I.

Alternative Dispute Resolution

A. Arbitration: kind of private, informal trial, where each side pleads its case in front of
arbitrator/panel of arbitrators. The ruling is typically binding, with limited grounds to
appeal, and is often found in contracts
- More efficient and faster than jury trial
- Preferred by large corporations
- No public record/announcement so no precedent and more discrete

RULE: The intent of Congress favors Alternative Dispute Resolution as a rule of efficiency
to the courts. Unless special circumstances arise (fraud, duress, mutual mistake, lack of
capacity), the ADR contract provision will be enforced.

Gilmer v. Interstate/Johnson Lane Corp: Claim under federal employment

discrimination law can be subject to compulsory arbitration because the P signed a
registration application which had the arbitration provision
- Compulsory arbitration
- Adequacy of arbitration
- Bargaining power, inequality
- Equity in relief
- Arbitrators issue written decision
- Limited discovery
Emeronye v. CACI International, Inc: Employment contracts are within the scope of
the Federal Arbitration Act. It is treated like any contract, mutual assent and
consideration

B. Mediation: Resolution of a dispute by a neutral individual. It is sometimes

court-ordered, and typically is not binding, so if not resolved may lead to litigation
- Conducted by a neutral individual who tries to help disputants to resolve their disputes
- May be court ordered but not binding
- Parties failing in mediation may choose litigation

th
RULE: Mediation, which is within state laws, does not violate an individual's 7 amendment
right to a trial by jury, because if mediation fails, the parties can move to litigation in court

Woods v. Holy Cross Hospital: Florida state law mandates a medical malpractice
claim go through mediation panel prior to bringing the action in court
- Medical malpractice claim:
- Submit claims to medical liability mediation panel by filing special forms with
court clerk
 - Ds answer within 20 days
- Panel files written decision w/in 30 days of completion of hearing
For a court to entertain a lawsuit, they need:
1. Personal Jurisdiction 2. Subject Matter Jurisdiction 3. Proper Notice 4. Proper Venue

II. Notice: Constitutional and Statutory Dimensions

Rule 4—Service of Process: Delivery of the complaint that starts a lawsuit to the defendant (D is
given notice that they have been made party to a lawsuit)

A. Constitutional Dimensions of Proper Notice

Due Process= Fundamental Fairness

RULE: Notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections
Mullane v. Central Hanover Bank & Trust: D gave notice to beneficiaries that they
were settling a trust. Notice published in a local newspaper was not enough to satisfy
due process under 14th amendment (adequacy of notice)

Mennonite Board of Missions v. Adams: Notice of tax sale of property due to unpaid
property taxes was published and given through certified mail. It was not proper
under due process because notice was not given to Mennonite Board, whom the
mortgage was executed in favor of

Jones v. Flowers: Notice by certified mail stating that gov't was taking property was
sent to P but never received because it could only be signed for by P who did not live
there. Court ruled this notice was improper because the state gov't had an obligation
to take additional steps when it knew that the notice was returned to them. State did
not have to go as far as finding P's new address or ensure that notice was received,
they simply could have resent notice by regular mail that did not have to be signed
- Due process doesn’t require that a property owner receive actual notice before
government may take property for unpaid taxes, just notice reasonably calculated
to give them opportunity to present objections

Rules v. Standard
- Rule: have to do something
- Standard: elements have to be met (court preferred)
- Actual noticeL no doubt that notice was given, handing over document
- indirect/constructive notice: newspaper
- Why give notice?
- Be heard
- Present objections
- Unknown beneficiaries: fine to just use notification by publication
- Process server: notice by police, not cost efficient

B. Statutory Dimensions

Rule 4(c)—Service of Process

- Delivery of process: delivery of the complaint that starts a lawsuit to the D
(1) A summons must be served with a copy of the complaint. The P is responsible for having
the summons and complaint served within the time allowed by rule 4(m) and must furnish
the necessary copies to the person who makes service
(2) Any person who is at least 18 years old and not a party (to the lawsuit) may serve a
summons and complaint
(3) At P's request, may be serviced by a U.S. Marshal or person appointed by the court

(e) methods for individual:

(a) delivering copy of summons and complaint to the individual personally
(b) leaving a copy of each at the individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there
(c) delivering a copy of each to an agent authorized by appointment or by law to receive
service of process
*personal service is best

Mid-Continent Wood Products v. Harris: Court granted Rule 60(b)(4) motion to void,
vacate and dismiss a default judgment on grounds of improper service because there
was not effective service. Actual notice/knowledge of suit is not enough, there must
be effective service. P attempted service several times at work and at the incorrect
home address
Default judgment: when you don’t show up to defend yourself in trial
Substantial compliance: Very limited in scope, would only include a minor mistake in the
notice (e.g. a spelling mistake), but the service of process still needs to be proper

RULE: If a person is induced by fraud or trickery to come within the jurisdiction of a court
for the purpose of procuring service of process, service should be set aside
 Bright-Line RULE: Service should be quashed when a D enters a jurisdiction for talks at a
P's instigation, and the P has not either clearly and unequivocally informed the D that service
of process may occur, or given the D a chance to lease the jurisdiction before service is make
if settlement talks fail

May Department Stores v. Wilansky: Service on D for breach of K was quashed

(simply requiring new proper service) because although there was no bad faith or
trickery, P sent D on an airplane to St. Louis and prepared complaint for when talks
fell through
No service of process when P induced D to enter jurisdiction for talks unless P warns
D first

Rule: 4(h)(b)—Serving a Corporation

By delivering a copy of the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to receive service of
process
AICPA v. Affinity Card, Inc: P attempted to serve D (a corporation), but the person
who received service of process was from another company in the building and was
not an authorized agent to receive

III. Due Process and Personal Jurisdiction

A. Traditional Rule—Pennoyer: a court could exercise jurisdiction over a defendant only

when it had physical power over them, and this authority extended to, and stopped at, a
state's borders
1. D can be served with process no matter how fleeting their presence in the jurisdiction,
even as to lawsuits having no relation to any event occurring within the state
2. D or their attorney may file a voluntary appearance, but this does not mean they
waive any potential challenges to a court's jurisdiction
3. The state of a person's domicile may exercise personal jurisdiction over the D
wherever they happen to be at the time, so long as the D is given adequate notice
4. D can consent by appointing an agent
5. No more implied consent

Implied consent is a legal fiction. Hess is no longer good law

Hess v. Palowski: PA resident was sued in MA for a car accident. Service of process was
not made on him but rather the state registrar. Court found that out of state D impliedly
consented to MA jurisdiction by driving on a state highway
- Rule: no personal jurisdiction rendered against an out of state D over whom the rendering
court lacked jurisdiction can be valid
 B. International Shoe
Shoe Rule: Due process requires that to subject a non-resident D to personal jurisdiction, they
must have certain minimum contacts with it such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice

Specific Jurisdiction Rule:

Minimum Contacts— Purposeful Availment: Look at what activities D directed into the forum
state
Reasonableness—

International Shoe Co v. Washington: Shoe's directed activities into WA state included:

having employees in the state that sold shoes and rented spaces to display shoes, and
made shipments to WA. Court says International Shoe had a systematic, continuous,
substantial business a presence

When a corporation exercises the privilege of conducting activities in a forum state, it

enjoys the benefits and protection of the laws in that state
Some circumstances in which the continuous corporate operations within a state were
thought so substantial and of such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities
Whether due process is satisfied must depend rather upon the quality and nature of the
activity in relation to the fair and orderly administration of laws which it was the purpose
of the due process clause to insure

Long-Arm Statutes & Due Process:

Specific-Act-Type Statutes require that the D's actions trigger the jurisdiction of the courts
over the D
Step 1. Determine whether any of the requirements of the statute are satisfied
Step 2. If D's actions satisfy one or more of the requirements of the statute, P bears
the burden of showing that the long-arm statute is satisfied, a D has minimum
contacts with the forum
Step 2. If P can show that D has minimum contacts, burden switches to D to prove
that jurisdiction would be unreasonable

Due Process-type statutes require that the court's statutory jurisdiction extends as far was due
process would allow
 World-Wide Volkswagen Corp v. Woodsen : OK state had long-arm statute for causing
tortious injury in the state, so state had personal jurisdiction over out-of-state D whose
car that they manufactured was involved in a car crash injury in the state. State court said
company had sufficient contacts with forum state because they derived substantial
revenue from the state
Rule: long arm statute for exercising personal jurisdiction over a person who acts for
corporation as to cause of action or claim for relief
- Causing injury in this state by an act or omission in this state
- Causing tortious injury in this state by act or omission outside this state if he
regularly does or solicits business or engages in any other persistent course of
conduct or derives substantial revenue from goods used or consumed or services
rendered in this state

C. Varieties to Prove Purposeful Availment

1. Contracts
McGee v. International Life Ins. Co: P, a CA resident, was the beneficiary of her
deceased son's life insurance policy from a company incorporated in AZ that was
later absorbed by D whose principal place of business was in TX. P tried to sue in CA
and later TX to collect on the policy, and court found that personal jurisdiction was
satisfied because D did business in CA and insurance policy contract business by son
was handled in CA

RULE: The unilateral activity of those who claim some relationship with the nonresident
defendant cannot satisfy the requirement of contact with the forum state
Hanson v. Denckla: Woman established trust with DE corporation and later died in
FL residence. P daughter was executor of will, D daughter sought to have FL exercise
jurisdiction over DE trust. P filed separate suit in DE. Court found the unilateral
activity of the P was not enough to exercise personal jurisdiction over non-resident
DE trust company. The trust company did nothing to purposefully avail itself in the
state of FL. The woman simply moved to FL after the contract was made

RULE: Prior negotiations and contemplated future negotiations and contemplated future
consequences, along with the terms of the contract and the parties' actual course of dealing,
must be evaluated in determining whether the D purposefully established minimum contacts
within the forum
*The mere presence of a contract with a nonresident D alone is not enough to satisfy
purposeful availment*

Burger King v. Rudzewicz: Burger King sued MI resident D in FL for breach of K.

Court found that D had minimum contacts: conducting business with FL
 headquarters, training classes in state, and 20 year-contract with FL choice of law
provision. PJ was not unreasonable and D had notice that he might be subject to suit
in FL

2. Stream of Commerce
RULE: The forum state does not exceed its powers under the due process clause if it
asserts personal jurisdiction over a corporation that delivers its products into the
stream of commerce with the expectation that they will be purchased by consumers in
the forum state
a. Foreseeability that is critical to due process analysis is: that the defendant’s
conduct and the connection with the forum state are such that they should
reasonably anticipate being haled into court there
World-Wide Volkswagen Corp v. Woodsen (pt 2): The plaintiff brought the car into the
forum state (Oklahoma), which is unilateral activity that cannot be attributed to the
defendant’s forum contacts
Keeton v. Hustler Magazine: The defendant voluntarily directed activity into the
forum state (selling thousands of magazines in New Hampshire) and it was
foreseeable that consumers
Asahi Metal Indus, Co v. Superior Court:
J McIntyre Machinery, Ltd. v. Nicastro:
3. The Effects Test
Kulko v. Superior Court
Calder v. Jones
D. Relatedness: Specific Jurisdiction
An affiliation between the forum and the underlying controversy, principally, an activity or
an occurrence that takes place in the forum state and is therefore subject to the state’s
regulation
Bristol-Myers Squib Co. V. Superior Court
Ford Motor Company v. Montana Eighth Judicial Court
E. Reasonableness—Fair play and substantial justice (raised by Defendant)
Asahi Metal Indus. Co. v. Superior Court
Nowak v. Tak How Investments, Ltd
F. General Jurisdiction
Perkins v. Benguet Consolidated
Helicopteros Nacionales de Colombia v. Hall
Daimler AG v. Bauman
BNSF Railroad Co. v. Tyrrell

Burnham v. Superior Court

G. Waiver of Due Process Objections
 Carnival Cruise Lines, Inc. v. Schute

IV. Subject Matter Jurisdiction

A. Diversity §1332

1. Parties on either side of the v are completely diverse from each other
(different states)
- Permanent resident aliens are treated the same as citizens for diversity
purposes
2. The amount in controversy is > $75K
*A plaintiff can aggregate their claims to reach the amount in controversy
*The only way to include attorney’s fees in the AiC is (1) stipulation in contract or (2)
relevant statute

Rodriguez v. Señor Frog: The P has the burden of proving there is subject matter jurisdiction.
When it is unclear which state one is domiciled, the court looks at the Bank One Factors. The
court found that P was domiciled in CA at the time of filing, so the parties were completely
diverse.
Bank One Factors: Exercising civil and political rights (voting), paying taxes, owning real
and personal property, driver’s license, bank accounts, jobs, church and community
activities)

Eze v. Yellow Cab: Under §1332 subject matter jurisdiction, non-citizens cannot be on both
sides of the v. Here, P was a citizen of Nigeria and D was a citizen of Ghana.
Loophole: If one side of the v has a citizen and a non-citizen, SMJ is allowed and the
non-citizen becomes a secondary party

Corporations: when there are 2 different domiciles: Place of incorporation and principal place
of business

Defining “Principal Place of Business”

Hertz Corp v. Friend:
Brennan’s “nerve center” rule: place where company-wide decisions are made (where
corporation’s officers direct, manage control and coordinate the corporation’s activities)
 Coventry v. Stop&Shop:
Subsequent event vs. subsequent revelation which lowers the AiC beneath SMJ

Subsequent Event: after filing claim, the AiC changes, but the P could not have known

Subsequent Revelation: Estimated AiC in claim was wrong all along and P should have
known

Here, a third party made the erroneous estimation which both parties relied on

B. Federal Question
Federal Question: When a cause of action arises out of a federal statute or the Constitution
e.g. “shall be liable for money damages”

Creation Test: a federal cause of action exists if Congress created it (it’s in the statute

Exception: Implied Causes of Action

e.g. deprivation of constitutional rights by federal agent/actors (e.g. FBI), there is a cause of
action for money damages
Exception: Essential Federal Ingredient

Louisville and Nashville Railroad Company v. Mottley:

4-Part Test:
Issue that:
1. Necessarily raised a stated federal issue
2. Is actually disputed (between the parties)
3. Is substantial (affects a lot of people)
4. Is capable of resolution in federal court without disrupting state/federal court
balance
Grable v. Darue:
Proper notice is a federal question (created by Congress) though the quiet title action was a state
law cause of action
Gunn v. Minton: While patent law (the original case) is exclusively federal law under the
Constitution, the current case is about lawyer malpractice (which is a state law cause of action).
This case does not satisfy the essential federal ingredient test because of element 3—lawyer
malpractice is no substantial and will have no binding, precedential effect

C. Supplemental Jurisdiction 1367

Gives U.S. federal courts to hear over a case when
1. When there are two claims
2. And one is satisfied by subject matter jurisdiction and the others are not

Common Nucleus of Operative Fact

- If, considered without regard to their federal or state character, a P’s claims are such that
he would ordinarily be expected to try them all in one judicial proceeding, then, assuming
substantiality of the federal issues, there is power in federal courts to hear the whole
- Doctrine of discretion, not of P’s right

United Mine Workers v. Gibbs: First claim was the federal statute that satisfied 1331 under
creation test; 2nd claim was breach of contract which was state law COA that didn’t satisfy
SMJ. Parties weren’t diverse, but satisfied common nucleus test bc evidence in the first
claim was virtually the same as the 2nd.

D. Removal
- 28 §1441 (a):
- When a P files in state court a civil action over which the federal district court
would have original jurisdiction based on diversity of citizenship, the D/Ds may
remove the action to federal court, provided that no D is a citizen of the state in
which such action is brought, §1441 (b)
Caterpillar Inc. v. Lewis

I. Venue and Venue Transfer

- Section 1391(b) sets out 3 places a plaintiff can bring a civil action:
1. A judicial district in which any defendant resides, if all defendants are residents of the
state in which the district is located (where D is domiciled)
2. A judicial district in which substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of the property that is the subject of the action is
situated
3. If there is no judicial district in which an action may otherwise be brought as provided in
this section, any judicial district in which any defendant is subject to the court’s personal
 jurisdiction with respect to such action (catch all provision - sue anywhere D is subject to
personal jurisdiction, can only use if no court satisfies 1391(b) 1 or 2)
- The mechanics of venue transfer are controlled by 28 USC sec. 1404 and 1406:
- 1404: governs cases in which the original venue was PROPER (satisfies 1331 but
D doesn’t want to be there)
- 1406: governs cases in which the original venue was IMPROPER
- Might require dismissal, more likely requires transfer
- What the Court determines in this instance:
- Is there a court that would satisfy the three options listed
under 1391(b)?
- Conduct an analysis under 1404(a): court must determine
whether transfer is warranted, for the convenience of
parties and witnesses and in the interest of justice to any
other district or division where the case might have been
brought
Smith v. Colonial Penn Insurance Company: There was a breach of insurance contract between P
and D. D filed motion to transfer venue which was denied. Court needed to weigh factors for
transfer such as convenience for parties, records, costs, etc. D claimed inconvenience of venue
due to evidence and witnesses, all denied. Court doesn’t want to disturb the forum chosen by P
and introduce delays simply because it is insignificantly inconvenient for D.

Skyhawke Technologies LLC v. Deca Int’l Corp.: D filed to change venue from southern district
of Miss. to central district in CA. P alleges D infringed on patent 938 and 498. Ps principal place
of business is Miss., Deca is CA. Ds motion denied.
- Determining Private Interest and Public Interest Factors:
- Private Interest:
- The relative ease of access to sources of proof
- The availability of compulsory process to secure the attendance of
witnesses
- The cost of attendance for willing witnesses
- All other practical problems that make trial of a case easy, expeditious and
inexpensive
- Public Interest
- The administrative difficulties flowing from court congestion
- The local interest in having localized interests decided at home
- The familiarity of the forum with the law that will govern the case
- The avoidance of unnecessary problems of conflict of laws of the
application of foreign law

II. Forum Non Conveniens

 - Federal Procedure Common Law: Concern where a P should bring suit - what is most
convenient
- Where the rules of venue and venue transfer derive from federal statutes, FNM is
a doctrine of federal procedural common law
- Dismissal doctrine:
- If the D who raises FNC as an issue prevails, the motion to dismiss on that
basis will be allowed

Piper Aircraft Co. v. Reyno: Wrongful death action case arising out of a plane crash that took
place in Scotland and Scottish citizens were killed. Judgment of court of appeals reversed, case
should take place in Scotland. Possibility of an unfavorable change in law should not by itself
bar dismissal, need to look to public and private interest factors. FNC decisions can only be
reversed when (1) there has been a clear abuse of discretion, (2) where the court has considered
all relevant public and private interest factors, (3) and where balancing of these factors is
reasonable, its decision deserves substantial deference. (see private and public interest factors
above)

VI. Joinder
- Each instance of joinder must be valid under the appropriate authorizing rule
- Must not upset the basis for the federal court’s subject matter jurisdiction over the matter
- 3 ways to get federal jurisdiction under 1332:
- When the parties are completely diverse and the amount in controversy is
satisfied
- Under section 1331 when the Ps complaint raises a federal question
- Under 1367 when one of the original bases of jurisdiction is satisfied and
other claims in the case satisfy the requirements of supplemental
jurisdiction - namely a common nucleus of operative facts
A. Party Joinder
1. Permissive Joinder—Rule 20

Mosley v. General Motors Corp.: 10 Ps bringing actions individually and as class representatives
alleging their rights were denied by reason of color or race under 1981 - brought federal question
claims of discrimination (subject matter). Court directed Ps be severed and bring claims
separately, appeals court reversed and remanded to allow Ps to proceed jointly.
- Rule 20(a):
- All persons may join in one action as plaintiffs if they assert any right to relief
jointly, severally, or in the alternative in respect of arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any
question of law or fact common to all these persons will arise in the action.
- Common right to relief
 - Purpose of Joinder:
- To promote trial convenience and expedite the final determination of disputes,
thereby preventing multiple lawsuits
- Requirements for Joinder - 2 specific requisites to the joinder of parties::
- A right to relief must be asserted by or against each P or D relating to or arising
out of the same transaction or occurrence or series of transactions or occurrences
- Some question of law or fact common to all parties must arise in the action
- Transaction: may comprehend a series of many occurrences depending not
so much upon the immediateness of their connection as upon their logical
relationship

2. Impleader—Rule 14

Toberman v. Copas: Ps filed against Ds for a car accident - alleged negligence and loss of
consortium. Third party moved to dismiss, argues courts lack of jurisdiction to hold them solely
liable or jointly and severally liable to Ps. A 3rd party complaint may not set forth a claim of the
3rd party Ds liability to the P - must set forth a complaint of secondary liability such that if the
3rd party P is found liable, the 3rd party D will be held liable to them under a theory of
indemnification, contribution or some other theory of derivative liability recognized by the
relevant substantive law. 3rd party D allowed to amend complaint b/c they should have argued
that if found liable, other parties should allow indemnification.
- Impleader under 14:
- The key to impleader under rule 14 is that the D (as 3rd party P) can only bring in
a 3rd party (as 3rd party D) to the litigation on the theory of secondary or
derivative liability
- Rule 14:
- Rule 14 allows 3rd party complaints to be served by a D/3rd party P upon a
person not a party to the action who is or who may be liable to the 3rd party P for
all or part of the Ps claim against the 3rd party P

3. Required Joinder of Parties—Rule 19

Temple v. Synthese Corp. Ltd.: P underwent surgery in CA to get a plate and screw device
inserted in his lower back. After surgery the device’s screws broke off inside his back and he
sued Ds in US district court relying on diversity jurisdiction, alleging defective design and
manufacture of the device. He filed a state administrative proceeding against the doctor and
hospital for negligence and malpractice, and after filed suit against the doctor and hospital in CA
state court. Ds filed motion to dismiss Ps federal suit for failure to join necessary parties pursuant
to rule 19 - court dismissed b/c he failed to amend his complaint to do so. Judgment reversed,
court abused its discretion to force P to amend complaint to join Ds.
 - Indispensable parties: court can’t provide relief without them
- One focus of rule 19:
- The interest of the courts and the public in complete, consistent, and efficient
settlement of controversies
- Interest in judicial economy
- Rule 19:
- Persons required to be joined if feasible
- 19(a):
- Addresses when a party must be joined
- 19(b):
- Addresses the factors the district court should consider if a party is
deemed to be required (or indispensable) but cannot feasibly be
joined

4. Interpleader—Rule 22 & Section 1335

- Authorized by statute 28 USC 1335 and by federal rule 22:

- An interpleader P - the holder of the stake that several parties claim rightfully
belongs to them - can proceed in federal court through either rule
- Statute does not require complete diversity but the rule does
- Interpleader actions therefore more likely to proceed through 1335

Indianapolis Colts. V. Mayor and City Council of Baltimore: State legislation passed in which
Baltimore was given permission to acquire the Colts by eminent domain. Colts left in the middle
of the night and signed a lease in Indianapolis with D and became obligated to perform in that
stadium. Claimed obligations with the lease conflicted with Baltimore’s attempts to acquire
them. Interpleader jurisdiction was not proper b/c the Colts could not assert a reasonable fear of
multiple liability or vexatious, conflicting claims and no other basis for federal jurisdiction in
federal court of Indiana to hear Colt’s action - suit dismissed.
- Interpleader Rule:
- Interpleader is a suit in equity b/c the sole basis for equitable relief to a
stakeholder is the danger to exposure to double liability, or the vexation of
conflicting claim
- the stakeholder must have a real and reasonable fear of double liability or
vexatious conflicting claims to justify interpleader
5. Intervention—Rule 24
- Party outside the case wants in
Great Atlantic + Pacific Tea Company Inc. v. Town of East: Group requests leave to intervene in
an action challenging validity of local zoning laws under 24(a)(2) or 24(b)(2) - denied with leave
to renew at a later date. Attempted to restrict establishment of large retail stores outside of central
business zone and a law was made to prevent P from building a supermarket in a place
previously occupied by a large department store. P sought declaratory judgment against Town
stating superstore law was beyond legislative authority etc. Environmental group wanted to
intervene b/c they approved of the grocery store law. Need to have the same interest as the other
party but also have to show that the other party wouldn’t be able to adequately present issues
themselves (vigorously litigating the action).
- Rule 24(a)(2) - as of right:
- To intervene under 24(a)(2), a would be intervenor must establish:
- A timely motion
- An interest relating to the property or transaction that is the subject matter
of the action (must be direct, substantial, and legally protectable)
- An impairment of that interest without intervention and
- The movant’s interest is not adequately represented by the other parties to
the litigation
- Intervention denied if any not met
- Rule 24(b)(2) - threshold test, permissive:
- Permissive intervention may be granted when an applicant’s claim or defense and
the main action have a question of law or fact in common
- Principal consideration of the court in determining whether or not to allow
intervention is whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties
B. Claim Joinder
- Rule 13 governs cross claims (claims between parties on the same side of the case) and
counterclaims (claims brought by Ds against Ps).

1. Cross Claims—Rule 13(g)

Harrison v. MS Carriers, Inc.: Ps filed suit against D for injuries resulting from a car accident.
Ps filed in district court, Ds removed to federal court based on diversity jurisdiction. Ps motion to
remand was denied so they moved to amend the complaint to make the driver an additional D.
Judge denied without prejudice so they could file a cross claim.
- Rule 13(g) 2 requirements for a cross claim:
- That it be a claim by one party against a co-party, and
- That the claim arise out of the same transaction or occurrence as the original
counterclaim

- Purpose of Rule 13(g):

- To permit a P against whom a D has filed a counter claim to state as a cross claim
against a co-plaintiff a claim growing out of that transaction or occurrence that is
 the subject matter of the counter claim or relating to any property that is the
subject matter of that counter claim

2. Counterclaims—Rule 13(a) & (b)

Burlington Northern Railroad Co. v. Strong: Strong sued employer BNRC alleging personal
injury tort damages, jury awarded damages. BNR brought second separate suit to recover the
funds and summary judgment granted in favor of BNR. Court decided this was a permissive
counterclaim and they had the right to recoup disability benefits that didn’t arise out of the same
occurrence that gave rise to Strong’s suit
- Rule 13(a):
- The result of a balancing between competing interests
- Convenience of the party with a compulsory counterclaim is sacrificed in the
interest of judicial economy
- 13(a) rule for compulsory counterclaim:
- In order to be a compulsory counterclaim, rule 13(a) requires that the claim:
- Exist at the time of the pleading (original case brought by P)
- Arise out of the same transaction or occurrence as the opposing party’s
claim (logical relationship test - defining transaction and logical
relationship) and,
- Not require for adjudication parties over whom the court may not acquire
jurisdiction
- Rule 13(b):
- A counterclaim that has its roots in a separate transaction and occurrence is
permissive and governed by 13(b)
- Logical relationship:
- No formalistic test to determine if suits are logically related
- Consider the totality of claims including the nature of the claims, the legal basis
for recovery, the law involved, and the respective factual backgrounds
- Maturity exception:
- Derived from the language in the rule limiting its application to claims the pleader
has at the time of serving the pleading
- Even if counterclaim meets the same transaction test, a party need not assert a
compulsory counterclaim if it has not matured when the party serves his answer

VII. Pleadings and Responses

A. The Complaint—Rules 8, 12, and 11

 B. The Answer—Rule 8
C. Amendments—Rule 15

VIII. Discovery

A. Discovery Tools and Scope

o Tools and Scope

§ 26(a)
· Mandates that parties disclose certain info without the need for
requests
§ 26(b)(1):
· Clarifies the scope; under the rule, parties may only obtain
discovery of info that is relevant to any party’s claim or defense
· Focuses on whether info sought would help a party to determine
whether a fact related to a claim or defense is more or less
probable than it would be without the info sought
o Privileges in civil litigation

B. Privileges in Civil Litigation

§ Info not discoverable

· Attorney-client privilege
o Communication
o From the client to the lawyer
o Outside the presence of others
o For the purpose of seeking legal advice
§ Crime-fraud exception
· 26(b)(3): Work-product doctrine
o Protects:
§ Documents
§ Prepared in anticipation of litigation
§ By or for a party or party’s representative

C. Electronic Discovery

§ Inadvertent disclosure
· Never waived approached
· Strict accountability
· Middle test *most common
 § Expansion of 26

D. Expert Testimony

§ Rules require parties to disclose the identities of experts and reports they
write
§ Consulting experts do not need to write a report but they must provide a
short summary of their work
§ Testifying experts may be deposed but they need not disclose draft
reports and communications with the attorney who retained them
· Determining whether to disqualify an expert who has had a
prior relationship:
o Was it objectively reasonable for the first party who
retained the expert to believe that a confidential
relationship existed
o Did that party disclose any confidential info to the expert
§ Attorney client privilege applies when an expert obtains info from Ps
attorney who has obtained info from the client

E. Interrogatories
§ Written questions each side will pose to the other (rule 33)
§ Written interrogatories may be used to particularize and elaborate notice
pleadings and to refine and narrow the eventual issues for trial
§ May also be used to facilitate subsequent discovery by establishing the
identity of those persons whose depositions should be taken and the
identity of those documents which should be the subject of a motion to
produce or inspect

F. Examinations

§ Rule 35
· Covers physical and mental examinations
§ Rule 35(a)
· Physical and mental examinations of persons
o Order for examination. In an action in which the mental
or physical condition of a party is in controversy, the court
in which the action is pending may order him to submit to a
physical or mental examination by a physician. The order
may be made only on motion for good cause shown and
upon notice to the party to be examined and to all other
 parties and shall specify the time, place, manner, conditions
and scope of the examination and the person or persons by
whom it is to be made
§ Rule 60 (Spaulding)
· On motion, the court may relieve a party from a final order or
proceeding for the following reasons:
o Mistake, inadvertence, surprise or excusable neglect
o Newly discovered evidence which by due diligence
could not have been discovered in time to move for a new
trial under rule 59.03
o Fraud (whether intrinsic or extrinsic), misrepresentation
or other misconduct of an adverse party
o Any other reason justifying relief from the operation of
the judgment
§ This rule does not limit the power of a court to
entertain independent action to relieve a party from
judgment, order or proceeding or to set aside a
judgment for fraud upon the court
o Overall Rules of Discovery (Holder)
§ Rules 26-32 – taking of oral and written depositions
§ Rule 33 – interrogatories to parties
§ Rule 34 – production of documents (rule 35’s requirement that movant
affirmatively demonstrate good cause)
§ Rule 35 – physical and mental examinations of parties (in controversy,
demonstrate good cause)
§ Rule 26(b) – scope of discovery in each instance
· The deponent may be examined regarding any matter not
privileged which is relevant to the subject matter involved in the
pending action and by the provisions of rule 30(b)
o Permitting the district court upon motion, to limit,
terminate, or otherwise control the use of discovery devices
so as to prevent either their use in bad faith or undue
annoyance, embarrassment, or oppression

IX. Preclusion

Claim Preclusion
- Porn
- For a party to take advantage of claim preclusion, three requirements must be
satisfied:
 - A final judgment on the merits in an earlier action
- Sufficient identity between the causes of action asserted in the earlier and
later suits
- Sufficient identity between the parties in the two suits
- Transactional approach - defining for res jurisdicta purposes:
- Under this approach, a valid and final judgment in the first action will
extinguish subsequent claims with respect to all or any part of the
transaction, or series of connected transactions out of which the action
arose
- Factional grouping consists of a transaction giving weight to such
factors as whether the factors are related in time, space, origin or
motivation, whether they form a convenient trial unit, and whether
their treatment as a unit conforms to the parties expectations
- A single transaction may give rise to a multiplicity of claims
- Occasional exception to claim preclusion may exist in instances of unusual
hardship
Issue Preclusion
- Prevents a party that has had full and fair opportunity to litigate a particular factual issue
from relitigating the same issue
- Applies only to issues that were actually litigated, not issues that could have been raised
unlike claim preclusion
- Does not require claims within which an issue arises be the same in both actions
- Issue preclusion applies when:
- An issue of fact
- Was actually litigated
- There was a full and fair opportunity to litigate the issue
- A valid and final judgment resulted
- The issue to be precluded was essential the prior judgment
- Actually litigated: parties had a full and fair opportunity to litigate when nothing
prevented them from making their best arguments
- Valid and final judgment: the issue was resolved in a case that has reached its
procedural endpoint
- Had to have been essential to the judgment in the first case - as in a case in which
a dispute regarding whether the facts necessary to prove a particular element were
decided
- Identities of parties (Sturgell): it is a principle of general application in
jurisprudence that one is not bound by a judgment in personam in a litigation in
which he is not designated as a party or to which he has not been made a party by
service of process
 - General rule: one is not bound by a judgment in personam in a litigation in
which he is not designated as a party or to which he has not been made a
party by service of process
- 6 exceptions
- A person who agrees to be bound by the determination of
issues in an action between others is bound in accordance
with the terms of his agreement
- Nonparty preclusion may be justified based on a variety of
pre-existing substantive legal relationships between the
person to be bound and a party to the judgment
- In certain limited circumstances, a nonparty may be bound
by a judgment because she was adequately represented by
someone with the same interests who was a party to the suit
- A nonparty is bound by a judgment if she assumed control
over the litigation in which that judgment was rendered
- A party bound by a judgment may not avoid its preclusive
force by litigating it through a proxy
- In certain circumstances, a special statutory scheme may
expressly forcelose successive litigation by nonlitigants if
the scheme is otherwise consistent with due process
- Virtual representation - rejected
X. Dispositions and Adjudications

A. Summary Judgment
B. Motions for Judgement as a Matter of Law (JMOL—Directed Verdict)

XI. The Judge

XII. The Jury