendment without right) [amendment as a matter of course:] may occur either: a. within 21 days of service of the pleadings to be amended, or b. if a pleading requires a response, within 21 days of service of the responsive pleading or pre answer motion (rule 12 motion) i. Ex: if defendant answers plaintiffs complaint, plaintiff has 21 days from service of the answer to amend the complaint [Amendment without right:] after one amendment, a party may only amend the already amended pleading with either: d. written consent of the adverse party, or e. leave of court (court permission) i. leave of court must be sought through a motion and will be granted freely when justice requires; lenient standard - a party may seek to amend pleadings throughout the litigation, including at trial **Amended pleadings: relation back** - When a party amends a pleading to add a new claim or new defendant after the statute of limitations on the claim has run, the new claim will be allowed if it relates back [Requirement:] a new, time barred claim it will be allowed if it arises from the same transaction or occurrence set forth in the original complaint - Ex: plaintiff files a fraud claim against defendant 1; Months later, plaintiff amends the same complaint to add an embezzlement claim arising from the same incident, even though the statute of limitations has run on the new claim - embezzlement claim will be allowed under relation back doctrine even though the statute of limitations has run because it arises from the same transaction or occurrence as the fraud claim [New or substituted defendant:] if the amendment adds or substitutes a new defendant, it will relate back if: 1. Amendment concerns the same conduct, transaction, or occurrence as the original pleading, and 2. within 90 days of filing the amendment: a. new defendant knew of or receive notice of the action, and b. new defendant knew or should have known, but for a mistake, she would have been named originally i. applies when plaintiff sued the wrong defendant first, but the right defendant was aware of the mistake **Rule 11 certification and sanctions** - rule 11 requires the filing attorney or pro say party to sign all pleadings, written motions, and other papers, which certifies the filing is not improper or frivolous, and that contentions and denials have or will likely have evidentiary support [certification:] signature acts as certification that, to the best of the signers knowledge, after a reasonable inquiry: 1. Filing is not for an improper purpose (harassment, delay, to increased litigation costs) 2. legal contentions are non frivolous and warranted by law, and 3. factual contentions and denials have or are likely to have evidentiary support [Sanctions:] court may issue sanctions for violations, either on its own initiative or a parties motion - [safe harbor:] rule 11 motion for sanctions may not be filed until 21 days following service of the offending document - offending party may withdraw the document or remedy the problem - if not remedied or withdrawn, motion can be filed - [hearing required:] court must give an attorney or party a chance to be heard before imposing sanctions **Joinder** - Joinder refers to joining two or more legal issues or parties together in a single suit - purpose is to further judicial efficiency and avoid courts hearing the same issues from the same parties multiple times - joinder can be either compulsory (waived if not filed) or permissive (not waved) [Claim joinder]: a party asserting or defending a claim may bring additional claims; Claim joinder devices: - [counterclaim:] claim filed by defendant against plaintiff - [cross claim:] claim filed by party against Co party - ex: defendant 1 asserts cross claim against defendant 2 [Party Joinder:] A party asserting or defending a claim may join additional parties; Party joined our devices: - [Joinder:] plaintiff joins additional plaintiffs or defendants to her case - [impleader:] defendant brings a third party into a lawsuit - [intervention:] third party seeks to join a pending lawsuit - [interpleader]: property holder initiates suit between two or more claimants 2 property - [class action:] individual or smaller group represents a larger group **Counterclaim:** - A counterclaim, a type of claim joinder, is an offensive claim filed by defendant against plaintiff, often in response to plaintiffs complaint - may be included in defendants answer - counter claims are either compulsory (required or otherwise waived) or permissive (not waived if not filed by defendant) - jx - defendant must ensure that the court has jurisdiction to hear any counterclaim - compulsory counterclaims will almost always have supplemental JX [compulsory counterclaim:] claim by defendant against plaintiff that arises from the same transaction or occurrence as one of plaintiff\'s claims - must be filed in defendants answer or it will be waived (D cannot assert it in a separate action at a later time) - Compulsory counterclaims will almost always have SMJ because of the same transaction or occurrence requirement [permissive counterclaim:] claim by defendant against plaintiff that does not arise from the same transaction or occurrence as any of plaintiff\'s claims - can be litigated together with plaintiffs claim - may be filed with defendants answer to plaintiffs complaint or can be asserted in a separate action by defendant - must have independent basis for SMJ **Cross claim:** - A cross claims, a type of claim joinder, is an offensive claim asserted by a Co party against another party - Ex: plaintiff sues defendant 1 and defendant 2; Defendant 1 May assert a cross claim against defendant 2 requirements: same transaction or occurrence - cross claims must arise from the same transaction or occurrence as the underlying action - never compulsory, unlike counter claim stemming from the same transaction or occurrence - if a party does not file a cross claim, they do not waive the opportunity to raise the claim in a later time jurisdiction: will almost always have supplemental JX - cross claims must have an independent basis for SMJ, but they will almost always satisfy the supplemental JX requirements because they must arise from the same transaction or occurrence **Permissive Joinder:** - permissive joinder is a type of party joiner that allows plaintiffs to join other plaintiffs and/ or to join additional parties as defendants to plaintiff\'s case [joinder of plaintiffs:] original plaintiff may join new plaintiffs if: 1. they assert any right to relief arising out of the same transaction or occurrence as plaintiffs claim, and 2. any question of law or fact common to all plaintiffs will arise in the action - ex: after bus accident, all injured passengers join as plaintiffs, common issue is drivers negligence; Other issues (damages) or tried individually for each plaintiff - because this is permissive joinder, new plaintiffs are not required to join original plaintiff [joinder of defendants:] original plaintiff may join new defendants if: 1. the right to relief asserted against the new defendant arises out of the same transaction or occurrence as plaintiff\'s original claim, and 2. a question of law or fact common to all defendants will arise in the action - plaintiff is not required to join new defendants, this is permissive - distinguish between permissive joinder, which involves joinder by plaintiff, from impleader which involves joinder by defendant **Compulsory Joinder:** - Compulsory joinder is a type of party joinder; A party absent from a suit may be joined in the suit if deemed necessary or indispensable [Necessary/ indispensable parties:] absentee parties are necessary or indispensable if either: a. incomplete relief: without absentee, court cannot grant complete relief i. consider whether multiple suits might follow if absentee is not made a party; If so, likely cannot grant incomplete relief b. Impaired interest: Absentee has a legal interest that may be impaired or impeded for an interest that creates a risk of multiple or inconsistent rulings and obligations [requirements:] Absentee can be joined as a necessary party if: 1. there is personal jurisdiction over the absentee, and 2. joining the absentee will not destroy diversity [failure to join necessary party:] if a necessary party cannot be joined, court may dismiss the case; Court looks at these factors: 1. is alternative forum available? 2. What is the likelihood of prejudice to parties or others if case goes forward? 3. Can court shape potential relief to avoid prejudice? 4. Would plaintiff have an adequate remedy if case dismissed? **Impleader** - A party joinder device that allows defendant to bring a third party into a lawsuit who may be liable to defendant for all or part of plaintiff\'s claim - third party becomes a defendant in the suit; Known as third party defendant (TPD) - ex: Plaintiff sues defendant one car manufacturer for accident caused by tires blowing out; Defendant can join defendant 2 tire manufacture via impleader - defendant 2 is a third party defendant - when impleader occurs, plaintiff is not suing third party defendant directly; Rather defendant is trying to pass any judgment against him onto the third party defendant, who may either attack plaintiffs claim or defendants claim against TPD Requirements: Court must have personal jurisdiction over impleaded third party defendant - Court will usually have supplemental JDX because impleader situations almost always arise out of the same transaction or occurrence additional claims involving TPD: once TPD is joined, TPD may make claims of her own against other parties as long as SMJ exists over each claim and the court has PJ\'s over additional parties - original plaintiff may assert claims against third party defendant arising from the same transaction or occurrence as plaintiff\'s original claims against defendant **Intervention** - Intervention is a party joinder device by which a third party absentee may seek to join a pending lawsuit, either as a plaintiff or a defendant [Intervention as a right:] intervening party must be allowed if either: a. party seeking intervention has an interest that will be harmed if not joined and no existing party will adequately represent that interest, or b. a federal statute confers an unconditional right to intervene [permissive intervention:] allowed in courts discretion if either: h. Intervening party has a claim or defence that shares a common question of law with the underlying action i. intervening party has a conditional right to intervene, or j. Intervening party is a Gov official or agency and an existing claim or defense is related to the officer/agent, a statute, or regulation - if any of the above exist, court may allow intervention [jurisdiction issues]: in diversity cases, interveners must establish independent SMJ; Cannot use supplemental JX [intervention versus compulsory joinder:] intervention lets absentee join suit voluntarily; Compulsory joinder forces absentee into suit - standard for admission via intervention is also more lenient **Interpleader** - interpreter is a form of party joiner that allows a property holder to initiate a suit between two or more claimants to the property - allowed under both federal statute and FRCP rule 22 - Property holder = stakeholder - other parties with claims to the property = claimants [rule 22 interpleader:] - complete diversity required: stakeholder must be diverse from all claimants; Amounting controversy must exceed \$75,000 Statutory interpleader: - One claimant must be diverse from at least one other claimant - Amount in controversy must be \$500 or more - nationwide JX - service is proper on anyone in the US - venue is proper in any district where any claimant resides example: deceased had life insurance policy with IDE Corp having PPB in CA; Claimants from NJ, NV, and CA all claim interest in deceased policy - rule 22 interpreter - improper because of lack of diversity - statutory interpleader - proper because claimants are from different states **Discovery** - Discovery is a process by which parties must seek an exchange information about each other\'s claims and defenses, and also seek such information from non parties - conducted by and between parties; Court helps facilitate process [what is discoverable?] Material is discoverable if it is: 1. non privileged 2. relevant to a claim or defense, and 3. proportional to the needs of the case - factors include: a. Amount in controversy and resources of parties involved b. importance of issues at stake in case c. whether burden or expense of proposed discovery outweighs its likely benefit [process of discovery:] 1. [initiating discovery] - parties must: a. meet and confer b. provide initial disclosures c. develop discovery schedule - court and parties develop scheduling order with deadlines for completing discovery 2. [conducting discovery] - involves numerous discovery devices, including depositions, requests for production, interrogatories, requests for admission, etc [Privileged material] - Otherwise discoverable material that is privileged need not be disclosed during the course of discovery [privileges recognized:] 1. [attorney-client: ] a. Attorney-client privilege: communications between an attorney and client or the clients representatives our privilege unless waived i. to be protected, a communication must be made to facilitate legal services and intended to be confidential ii. [exception:] does not apply to an attorney defending a malpractice claim brought by a client or where a client seeks legal services to further a fraud claim 2. [word-product:] b. Work product privilege: protects material prepared by or for an attorney in anticipation of litigation; Can be qualified or absolute iii. [qualified privilege:] evidentiary (factual) material prepared for litigation purposes - protected unless opposing party shows: - 1\. Substantial need for material, and - 2\. Material is not available through other means (testifying witness is unavailable but his attorney has a witness statement - [absolute privilege:] material containing subjective thoughts of an attorney or party representative concerning the litigation - mental impressions, opinions, legal theories, etc - privilege cannot be overcome by need for information 3. physician-patient - protects information confidentially conveyed by a patient to a physician c. does not apply where patients condition is a legal issue (personal injury or malpractice claim) 4. psychotherapist/social worker-patient 5. clergy-penitent 6. marital communications d. protects disclosure of confidential communications made during marriage (does not apply if communication was made before or after marriage) 7. journalist-source 8. 5th amendment privilege against self incrimination - objections to discovery requests based on privilege must be stated with particularity [Mandatory disclosures] - parties are required to disclose certain information to one another during the course of the discovery process, irrespective of results from the opposing party [initial disclosures:] under FRCP rule 26(a), parties must disclose: - 1\. [Sources of discoverable information:] all people, documents, and electronic sources likely to have discoverable information - 2\. [Damages:] a computation of damages claimed in the case - 3\. [Insurance:] any insurance agreement that may be used to satisfy all or part of a judgment [expert disclosures]: at least 90 days before trial, parties must identify experts who may be used at trial and produce reports containing expert opinion, data use, qualifications, etc [pretrial disclosures]: parties must give detailed information about evidence to be used at trial at least 30 days before trial - Ex: documents to be used as evidence, identity of witnesses to testify, etc - if information will be used solely for impeachment purposes, it does not have to be disclosed **Written discovery tools** - Interrogatories, requests for production (RFP), and requests for admission are written discovery devices (RFA) Interrogatories: written questions from one party to the other - typically used to ask about identity of documents and people who may have information related to claims or defenses - each question must be investigated and answered or objected to by the responding party - objections: grounds for objecting to an interrogatory are governed by the rules of evidence; objections must be specific RFPs: - written requests to a party to make documents or other things within the party\'s control available to review RFAs: requests to a party to admit information or allegations - if a party admits information, it does not have to be litigated at trial; Opposing party can show the jury the admission - responding party can admit, deny, or state that it lacks knowledge **Depositions** - Depositions are oral proceedings in which an attorney they examine party or non party witnesses under oath - testimony is sworn in subjective penalties for perjury - deponents can also be required to produce documents Deposing parties: a party may be called for deposition via a notice of deposition - if a party to be deposed is a business, individuals that may be deposed include officers, directors, and managing agents deposing non parties: non parties may be deposed, but must be subpoenaed - subpoena duces tecum: Used to compel a non party witness to bring documents to a deposition [scope:] may cover any an issue within the scope of discovery - [objections:] deponents council may object to questions, but deponent is still required to answer - [exception:] if objection is based on privilege (answering would reveal privileged information), council can instruct deponent not to answer - duration: limited to one day for seven hours - must seek court approval to take more than 10 depositions or depose the same party twice **Motion to compel and motion for protective order** - during the course of discovery, parties may seek court intervention to compel production of withheld material (motion to compel) or protect the disclosure of certain material (protective order) [motion to compel]: a party can move for a court order compelling disclosure of requested material that the opposing party refuses to divulge - often arises where party holding information claims withheld materials are privileged - judge will call a hearing to determine whether material in question may be withheld [motion for protective order:] a party from whom discovery is sought may seek judicial order (a protective order, barring discovery of certain material) - usually needed to prevent disclosure of material that is privileged, highly embarrassing, trade secret, and/or clearly outside the scope of appropriate discovery - [Standard:] moving party (parties seeking the protective order), must demonstrate good cause - order can limit, condition, delay, or bar discovery of affected information [Conferences] - party representatives (attorneys) must be and confer with each other and/or the court at various times throughout the preceding - most of these conferences are for discovery purposes [mandatory meet and confer:] parties must meet at least 21 days before the scheduling conference to: - 1\. Discuss claims, defenses, and settlement - 2\. Develop a discovery plan - must present written discovery plan to court within 14 days of the mandatory meet and confer [scheduling conference:] - conference at or after which the judge issues a scheduling order setting deadlines for filing of pleadings, joinder amendments, and discovery deadlines [pretrial conference:] conference before the court; Held as needed to move the case forward and encourage settlement - final pretrial conference: may be set to finalize issues to be resolved at trial and evidence to be presented; Memorialized in court order - issues not included in the pretrial conference order may be excluded at trial [Voluntary Dismissal ] - Plaintiff may voluntarily dismiss her case, either with or without court approval, depending on when plaintiff seeks dismissal Dismissal without leave of court: court approval not required - allowed any time before defendant serves an answer or motion for summary judgment - plaintiff voluntarily dismisses by filing written notice of dismissal or a stipulation signed by all parties who have appeared in the case - often occurs when parties settle a case - dismissal is without prejudice, meaning plaintiff can bring claims again - exception: dismissal is with prejudice if plaintiff previously filed and dismissed the claim, or if it is a condition of the parties settlement agreement dismissal with leave of court: court approval required - required if there has been an answer, motion or prior dismissal - court has discretion to grant dismissal on terms and conditions it deems proper - dismissal is without prejudice unless court states otherwise - pending counterclaim: if defendant has filed a counterclaim against plaintiff, then plaintiff cannot voluntarily dismiss without defendants consent **Default judgment** - Default judgment is a court ordered judgment against defendant that may be entered when a defendant fails to answer or otherwise defend a properly served complaint [procedure:] plaintiff files motion for default judgment against defendant - Clerk enters default on docket if defendant fails to respond within 21 days of being properly served (or 60 days if defendant waive service) - default does not automatically entitle plaintiff to recovery; Clerk or judge must enter default judgment against defendant [recovery:] - if default judgment is entered, plaintiffs recovery is limited to the amount demanded in plaintiffs complaint [setting aside default judgment:] court may set aside default judgment for good cause shown within one year - good cause usually satisfied if defendant can show some excusable neglect, mistake, or fraud as grounds for the default **Motion to Dismiss & motion for judgment on the pleadings** - Defendant may move to dismiss or move for judgment on the pleadings on the grounds that plaintiff has failed to raise a plausible claim [basics of both motions:] both brought under rule 12 - both motions accomplished the same goal, but timing and materials viewed by the court are different - under both motions, defendant is essentially arguing that even assuming all of plaintiff\'s allegations are true, plaintiff cannot win [notable differences: ] - [timing of filing:] - if defendant has not filed an answer = rule 12(b) motion to dismiss - if defendant has filed an answer = rule 12(c) motion for judgment on the pleadings - [materials reviewed by the court:] - motion to dismiss court review sufficiency of plaintiffs complaint alone - motion for judgment on the pleadings: court reviews all pleadings filed **Motion for summary judgment** - Either party may file a motion for summary judgment (MSJ), which asks the court to enter judgment against the opposing party on the basis that there is no genuine dispute as to material facts and that the movement is entitled to summary judgment as a matter of law [burden for moving party:] must show: - 1\. There is no genuine dispute of material fact, and - 2\. Moving party is entitled to judgment as a matter of law - no reasonable person could find for non moving party - motion is based on pleadings and evidence submitted [burden shifting:] - if party moves for summary judgment, burden shifts to non moving party to show that a triable issue exists [evidence:] examined in light most favorable to non moving party - courts can look at the whole record of admissible evidence (pleadings, discovery materials) - evidence must be admissible to be considered - this distinguishes MSJ from rule 12(b) or 12(c) motions, in which the court may look only at the complaint or all the pleadings [partial summary judgment:] court can grant summary judgment on some claims, while preserving others **Alternative dispute resolution and settlement** - Federal courts must have an alternative dispute resolution program and the FRCP actively encourages settlement through various means, including mandatory settlement conferences [alternative dispute resolution:] generally refers to any means of settling disputes outside of the courtroom, including arbitration or mediation [mandatory settlement conferences:] court appointed adviser meets with parties privately and offers evaluation of the strengths and weaknesses of their respective cases [settlement offers:] FRCP rule 68, parties may make formal settlement offers at least 14 days before the date set for trial - [settlement for less than offer:] if offeree rejects a settlement offer and then obtains a judgment less favorable than the an accepted offer, offeree must pay costs incurred by the offering party after the offer was made - purpose is to encourage settlements **Right to Jury Trial** - The United states constitution provides the right to a jury trial in certain civil cases [7th amendment:] the 7th amendment provides the right to a jury trial in all civil actions at law - demand for jury trial: party must file a demand for a jury trial within 14 days of service of the last pleading raising a triable issue - if not filed, the right to a jury trial is deemed waived [number of jurors required:] minimum of six jurors, maximum of 12 - 6 jurors must be unanimous to reach a verdict - no alternative jurors in federal court - federal courts typically seat 9 to 12 member juries **Voir Dire:** - Voir dire Refers to the jury selection process, which occurs at the beginning of the trial; voir dire involves questioning potential jurors to evaluate whether they are qualified to serve on the jury [striking potential jurors:] each party may strike potential jurors - [For-cause strikes:] for potential jurors that appear incapable of rendering a fair, impartial verdict - Ex: Potential jurors that demonstrate bias, prejudice, etc - each side has unlimited 4 cause challenges - judge must approve any parties for cause challenge - [Preemptory strikes:] may be used by parties to strike potential jurors for any race neutral and gender neutral purpose - each side has three preemptory challenges to use during voir dire - A party cannot strike a potential juror on the basis of race or gender **Jury Instructions:** - Jury instructions provide jurors with instructions and explanations to enable the jury to evaluate the evidence presented at trial on each submitted issue - instructions are given to the jury at the close of evidence (before final arguments and deliberations) [the process of determining jury instructions:] - each party may file requested jury instructions with the court - [proposed instructions:] before final arguments at trial, the court gives party its proposed jury instructions - [objections:] parties must have a reasonable opportunity to object to the court\'s proposed instructions before they are delivered to the jury **Verdict** - The verdict is the decision of the Trier of fact, either judge or the jury, depending on whether the trial is bench or jury trial - remember that parties must request a jury trial [requirements:] verdict must be: - 1\. Unanimous, unless the parties stipulate otherwise, and - 2\. Returned by a jury of at least 6 members [general versus specific verdicts:] court decides which type to use - [General verdict:] jury finds for plaintiff or defendant and decides amount of damages or relief to award - [special verdicts:] jury is asked to make factual findings only and the court applies the law to those facts - court submits questions to the jury regarding ultimate facts and makes legal conclusions based on jury findings - ultimate facts are those which are essential to the judgment (the outcome would have been different if the fact was different) - [general verdict with interrogatories]: the court can require a general verdict but also ask the jury to answer specific questions concerning ultimate facts - purpose is to ensure the jury properly considered important issues **judgment as a matter of law & renewed motion for judgment as matter of law** - In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue, either deciding without jury input (JMOL) or over ruling a jury\'s decision (RJMOL) [judgment as a matter of law (JMOL):] directed verdict - court decides the case without allowing jury deliberations - procedure: motion for JMOL can be brought by either party before a case would otherwise be submitted to the jury - standard: court can grant JMOL if a reasonable jury would not have a sufficient evidentiary basis to disagree on the result (result is obvious, reasonable person could not disagree) [renewed motion for JMOL (RJMOL):] judgment notwithstanding the verdict - after a jury verdict and entry of judgment, the losing party can file RJMOL for entry of judgments in the losing parties favor - Procedure: must be filed within 28 days after entry of judgment - can only be filed if a JMOL was originally filed - standard: court may grant RJMOL if reasonable people could not disagree that the verdict was wrong - movement may file an alternative request for a new trial **Motion for a new trial** - After trial, either party may file a motion for a new trial if serious errors occurred at trial [grounds for a new trial:] parties can move for a new trial for any reason, but errors that would justify granting a new trial include: e. prejudicial error: serious error that makes the judgment unfair iv. ex: jury instructions were wrong f. prejudicial misconduct: of a party, attorney, juror, witness, ETC v. ex: jury considered excluded evidence g. judgment against weight of evidence: Jerry aired in reaching the verdict given the evidence before it h. newly discovered evidence - new evidence emerges that was not known or available at trial i. excessive or inadequate damages - court cannot increase the jury award, but judge can order a new trial or offer remittitur if convinced the award is too high vi. remittitur: Court can order a lesser damage award if damages are unreasonably high; Plaintiff who disagrees with reduced amount may ask for a new trial [motion for a new trial versus judgment as a matter of law or RJMOL] - in granting a new trial, court is not directing judgment, only saying process should restart (prevailing party may still prevail again), whereas with jmol and RJMOL, court is directing judgment **Appeals** - After a final judgement has been made at the District Court level, a party may appeal the decision to a Court of Appeals - appealing party must file notice of appeal in trial court - appellate courts look at potential errors at lower court level [Appellate standard of review:] 4 standards; Which one use depends on the issue being appealed and who the fact Finder was: - 1\. De Novo: appellate court reviews the case from the same position as the lower court - usually applies to questions of law - 2\. Clearly erroneous: appellate court determines whether it is definite and clear that a mistake has been made - applies to most fact finding at lower court level - 3\. Abuse of discretion: appellate court determines if lower court failed to exercise sound, reasonable, and legal decision making (decision is beyond reasonable justification under the circumstances) - applies to discretionary rulings by lower court (Conduct of court proceedings, rulings on motions, admissibility of evidence, objections, etc) - 4\. Arbitrary and capricious: for review of agency decisions; Pellet court determines whether decision was arbitrary, capricious, or made without observance of required procedure **Final judgment rule** - under the final judgment rule, an appeal may only be made based on a final judgment, meaning the trial court has reached an ultimate decision on the merits of the case - without a final judgment or basis for interlocutory appeal, appellate court lacks JX [exceptions:] the following may be appealed without final judgment d. orders involving injunctions - entitled to interlocutory appeal e. orders involving certifications of class actions - may be appealed in the discretion of the appellate court f. orders involving debatable questions of controlling law [multiple claims and/or parties:] trial court may direct entry of final judgment as to one or more parties and/claims, which is then appealable - ex: court grants motion to dismiss one of several defendants; Plaintiff can appeal ruling **Interlocutory appeals and extraordinary writs ?** **Claim preclusion (res judicata)** - Claim preclusion prevents a party that has had an opportunity to litigate a claim from relitigating the same claim - bars parties from re litigating claims that were either actually litigated or could have been litigated previously but were not - affirmative defense - should be raised in defendants answer [requirements:] new claim will be precluded if: - 1\. Same parties: the second case was brought by the same party against the same party in the prior case - 2\. same claim: same claims in the 1st and subsequent suit - new claims refer to same transactions or occurrences giving rise to the original action - 3\. Valid prior judgment: judgment is valid if the original court had JX, defendant had proper notice, and defendant had an adequate opportunity to be heard - 4\. Final judgment: judgment is final once there is nothing left for the court to do except order entry of judgment, even if the case is being appealed - 5\. On the merits: original judgment was based on a non procedural issue (something other than JX, venue) **issue preclusion (collateral estoppel)** - issue preclusion prevents parties from relitigating issues of law or fact that have been actually litigated and previously determined - issue must have been actually litigated - distinguish from claim preclusion, which only requires the opportunity to litigate requirements: - 1\. Valid judgment - 2\. Final judgment - 3\. On the merits - 4\. Same issue - same issue was actually litigated and determined in the first case - 5\. Issue was essential to the judgment - look for determination of an element of a claim or defense - 6\. Asserted against an actual party to the previous case who may assert issue preclusion: 2 views: a. Mutuality (traditional view): only parties to the prior litigation can assert issue preclusion - usually considered fair because it gives plaintiff incentive to join all defendants and, therefore, promotes judicial efficiency b. non mutuality (modern view): non parties to prior litigation can assert issue preclusion issue preclusion: use of prior judgment - non mutual issue preclusion may be used defensively or offensively, although courts are reluctant to allow offensive use defensive use of prior judgment: defendant seeks to prevent plaintiff from relitigating an issue plaintiff lost in a prior suit against a different party - allowed if the party against whom issue preclusion is asserted had a full chance to litigate the issue previously - ex: defendant and 2nd case can preclude plaintiff from relitigating an issue plaintiff\'s loss to a different defendant in a prior case offensive use of prior judgment: plaintiff seeks to prevent defendant from relitigating an issue that defendant previously lost in a prior suit against a different party; rarely allowed - ex: plaintiff seeks to enforce against defendant and issue that defendant lost to another plaintiff in a different action - factors: only allowed if deemed fair after balancing these factors: - a\. whether party against whom prior judgment is asserted had a full and fair opportunity to litigate - b\. Whether that party could foresee multiple suits being filed - c\. Whether issue preclusion was unavailable in the prior case - d\. There are no inconsistent judgments on record