Civil Procedure II Outline

Mullane v. Central Hanover Bank & Trust Co. (1950) DUE PROCESS FOR NOTICE AND SERVICE
Issue: Does the bank have to notify the beneficiaries in a more definite way? Holding: Yes.
Reasoning: To those beneficiaries and trustees whose addresses are known, service should have been mailed to
them. For those who are unknown or unable to be located, service in the paper was sufficient.
1. Reasonably likely to actually inform them.
2. If you cant do that, do the best that you can.
Rule of Law: Notice must be reasonably likely, under all circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections.
Rule 4
Rule 4(n)(1)and(2) basically says that in order to attach a property, you need to follow (1) if federal court,
federal statute; (2) if state court, state statute.
4(a) content of the summons.
4(c)(1) plaintiffs responsibility to see that the summons is served
4(c)(2) Who may serve? Any non-party over the age of 18.
4(d) waiver of service. Give the defendant notice (in writing, first class mail {or other reliable means},
addressed to defendant, copy of summons, consequences, date, reasonable time to respond +30 days, prepaid
response.) By accepting waiver, you dont forgo any defenses of jurisdiction and venue. If the defendant says
no, traditional means of service of process required, the cost is attached to the defendant.
4(e) Persons if the federal statute tells you how to serve them, do it, however, if there is no statutory
guidelines, (1) you can use the state laws, or (2) you can deliver it personally, leave copies at their dwelling
house or usual place of abode with a person of suitable age residing therein or by delivering it to an authorize
agent. Email? can if a statute allows it, however, there must be a statute. Agent through appointment approval
of the person to be served attorney for the matters, contract, etc.
Agent authorized by law appointed by statute, Secretary of State, Parent, etc.
4(h) Service of a Corporation
1.) It can be provided by federal law
2.) Use 4(e)(1) State Law.
3.) Serving an agent
4.) Delivering the summons to any officer, director, or managing agent (how high up in the corporation
do you have to be?)
(a)
Insurance Company of North America v. Hellenic Challenger Only non-secretary
present in the office was the insurance adjuster How high up in the corporate hierarchy is a claims
adjuster? Not much. He takes the paperwork and mislaid it. Question is was proper service of process
made? Court held that it was proper service of process b/c the person was familiar with the process even
though he wasnt the expressly authorized person b/c he worked in the same office with the person that
was and saw what should be done with it. Courts look to reasons to open defaults and this is an example
of this they could have gone the other way easily.
4(l) Service through affidavit by US Marshal, if not marshal, subject to disproof.
4(m) unreasonably difficult to serve the defendant, ask for an extension of time or ask to use a different
method. Generally 120 days after filing; if you dont serve w/in this time your claim can be dismissed.
Due Process:
Pennoyer:
1.) Statutory
2.) Constitutional Authority
3.) Notice Constitutionally required notice that they are being sued
4.) Serve Process in a way that is set forth in a statute.
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There can be notice that is not in compliance with a statute but is constitutionally sound. Remember that these
are 2 separate questions and to be sound, it needs to satisfy both.
Note 8: Greene v. Lindsey service of process was made by attaching the complaint w/ a thumb tack to the
door not reasonably likely to reach these tenants but it is reasonably likely to reach most tenants.
Note 9: Mennonite Board of Missions v. Adams Mennonite is the mortgage holder to mortgagee and the
owner failed to pay property taxes and there was a tax foreclosure and the notice was given by mail to the
owner in possession no notice was given to the Missions. Brings action to overturn tax foreclosure sale b/c they
had an interest in the property and that interest was taken away w/out due process of law b/c they had no notice.
Is it sufficient to give proper notice to the owner in possession? The court said yes.
Service of Process
National Development v. Triad Holding Corp.
930 F.2d 253 (2d Cir. 1991)

Facts: Defendant was served with notice at his apartment in New York on his maid. She was competent to
receive service; the question is is it his dwelling house or usual place of abode? He doesnt really have a usual
place of abode in many states, people that live like he does needs to be served at the place that he is living at
time. He was in New York staying in his apartment at the time of service he has many places of residence,
including Saudi Arabia, Barcelona, etc. He says the only place that he should be able to be served is his
compound in Saudi Arabia.
Issue: Was service to his Olympic Towers apartment appropriate? Holding: Yes.
Reasoning: Saying that someone should only be served in one of his many residences is not that representative
of what is needed. The rule does not say places it is phrased as the, meaning singular. He asserts that his
usual place of abode is Rigat, not New York this rule is usually referred to in the same sense as domicile; his
place of domicile is Rigat. Court says that you have to look at the realities of the modern world where people
live in multiple places there are sufficient elements of permanence that you need to look to these to determine
whether it is a place of abode - $25 million to buy it, permanent staff, $1 million renovation, he was in fact
living there at the time put it all together, it becomes a dwelling place while he is there. Court has a good
policy reason for interpreting the rule rather broadly, even though the rule is phrased in the singular.

1391 Venue generally

(1) a(1); b(1) are identical; a(2); b(2) are identical a(3); b(3) are not.
(2) a is when it is found solely on diversity.
(3) b if there is any federal claim in there at all, you go here something beyond diversity.
(4) a(1); b(1) venue in judicial district where any defendant resides if all defendants reside in the
same state.
(5) what do you mean by residence? They mean domicile true, fixed, permanent home.
(6) 1391(c) definition of corporate residence for this statute Does not confer venue over
anyone, it is simply a definition you have to plug this back into a(1) or b(1). (1) where it is
subject to personal jurisdiction.
(7) corporate defendant doing business in different areas in the same state that individually arent
enough but together are continuous and systematic- look to the most significant.
(8) 1391 a(2); b(2) Substantial part of the events giving rise to the claims took place.
(9) 1391 hierarchical the only way to get to A(3) or B(3) is if b(1)(2) or a(1)(2) dont work.
Explain why you use and dont use 1 or 2 when using 3.
Bates v. C&S Adjusters
B3- doesnt apply b/c you can bring suit in Pennsylvania; dont have to nail down one district as long as
substantial events occurred in a district, you can have venue there.
Change of Venue
1404 - applicable when the venue is correct. Discretionary the court doesnt have to transfer the case, it is up
to the court whether to transfer or not. Law stays with the transferee.
1406 - only applicable if the venue is incorrect. Law doesnt stay with the transferee.
Van Dusen v. Barrack
Wants to transfer the case to Massachusetts. Plaintiffs resisted b/c they wouldnt have qualified to be plaintiffs
there. The court says that the transfer is only a transfer of courtrooms, not of law.
Ferens v. John Deere Co.
Plaintiff files in Mississippi b/c the statute of limitations there was 6 years. They then transferred to
Pennsylvania so that he could use Mississippi law and statute in Pennsylvania.
Forum Non Conveniens There must be another court where the case could have been brought, dismissing so
it can be brought in another district.
Piper Aircraft Co. v. Reyno
(1) must show a viable alternative forum. (2) Public interest in the other forum is greater (3) Private interest
convenience of the parties and witnesses. Pennsylvania is not really a convenient forum for anyone but Piper;
however, the evidence is spread. Talks of abuse of discretion when addressing the review of the trial court
wide range of choices they could make on this and any one of them are reasonable and each should be upheld
unless the decision is so far outside of the limits of their discretion that another court could say that they
abused their discretion.
Is it ever justifiable to dismiss on forum non conveniens grounds if there is not another viable forum? So many
problems and burden on the court that they couldnt see hearing the case. At some level of burden, courts will
be looking to get out of the case. If the statute of limitations had run, you can claim that there is no alternative
forum however the defendant can say that he wont raise the defense of prescription.
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Pleadings and Judgments Based on Pleadings

Rule 8(a) - what has to go into the complaint - Claims for Relief. A pleading which sets forth a claim for relief
shall contain (1) a short and plain statement of the grounds upon which the courts jurisdiction depends, unless
the court already has jurisdiction, (2) a short and plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of
several different types may be demanded.
#1 Summons attach courts power to a particular person (pg. 146)
#2- Complaint(a)
Caption parties name Docket # and Court Name and Name of Complaint
(b)
Rule 8 Introductory Language and then separately numbered paragraphs
(a)(1) grounds for jurisdiction
(i) plaintiff is a citizen of
(ii) defendant is a citizen of
(iii) Amount in controversy exceeds . . .
(iv) Court has jurisdiction subject to USC 1332
(a)(2) - statement of claim
(a)(3) demand for judgment (grounds for relief)
(c)
Pleading in the alternative 8(e)(2)
(d)
Rule 11 Signature, Name, Address, Telephone Number, and if you want, the Bar roll number.
Dioguardi v. Durning what does a short and plain statement giving entitlement to relief mean? Sufficient to
let the defendant know that he is being sued and why. The defendant knows what he is alleging and knows that
he is being sued.
Rule 9 matters which are required to be pleading more specifically (really shows the ones that are not
exceptions b/c they wanted to overcome case law.)
2 things that do have to be plead with specificity:
(1) fraud, mistake, or condition of mind (malice, intent, knowledge of such things); and
a. With fraud you have an underlying concern of moral decay that is problematic. These are
easy to allege without any proof must show that there was fraud to bring suit b/c it is so
easy to allege.
b. Mistake and Condition of Mind these dont have the same kind of moral weight as fraud.
However, they are still easy to allege and you need to give the defendant reasons why you
believe that they made a mistake or have a bad condition of mind.
(2) special damages
a. 9(g) special damages exception to the normal rule - 8(a)(3) short and plain statement of
what you seek special damages? Those which although resulting from the condition of the
wrong are neither a necessary result nor the kind that would be implied. Anything that is
unexpected or un-expectable. Remember that there is no punishment for putting it in, but
there is for leaving it out. Ex. Rise in blood pressure due to a car accident is not foreseen and
should be plead as special damages.
Leatherman v. Tarrant County (1993)
Remember that Congress can pass a law and overrule the Federal Rules to make it easier or more difficult.
However, the question here is, can the courts change the federal rules? No. Rule 9(b) does impose a
particularity requirement in 2 specific instances and thats the only time you have to do it.
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Default and Default Judgment

(1) sum certain default judgment can be done by the clerk
(2) uncertain sum court must enter the default judgment- hearing before the judge only on the subject of
damages and reasonable amount.
When is it a good idea to default?
(1) in rem action where you dont want to get in personam
(2) if the amount they are asking for is WAY less than you think you owe
(3) what if the court doesnt have jurisdiction over you? (12b2 and special appearance).
Answer
(1) Dispute of the factual allegations
(2) You must respond
(a) waived formal service of process- 30 extra days.
(b) received formal process 20 days
Motion to Dismiss
(1) motion directed to the pleading they dont have any law backing them up (lack of jurisdiction, bad
process, dont have the proper parties, fails to state a claim.
(2) ONLY GET ONE.
McCormick v. Kopmann
alternative claims do not need to go with each other; you use them when you dont have all the facts and dont
know how something happened, but either way it is the fault of the defendant(s).
Zielinski v. Philadelphia Piers Inc plaintiff injured when forklift hit him while he was working PPI was
the owner of the forklift. Carload who would be the proper defendant. If you dont properly deny it
becomes an undisputed fact.
Affirmative Defenses
Factual allegations that would change what would otherwise be the legal ramifications of the claim.
Last thing that can be in an answer (1) admissions and denials (2) affirmative defenses (3) counter-claim. (13)
Counter-claim doesnt have to have anything to do with the plaintiffs claim. Counter-claim is simply a
complaint; must be labeled as a counter-claim.
Remember that the only pleadings b/t 2 parties are: (1) complaint (2) answer and counter-claim (3) response to
counter-claim labeled as such.

Rule 41 - Motion to Dismiss Rule 12 Defenses and Objections

End the case immediately. 2 ways a case can be dismissed (1) by the plaintiff voluntarily (2) by the court,
usually through the motion of the defendant involuntarily. Rule 41 Dismissal of Actions Voluntary dismissal
is allowed before the answer is filed. Afterwards, it can be dismissed only by the parties.
Involuntary dismissal (1) failure to prosecute (2) look at Rule 12 (b) for grounds for dismissal for a case at the
outset
(1) Lack of jurisdiction of the subject matter
(2) Lack of in personam
(3) Improper venue
(4) Insufficiency of process
(5) Insufficiency of service of process
(6) Complaint fails to state a claim as a matter of law demur, assuming everything the plaintiff said is
true, they would still lose as a matter of law.
a. failure to state a claim and failure to join a party can be brought anywhere before trial b/c
these generally require discovery
(7) Failure to join a necessary party.
12(g) only one motion to dismiss is allowed before trial begins.
12(c) - Motion on the pleadings is really a motion to dismiss that isnt in response to the compliant brought
after the answer.
12(e) Motion for a more definite statement disfavored, most judges would tell you not to bring them
12(f) Motion to strike disfavored, most judges would tell you not to bring them.

Rule 15(a)
(a) Amendments changing pleading
- Plaintiff before answer is filed / Defendant 20 days after the answer is filed.
- Leave of the court, when justice so requires, if they seek leave, they should get it.
- Reasons why justice shouldnt require- looks like you are just trying to delay trial,
constantly asking for amendments, looks like it is done in Bad Faith
Beck v. Aquaslide and Dive - Statute of limitations ran, the defendant discovered that they didnt make it.
They moved for leave to amend their answer 15(a) motion, justice requires b/c they were in good faith
15(b) means that you can prove something similar but different at trial than you plead in the pleadings.
- both parties consent at trial, evidence shall be treated as if it was plead.
- Implied not objected to at trial
- Express something brought up at pre-trial order that isnt objected to
- If one party objects, the judge can allow to amend pleadings and shall do so freely
when the presentation of the merits of the action will be subserved and objecting party
fails to show the evidence would prejudice in action or defense.
- Prejudice isnt showing harm, its showing unfair harm.
- Judge can grant a continuance if evidence is necessary and prejudiced.
Wabash Western Ry. v. Friedman Court said that allowing the change would place the defendant in an
unfair situation b/c they are there to fight the complaint they have to have time to prepare.
15(c) (1) & (2) Relates back- treats it as if it had been filed with the original pleading; only time that you worry
about it is if b/t the time the original and amended pleading the statute of limitations has run.
- *amended pleading arises out of the same transaction or occurrence. *
Marsh v. Coleman Company = 15(c) notice before the limitation expires. Relate back if they flesh out the
factual details, change the legal theory, or add another claim arising out of the same transaction, occurrence or
conduct. Relation back is denied when based on entirely different facts, transactions, and occurrences. Legal
similarities. No single claim or definition. Logical relations b/t the claims.
15 (c)(3) relation back of amendments when it changes the name of a party. In the case of amendments,
whether it relates back or not, the party who is now being sued may not have been put on notice of the case and
the claim. (1) Fits under rule 15(c)(2) (2) party had notice but werent on the claim (3) had to come to this
realization before the time period for the statute of limitations had run.
(4) Amendment w/in rule 4m (120 days of service of process)
Schiavone v. Fortune Rule still requires that the requirements of 15(c)(2) are fulfilled and that the new party
had to have received such notice of the institution of the action that they wont be prejudiced in raising a
defense and they had to have known or should have known that but for mistake they would have been served /
included before. Time is no longer simply within the statute of limitations period, but rather w/in the period of
service of summons reasonable time no longer than 120 days after filing.
15(d) Supplemental pleadings transactions or occurrences that arise after the filing of the original pleading
as compared to an amended pleading that has already happened that you just didnt file. Upon motion and
reasonable notice and such terms are as justice they may file a supplemental pleading.
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Rule 11
All papers submitted to the court requirement that the attorney or individual sign the document and make
certain representations.
11(a) have to sign everything that you give to the court
11(b) what the signature means
(1) not presented for improper purpose
(2) claims, defenses and legal contentions are warranted
(3) allegations and factual contentions have evidentiary support or are likely to have it
(4) denials of allegations and factual contentions are warranted or lack of information or belief
11(b)(3) evidentiary support can be your clients testimony, however, you must do some type of investigation
that is reasonable under the circumstances.
11(c) Sanctions (1) motion of other party and served on the party with a 21 day safe harbor provision 3
weeks to reconsider and withdraw the document in violation of rule 11. (2) court on its own initiative can be
monetary penalties, etc. Permissive, not mandatory.
detail for motion for sanctions laid out in 11(c)(1). By the court, needs to describe conduct and producing an
order to show cause. Sanctions are essentially monetary. 11(d) says that rule 11 doesnt apply to discovery b/c
under 26(g) and rule 37 discovery has its own sanctions.
Rector v. Approved Federal Savings Bank
First claimed 20 billion dollars and when he was allowed to revise he claimed an infinite amount of money. Not
that he didnt violate rule 11, but the defendant didnt demonstrate that the rule 11 sanction was served upon
him. Does that preclude issuing of sanctions? In most cases, yes, but in this case, no. The defendant was
allowed to impose the sanctions because he never even brought up the claim of no 21 day wait period it was a
waivable element and he never mentioned it, so that means he cant bring it up now.

DISCOVERY
Process:
(1) pre-trial conference discovery planning conference (rule 16). 26(f) Main purpose is to make
arrangements for discovery and a try at settlement.
(2) Initial disclosures 26(a)(1) must be submitted within 21 days after the scheduling conference.
(3) Expert disclosures 26(a)(2) disclose within 90 days before trial.
(4) Witness disclosures 26(a)(3) must be disclosed before trial. This is w/ the pretrial order.
(5) Party Initiated discovery discovery mechanism and order you use them in is pretty much up to you.
- Mechanisms:
- Deposition rule 30 (27-31) interview a witness under oath and responses recorded.
Only get 10 depositions without having to ask the court.
- Interrogatories
- Request for Admissions
- Request for Documents
- Investigations
Rule 33 - Interrogatory directed towards the other party only. Finite and can be used to say this is the answer
and this is IT. Limit is 25 questions including subparts. 1(a)(b)(c) etc. count as 3 questions.
Rule 34 - Production of documents and things request specified documents. Very careful of how you phrase. If
you do it too broadly, object for being too broad. If you are too specific there will be leeway to leave things out.
Rule 35 Physical and Mental exams of person

any case where a person has claimed to be physically hurt. (PI).

Requires the permission of the court.

Only done when the physical or mental condition of the parties is at issue or in controversy.
Rule 36 Requests for Admissions
- expand on pleadings.
- If you refuse to admit it, you must reimburse the cost of proving it.
Scope of discovery
General
is it discoverable, does it fit under 26(b)(1)
Exceptions
Privileged 26(b)(5) relationships recognized as privileged by the court. Privilege goes
to statements made, communications not the underlying facts
work product - (26(b)(3) It doesnt have to be admissible it just has to lead to the
discovery of something that will be admissible at trial.
26(c) protective orders, what if someone asks about matters that you think arent
relevant to any permissible issue? Motion for a protective order, motion by the court to limit the
discovery.
special cases experts
26 (a)(2)
26 (b)(4)
Alexander v. Hale 2 previous bar exam boards had rejected him, they found something or spoke to someone
that has information that we really need. The court held that they could get this info.
.
Work Product
Hickman v. Taylor (before 26 (b)(3))
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Issue: To what extent may a party inquire into oral and written statements of witnesses secured by an adverse
counsel in the course or preparation for possible litigation after a claim has arisen? this goes too far.
Reasoning: They arent asking for plain facts, they are rather asking for the impression and interpretation of the
attorney. It is biased and prejudicial and will have him doing all the work of the other attorney. Burden to prove
establishment of adequate reasons to invade privacy through discovery is on the person requesting the
documents, it wasnt proved here.
Is it discoverable? Yes, it is about witnesses, they have or could lead to information that would be relevant to the
case clearly within scope of discovery is or would lead to discoverable information.
Should he turn it over? Yes, it is much more efficient. Goes into his objective state of mind; gives an unfair peak
into the attorneys deck of cards.
Work product = documents and other tangible things that are prepared in anticipation of litigation prepared for
someone by an attorney, surety, agent, etc. materials prepared in anticipation of litigation or trial prep
materials 26(b)(3)

this covers only (1) and other tangible things,

(2) must be in anticipation of litigation, not documents produced in the course of business.

(3) Must be made by an attorney, surety or insurance agent (4) for the party.

Can get info w/ substantial need and cant obtain it in any other way without undue hardship.
Holmgren v. State Farm
Attorney asks for memos from the adjuster which show what the claim is worth. State Farm trying to squeeze
them. If bad faith has something to do with reasonableness, we need to look to the subjective and objective
standard. Is State Farms adjusters opinion enough subjective evidence of the reasonableness of the number
26(b)(1) is it discoverable? Yes. The document is evidence of the bad faith assessment of the worth of the
claim. It falls under Trial Preparation Materials 26(b)(3) ((1) document (2) made in anticipation of litigation (3)
made by an insurance adjuster (4) for the party) which says that you cant discover documents like this b/c it is
an opinion mental impressions, conclusions, or opinions and 26(b)(3) says the court shall make this
inadmissible. However, this claim is about the subjective belief of state farm of the worth of the claim and there
is no other way to get the information. The court allows them b/c the adjusters opinion testimony is the root of
the claim and the bad faith claim can only be proved this way (subjective element of bad faith).
Two things to get out of this:
(1) you can get work product material as discoverable material
(2) It requires EXTREME circumstances to be able to be discovered.
Remember the way to look at work product:
(1) is it discoverable
(2) is it work product
(3) does it fall under the exception of undue hardship or burden
(4) exception of opinions or mental impressions.
(5) Exception of opinions or mental impressions if the case is about the opinion or mental impressions,
then they must be admitted.

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Experts: Rule 26(b)(4)

26(b)(4)(A) someone who may be a witness, you can depose them
26(a)(2)(b) you get a report / compelled disclosure of expert report. Lays out all factual information that he is
assuming and facts as he assumes them to be; any exhibits; introductory biographical section usually includes
a resume; research trail (scientific method/process/etc.). Probe into the accuracy of the information given.
26(b)(4)(B) experts who arent going to be called as a witness (consulting in trial prep) Can only get
interrogatories and depositions only if there is a showing of exceptional circumstances when it is impracticable
for the party to obtain facts or opinions on the same by other means. Exceptional circumstances, you can get the
same type of information as is allowed in (A)
Ager v. Jane C. Stormont Hospital and Training School for Nurses
Status of each expert must be determined on an ad hoc basis:
(1) the manner in which the consultation was initiated;
(2) the nature, type and extent of information or material provided to, or determined by, the expert in
connection with his review;
(3) the duration and intensity of the consultative relationship; and
(4) the terms of the consultation.
After this, if the expert is considered to have been only informally consulted in anticipation of trial, discovery is
barred.
proper showing exceptional circumstances under which it is impracticable for the party seeking discovery to
obtain facts or opinions by other means. Limited availability of experts require that, absent special
circumstances, discovery of the identity of evaluative consultants be denied. identity, and other collateral
information concerning an expert who is retained or specially employed in anticipation of litigation, but not
expected to be called as a witness at trial, is not discoverable except as provided in Rule 35 or upon a showing
of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.
Status of a non-witness expert:
(1) was the expert informally consulted in anticipation of litigation but not retained or specially employed?
If so, no discovery may be had as to the identity or the opinion of the expert.
(2) If the expert was not informally consulted, but rather retained or specially employed in anticipation of
litigation, but not expected to testify at trial, do exceptional circumstances exist justifying disclosure of
the experts identity opinions or other collateral information?

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E. Sanctions - RULE 37
1. File a motion for order compelling disclosure or discovery
a. No sanctions come at all, but rather a request from the court asking for help
b. No punishment yet
c. Requires a certification that the parties have attempted to work this out in good faith
2. If motion is granted then, party will either comply or fail to comply
a. In Rule 37 (b)(2) then sanctions can be imposed if fail to adhere to an order of the court
i. Legal issues resolved against you
ii. The entire case resolved against you
iii. Court has options
Rule 11: does not apply to discovery but Rule 26 (g) is essentially the same thing
Rule 26 (g) Signing of disclosures, discovery requests, responses and objections
Washington State Physicians Ins. Exchange & Assn v. Fisons Corp
Didnt provide 2 letters that represented the dangers of the drug in response to the discovery request. The day
after the trial court ruled that they would have to give the information asked for in discovery, the drug company
dropped 10,000 papers off at the office of both lawyers. Proper standard is abuse of discretion which recognizes
deference to the judicial actor who is better positioned than another to decide the issue in question.
The sanction rules are designed to confer wide latitude and discretion upon the trial judge.
Rule 26(g) Signing represents:
(1) consistent with the discovery rules and is warranted by existing law or a good faith argument for the
extension, modification or reversal of existing law;
(2) not interposed for any improper purpose such as to harass or cause unnecessary delay or needless
increase in the cost of litigation; and
(3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery
already had, the amount in controversy and the importance of the issues at stake in the litigation.
Holmgren v. State Farm Mutual Auto Insur.
When good faith requires that a party qualify an answer or deny only a part of the matter of which an admission
is requested, the party shall specify so much of it as is true and qualify or deny the remainder (FRCP 36(a)).

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SCOPE OF LITIGATION JOINDER AND SUPPLEMENTAL JURISDICTION

(1) Counterclaims, cross-claims, 3rd parties, interveners and class actions.
What issues can arise?
(1) look at the rules to see if you are allowed to bring in another party (Rule 13, 14, 18, etc.)
(2) look at smj because every claim in federal court must have SMJ
(3) Is there in personam jurisdiction only if there is a new party.
(4) Venue determined by original parties; only an issue is if there is mandatory joinder under Rule 19.
C. Claim Joinder by Plaintiffs
18(a)Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or
third-party claim, may join, either as independent or as alternative claims, as many claims, legal, equitable, or
maritime, as the party has against an opposing party.
(1) Is permissive, no restrictions.
(2) If Plaintiffs claims are not transactionally related, and no claim preclusion, why would the plaintiff
ever want to assert them together? It is efficient; however, it can also confuse and prejudice the jury.
(3) Rule 18(a) doesnt empower the plaintiff but speaks instead of a party asserting a claim of relief.
(4) Joinder rules, are procedural only, and cannot affect subject matter jurisdiction.
(5) Claims can be alternative dont have to be linked
18(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only
after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but
the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In
particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to
that plaintiff, without first having obtained a judgment establishing the claim for money.
US Mine Workers v. Gibbs
In order to bring a dual type claim into federal court, the relationship b/t a federal claim and a state claim must
permit the conclusion that the entire action before the court comprises but one constitutional case. Court says
Case involves all claims of whatever origin that arise out of the same basic situation common nucleus of
operative facts same factual circumstances.
Rule of Law: supplemental when there is the same Constitutional rule of case in controversy COMMON NUCLEUS/CORE OF OPERATIVE FACT
D. Permissive Party Joinder by Plaintiffs
Schwartz v. Swan
The consolidation of the 2 cases b/t the passengers in a single wreck was warranted because it is in the
discretion of the trial court to consolidate cases arising out of the same cause of action.
(1) Severing under rule 21 means that there are 2 separate cases with 2 separate docket numbers.
Separation under rule 42 is just the same case separated for purposes of trial.
(2) Are they part of the same transaction or occurrence (Rule 20) same transaction or occurrence
and common issues of law or fact or series of transactions or occurrences:
i. Time and place not qualified b/c they are 10 days apart.
ii. Logical connection b/c both are plead to cause the same injuries
iii. It could be a series of transactions or occurrences evidence could overlap; too difficult
to distinguish when her injuries occurred.
(3) Why do we say that we can join cases?
i. Efficiency same parties and witnesses in different cases.
Logical connection same actions, events, car, fact pattern, facts at issue. Court allowed this joinder.

13

2. Jurisdictional Aspects (pg. 734)

Structure of 1367
(a) gives supplemental jurisdiction to the full extent of the Constitution.
(b) Precludes supplemental jurisdiction drafters thought to have been precluded by precedent.
(c) Courts discretion to refuse supplemental jurisdiction, along the lines established by Gibbs.
(d) Tolls the statute of limitations on supplemental claims that are later dismissed.
1367- Common core of operative facts
Looks at same witnesses and facts
arise out of the same transaction or occurrence same facts, same witnesses
(1) some claim in federal court that they are allowed to hear.
(2) do they have the same common core of operative fact (Gibbs) this makes it constitutional.
(3) does it fall under b or c to void supplemental jurisdiction.
1367 B incorporates the principles of Owen into statute
- only applies if you get subject matter jurisdiction through 1332 (original)
- common core of operative fact, you cant assert supplemental jurisdiction, when:
- claims by plaintiffs
- brought in by 14, 19, 20, 24
- if it violates 1332
- dont have supp jurisdiction by person brought in as plaintiffs by 19 or 24.
Goes beyond Kroger b/c it asserts 1367 only if it doesnt violate 1332 which is broader than strawbridge.
(1) Does it fit under 1367 (a)?
a. claim has to be one that federal courts are allowed to hear. They need original jurisdiction. Same
core of operative fact .
(2) Does it fit under the exception of 1367 (b)?
a. Supreme court in Exxon v. Alpattah ruled with the plain language of the statute and that Zahn
overruled. you still need complete diversity strawbridge hasnt been overturned.
(3) Does it fit under the exception of 1367 (c)?
a. discretion

14

E. Claim Joinder by Defendants

What is a counter-claim? 13(a) Compulsory Counter-claims, required to be brought or else they are lost, 13(b)
permissive counter-claims.
You cant aggregate a main claim and a counter-claim to allow it to go into federal court.
Rule 20 you can join additional defendants or parties on the counterclaim are they relevant to the
counterclaim based upon common core of operative fact and raising from the same transaction or occurrence.
13 a - Compulsory Counterclaims mandatory & you have to do it or else you lose it. Exceptions to the general
rule of mandatory bringing if (1) require additional parties that you cant get in personam (2) part of an original
action already brought (3) if it is quasi-in-rem claim you dont have to bring counter-claim b/c youve already
appeared so it is no longer quasi-in-rem it is not personam jurisdiction and theyve got everything.
In order for it to be a compulsory counter-claim it must be over the same transaction or occurrence and therefore
has to arise out of the same core of operative fact and therefore it is going to be pretty easy to get personam
jurisdiction.
Dindo v. Whitney
car wreck. Whitney sued Dindo who was represented by Whitneys insurance. Later Dindo finds that the
accident was caused by Whitneys negligence. 12(b)(6) motion to dismiss for failure of a cause of action. isnt
necessarily barred b/c discovery of it wasnt until after the completion of the trial. Is it a compulsory counterclaim? Yes, logical connection same accident, same facts, same witnesses, dispute over whose fault the crash
was. Not covered by any of the exceptions in 13(a) therefore, it is a compulsory counter-claim so you would
think that it would be barred.
Carteret Savings and Loan v. Jackson
Dr. and Ms. Jackson buy a boat. judgment gives boat to US Marshalls to sell. Jackson asserts that they should be
able to bring evidence and try case again b/c they never filed anything (default judgment) the court says no.
13(a) is expansive and doesnt just go towards pleadings filed but also the pleadings that you should have filed.
Cross-Claims (13(g))
- If a claim arises out of the same transaction or occurrence you can bring it in the same claim; however, if
they are not transactionally related, you cant bring it.
- Similar evidence and witnesses
- Subject matter jurisdiction b/c required in federal courts
o Traditional means (diversity or federal question)
o Supplemental jurisdiction - generally it will be from the same case in controversy.
- Rule 18, once there is a claim established, you can add claims (owner had a claim against the driver).
E. Overriding Plaintiffs Party Structure
Rule 13(h) allows the defendant to join additional parties to her cross-claims and counterclaims, so long
as the joinder meets Rule 20 or (13(h), curiously says and) Rule 19.
- In diversity of citizenship cases, 1367 (b) appears not to thwart supplemental jurisdiction:
(1) 1367(b) doesnt include Rule 13(h) in its list of claims over which supplemental jurisdiction
is precluded.

15

1. IMPLEADER
a. Procedural aspects
i. Rule 14
ii. Party invoking is called the 3rd party plaintiff.
iii. 3rd party must be a pass through liability - claim for indemnification or contribution.
iv. This type of obligation can come from:
1. Contract (Insurance, Warranties, Hold harmless clauses, Suretyship clauses)
2. Operation of Law (Both parties join in creating a harm (contribution).)
v. Once the 3rd party defendant is in, they can insert their own claims Rule 18.
vi. Once in, original plaintiff can bring claims against the 3rd party, under the same
transaction or occurrence vise versa.
vii. 3rd party can bring in another defendant but only for what the 3rd party plaintiff owes the
original plaintiff and the 3rd party defendant was liable for it.
viii. dont have to deal with venue, b/c it only works under defendant and plaintiff
ix. Timing provisions
1. motion for leave if after 10 days after answer was filed.
x. In a counter-claim, the plaintiff can bringing in a 3rd party.
Markvicka v. Brodhead-Garrett Co.
Student injured by machine. Contributory - Federal rules 14(a) permits the joinder of parties or a party who is
or may be liable to the defendant for all or part of the claim. A claim should not be dismissed for insufficiency
unless it appears that the plaintiff is entitled to no relief under any state of the facts, so misfiling it is not a
reason to throw out the case.
Contribution is based on the common, although not necessarily identical, liability of 2 or more actors for
the same injury equalizes the burden. Indemnity enables one tortfeasor to shift the entire burden of the
judgment to another.
Owen Equipment & Erection Co. v. Kroger
Issue: federal jurisdiction based on diversity, may the plaintiff assert a claim against a 3rd party defendant when
there is no independent basis for federal jurisdiction.
(1) the nonfederal claim in this case was simply not ancillary to the federal one in the same sense that,
for example, the impleader by a defendant of a 3rd party defendant always is.
(2) The non-federal claim here was asserted by the plaintiff, who chose to bring suit upon a state-law
claim in federal court. A plaintiff cant complain if jurisdiction doesnt encompass all possible claims
since he chose the forum and must accept limitations.
K to Owen:
14(a), same transaction or occurrence
o Same witnesses, facts,
o Logical relationship b/t the claims
o Same event absolutely, same electrocution
1367- Common core of operative facts
o Looks at same witnesses and facts

16

RULE 19 - Compulsory Joinder (Necessary and Indispensable Parties)

b. Procedural Aspects
Rule 19 persons to be joined if feasible 19(a)
o 3 step analysis
Bring it up as a 12(b)(7) failure to join a necessary party.
Is the absentee a Rule 19(a) Party to be joined if feasible. language mandatory
Can the absentee party be joined (if no, go to 19(b)).
What to do?
o 19(a)(ii) sub 2 multiple inconsistent judgments is all that they are worried about here
This is really a problem if you have to pay the same proceeds to different parties.
Haas v. Jefferson National Bank
Indispensable party persons who not only have an interest in the controversy, but an interest of such a nature
that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a
condition that its final termination may be wholly inconsistent with equity and good conscience.
Rule 19(a)(2)(ii) absence would expose the defendant to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest. However, his presence destroys diversity,
so it is necessary to see if his presence is so vital that in equity and good conscience the action should be
dismissed b/c he is indispensable.
Factors:
(1) Extent judgment rendered in persons absence might be prejudicial to him or those already parties?
Heavily weighted for indispensability.
(2) Extent to which the shaping of relief might avoid or lessen the prejudice to existing or absent
parties?
(3) Whether the judgment rendered in the persons absence will be adequate? Public state in settling
disputes by wholes, whenever possible.
(4) Does the plaintiff have an alternative forum in which to bring relief?
Temple v. Synthes Corp.
Are joint tortfeasors indispensable parties? No They are Rule 14 impleaders; however, LA doesnt have
contributory negligence, they have comparative fault, so it makes it difficult to join.
Rule 19 3 steps
(1) access whether the absentee is needed for just adjudication under rule 19(a)(1) or (2).
(2) If the absentee is needed for a just adjudication, assess if joinder is feasible.
a. Service
b. Venue destroyed
c. subject matter jurisdiction over the claim asserted by or against the person being joined.
(3) If joinder is not feasible, must assess whether to in equity and good conscience proceed with the
litigation without the absentee or dismiss the pending case. Is the party indispensable?
a. Is he needed for just adjudication?
b. Can joinder be effectuated? (would it destroy subject matter jurisdiction?)
c. should the court dismiss the pending case rather than run the risk of proceeding without him?
Jurisdictional Aspects
i. Rule 19(a) purports to allow joinder only if, inter alia, joinder will not deprive the court
of jurisdiction over the subject matter of the action.
ii. Party proposing to join an absentee under Rule 19 will suggest whether she is to join as a
plaintiff or defendant. Court always has the authority to realign.
iii. Supplemental jurisdiction can overcome the complete diversity rule.
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2. Intervention
a. Procedural Aspects
i. Rule 24 absentee party intervention
1. 2 types
a. Of right
b. Permissive
2. Must be Timely
a. How long the intervenor knew of her interest before moving to intervene
b. Whether the intervenors delay will prejudice an existent party;
c. Whether denial of intervention will prejudice the absentee;
d. Any unusual circumstances affecting a finding of timeliness.
3. Procedure
a. Make a motion (24(a)(2)) and file appropriate pleading
b. Jurisdictional Aspects
i. Subject-matter jurisdiction
ii. If no independent claim then use supplemental b/c it facilitates the common question.
c. Permissive Intervention may allow you to intervene
i. Federal statute
ii. Question of law or fact in common.
iii. Pretty broad
1. Efficiency rule prevents multiple litigation.
d. Intervention of Right
i. Statute says unconditional right to intervene
1. federal right to defend the constitutionality of the statute
ii. Parallels 19(a)(2)(sub1)
1. interest and is so situated that that interest may be impeded through the action,
unless applicants interest is adequately represented.
e. Intervention as of right and permissive intervention are TWO different assessments.
f. An intervener cannot break 1332 no supplemental jurisdiction for this.

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B. Interpleader (Dunlevy)
1. Background
- allows the stakeholder to force all claimants into a single proceeding..
- 2 steps
1. the stakeholder files the action and joins the claimants
2. the claimants litigate the ownership of the res.
2. Types
1. Statutory Interpleader; 1335
3 requirements
o Interpleader or nature of Interpleader (could be their money as well)
o $500.00
o At least minimal diversity amongst the claimants.
venue 1397 (judicial district where one or more claimants resides).
Nationwide service of process on the claimants through 2361.
o Good under the rules of 4(k)(1)(d) (when authorized by statute).
2. Rule Interpleader; Rule 22
venue (1391), subject matter jurisdiction (1332), In personam jurisdiction b/c
rule 82 says that nothing in the rules changes anything about jurisdiction.
Pan American Fire and Casualty Co v. Revere
If all of the claimants are from the same state and there is complete diversity from the stakeholder, you
cant use statutory interpleader, you can only use rule 22.
State Farm Fire and Casualty Co. v. Tashire
statutory interpleader has grant to stop claims in other courts so all claims can be in the same court. Cant enjoin
all litigation over accident can only enjoin the litigation that involves the stakeholder (in this case, state farm).
If stakeholder doesnt realize until they have been sued? Cross-claim under rule 22; statutory is implied. It is a
compulsory counter-claim under 13(a). 13(h) join any other party under cross-claim through rule 19 and 20. You
can bring it under 19(a)(ii) or 20(a) b/c they are the same transaction or occurrence and not bringing them in can
subject you to multiple litigation. We have to bring it under 1367 b/c we dont have complete diversity and we
have the common core of operative fact and not precluded under 1367(b) b/c it is brought by a defendant not a
plaintiff. Statutory 1335, there is minimal diversity among the claimants, trust worth more than 500.00, he must
deposit the money into the court and it would be possible. In personam is okay b/c nationwide service of
process. Indemnification of the trust company against the insurance company yes they can bring it, they can
bring it under indemnification rule 13.

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C. Class Action
1. Background

Formally joined class representative.

About 30 or 40 parties

Rule 20 presumes each person as independent party and have counsel, file
motions, compensation.
2. Policy and Ethical Issues

Makes the court into an umpire to make sure that settlements are ethical..

The theory of virtual representation:

Even though you arent there, your interests are being represented adequately
3. Constitutional Considerations

Smith v. Swormstead non-joined parties bound by the decision b/c representation is

proper where the parties interested are numerous, and the suit is for an object common to them
all.

Supreme Tribe of Ben-Hur v. Cauble non-Indiana members sued and the Indiana
members bound even though their joining would have caused a loss of diversity subject matter
jurisdiction.

In both cases, the representatives had identical, inseparable interests.

Hansberry v. Lee
This was a collusive suit sham, absent parties are NOT properly represented. Remember you need identity of
interests. There is a failure of due process only in those cases where it cannot be said that the procedure adopted
fairly insures the protection of the interests of absent parties who are to be bound by it.Here, the procedure and
course of litigation do not satisfy the requirements. It is one thing to say that some members of a class may
represent other members in litigation where the sole and common interest of the class in the litigation is either
to assert a common right or to challenge an asserted obligation. It is another to hold that all those who are free
alternatively either to assert rights or to challenge them are of a single class.
3. Practice under Federal Rule 23
a. Filing and Certification of a Class Action
i. Complaint must note that the representatives sue on behalf of a class
ii. motion for class certification
iii. 23(c)(1)(A) court determine whether to certify the class at an early practicable time.
iv. 23(c)(1)(B) court must define the class, claims, issues, or defenses and appoint counsel.
1. 23(g) detailed factors about counsel applicability
a. Experience in handling complex litigation
b. Resources
c. May not appoint lawyer that doesnt meet the requirements in 12(g)
v. 23(c)(1)(C) recognizes that the order may be altered or amended before final judgment.
b. Requirement of Certification Under Rule 23
1. 2 step process:
a. Must satisfy pre-requisites under 23(a)
b. Demonstrate that her class falls w/in one of the 3 types of class actions
recognized by 23(b).
i. Prerequisites of Rule 23(a)
2. 23(a) must constitute a class
a. convince judge early that the court will be able to manage the action
b. consider geographic and temporal limits
c. ultimately determinable who is in the class.
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3. 23(a)(1) - Numerosity
a. Prescribes no magic number
b. class must be so numerous that joinder of all members is impracticable.
4. 23(a)(2) - Commonality
a. Focus on the facts of the case and questions of fact or law
b. All class participants share at least some issues with the others.
c. Difficultly is 23(b)(3) in which common questions must predominate.
5. (23)(a)(3) - Typicality
a. whether the representatives claim is typical of that of the rest of the class
6. 23(a)(4) - Adequacy
a. Fairly and adequately protect the interest of the class
i. exercise judgment for the class and exercise control over attorneys.
ii. Types of class actions under rule 23(b)
1. Needs to fit in a recognized category under 23(b)
2. possible to seek certification under more than 1
3. 23(b)(1) dividends not logically allowed to get differing judgments.
a. 23(b)(1)(A) concerned with practicality of the judgment
i. separate actions would create a risk of establishing incompatible
standards of conduct for the party opposing the claim.
1. Generally not met in a case seeking damages
b. 23(b)(1)(B) concerned that individual actions will impair or impede the
ability of nonparties to protect their interests
4. 23(b)(2) Injunctive and declaratory, 5th Circuit we cant get equitable relief.
5. 23(b)(3) damages class - mass tort litigation.
a. Common questions must PREDOMINATE
b. Class action must be superior to other methods of adjudication
c. Lists 4 non-exclusive factors for assessment
i. the interest of members controlling separate actions;
ii. extent and nature of cases already started;
iii. the desirability or undesirability of concentrating the litigation of
the claims in the particular forum;
iv. the difficulties encountered in the management of a class action.
d. Court will be especially concerned about adequacy of representation b/c
members are more tangibly related.
i. 23(c)(2)(B) requires notice to individual class members
ii. It allows members to exclude themselves from the class
c. Notice to Class Members of the Pendency of the Action
i. 23(c)(2)(A) permits the court to direct notice to members under(b)(1) and (2).
ii. 23(c)(2)(B) requires best notice practicable under the circumstances, including
individual notice to all members who can be identified through reasonable effort.
1. Notice must inform the class members of
a. The nature of the class action
b. The definition of the class
c. The class claims, issues, or defenses
d. may enter an appearance through counsel if she desires
e. That the court will exclude any class member requesting exclusion,
f. The class member will be bound by the judgment if she doesnt opt out.
iii. Eisen v. Carlisle cost of notice must be borne by the class representative
d. Courts Role in Dismissal and Settlement
i. 23(e)
21

1. clear that provisions apply only when the court is considering settlement,
voluntary dismissal, or compromise of claims or issues or defenses of a certified
class
a. Judge is required to assess the fairness independently
2. 23(e)(1)(B) requires court to give notice to class members who would be bound
a. Notice is required in all 3 types of class actions
3. 23(e)(1)(C) required hearing - approve only if fair, reasonable, and adequate.
4. 23(e)(2) - Parties must file a statement disclosing any agreement
5. 23(e)(3) court may deny in 23(b)(3) unless members given a second opt out.
ii. Class action and Fairness act
1. settlement provides recovery of coupons, attorneys fees based on value to class
members of the coupons that are redeemed.
2. court may require in settlement of a coupon class the unclaimed coupons be
distributed to charitable or governmental organizations
3. the court may approve a settlement where a member required to pay counsel that
results in a net loss to the class member only if the court makes a written finding
that nonmonetary benefits substantially outweigh the monetary loss.
4. No class settlement can be approved if it permits greater recovery to some
members based solely on geographic proximity to the forum.
e. How to bring
i. File a complaint that states that you might look for class certification
ii. Court must make order granting class certification as soon as practicable
iii. Hearing, court issue order that requires class certification, issues, define the class and
subclasses, representatives, opportunity for the defendant to oppose.
1. 23(g) appoint class counsel usually person who brought complaint but not
always g1(c) criteria, sweat equity (work done, experience, etc).
iv. Notice
1. 23(c) notice is mandatory in B3 for all potential class members for opt out
2. judge to decide on notice for b1 and 2.
a. Jurisdictional questions
b. Due process roots (opt out, you might have more damages than others).
c. Notice to opt out and not opting out might be construed as consent.
v. 23(d) court maintains firm degree of control over steps
vi. Settlement 23(e) judge approval, further notice to class members in order to object, the
court must find that the settlement is fair, reasonable, and adequate.
vii. 23(h) attorneys fees - after settlement or trial the court awards attorneys fees and must
be approved with notice and opportunity for class members to object.
4. Subject Matter Jurisdiction
a. Whos citizenship matters?
i. Representatives
ii. 1332(d) allows minimal diversity
b. What about amount in controversy? Who needs amount? Total?
i. The representative needs an amount in controversy. (In re Abbott Laboratories)
ii. 1332(d)(2) - w/ class action, if the total is over 5,000,000 you can be in federal court.
c. Discretion of the court to dismiss, if
i. Over 1/3 but fewer than 2/3 of plaintiff class members or the primary defendants
ii. are citizens of the state in which the action was filed.
5. Personal Jurisdiction
a. the court doesnt need personal jurisdiction b/c of the ease of a class action for a nonparty.
b. class plaintiffs, rules are relaxed b/c they are benefiting them only,
c. jurisdiction over defendants must be gotten ordinary way
22

C. SUMMARY JUDGMENT ADJUDICATION WITHOUT TRIAL OR JURY

Rule 56
- Rule 56(c) - court can enter judgment in law whenever there is no genuine issue as to any material fact.
- Rule 56(d) court is allowed to grant a partial summary judgment disposing of some, not all, issues
- 2 basic situations for summary judgment
o The parties agree on all facts and dispute entirely on the law.
o disagree, but no genuine dispute, one side has little evidence and no jury could find for them.
- 56(e) circumstantial evidence must be admissible to be considered at a summary judgment hearing
- issue of law or fact, policy choice whether left to juries or more appropriately decided by the court.
- must construe evidence in favor of the non-mover, even if moving parties witnesses are more reliable.
- Can come any time after 10 days after the pleadings and up to the date of trial.
- Legal syllogism
o assumes the truth of the facts in the pleadings
o Summary judgment - already had discovery and found the truth of the facts in the pleadings.
Non-denials in pleadings
Discovery
Documents
Anderson v. Liberty Lobby, Inc. What is a material issue? Relevant to the outcome of the case. could a
reasonable jury rule only way. Evidence is so overwhelming on one side. You have to set forth specific facts
showing that there is a genuine issue for the jury.
Celotex Corp. v. Catrett clear and convincing standard burden on the opposing party is greater than normal
to show a genuine issue of material fact. Standard that the jury applies is the standard that you should apply. If
you cant show that the plaintiff (person w/ the burden) is going to be able to have something to prove his
allegations, you can dismiss through a summary judgment the movant doesnt need to come forward w/ his
own evidence, they just need to show that the other party doesnt have enough evidence to support their claim.

23

PRE-TRIAL CONFERENCES (RULE 16)

1. 26(f) discovery conference begin to set schedule for discovery
2. 16(b) mandatory scheduling conference except in categories exempted, the judge SHALL, after receiving
report under 26(f) or meeting w/ attorney will set a schedule for (1) deposing, (2) discovery, (3) etc.
3. 16(c) other conferences that may happen in interim while pretrial is happening, there may be, at
discretion of the judge, other pretrial conferences where they can talk about anything that the judge wants.
4. 16(d) pretrial conference formulates a plan for trial
5. 16(e) pretrial order - judge tells you the script for trial lay out issues at stake, the witnesses, what they
will talk about, experts, what they will talk about, evidence, who will introduce it, objections to evidence.
What if the pre-trial conflicts with the evidence presented at trial the pre-trial order wins unless Manifest
Injustice would occur if it wasnt admitted.
I. Pre-trial conference - Rule 16
A. 16A there will be conference that the party can be made to appear
B. Sequence
1. Discovery conference just the parties 26F
a. 26A mandatory disclosure
b. Report to judge
c. Then start discovery process
2. Scheduling conferences 16B
a. Enter a scheduling order under 26F that sets up discovery time limits, etc. - - steps to take to
get ready for trial
3. Pre-trial conference 16D
a. Results in 16E pre-trial order
(1)Pre-trial order this scripts out the trial; who will be called, what will be asked,
introduction of documents, etc. etc.
(2)This is so any disputes can be resolved beforehand so trial can move quickly
(3)Very difficult to change the pre-trial order ONLY to prevent manifest injustice - lawyers dont like these things; spontaneity of trial gets taken out
C. Purpose of these conferences
1. Judge wants settlement improves efficiency judge can strongly suggest judge meets w/ one
party at a time - - will explain the negative aspects of your case
a. Is this a good thing? Judge is being put in 2 different roles that of mediator and ultimate
decision-maker
2. Purposes of these rules under 16 putting judge as manager of his docket

24

Claim preclusion
(1) the two cases must involve the same claim
(2) the parties to the two suits must be identical or in privity
(3) the first case must have ended in a valid final judgment on the merits.
(1) Carter v. Hinkle VIRGINIA STATE CASE
Property damage and injury as the result of one act, can they maintain two actions, or is judgment in one a bar?
- to say its separate injuries makes us lean towards the plaintiff; however, what is special here.
o follow the nature of the right, is it the same transaction or occurrence
(2) Second suit involves the same parties
- comes in when you are represented but not named party hardest case is in the context of class actions.
- Decided by the trial court and affirmed on appeal or the time of appeal has past.
(3) Judgment on the merits case wasnt dismissed b/c of technicality (prescription, 12b grounds).
- Unless w/ prejudice it will be w/ the merits.
Cromwell v. County of Sac
Res Judicata wouldnt preclude this claim b/c different claim. Issue of whether the holder of the bond was a
bona fide purchaser in this case IS different. Was collateral estoppel as to the underlying validity of the bond.
Issue Preclusion Elements:
(1)same issue litigated and determined in the first case
(2)the issue was essential to the judgment in the first case
(3)the holding on that issue was embodied in a valid, final judgment on the merits
(4)Against proper person
(5)By proper person
Rios v. Davis
2nd action isnt barred through collateral estoppel b/c the court first decided that Davis was negligent and then
the decision of Rios negligence was just dicta b/c it necessary to the decision.
Hardy v. Johns-Manville Sales Corp.
Court seems to be skittish about extending concept of proper representation of intervention in a non-traditional
sense (tutor, curator, parent, etc).
Rule of mutuality dictates that the issue preclusion can be used only by someone who was a party to the first
case. Fairness only people who can assert collateral estoppel is someone who could have been bound if the
decision in the first case went the other way.
Parkland Hosiery Co. v. Shore
After SEC action came down, plaintiffs in this case made a motion for summary judgment w/ collateral
estoppel. Offensive or defensive use? Offensive. Question: should we allow non-mutual offensive collateral
estoppel? Potential for unfairness b/c a defendant can win and cant do collateral estoppel but the plaintiffs
can This is a problem and goes against efficiency.

25