CIVIL PROCEDURE II OUTLINE

I. Pleadings

Allocation of Elements
• Burden of pleading: allege the elements of the claim or defense
• Burden of production: producing sufficient evidence to support a claim
• Burden of persuasion: Civil trial: usually more probable than not standard, sometimes clear
and convincing evidence.

A. Complaint: Rule 8(a)

i. Statement of the grounds of SMJ
ii. Short and plain statement of the claim
1. Notice pleading—generally only have to put the other side on notice by
including enough information to give Δ a fair chance to respond
2. Rule 9(b)—must plead in detail under circumstances of fraud and
mistake; must be particularized
3. Rule 9(g)—must plead with specificity if you seek relief for special
damages (those that do not normally flow from an event)
iii. Demand for judgment (prayer for relief)
iv. Consistency: you can put hypothetical or alternative theories
v. If complaint is inadequate then file Rule 12(b)(6)—Motion to Dismiss for
failure to state a claim
vi. Rule 7: Rule 7 defines and governs pleadings. It lists the pleadings recognized
by the Rules and it distinguishes pleadings from Motions and Other papers. Rule
7(a) requires a reply if the answer contains a counterclaim (or type of pleading
that requires an answer). If the answer contains an ostensible counterclaim that
is not really a counterclaim but an affirmative defense, a reply is not technically
required. Under Rule 7, if you have a pleading and an answer, you cannot reply
to that answer. You can attack it trial but cant keep going back and forth.

Conley v. Gibson (Pre-Twombly): “no set of facts” rule. ‘Short plain statement’
pleading gives D notice

Haddle v. Garrison (1998): π’s case was dismissed by district court for failure to state a claim on the
grounds that discharge from at-will employment did not create legally cognizable injury; Supreme
Court reversed and said the law will allow recovery so 12(b)(6) was not appropriate. Rule: A motion
under 12(b)(6) attacks the legal sufficiency of the complaint “Even if everything you allege is true
the law affords you no relief”. Court must assume all of the factual allegations in the complaint
are true.

Bell Atlantic Corp. v. Twombly (2007): π’s complaint was dismissed by the U.S. District Court of
S.D.N.Y , as failing to allege sufficient facts to state a claim for a violation of the Sherman Act. The
Conley v. Gibson ‘no set of facts’ gloss needs to be replaced. It would allow the case to survive a
motion to dismiss whenever the pleadings left open the possibility that a PL might later establish some
‘set of undisclosed facts’ to support recovery. Because the Ps have not nudged their claims across the

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line from conceivable to plausible, their complaint must be dismissed." Rule: "We do not require
heightened fact pleading of specifics. A PL must allege enough facts to state a claim to relief that is
plausible on its face (as opposed to possible).

Ashcroft v. Iqbal (2009): Pl’s complaint was dismissed because it was a mere formulaic recitation of
elements of his constitutional discrimination claim. In this case, the plaintiff needed to show that the
government acted with a discriminatory purpose – it is because race rather than in spite of it. In this
case, the plaintiff needed to show that the government acted with a discriminatory purpose – it is
because race rather than in spite of it. Rule: A complaint must satisfy two Twombly principals (1)
That a court must accept as true all the allegations contained in the complaint is inapplicable to
legal conclusions. Threadbare recites of elements of a cause of action supported by mere
conclusory statements, do not suffice. And (2) only a complaint that states a plausible claim for
relief will survive a motion.

B. Response:
i. Motion (not a pleading)—Rule 12: within 20 days of service
1. Rule 12(b)—seven defenses can be raised either in your answer or by
motion
a. (1) SMJ
b. (2) PJ
c. (3) Venue
d. (4) insufficient process (summons and complaint)
e. (5) insufficient service of process
f. (6) failure to state a claim
g. (7) failure to join an indispensable party
2. Rule 12(c) – sister of 12(b)(6) but brought at the end of the complaint
process, considers the claim, answer, and any cross or counter claims.
3. Rule 12(d) – Result of Presenting Matters Outside the Pleadings: If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.
4. Rule 12(e)—Motion for a More Definite Statement: Must be made
before filing a responsive pleading and point out the defects complained
of and the details desired.
5. Rule 12(f)—Motion to Strike: Court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act.
(1) on its own
(2) on motion made by a party either before responding to a pleading, or,
if a response is not allowed, within 21 days after being served with the
pleading.
6. Rule 12(g) and (h)—
a. defenses under 12(b)(2), (3), (4), and (5) and 12(e) and 12(f)
must be put in your first Rule 12 response (answer or motion) or
else they are waived

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 b. defenses under 12(b)(6) and (7) can be raised for the first time
any time through trial
c. 12(b)(1) can be raised any time—you cannot waive lack of SMJ
and court can bring it up on its own

ii. Answer—might answer in lieu of the motion or make answer when motion is
denied
1. Rule 8(b): Respond to the allegations of the complaint
a. Admit: takes the fact out of controversy
b. Deny
i. 8(b)(6): If you fail to deny an allegation it is deemed an
admission (except for damages)
ii. Courts condemn casual, blanket denials because they
require parties to spend needless time ferreting out the
real items in dispute.
c. Say you don’t know (lack sufficient information to admit or
deny)—treated as denial
d. Affirmative defense 8(c): “X may have happened but because of
Z I am not liable”. In responding to a pleading D must state any
affirmative defense you are going to use otherwise it is waived.
2. Rule 8(d)(2)-(3): permits duplicity in pleading: a party may set out two
or more statements of a claim or defense alternately or hypothetically
and a party may state as many separate claims or defenses it has,
regardless of consistency.
Rule 9(b): Pleading special matters: In alleging fraud or mistake, a
party must state with particularity the circumstances constituting
fraud or mistake. (Sradford v. Zurich)

HYPO #1: Greg is injured on a scout outing when he stumbles on a tent wire after returning from a
late night raid on the campsite of another troop. He brings suit against boy Scouts of America, Inc.
A young boy tells defense counsel he saw four other boys trip over the same wire. Plaintiff serves
notice to admit that, prior to this incident, four boys had stumbled over the same wire. Must
defendant admit this “fact”?
• No, you don’t have to admit something just because a witness says it happens

Stradford v. Zurich Ins. Co: PL (dentist) sued against insurance company for unpaid claim. Ins.
counterclaimed alleging fraud. Counterclaims that do not satisfy the first sentence of Rule 9(b),
requiring that the “time, place, and nature of the alleged misrepresentations” be disclosed to the
party accused of fraud, will be dismissed. The court granted Plaintiff’s motion to dismiss
Defendant’s counterclaims. Rule 9(b) provides, “In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent,
knowledge, and other condition of mind of a person may be averred generally.” Counterclaims that do
not satisfy the first sentence of Rule 9(b), requiring that the “time, place, and nature of the alleged
misrepresentations” be disclosed to the party accused of fraud, will be dismissed.

Zielinski v. Philadelphia Piers (1956): π was hit by a forklift he believed was operated by an agent of

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Δ; Δ answered complaint and made a general denial of allegations; Δ later claimed that the forklift
operator was not their agent and that this was included in their general denial. Held, a general denial is
not valid if any of the allegations being denied have been admitted by the parties as true; Δ
cannot deny allegation that π was injured by a forklift therefore denial is invalid; more accurate denial
would have put π on notice that he was suing the wrong party before SOL ran; jury will be instructed
that agency is presumptively admitted by both parties.
POLICY: SOL has run for π to file against a different Δ so π would have no redress in violation of
principles of equitable estoppel

3. Rule 8(c): raise affirmative defenses—must be included in the answer or

they are waived
a. Statute of limitation
b. Statute of Frauds
c. Res Judicata

Layman v. Southwestern Bell Telephone (1977): π sued telephone company for trespass for laying
telephone wires on her property without permission; Δ answered with general denial; at trial Δ raised
right of entry by easement and π objected but was overruled. Held; an easement is an affirmative
defense to trespass and must be set forth in the answer or evidence of the easement will not be
allowed at trial. A general denial challenges all material allegations (π’s cause of action never had
legal existence); affirmative defenses admit facts of complaint but aver that Δ is not legally responsible
because of an additional element.
• Rule of Thumb: when the Δ raises a new matter that is not already at issue in the case it should
be pled as an affirmative defense; however, the π had constructive (record) notice of the
easement so is this really something new?

Sakolski v. Rubin Memorial Chapel: 12(c): Judgment on the pleadings 12(c): is a decision on the
merits “appropriate when there are no material facts in dispute, and judgment may be rendered by
considering the substance of the pleadings and any judicially noticed facts. Such a motion may not be
granted unless it appears beyond a doubt that the nonmoving party can prove no set of facts in support
of his claim which would entitle him to relief. The moving party must clearly establish that no
material issue of fact remains unsolved and that it is entitled to judgment as a matter of law.

A. Sanctions: Rule 11
B. Rule 11(a): Signing: Every piece of paper filed in a court shall be signed by at least one
iii. Rule 11(b): representations
a. By presenting to the court a pleading, written motion, or other
paper – whether by signing, filing, submitting or later, advocating
it – an attorney or unrepresented party certifies that to the best of
the person’s knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation.
(2) the claims, defenses, and other legal contentions are

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 warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, wil likely have evidentiary support after
a reasonable opportunity for further investigation or discovery;
and
(4) the details of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
belief or a lack of information.
2. Rule 11(c) Sanctions: (1) In general: If after notice and a reasonable
opportunity to respond, the court determines that Rule 11(b) has been
violated, the court may impose an appropriate sanction on any attorney,
law firm, or party that violated the rule or is responsible for the violation.
Absent exceptional circumstances, a law firm must be held jointly
responsible for a violation committed by its partner, associate, or
employee.
3. (2) motion for sanctions: A motion for sanctions must be made
separately from any other motion and must describe the specific
conduct that allegedly violates Rule 11(b).
4. Safe harbor clause: The motion must be served under rule 5, but it must
not be filed or be presented to the court if the challenged paper, claim,
defense, contention, or denial is withdrawn or appropriately corrected
within 21 days after service or within another time the court sets.
5. 11(c)(4): A sanction is imposed under this rule must be limited to what
suffices to deter repetition of the conduct or comparable conduct by
others similarly situated.
6. If the court finds sanctions proper, the law firm; absent any extraordinary
circumstances can be found liable for the error if the present frivolous
papers, and can be found jointly responsible parties with partner,
associates, and employees.
7. Client may be sanctioned for violating 11(b)(1)

Walker v. Norwest Corp.: Walker’s complaint stated jurisdiction was based on diversity since “The PL
and some of the DEFs are citizens of different states” Walkers are both S. Dakota. The complaint
averred that one of the DEF’s Norwest corp. was a Minnesota Corp. The complaint did not allege the
other DEF’s citizenship precisely, but stated many of them were SD residents. Attorney for Norwest
and its officers wrote Massey informing him that his complaint showed that there was no diversity
jurisdiction. Held; Sanctions in the form of attorney’s fees pursuant to Federal Rule of Civil
Procedure Rule 11 are justified for failing to file proper pleadings in a diversity case. PL Walker
violated Rule 11(b)(2) inadequate legal assertion by asserting diversity jurisdiction over the parties.
Attorney could have dropped the spoilers but he didn’t.

Christian v. Mattel: PL’s Attorney Hicks brought suit on behalf of Christian, claiming that Mattel’s
Barbie dolls infringed Christian’s doll’s copyright. Christian violated Rule 11(b)(3) by failing to make

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adequate factual investigation. He tried to allege copyright violation against Mattel and said that
Mattel’s Barbie violated Christian’s copyright even though Mattel clearly had the copyright 6 years
prior to him and he could have known simply by looking at the doll. After finding out that Mattel had
the copyright he lambasted the PL and threw Barbies off the table. However since the court didn’t
know whether the court granted Mattel’s Rule 11 motion for a frivolous suit or Hick’s misconduct it
must vacate the Rule 11 orders and remand for an opportunity to delineate the factual and legal basis
for its sanction orders. Rule 11 sanctions are limited to papers signed in violation of the rule.
Conduct in depositions, discovery meetings of counsel, oral representations at hearings, and
behavior in prior proceedings do not fall within the scope of rule 11. However, a court can impose
sanctions itself for ‘bad faith conduct’ even if outside the scope of rule 11. To impose sanctions under
its inherent authority the court must make an explicit finding that counsel’s conduct constituted
or was tantamount to bad faith.

Hall v. Hormel Food: P alleged age discrimination against Hormel for not hiring him. Hormel filed a
Rule 56 and after P responded in opposition to the motion Hormel filed a Rule 11 claiming an “utterly
frivolous opposition” by PL to the motion for summary judgment. Motion is predicated on PL’s failure
to provide a legal or factual basis for the assertions in his opposition to summary judgment. Held;
granted against Hall for violating Rule 11(b)(1) for bringing and maintaining an essentially meritless
lawsuit against the defendant without a reasonable basis for doing so. Attorney and Firm violated rule
11(b)(2) and (b)(3). The relevant inquiry is whether a specific filing was, if not successful at least well
founded. PL provided nothing substantive. If PL’s counsel believed that the case had merit, it stands to
reason he should have pursued efforts to develop it sufficiently to survive summary judgment. Bad
faith or malicious intent is not required, but the court finds that the conduct of PL and his counsel
violated rule 11. If evidentiary support is not obtained after a reasonable opportunity for further
investigation or discovery, the party has a duty under the rule not to persist with that contention.
Subdivision (b) does not require a formal amendment to the pleadings for which evidentiary
support is not obtained, but rather calls upon a litigant not thereafter to advocate such claims or
defenses.
Burlington Northern Co v. Woods: S.Ct. decision, Rule 11 does not violate the Rules Enabling
Act. “Rules with which incidentally affect litigants substantive rights do not violate this
provision if reasonably necessary to maintain the integrity of the system of rules”. There is little
doubt that Rule 11 is reasonably necessary to maintain the integrity of the system of federal
practice and procedure, and that any effect on substantive rights is incidental. Central purpose of
Rule 11 is to deter baseless filings in district court and thus, consistent with the Rules Enabling
Act grant of authority, streamline the administration and procedure of federal courts”.

C. Amending Pleadings: Rule 15

iv. Rule 15(a):
1. π has a right to amend once before Δ serves Answer (not motions!!)
2. Δ has a right to amend once within 20 days of serving Answer
3. If there’s no right to amend, the court has discretion to grant leave to
amend and will allow amendment “when justice so requires” (Foman v.
Davis)
a. Generally only denied when to do so will cause actual prejudice
to the other party (has statute run?)

Beeck v. Aquaslide ‘N’ Dive Corp. (1977): π was injured by a faulty waterslide; Δ answered complaint

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admitting that it was the manufacturer of the slide; a year later (after SOL had run for filing against
proper Δ) Δ moved to amend answer to deny they manufactured the slide. Held, in the absence of bad
faith or dilatory motive on the part of the movant, leave to amend is fully within the discretion of
the court. (Foman v. Davis). Question: How much will this decision prejudice the result of the other
side, and why is it that the amender hasn’t done this already, was there substitution of counsel?
POLICY: It seems unfair to the π to leave him with no recourse, but imagine the alternative. If Δ went
to trial they would have to argue that they had not acted negligently in the manufacturing of a slide that
they did not manufacture.
Beeck v. Aquaslide derived its bite from possibility that PL, having suffered a dismissal, would be
unable to re-file its complaint against the right DEF before the statute of limitations had run.

b. Many states allow a π to allege an action against “Doe 1” and

later to amend to substitute a name when the proper party is
identified.
v. Rule 15(b): evidence at trial does not match the pleadings (variance)
1. if other side objects then the evidence is not admissible
a. the side offering the variance can move to amend at trial
2. other side does not object then we will allow the evidence in and after
trial we can amend the pleadings to conform to the evidence
vi. Rule 15(c): amending after the SOL has run
1. Relation Back—you treat the amended pleading as though it was filed
when the original was filed
a. 15(c)(2)—when adding a new claim arising out of the conduct,
transaction or occurrence set forth in the original complaint
b. 15(c)(3)—when joining a new Δ they must have had notice so as
not to prejudice and be added within 120 days of filing of suit

Moore v. Baker (1993): π signed a consent form prior to a surgery that went wrong; π filed complaint
on last day of SOL alleging violation of informed consent laws; later moved to amend to include
negligence claim. Moore’s complaints weren’t contemporaneous. Held, relation back requires that a
proposed amendment have its basis in the same conduct, transaction or occurrence set forth in
the original complaint; Threshold question: whether the original complaint gave notice to the Δ of the
claim that is now being asserted. Original complaint concerned actions prior to surgery, nothing
would put Δ on notice that he was negligent during surgery. If Π would have to prove completely
separate facts for the amended claim, should not relate back.

Bonerb v. Richard J. Caron Foundation (1994): π was a patient of Δ’s rehab center when he fee while
playing basketball as part of mandatory exercise program; original complaint alleged negligent
maintenance of court; later (after SOL had run and π got new attorney) wanted to amend for counseling
negligence. Held, relation back requires that the operational facts set out in the original
complaint are sufficient to put the Δ on notice that the amended claim could be brought. Arg: if
Δ has notice then they are provided with the protections that SOL is designed to afford. Here the
complaint indicated that the exercise was mandatory and injury was caused by failure to supervise and
instruct so there was notice of a claim for negligent performance of professional duties.

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Krupski v. Costa Crociere: P injured on a cruise line filed suit against Costa Cruise lines. Costa Cruise
was the advertising company in Florida. The actual defendant should have been Costa Crociere. Costa
Cruise filed its answer, asserting that it was not the proper defendant, as it was merely the North
American Sales and marketing agent for Costa Corsiere. Held: The question under Rule 15(c)(1)(C)
(ii) is not whether P knew or should have known the identity of Costa Crociere as the proper
defendant, but whether Costa Crosiere knew or should have known that it would have been
named as the defendant but for an error. Rule 15(c)(1)(C)(ii) asks what the prospective defendant
knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have
known at the time of filing her original complaint. There is no time requirement if there had been a
mistake in the parties name, and the D was on notice that it should have been named as the
proper defendant but for an error.

II. Joinder—EVERY CLAIM IN FED COURT MUST HAVE SMJ

A. Claim Joinder: Rule 18(a)—π can join any and all claims against the same opposing
party even if they are not transactionally related (never compulsory but claim
preclusion may apply depending on state def of clam preclusion). Rule 18 allows
claims to be joined together, but Court must proper SMJ to hear it.
i. Subject Matter Jurisdiction
1. supplemental jurisdiction only applies if first claim was a federal
question and the second arises from same T/O.
2. claimant may aggregate all claims in order to satisfy amount in
controversy
ii. Δs Counterclaim: Rules 13(a) and (b)—
1. Compulsory: Rule 13(a)—arising out of the same transaction or
occurrence as the π’s claim; it must be asserted in the pending case or
else it is waived; must be asserted in your Answer
a. Exception: if the court lacks jurisdiction over a third party who is
necessary to the action then the counterclaim is not waived
b. Supplemental SMJ always extended to compulsory counterclaims
c. Failure to bring a compulsory counterclaim can have preclusive
effect in claim preclusion for ‘claim that could have or should
have been brought’.
2. Permissive: Rule 13(b)—does not arise from same transaction or
occurrence as the π’s claim so you may assert it but you don’t have to;
you can still sue separately
a. If Diversity, and second claim is unrelated (permissive), that
claim must have independent basis SMJ by satisfying the amount
in controversy
b. the court separate suits under Rule 42(b) for efficiency
iii. Cross-claim: Rule 13(g)—asserted against a co-party in an existing action
1. must arise from the same transaction or occurrence as the underlying
dispute;
2. must ask for actual relief (otherwise it’s a defense)
3. never compulsory, ALWAYS PERMISSIVE, cant lose them by claim
preclusion.

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 4. always covered by supp jurisdiction (when original claim is in FQ and
cross-claim is not)
Plant v. Blazer Fin. Services (1979): π borrowed money from Δ and made no payments on note; π sued
in fed court for violation of Truth-in-Lending Act and Δ counterclaimed on the unpaid balance on the
note (state matter); Held: action on underlying debt in default is a compulsory counterclaim;
logical relation test concludes that claims come from single aggregate of operative facts (loan
transaction); compulsory counterclaim always has SMJ if it arises out of same T/O
T/O determined by:
• Some common issues of law or fact (Claim could have or should have been brought)
• Whether res judicata would bar it
• The same evidence is needed
• Whether there is a logical relation
• Think Claim Preclusion

HYPO #1: π is NY and Δ is citizen of FL; claim is for $100K so diversity is satisfied; Δ has
compulsory counterclaim for $90K; is there SMJ over the counterclaim? Yes, there’s diversity SMJ

HYPO #2: π is NY and Δ is citizen of FL; claim is for $100K so diversity is satisfied; Δ has
compulsory counterclaim for $45K; there is no diversity jurisdiction over that counterclaim because
it does not satisfy the amount in controversy and no federal question; supplemental jurisdiction?
1. Does it arise out of the same transaction or occurrence to satisfy § 1367(a)? YES
2. Does § 1367(b) remove jurisdiction? NO—only removes claims by πs

HYPO #3: π is NY and Δ is citizen of FL; claim is for $100K so diversity is satisfied; Δ has
permissive counterclaim for $50K; there is no diversity because it does not satisfy amount in
controversy and no federal question; supplemental jurisdiction?
1. Does 1367(a) grant supplement jurisdiction? NO—a permissive counterclaim by
definition does not arise out of same transaction or occurrence so cannot get supplemental
jurisdiction.

HYPO#4: A(IL) sues B(WI) alleging breach of employment contract, excess of 75k. A wants to join
C(IL); A alleges C conspired with B to breach the employment contract. Assume claim against C
qualifies for joinder under rule 20.
• No, 1367(b) if 1332 diversity claim, does not allow supplemental jurisdiction over claims by
PL against persons made parties by rule 20.

HYPO#5: A(IL) sues B(WI) and C(IL) on an 1331 claim

• Joinder will present no problem if the claim against the 2 DEFs arise from the same
transaction and share common questions of law or fact. Nor will federal subject matter
jurisdiction: The claim arises under federal law.
• If Suit is brought in IL: may be question of whether court has PJ over B(WI). Of B lacks
sufficient contacts with IL, she can’t be joined in a suit in that state.
• In a few instances, Rules and statutes offer a ‘boost’ for the PJ of federal courts in a way
somewhat analogous to supplemental jurisdiction extended by 1367. Ex. Rule 4(k)(1)(B) 100
mile bulge rule.

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HYPO: three-way car collision; A (π) is citizen of NY and sues B and C (CT); every claim satisfies
amount in controversy; we represent B and we want to assert claims against A and C; claim against A
is a compulsory counterclaim which invokes diversity (gets Supp SMJ); claim against C is a cross
claim because it is against a co-party and arise from same T/O; no diversity between B and C and no
federal question;
• 1367(a) grants jurisdiction because it arises out of same T/O as claim in federal court
• 1367(b) does not take away because only applies to claims by π

B. Joinder of Parties
i. Permissive Joinder: Rule 20 gives right of multiple πs to join together and the
π’s right to make several co-Δs to the claim
1. Joinder of πs—multiple πs voluntary joined if:
a. Claims arise from the same T/O
b. Raise at least one common question of fact or law
2. Joinder of Δs: (at the option of the πs)
a. Claims against them arise from same T/O
b. Raise at least one common question of fact or law
3. Jurisdiction in Permissive Joinder of Parties
a. Personal Jurisdiction: Δ who are joined must individually meet
requirements of PJ
i. Service: each personally served
ii. Contacts: each Δ must have in personam minimum
contacts
iii. Long Arm Limits: each Δ must be amenable to suit—
NOTE—fed court in diversity follows long arm of state in
which it sits so long arm must be able to reach Δ
b. Subject Matter Jurisdiction
i. If first action was FQ:
1. another FQ is original jurisdiction
2. Supplemental jurisdiction may apply
ii. If first action was in Diversity:
1. no supp juris under § 1367(b)
2. maintain complete diversity
3. satisfy amount in controversy with regard to each
party

Mosley v. General Motors (1974): ten parties joined in discriminatory hiring practices suit against GM;
court ordered suits severed. Held, a company-wide policy of discrimination constitutes the same T/O
and because the discriminatory conduct is basic to the class the facts that different effects are suffered
is immaterial. Rule 20: permissive joinder - All persons may join in one action as Pls if they
assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the
same transaction or occurrence, AND if any question of law or fact common to all these persons

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will arise in the action. Logical relationship is required, identical effects is not necessary. The
Rule does not require all questions of law and fact raised by the dispute be in common. All “logically
related’ entitling a person to institute a legal action against another are generally regarded as
comprising a same transaction/occurrence.

HYPO: Passenger is injured in a collision between D1 and D2 and brings suit against both. D1
may have no counterclaim against Passenger but may have her own claim against D2.
a. Rules refer to D1’s claim against D2 as a cross-claim 13(g)
b. Some states do not make such a fine distinctions in their joinder terminology. CA uses a ‘cross
claim’ to refer what fed courts call counterclaims and cross claims.

Claim:
governed by Δ1
Rules 8, 18

Π Cross-claim:
governed by
Rule 13(g)
Counterclaim:
governed by Rules Δ2
13(a) and (b) Δ2’s joinder:
governed by
Rule 20(a)

a. Misjoinder: of parties is not a ground for dismissing an action.

On its own, the court may at any time on just terms add or drop a
party also the court may sever any claim against a party. A DEF
can challenge joinder of a party, with the result under rule 21 the
parties found to be improperly joined will have their cases
severed.
b. A third player is the judge who has an independent power to
consolidate and sever claims under rule 42. He can conclude that
separate lawsuits are so closely fact related to consolidate them
under 42(a) or that the parties are not related enough and should
be severed under rule 42(b).
4. Necessary and Indispensable Parties: Rule 19—parties that must be
joined.
5. Protects against the possibility of inconsistent judgments (if you don’t
have everyone in the same suit, someone who is not bound by the 1st
suit, and a subsequent suit happens it could come out the opposite way)

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 a. Is A necessary? Rule 19(a)—generally only among parties
connect by property ownership or contract rights
i. 19(a)(1): without A the court cannot afford complete
relief among the parties
ii. 19(a)(2)(i): A’s interest may be harmed if she is not
joined
iii. 19 (a)(2)(ii): A’s interest may subject Δ to multiple or
inconsistent obligations (joint tortfeasors are not
necessary)
b. Is joinder of A feasible?
i. does the court have PJ over A?
ii. does bringing in A destroy SMJ?
c. If A is determined to be necessary but joinder is not feasible—
Rule 19(b)—Is the party indispensable?
i. Extent of prejudice to the absentee/ present parties
ii. Possibility of framing judgment to mitigate prejudice
iii. Adequacy of remedy in party’s absence
iv. Will π have remedy if dismissed? (another forum)
6. Cases involving Compulsory joinder are most common in the following
situations:
(1) cases involving an obligation on which two or more persons are originally or by an
assignment either joint obligees or obligors, but not all joint obligees or obligors have
been joined as parties
(2) cases involving ownership of, or interest in, real or personal property in which some
persons claiming an interest (joint owners, lessees, mortgages, mortgagors, etc.) are not
included as parties;
(3) cases involving representative parties in which either the representative or some of
the parties being represented are not included as parties
(4) cases involving claims to a limited fund or pool of assets, such that potential
claimants who are not parties will find the fund depleted when their cases are heard.

HYPO#1: L is the income beneficiary of a spendthrift trust, and his children have the remainder
interest. The trustee has a power to appoint the trust to L at any time. L (CA) sues the trustee (IL)
seeking a declaration that the trustee abused his power by not appointing the trust to him.
• The children should be joined under rule 19 because they have a strong interest relating to the
subject matter under Rule 19(a)(1)(B)(i). Problems would not arise under rule 19 if none of
L’s children are citizens of IL and the damages are worth more than 75k, to sue in federal
court. Federal court should probably decide that they are indispensible parties but lacks
federal subject matter but should be held in IL court. If the kids don’t join in, in the suit in IL
well they lost their chance, aren’t really any due process violations.

HYPO#2: prior to 2004, Husband was married to W1 and procured insurance from Insco payable to
‘my wife’. In 2006, Husband procures a Mexican divorce and maries W2. After Husband’s death in
2008, W1 brings an action against Insco claiming: (a) Husband and she were never properly
divorced; and (b) even if she and Husband were divorced, his intention was to have the policy
payable to her. Insco moves to dismiss for failure to join W2. Result?

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• Here W2 must be joined as long as she does not destroy SMJ (19(a)(1)) if Joinder is not
feasible the court must determine whether the action should proceed or not under Rule 19(b),
the court will weigh out the interests and most likely decide that she must be joined because
the court needs to clear title and she is an indispensable party to that suit. The ‘My wife’
clause is not clear and she must protect her property interest. They must be joined in the suit
to avoid inconsistent judgments.

C. Impleader: Δ joining new Δ who may be liable to him (derivative liability)

i. Rule 14(a)—a defending party may join a third party defendant who is or may
be liable to for all or part of the claim (same transaction or occurrence);
1. Exs:
a. Indemnity in strict liability, vicarious, agreement, warranty
b. Joint tortfeasors contribution
c. Subrogation
2. Δ may not claim that TPD is the only party liable (it’s not me it’s him)
but may plead in the alternative that neither he nor TPD is liable
ii. 14(b)— π against whom a counterclaim is filed can assert a claim against third
party Δ if it arises from the same transaction or occurrence as the underlying
case

iii. Impleader Jurisdiction:

1. 100-mile bulge: service may be made with 100 mile bulge surrounding
the courthouse even of outside state or long arm. Rule 4(k)(1)(A): allows
to rope in impleaders within 100 miles of the court where the action is
brought.
2. Supplemental Jurisdiction:
a. TPD need not satisfy diversity or AIC requirements (automatic
supp juris)
3. If venue is proper between original parties it remains valid regardless of
resident of TPD
iv. Claims by the TPD:
1. counterclaims against TPP
2. cross-claims against other TPDs from same T/O
3. claim against original π out of same T/O
4. counterclaim against original π if original π has made a claim against
TPD—careful of jurisdiction, no supplemental over π’s claim against
TPD
5. impleader claims against persons not previously part of suit if these
persons may be liable to TPD for all or part of TPPs claims against TPD.
6. Jurisdiction:
a. Supplemental—all above claims are covered by supplemental
jurisdiction
b. Defenses—a TPD may raise any defenses against the original π
that the original Δ could have raised

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 v. Claims by Original π: against the TPD must satisfy independent jurisdictional
grounds (no supp).
vi. When a 3rd party PL brings in a 3rd party D, that 3rd party D has no relationship
to the original PL, UNLESS original PL files a claim against that 3rd party D or
vice versa.
vii. 1367 does not affect relationship between 3rd party PL and 3rd party D, but if
original PL files a claim against the 3rd party D and they are citizens of the same
state, it destroys diversity and cannot be done.

HYPO: Facts of Beeck v. Aquaslide: Beeck sues Aquaslide for injuries sustained when sliding down
a swimming pool slide, alleging that the slide was defective. May Aquaslide implead Poolslide, on
the ground that Poolslide, not Aquaslide, manufactured the slide in question?
• No: Under Rule 14, they must have some sort of legal relationship. You can’t implead
someone on a theory of “I wasn’t negligent it was him”. You can’t use impleaders to “tender
another defendant”. Must be a legally recognized legal relationship by substantive law that
can require 3rd party DEF to contribute, or indemnify the original D for all or part of the
claim.

Price v. CTB (2001): action against constructor of chicken houses (Latco); Latco impleaded ITW (nail
manufacturer) as a 3rd Party Δ based on common law claim of indemnification of sellers. HELD: a 3rd
party is properly impleaded under Rule 14(a) when that party may be liable to the original Δ for
the judgment; ask if under state law the nail maker could be liable to the coop maker, common law
rule of implied indemnification supports finding that ITW may be liable to Latco and was properly
impleaded. “ it is no longer possible to implead a third party claimed to be solely liable to the PL, a
proposed 3rd party PL must allege facts sufficient to establish the derivative or secondary liability of the
proposed third party DEF. Thus under Rule 14(a), a 3rd party complaint is appropriate only in cases
where the proposed third party DEF would be secondarily liable to the original DEF in the event the
latter is held to be liable to the PL.”

Owen Equipment v. Kroger (1978):, the complete diversity requirement cannot be circumvented by
naming only the diverse party and waiting for a Δ to implead a non-diverse party.

D. Intervention: Rule 24—a party may bring herself in as a Δ or π

i. Intervention of Right—
1. Your interest may be harmed if you are not joined
2. Your interest is not adequately represented now
ii. Permissive Intervention: Rule 24(b)(2)—show that your claim or defense and
the pending case have at least one common question
iii. Subject Matter Jurisdiction?—ALWAYS CHECK

HYPO: A claims to own real property which is in B’s possession. A sues B for trespassing.
Immediately upon learning of the action, C, who contends that he is the actual owner of real property,
seeks to intervene in the action under Rule 24(a)(2) to resist A’s claim. C also contends that B is a
trespasser.
• C may intervene as a matter of right. (1) He satisfies the timely requirement; immediately

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upon learning he requests the action. (2) He is claiming interest in the transaction/property (3)
if the court goes ahead and rules for A, he can lose title to his property. (4) B certainly does
not “adequately represent”, B’s interests are not identical to C’s and therefore is not
protecting C’s interests.

E. Class Action: representative sues on behalf of people similarly situated

i. Initial Requirements: Rule 23(a)
1. Numerosity: too many for practicable joinder
2. Commonality: some common question of fact or law
3. Typicality: representative’s claim must be typical of the class’ claims
4. Adequacy: Representative and lawyer will adequately represent the class

ii. Rule 23(b): fit the case within a type of class action
1. 23(b)(1): action allowed under (b)(1) if individual actions by or against
members of the class would create a risk of either
a. Inconsistent decisions forcing an opponent to observe
incompatible standards of conduct
b. Impairment of the interests of the members of the class who are
not parties to the individual actions (if they brought the action
individually they would move for 12(b)(7) for failure to join
indispensable parties under Rule 19)
c. Why?—mass tort claims where there are so many claims that Δ
may be insolvent before all claimants can collect
2. 23(b)(2): allows use of a class action if the party opposing the class has
acted or refused to act on grounds generally applicable to the class
and class seeks injunction
a. Why?—civil rights cases where class seeks injunction against
further discrimination

3. 23(b)(3): most common class actions; must show

a. common question of law or fact predominates over any question
affecting only individual members
b. class is the superior way to resolve the dispute; factors:
i. interest of class members in individually controlling
actions
ii. presence of any suits that have already been commenced
involving class members
iii. desirability of concentrating the litigation of the claims in
a particular forum
iv. difficulties in managing the class action
c. Why?—used for mass product liability

4. If the Court certifies the class (Rule 23(c)) it must define the class
appoint class counsel (Rule 23(g))
iii. Subject Matter Jurisdiction:
1. Most class actions will be certified as federal question

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 2. look only to the citizenship of the representative citizen; as long as
there’s diversity and venue is ok, we’re fine
3. amount in controversy
a. Traditional rule—every member of the class must claim more
than $75K; makes Diversity Jurisdiction class actions hard to
bring
4. New Rule—it’s ok if the representative’s exceeds $75,000 then we don’t
care about the individual member’s claims (SC granted certiorari this
year on this question); supplemental jurisdiction expanded to cover
iv. Personal Jurisdiction:
v. Notice to the Class: FRCP requires notice only in the (b)(3) class action; but
most courts require it in all actions
1. notice by mail should be given to all class members who can be located
with reasonable effort
2. publication notice for everyone else
3. list of things you have to tell them is in Rule 23(c)(2)(b)
vi. Opting Out: everyone is bound unless you opt out of the 23(b)(3) class action
(the others you cannot opt out of)
vii. Settlement: you must get court permission to settle a class action once it has
been certified under Rule 23(e)
1. members of (b)(3) class must be given another chance to opt out before
settlement

HYPO#1: UF announces a tuition increase that applies only to out of state students. 2000 students
stand to have their tuition increased. The president of the Student Body, an in-state student
announces that she is filing suit, on behalf ot he affected students, to enjoin UF from implementing
the increase.

• With which of the requirements of Rule 23(a) will the prospective action have most
difficulty? – Class president is not typical of the class, because she is an instate student and
not affected by the tuition hike. She really doesn’t have anything on the line or affecting her.
She has typicality and perhaps adequacy problems with Rule 23(a)
• What additional information will the court likely require in order to decide whether the suit
meets the criteria of 23(a) – What is the experience of the attorney working to represent the
class, are they experienced in class actions?
• Suppose after some rearrangement, the court rules that the class meets the requirements of
Rule 23(a); into which category of Rule 23(b) would it fall? – Seeking an injunction Fits into
Rule 23(b)(2).

HYPO#2: Tuition hike has gone into affect and was paid by out of state students. One student
discovers that UF adopted the increase at a closed meeting; a violation of state law. He proposes to
file suit as a representative of a class of all out of state students.

• Student (class rep) proposes to seek refunds in the form of reduced tuition in the following
year. Why might such a plan for relief cause the court to find the Student an inadequate
representative (perhaps atypical) for at least some members of the class – Inadequate

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 representation because some students have paid the tuition hike but are not returning next
year because of graduation, also atypical
• Student proposes to remedy the adequacy of representation by seeking cash refunds to all
students, present, and former, who the paid the allegedly higher fees. What will this change
in remedy do to the classification of the lawsuit under Rule 23(b)? What consequences will
that change in classification have? – Seeking a refund places you in 23(b)(3), when you are
giving out the refund you have to give every member of the class notice (can be expensive)

• Student finally seeks certification of a Rule 23(b)(3) class seeking cash refunds to all
students who paid the higher fees. .The costs of notifying the class are $10k. How might his
cause a court that was otherwise satisfied that the student meet the criteria of Rule 23(a)(4)
to reconsider its decision to decertify the class – As class rep you have to be able to fund the
notification.

III. Discovery
A. Scope of Discovery
i. Standard of discoverability: Rule 26(b)(1)—you can discover anything relevant
to a claim or defense
• Relevance: To be discoverable, information must be relevant, either to a claim or defense or if
judicial permission is granted to the ‘subject matter’ of the lawsuit. Relevance links discovery
to the law of pleading, to the law of evidence, and to common sense.
• For a piece of information to be relevant to a legal proposition means that the information tends
to prove or disprove something the governing substantive law says matters. If it doesn’t matter,
the law of evidence will prevent that information from being presented at trial.
• Admissibility: Information sought during discover need not be admissible at trial it only needs
to “appear to be reasonably calculated to lead to the discovery of admissible evidence.

1. Relevant means reasonably calculated to lead to admissible evidence

(broader than admissible)
2. Privileged material Rule 26(b)(5) Claiming Privilege or Protecting Trial
Protection materials; Privilege is not discoverable (confidential
communications that the law protects from disclosure, i.e., attorney-
client, doctor-patient, priest-penitent, spouse)
3. Work product: Rule 26(b)(3)—material prepared in anticipation of
litigation; can be generated by a party or any representative of the party
(not just lawyer); can be overcome with showing of
a. Substantial need
b. Information is not otherwise available
c. BUT mental impressions, conclusions, opinions and theories are
absolutely protected

Hickman v. Taylor: A tugboat sank killing five crew members. Hickman (P) brought this wrongful
death lawsuit as representative of one of the deceased against Taylor et al. (Ds). The four survivors
testified at a public hearing before the United States Steamboat Inspectors and their testimony was
recorded and made available to all of the parties. The defendants conducted their own interviews of

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 the survivors and others having information regarding the accident.The defendants answered all
interrogatories except for a summary of statements obtained in the course of their own interviews. The
defendants contended that the requested summary pertained to “privileged matter obtained in
preparation for litigation” and was therefore privileged. Hickman objected and the district court held
that the requested information was not privileged and ordered the defendants to produce it. Counsel
for the defendants refused to comply and were held in contempt. Held: Supreme Court held that
“attorney work product” should be protected from disclosure, at least absent a showing of a
particular need for the information, and inability to obtain it through other means. The court
was concerned that discovery of trial preparation materials would interfere with lawyer’s ability to
develop their case strategy in private, and lead lawyers to build their cases through opposing counsel’s
efforts rather than their own. Thus, court created objection to shield work product materials from
discovery. This is an additional limit on access to materials, even if they satisfy the broad relevance
standard in 26(b)(1).

B. Required Disclosures: Rule 26(a)—parties must produce information even without a

request by the other party
i. 26(a)(1) Initial disclosures: you are required even without request to name
people and documents with discoverable information that you may use for your
claims or defenses.
ii. 26(a)(2) Experts: Identify experts
iii. 26(a)(3) everything you’ll rely in trial
C. Protective Orders: 26(c)
D. Timing: 26(d)
E. Supplementing Disclosures and responses: 26(e)
F. Conference of the Parties; Planning for Discovery: 26(f), See Rule 16 Pretrial
Conferences, Scheduling
G. Discovery Devices: which can be used to get info from a non party?
i. Deposition: you can depose a party or non-party; live oral testimony under oath;
non-party must be subpoenaed
ii. Interrogatories (Rule 33): can only be sent to other parties; written questions
answered in writing within thirty days
iii. Request to Produce (Rule 34): can go to party or non-party but non-arty should
be subpoenaed (Rule 34(c))
iv. Medical Examination (Rule 35): must get a court order
v. Request for Admission (Rule 36): only go to parties: functions best when used
to eliminate essentially undisputed issues
H. Rule 26(g)—certification that this is not for improper purpose

Duty to preserve evidence: Spoliation

The intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal
proceeding

Silvestri v. GM Corp: (P) sued General Motors Corp. (D) after the airbag in the Monte
Carlo he was driving failed to deploy when he hit a utility pole, causing him injuries.
While he was in the hospital, his parents retained an attorney, who retained two accident
reconstructionists to examine the vehicle. They concluded that the airbag was defective,

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 and told Silvestri's (P) attorney that he should let General Motors (D) see the vehicle.
Neither Silvestri (P) nor his lawyer took steps to preserve the vehicle or to notify General
Motors of the existence of the vehicle, until almost three years later when Silvestri (P)
began this action. The district court dismissed the case for the spoliation of evidence. Spoliation
applies because the power to sanction for spoliation derives from the inherent power of the
court, not substantive law. A party's duty to preserve material evidence extends to the period
before litigation, when a party reasonably should know that the evidence may be relevant to
anticipated litigation, and therefore the object of discovery

HYPO #3: Randolph files suit for damages after being injured in an accident with a truck owned and
operated by Craven. Randolph has reason to think Craven’s truck was serviced at Elaine’s Garage
and wants to see the service record. Randolph doubts Elaine will produce it voluntarily. What steps
can Randolph take to obtain the documents?
• He can Subpoena (Rule 45) in conjunct with a deposition. You can ask for a depo and
request that they bring those documents.

Ensuring Compliance
All the discovery methods discussed above need enforcement mechanisms. The rules contain two – a
general provision in Rule 26(g) and more specific rules in 37. Parties engaged in discovery often want
information, and Rule 37 sets forth a series of devices designed either to elicit the information or to
respond to parties refusal to supply it. Under Rule 37 a court may impose punishments ranging from
awards of expenses to dismissals of entire case or entry of a default judgment.
Under Rule 37(d) and (f) some sanctions are available on the occurrence of misbehavior. Under Rule
37(b), however, other sanctions cannot be sought until after the court orders a party to comply.
Rule 37(b) sanctions come into play not when a party initially fails to comply but when the party
refuses to comply with a specific order telling him to do so.

Rule 26(g) which (like rule 11) requires parties to sign disclosures, discovery requests, and objections
and punishes the party for unjustified requests and refusals even when the parties’ behavior does not
violate a court order.
Unlike rule 11, 26(g) suggests attorney’s fees will be an appropriate sanction for most violations of its
obligations.
I. Rule 37 Failure to Make Disclosures or Cooperate in Discovery; Sanctions
(a) Motion for an order compelling disclosure or discovery
(1) On notice to the other parties and all affected persons, a party may move for an
order compelling disclosure or discovery. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with the
person/party failing to make disclosure/discovery in an effort to obtain it without
court action.
(3) Specific motions
(A) To compel Disclosure: if a party fails to make required disclosures under 26(a),
any other party may move to compel disclosure and for appropriate sanctions
(B) Motion To compel a discovery response:
(C) Related to a Deposition: When taking an oral deposition, the party asking a

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 question may complete or adjourn the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response: An evasive or
incomplete disclosure, answer, or response must be treated as a failure to answer ‘’.
(5) Payment of Expenses; Protective Orders
(A) If the motion is granted.
(B) If the motion is denied
(C) If motion is granted in part and denied in part.

(b) Failure to comply with a Court Order.

(1) Sanctions in the District where deposition is taken
(2) Sanctions in the district where the action is pending
(A) for not obeying a discovery order
(B) For not producing a person for examination
(C) PMT of expenses

(c) Failure to Disclose, to supplement an earlier response, or to admit

(1) Failure to disclose a supplement: under 26(a) or (e), not allowed to use that
information or witness to supply evidence on a motion, at hearing, or at trial unless
failure was substantially justified or harmless.
(A) may order payment of reasonable expenses, including attorneys fees
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including those under 37(b)(2)(A)(i)-(iv)
(2) Failure to admit

(d) Party’s failure to attend its own deposition, serve answers to interrogatories,
or respond to a request for inspection
(1) In General
(A) Motion; grounds for sanctions
(B) Certification
(2) Unacceptable Excuse for failing to Act
(3) Types of Sanctions

(e) Failure to provide Electronically Stored Information

(f) Failure to participate in Framing a Discovery Plan.

Davis v. Precoat Metals: Plaintiffs, employees in Defendant’s Chicago plant, filed suit against
Defendant alleging that they had been exposed to a hostile working environment, including being
subjected to racially insulting and derogatory comments by Defendant’s management- level
employees. Plaintiffs filed a motion to compel discovery regarding discrimination complaints made
against Defendant by non-clerical/non-administrative employees who worked at the same plant as
Plaintiffs and personnel and disciplinary files of non- clerical/non-administrative employees who
worked at the Chicago plant. Defendants oppose the motion, arguing that the discovery requests were
overbroad in that they improperly sought information regarding all allegedly discriminatory actions
by Defendant. Under Federal Rule of Civil Procedure Rule 26(b)(2) a court can limit discovery if
it determines, among other things, that the discovery is unreasonably cumulative or duplicative,

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obtainable from another source that is more convenient, less burdensome, or less expensive, or
the burden or expense of the proposed discovery outweighs its likely benefit. However, other
employees’ complaints of discrimination may be relevant to establish pretext

Steffan v. Cheney: Steffan was “constructively discharged” from the Navy for proclaiming himself
gay. What’s the discovery problem? The Navy was deposing him and wanted to know if he had
engaged in homosexual conduct while he was a midshipman. Steffan refused to answer on Fifth
Amendment grounds. Navy files a motion to compel Steffan to answer. They also file a request for
sanctions (including simply dismissing the case). Steffan argues that the questions that he’s being
asked are not relevant. The district court judge doesn’t buy it. Steffan refuses to answer, and the case
is dismissed. Then he appeals to the D.C. Circuit. The only reason there is a right to appeal on this
discovery issue is that he’s been poured out of court entirely. He appeals his dismissal on the grounds
that the discovery ruling and sanction were wrong. The Court of Appeals says that the question is not
relevant. The original administrative proceeding was based only on his statements and not his
conduct. The Rule here says that discovery is relevant if it relates to claims or defenses. Steffan
claimed that he was discharged because he said he was gay, not because of any conduct. They take a
very narrow view of the “claims or defenses” standard.

IV. Pre Trial Adjudication

A. Default: court may enter a default judgment against a party who has failed to plead or
otherwise defend under Rule 55
i. Default will not be entered unless Δ has received notice; a Δ who fails to receive
notice can re-open the case—Rule 60
ii. Default is a judgment on the merits
iii. Can be set aside for good cause—Rule 55(c) and 60(b)

B. Rule 12(b)(6)—Motion to Dismiss for failure to state a claim

i. Court looks only at the face of the Complaint, not evidence
ii. If the π proved everything in the Complaint, would she win a judgment? (does
the law recognize this claim?)
1. If no then leave to amend
2. If still no then dismissed with prejudice
C. Motion for Summary Judgment—Rule 56
D. (a) By claiming Party:
E. (b): By a Defending Party
F. (c) Time for a motion, Response, and Reply; Proceedings
G. (d) case not fully adjudicated on the motion
H. (e) affidavits; further testimony
(2) opposing party’s obligation to respond
I. (f) when Affidavits are unavailable
J. (g) affidavits submitted in bad faith.
i. Rule 56(c) third sentence:
1. no dispute on a material issue of fact
2. the moving party is entitled to judgment as a matter of law
ii. Court can look at evidence (affidavits, deposition testimony, answers to
interrogatories, verified pleadings)

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 1. pleadings are not evidence because they are not sworn under oath but
they can be used as admissions for failure to deny in Answer
2. Purpose is to weed out cases that don’t need to go to trial (purpose of
trial is to resolve disputed fact)

V. Curtailed Adjudication: Summary Judgment

An adjudicative alternative to trial for cases in which facts are not disputed. This might happen
because the dispute is about law – does the first amendment forbid a school district from
requiring pupils to recite the pledge of allegiance? Or it might come in a case where the law was
clear but one party lacked evidence supporting a critical element of her cases. In such cases trial
is pointless.
Rule 56 governs the making and granting of motions for summary judgment. The key provision in
Rule 56(c) provides that motions are to be granted when the record shows that there is no genuine
issue as to any material fact and that the movement is entitled to judgment as a matter of law. That
means summary judgment reaches both legal and factual merits of the case.

Celotex Corp v. Catrett (1986): π sued manufacturer of products she claimed were responsible for her
husband’s death; motion for summary judgment was granted but reversed on appeal on grounds that Δ
failed to produce evidence supporting the lack of a genuine issue of material fact. Held, the
requirements of 56(c) do not require that movant produce evidence; a moving party may meet its
burden of persuasion by demonstrating that the nonmoving party failed to supply sufficient
evidence of an issue of material fact.
Summary judgment under Rule 56(c) is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.
Rule 56(c) mandates the entry of summary judgment against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial
There is no express or implied requirement in Rule 56 that the moving party must support its
motion with affidavits.
Whether a showing by a party opposing summary judgment, if reduced to admissible evidence,
would be sufficient to carry that party’s burden of proof at trial should be determined by the
Court of Appeals in the first instance.

Adicks v. S.H. Kress & Ko: (Pre-Celotex) a civil rights demonstration in which PL refused service at a
radically segregated lunch counter sued the restaurant owner. At the time the federal public
accommodation laws provide no damages remedy for private discrimination, and the liability of the
business therefore depended whether it had acted in concert with local authorities, thereby fulfilling the
state action requirement of 42 U.S.C. 1983. All agreed that there had been a police officer in the store
at the time service was refused, but PL produced no evidence showing communication between the
officer and any store employee. D submitted affidavits and deposition transcripts from the manager of
the store and the police officer that ehy had not communicated with each other and that the manager
had refused service because he was concerned about a riot. At trial Pl had burden of production and
persuasion. On summary judgment, D’s burden was to show that the Pl could not prevail at trial. D in
essence, had burden of production and burden of pursasion. The D had to prove that Pl couldn’t win.

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This case moots summary judgment in federal practice from D’s standpoint because the burdens to
prove that PL can’t win would be so heavy that you might as well try the case.

a. Celotex: Δ moved for summary judgment because π had no

evidence to support her assertion that the event happened (shifted
the burden to the π to show evidence to support the claim)
ii. Two approaches:
1. I have evidence to prove I didn’t do it
2. You have no evidence to prove that I did it

iii. Rules of Thumb

1. Rarely granted for the party with the burden at trial (tougher for π)
2. Tougher to get in tort cases than in contract
3. You never resolve disputes of fact on summary judgment including
credibility
HYPO: π is crossing the street and was hit by Δ; π sues Δ alleging negligence for running red light;
Δ says in response that he had the green light and that the π was jaywalking and jumped in front of
him; Δ moves for summary judgment and proffers affidavits of witnesses that the π was jaywalking;
π admits affidavit that says the light was red; NO SUMMARY JUDGMENT; case goes to trial

VI. Trial
A. Burdens
i. Persuasion
1. Criminal = beyond a reasonable doubt
2. Civil = preponderance of the evidence
ii. Production: produce and present evidence at trial
B. Controlling Juries Before Verdict
i. Motion for Judgment as a Matter of Law (Directed Verdict)—Rule 50(a)
1. After the π’s evidence has been presented, the judge says no jury trial
2. No legally sufficient evidentiary basis on which the jury could find for
the party with the burden of proof

3. All evidence should be considered in the light and with reasonable

inferences in favor of the party opposed to the motion. (assume
everything is true)
ii. Excluding Improper Influences: ensuring jurors do not reach verdicts that cannot
be sustained by the evidence
1. Voir dire—eliminate jurors who might reach irrational verdict
2. Law of evidence controls what is presented
iii. Instructions and Comment: serve both to instruct jury on the law and provide
statement of applicable law which is reviewable in appellate process
C. Controlling Juries after the Verdict
i. Renewed Motion for JMOL (Notwithstanding the Verdict)—Rule 50(b) allows
to renew after Δ presents evidence
1. Same basis—no legally sufficient evidentiary basis for a reasonable
jury to find for the party

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 2. Jury came to a decision that no reasonable person could (assume
everything is true)
3. Court has the power to direct a verdict if, by looking at the evidence
presented, it determined that the inferences made by the jury from the
evidence are not rational.
4. often grant new trial in the alternative in case the appellate court
overturns the JMOL
5. you have to make a motion for directed verdict or you waive right to
renew after jury verdict
D. JMOL FORMULA: Could a rational fact finder have concluded X given the evidence
provided at trial and the substantive law consisting of ___. If they could have found for
X (PL should recover based on evidence and law) then the verdict should stand. If they
cannot find for PL then a judgment as a matter of law or a renewed judgment as a
matter of law should be granted.
VII. Courts say that they grant JMOL when the party with the Burden of Production failed to carry on
that burden. In Celotex: lies the proposition that a party with the burden of production can lose
even before trial if she fails to demonstrate, among the facts uncovered by investigation and
discovery, sufficient evidence to allow a rational trier of fact to find in her favor.

A. Burden of production: evidence * must be met first.

B. Burden of persuasion: Civil: more probable than not,
C. Rule 52 Concerns Bench Trials: Trials just in front of a judge 52(a)(1) compared to a
jury (which never has to give any reason to what they find) judges miust state findings
of facts and conclusions of law in rendering a conclusion. A judge’s finding of fact will
only be set aside if it is clearly erroneous.

HYPO : Assume PL reports D ran a red light. This would provide an adequate basis for pleading
negligence while meeting the factual foundation requirements of Rule 11. Discovery might, of course
turn up other grounds: faulty maintenance of breaks, and it might cast doubt on the original theory:
PL thinks she saw D run the light, but other, disinterested witnesses deny it. Whatever PL’s theory of
negligence, she has responsibility for gathering and presenting evidence on that theory. Assume PL
thinks her strongest case is “D ran red light” theory.
• To carry her burden of production on the question, it is up to PL to find witnesses, interview
or depose them, get their affidavits (to avoid summary judgment), make sure they come to
court on the day of trial, and conduct the direct examination in a way that makes statements
admissible. If the PL fails in any of these steps, she loses even though as a matter of historical
facts, D might have run the red light. The PL loses because she failed to satisfy the burden of
production of coming forward with evidence from which a rational trier of fact could
conclude some proposition of material fact.

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HYPO : PL is exposed on allegedly toxic chemicals due to DEF’s negligence. After a year PL
manifests visible systems. She sues saying that these conditions/symptoms are due to D’s negligence.
Statute of limitations is 1 year from time PL should have realized that she was hurt. In D’s answer to
PL’s complaint D asserts statute of limitations as an affirmative defense. Who has the burden of
production on this particular issue?
• On issue of D’s negligence PL has burden of production.
• Statute of limitations defense: D has burden of production to show that PL should have
reasonably known before the SOL
• Both produce evidence that a rational trier of fact to find that (a) PL did ultimately handle
toxic chemicals from D’s negligence but (b) it happened more than a year ago.
Goes to the jury and look at the burden of persuasion, preponderance of the evidence.
Burden of production determines the winner.

HYPO 2: Toxic Chemical Hypo ^: More than a year after exposure PL gets physical symptoms. SOL
is 1 year from time PL knew or should’ve known she was injured. Suppose PL presented all the
evidence that it caused physical conditions. That D manufactured the chemical, she has physical
symptoms. D believes PL failed to meet her burden of production on negligence. At the close of PL’s
case D brings a Rule 50 JMOL. (JMOL takes the case away from the jury if the court says “your right
party did not meet their burden of production on the issue”)
• As a PL cant bring a JMOL until after D has brought their affirmative defense.
• Prevailing view is judge will consider all the evidence not just the evidence supporting the
non-moving party. The judge assumes the truth of all the evidence provided by the non-
moving party, in light favoring of the non moving party.
• Toxic Hypo: JMOL is granted if even taking everything Pl presented in the case as true, she
hasn’t met ‘causation’ so court cannot rule for her.

Reid v. San Pedro, L.A. & Salt Lake R.R. (1911): π sued RR for negligence after her cattle was hit by a
train; claimed RR negligently maintained a fence which was down in places, but a gate in the fence
was also open due to the landowner and no evidence was presented as to how the cow got on the
tracks. Held, there is insufficient evidence to support a verdict where two equal inferences exist to
prove a fact, only one of which establishes liability. Π has the burden of proof to establish liability
by a preponderance of the evidence and if two inferences are equal this burden is not met.

i. Motion for New Trial—Rule 59(a)

1. After the jury has decided and the judgment is entered some problem
with the case requires starting over
2. If you grant a JMOL or renewed JMOL you can appeal it because it is a
final judgment.
3. If new trial granted, cannot do anything until new trial is finished NOT A
FINAL JUDGMENT.
4. Bases for new trials: (appellate court reviews de novo)
a. Contrary to the weight of the evidence
b. Contrary to law

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 c. Impermissible argument to the jury
d. Error in admission of evidence
e. Error in jury instructions
f. Jury misconduct
g. Motion for a new trial is not
5. Various standards for granting: (appellate court reviews for abuse of
discretion)
a. 13th juror standard—judge thinks verdict is against the clear
weight of the evidence (evidence could support the verdict but
the judge thinks it shouldn’t)
b. JNOV—you would only give a new trial when you would give a
JNOV (but instead of turning the verdict around you let them try
again)
c. Gross miscarriage of justice (toughest standard)

6. Conditional New Trials

a. Trial judge may grant partial new trial limited to damages
b. Trial judge may order condition new trial
i. Remittitur—order for a new trial unless π agrees to accept
reduced damages; approaches
1. reduce verdict to the highest amount the jury could
have awarded
2. reduce verdict to a reasonable amount
3. reduce verdict to the lowest amount the jury could
have awarded
ii. Addittitur—order for a new trial unless Δ consents to an
increase in the amount of the verdict (not allowed in fed
cts as violation of 7th amend jury trial right)

VIII. Appeals

A. Two necessary criteria:

i. Final Judgment Rule: a party can only appeal a final disposition of the case—28
USC § 1291
1. whatever the ruling is, after the judge makes this order, is there any
remaining determination on the merits of the case?
2. NOT final judgment: motions, judge orders a new trial

IX. Res Judicata and Collateral Estoppel

A. General Rule—the court in case 2 has to apply the res judicata and collateral estoppel
law of the system that decided case 1
B. Res Judicata (Claim Preclusion): means that you only get one bite at the apple; all
three elements must be present for res judicata to apply
i. Both cases involve the same claim that could have or should have been brought
because it bears significant relationship to the claim(s) that were brought (in
second suit) - Frier

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 • Fedearl Approach: “same transaction/occurence” test
• Same “cause of action” or evidence test
• 28 U.S.C 1738 – FF&C credit to state statutes and judicial
proceedings by federal courts

ii. Same Parties/Privity (interests were represented by a party to the prior

action in both first and 2nd suits).
Privity: Searle Brothers v. Searle
 Strong legal relationship
 Virtual representation (law substitutes A for B) (employer/employee,
successors in property, assignment in contract)
 Express Agreement
iii. Final Judgment (in the first action): The usual rule, and rule followed in federal court, is t
hat a judgment is final even though an appeal is pending.
Rule 60(b)(5)
iv. On the Merits (in the first action: The question to ask is whether a particular judgment be
given a preclusive effect.
Gargallo v. Merill Lynch: under ordinary conditions, where there is not a subject matter
jurisdiction problem, successive courts should attach the same preclusive effect to a judgment
as the rendering court would.

Frier v City of Vandalia (1985): car owner brought suit against city for multiple towings of cars
parked illegally; first in state court for replevin action then in fed court on const. grounds; Held, a
claim which could have been brought against the same Δ arising from the same T/O must be
brought or it will be claim precluded. Fed court follows the preclusion rule of the court where the
first claim was heard (state court).

a. Consistency

ii. Both cases must be brought by the same claimant against the same defendant
1. Δ who asserted a counterclaim is a claimant so if he sues in case 2 he
was claimant in both

Searle Bros. v. Searle (1978): Searle Bros (partnership) brought suit against divorced wife of Searle
for return of property wrongfully divided in divorce settlement; wife claims res judicata and collateral
estoppel; Held, if the suit involved different parties those parties are not bound by prior judgments;
collateral estoppel can be asserted against a party who was in privity with a party in the prior
suit; privity means so identified together as to represent the same legal right; no privity so no
preclusion.

iii. Case #1 must have ended in a valid final judgment on the merits
1. VALID

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Gargallo v. Merrill, Lynch, Pierce, Fenner & Smith (1990): ML sues for breach of contract in OH state
court and G counterclaims for negligence and fed securities; counterclaim dismissed as sanction for
failure to follow discovery; issue in fed court when G sues ML for fed securities because state court did
not have jurisdiction over the claim (exlcusive fed.); Question: what effect would OH state court give
to judgment? OH would say it’s invalid so no res judicata.

Semtek v. Lockhead Martin: Petitioner filed complaint against respondent in CA state court alleging
BOC and various business torts. Respondent removed to U.S. District court of C.D. of CAL based on
basis of diversity, and successfully moved to dismiss the petitioners claim barred by CA’s 2 year
SOL. In its order of dismissal, D.C. adopting language suggested by respondent dismissed the
petitioner’s claim “in their entirety on the merits and with prejudice” petitioner then brought suit
against respondent in State Circuit court of Baltimore, MD alleging the same causes of action which
were not barred under MD’s SOL. Following a hearing MD state court granted respondent’s motion
to dismiss on grounds of res judicata. MD court of special appeals affirmed, holding that regardless of
whether CA would have accorded claim preclusive effect to a SOL dismissal by one of its own courts,
the dismissal by the CA fed court barred the complaint filed in MD, since the res judicata effect of
federal diversity judgments is prescribed by federal law, under which the earlier dismissal was on the
merits and claim preclusive.
Federal common law governs the claim-preclusive effect of a dismissal by a Federal court sitting
in diversity, which in turn will apply the claim- preclusion laws of the state in which the Federal
court is located. An adjudication upon the merits, under Federal Rule of Civil Procedure 41(b) only
has the effect of preventing a re-filing in the same district court in which the case was earlier filed.
Federal common law governs the claim-preclusive effect of a dismissal by a Federal court sitting in
diversity.

2. FINAL
a. After trial court for most states
b. CA says it has to be heard or rejected from Sup Court
c. If claim is precluded and then the first judgment is reversed you
can reopen under Rule 60(b)(5)
3. ON THE MERITS
a. any judgment in favor of the claimant is on the merits (even
default)
b. Rule 41(b)—all involuntarily dismissals are deemed on the merits
unless it was based on jurisdiction, venue or indispensable parties
i. SOL not on the merits under Semtec
c. Motion to dismiss 12b
i. 12b1, 12b3, 12b7 are NOT on the merits
ii. 12b6 – how can failure to state a claim preclude another
claim? This is a practical consideration to prevent people
from filing the same complaint that won’t survive a 12b6
motion
d. 12c pleadings (but not SOL)
e. 56 Summary Judgment
f. 50 Directed Verdict
g. Jury Verdict

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HYPO #1: A and B are driving and their cars collide; A sues B in Case #1 to recover personal
injuries and the case is litigated with final judgment; A sues B for property damage for the crash;
does res judicata apply?
• Same parties?—YES
• Valid final judgment on the merits?—YES
• Same claim?—YES (majority view) because it’s the same occurrence; minority view would
say the rights are different so NO

HYPO #2: A sues B for property damage and personal injury; final judgment on the merits is
entered; Case #2 B sues A about the same wreck; res judicata? NO—not the same claimant
• But now B is in trouble under compulsory counterclaim rule because she should have raised
the counterclaim (same T/O) and now has waived it

C. Collateral Estoppel (Issue Preclusion): some fact or question adjudicated in the

earlier case would be again put at issue between the same parties; allows the judgment
in the prior action to operate as an estoppel to those facts or question
i. ELEMENTS:
1. Valid Final Judgment on the Merits (see above)
2. The same issue was actually litigated and determined in Case #1
a. Substantively—same content
b. Procedurally—same burden of proof, rules of evidence (let’s you
sue in civil court after he says not guilty in crim court)
c. Dismissal as sanction for failure to follow discovery rules could
qualify as being “actually litigated” because you had your chance
3. That issue was essential to the judgment in Case #1 (we needed to have
that finding on that issue in order to reach the judgment)

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Taylor v. Sturgell: First suit brought by Herrick, an aircraft enthusiast seeking information that would
help him restore his plane to the original condition he filed an FOIA request asking the Washington
Aviation Administration (FAA) for copies of any technical documents about the F-45 in the agency’s
records. To gain a certificate granting the manufacture and sale of the F-45 FEAC had submitted to the
FAA’s predecessor the CAA detailed specifications. The FAA denied Hericks request finding that
trade secrets and commercial or financial privilege. He filed an administrative appeal and was denied.
Herrick filed suit in the U.S. Dist. Ct. of Wyomic challenging the trade secret exemption which granted
SJ, and affirmed by the 10th Cir. (2) Second Suit: Taylor, a friend of Herrick’s also an aircraft
enthusiast submitted an FOIA requesting the same documents that Herrick had tried to obtain. Taylor
filed a complaint in the U.S. Dist. Ct. of D.C. Like Herrick he argued that the FEAC’s 1955 letter had
striped the records of their trade secret status. But Taylor also sought to litigate two issues concerning
the recapture of protected status that Herrick had failed to raise in his appeal.
Held: "nonparty preclusion" runs up against the "deep-rooted historic tradition that everyone
should have his own day in court." Virtual representation should only be applied rarely and
under certain exceptions to the general rule, none of which the Court found applicable in this
case.
The rule against nonparty preclusion is subject to exceptions, the recognized exceptions are (1)
agreement by the parties to be bound by a prior action (2) preexisting substantive legal
relationship (such as preceding and succeeding owners in property) (3) adequate representation
by someone with the same interests who was a party (such as trustees, guardians, and other
fiduciaries); (4) a party assuming control over prior litigation and; (6) special statutory schemes
such as bankruptcy and probate proceedings, provided those proceedings comport with due
process.

Illinois Central Gulf RR v. Parks (1979): train hit a car; wife sued for injuries and husband for loss of
consortium; husband then sued for his own injuries; RR said that the prior case established RR was
negligent and because husband got nothing the jury must have decided that he was contributorily
negligent or that he sustained no damages, and since damages were uncontroverted it must have been
negligence. Held, if a judgment could have been based on two findings, the party pleading
estoppel has the burden of proving it turned on the fact in question or that finding will be open to
contention; jury could have found no compensable damages so it’s not clear; partial summary
judgment estopping RR from denying negligence and allowing litigation of cont. neg. matter.

a. Essentiality: we strike out the issue of fact or law in suit 1 and

ask if that flips the winner.
b. if there are multiple, sufficient grounds for the decision then there
is no issue preclusion for either
4. No preclusion if the issue could not have been raised in the first suit.
ii. Against whom is collateral estoppel used?
1. we can use it against somebody who was a party to Case #1 including
people in privity with that party i.e., class member. (day in court!—due
process)
iii. By whom is collateral estoppel used?

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 1. Mutuality rule—victim of the preclusion must have been a party to the
first suit or in privity (not based in due process so courts don’t have to
apply it and recently courts are allowing non-mutual collateral estoppel)
a. Defensive non-mutual collateral estoppel: Δ in Case #2 is using
collateral estoppel when she was not a party in Case #1—
permitted when π had a full opportunity to litigate the issue
i. gives π incentive to join all Δs because if the π loses the
first suit all the other Δs can use issue preclusion; but if π
had won first suit he’s not allowed to use issue preclusion
against different Δs because of due process (day in court)
Blonder-Tongue
b. Offensive non-mutual collateral estoppel: most courts don’t allow
offensive; some courts will allow it as long as it is fair under the
circumstances
i. Δ had chance to fully litigate in case #1
ii. Π could not easily have joined case #1
iii. Δ could foresee multiple suits (incentive to litigate first
case well)
iv. No inconsistent judgments (procedural opportunities in
this action not available in prior action)
v. POLICY: this allows a π to sit and wait for another
judgment against the Δ and if he likes it, use it and if not
he’s not bound by it.

Parklane Hosiery Co. v Shore (1979): π filed suit for misleading statements in merger and SEC filed
suit soon after; SEC won and π moved for summary judgment on grounds that issue was already
litigated, Δ claimed it would violate its right to a jury trial. Held, offensive collateral estoppel may be
used at the discretion of the court when the effect is not unfair to the Δ (no mutuality required).
this does not violate the Seventh Amendment because the factual issues were already resolved in this
previous action.

HYPO #1: B is driving C’s car; A is driving his own car and they collide; C is vicariously liable for
B’s act; Case #1 A v. B and jury finds that A was negligent; A sues C; can C get collateral estoppel
on the issue of A’s negligence?
• Final judgment?—YES
• The issue litigated?—YES; A was negligent
• Essential?—YES
• Against party to Case #1?—YES
• By a party to Case #1?—NO; under the mutuality rule this would not be allowed but most
courts will allow collateral estoppel

HYPO #2: same case #1; then C sues A for damage to car; can she get collateral estoppel on A’s
negligence?

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 • All four are the same as the first time
• By a party to Case #1?—NO; it’s non-mutual because she was not a party to the first case; but

Not all suits have a preclusive effect. A federal court sitting in diversity, D makes a motion to dismiss
citing alternative grounds for dismissal, lack of subject matter jurisdiction and lack of personal
jurisdiction. The district court grants the motion and dismisses the case. PL refills in state court where
the district is located. Issue preclusion?
No preclusive effect, simply went into the issue of subject matter jurisdiction and not the merits
of the case.

Ruhgas AG v. Marathon Oil Co: The discretion of a trial court to handle its docket for want of personal
jurisdiction if that is the most obvious ground, even though that will preclude state court litigation.

12(b)(6) usually allow one try to amend the complaint, after has preclusive effect
12(b)(1) no preclusive effect
12(b)(2) preclusive effect, cant refile in state court, because state will lack personal jurisdiction.

8. Frier states the generally accepted law when it says that in trying to decide the preclusive effect of a
judgment one should look into the jurisdiction rendering that judgment.
a. for the Frier court the question of whether the courts of IL, which rendered the first judgment in the
preclusion action, would bar the civil rights claim. That is almost always the right analysis. So if Frier
had first brought the civil rights claim fed court, then brought the state law replevin action, the IL state
court would have faced the question of what preclusive effect a federal court would assign to its
judgment in that first case
b. The U.S Supreme court has said the matter is more complicated than that in federal diversity cases.
In Semtek v. Lockhead Martin Corp: the court held that the preclusive effect of a federal judgment
rendered in a diversity action should be the same as would be attached to that judgment if a state court
in that forum state had rendered it. Thus a FL court should give to a federal court judgment rendered in
CA (in a diversity action) the same effect as it would be accorded to a CA state court rendering the
same judgment. According to the unanimous opinion of the court, that result flows neither from statute
nor the constitution but from the federal common law of former adjudication.
c. That federal common law, however said Semtek has some flexibility: this federal reference to state
law will not obtain, of course, in situations in which the state law is incompatible with federal interests.
If, for ex. state law did not accord preclusive effect to dismissals for willful violations of discover
orders, federal courts’ interest in the integrity of their own process might justify a contrary federal rule.

An Issue “Essential to the Judgment”

In Parks, the court declined to apply preclusion because of the opacity of the general verdict
made it difficult to determine what the 1st judgment had decided. Sometimes courts face an opposite
problem: too many findings in support a judgment. In a trial to the bench, Rule 52(a) requires the judge
to set forth findings of fact and conclusions of law.
Parks Hypo judge determines (1) RR was not negligent and (2) Jessie had been contributory negligent.
Under these circumstances should the court in a subsequent claim between the same parties hold Jessie
precluded from relitigating both of those issues? Or neither one?
The first restatement of Judgments took position that when alternative grounds for decision existed,
both should be precluded in subsequent litigation.

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Second restatement 27 Comment I opines that neither determination should be binding in a subsequent
litigation.
It might be argued that the judgment should be conclusive with respect to both issues. The matter has
presumably been fully litigated and fairly decided; the determination does support, and is in itself
sufficient to support the judgment for the prevailing party; and the losing party is in a position to seek
the reversal of the determination made by the appellate court. Moreover, a party who would otherwise
urge several matters in support of a particular result may be deterred from doing so if a judgment
resting on alternative determinations does not effectively preclude relitigation of particular issues.
There are however, pervasive reasons for analogizing the case to that of the nonessential determination
(1) a determination in the alternative may not have been as carefully or rigorously considered as it
would have if it had been necessary to the result, and in the same sense it has some of the
characteristics of dicta.
(2) and of critical importance, the losing party although entitled to appeal from both determinations,
might be dissuaded from doing so because of the likelihood that at least one of them would be upheld
and the other not even reached. If he were to appeal solely for the purpose of avoiding the application
of the rule of issue preclusion, then the rule might be responsible for increasing the burdens of
litigation on the parties and the counts rather than lightening those burdens.
If the judgment of the court of the first instance was based on a determination of two issues, either of
which standing independently would be sufficient to support the result, and the appellate court upholds
both of these determinations as sufficient, and accordingly affirms the judgment, the judgment is
conclusive as to both determinations. In contrast to the case in comment I, the losing party here has
obtained an appellate decision on the issue, and thus the balance weighs in favor of preclusion.
If the appellate court upholds one of these determinations as sufficient but not the other, and
accordingly affirms the judgment, the judgment is conclusive as to the first determination. If the
appellate court upholds one of these determinations as sufficient and refuses to consider whether or not
the other is sufficient and accordingly affirms the judgment, the judgment is conclusive as to the first
determination.
Note 4 page 189
4a. Suppose a D files a preanswer motion seeking dismissal based on a 12(b)(1) and 12(b)(2). If either
challenge is well founded, the case will be dismissed. But a dismissal will have different consequences
for a refilled suit, depending on which ground is used for dismissal.
b. if the case is dismissed for want of federal subject matter jurisdiction, a PL is free to refile the suit in
state court because the judgment establishes only the lack of federal jurisdiction, elaving the state court
open.
c. If the case is dismissed for want of personal jurisdiction, principals of former adjudication preclude
PL from refilling in state court in the same state because the federal court’s decision that personal
jurisdiction is lacking will bind the state court.
d. Under those circumstances, should a federal court faced with motions to dismiss on both grounds
always take subject matter jurisdiction first, because that will have the narrowest subsequent effect?
No, supreme court said:
***the discretion of a trial court to handle its docket allows it to dismiss for want of personal
jurisdiction f that is the most obvious ground, even though that will preclude subsequent state-court
litigation. Rughas AG v. Marathon Oil Co. ***

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