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145 Cards in this Set

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Jurisdiction

What are the 3 types of personal jurisdiction?
In rem
Quasi in rem
In personam
Jurisdiction

In rem vs quasi in rem
IN REM

Ct has power to adjudicate rts of ALL person in world w/re to particular item of property

QUASI IN REM

Ct has power to determine rts of particular individuals, NOT the whole world, w/re to specific property

Judgment does NOT bind D personally AND canNOT be enforced against D's other property
Jurisdiction

Four ways to satisfy the statutory half of personal jurisdiction (the other half being constitutional)
Physical presence at time of personal service

Domicile

Consent

Long arm statute [CA: very broad, anything constitutional is accepted]
Jurisdiction

Basic due process elements for personal jurisdiction (3)
CONTACTS, FAIRNESS, NOTICE

Test: D must have such minimum contacts with forum that exercise of jurisdiction would be fair and reasonable
Jurisdiction

Minimum contacts elements for personal jurisdiction due process
PURPOSEFUL AVAILMENT of privilege of doing business in forum, thus invoked its benefits and protections

FORESEEABILITY: Reasonable anticipation that activities in forum would render it foreseeable that D would be haled into court there
Jurisdiction

Fairness elements for personal jurisdiction due process
Claim related to D's contacts w/forum (specific) OR continuous and systematic contacts w/forum (general)

Convenience to D

Forum's legitimate interest in adjudication
Jurisdiction

Specific vs general personal jurisdiction
Specific: claim arises out of D's contacts w/forum

General: D's continuous/systematic contacts w/forum
Jurisdiction

Notice elements (2)
Reasonable method of notification

Opportunity to be heard
Jurisdiction

Two types of quasi in rem jurisdiction
Disputes btw parties over their rts in property within the state (minimum contacts not a problem)

Disputes unrelated to the property, but property is the judgment asset (minimum contacts analysis needed)
Jurisdiction

Diversity of citizenship requirements
Action btw citizens of different states

$75,000+ amount in controversy
Jurisdiction

When is diversity measured?
Initiation of suit
Jurisdiction

Interpleader exception
Minimal, NOT complete, diversity + only $500 is okay
Jurisdiction

Complete vs minimal diversity
If one D and one P are co-citizens, NO complete diversity

If at least one P and one D are from different states, minimal diversity
Jurisdiction

To what does alienage jurisdiction apply and not apply?
Applies to suits btw American and alien, but NOT btw two aliens
Jurisdiction

What two things establish domicile for purposes of state citizenship?
Objective + subjective

Presence in state AND subjective intent to make it her permanent home
Jurisdiction

What two things establish corporate citizenship? How are corporate citizens different from persons citizens?
State of incorporation AND the ONE state of principal place of business

Unlike natural persons, corporations can have TWO simultaneous citizenships
Jurisdiction

What tests determine principal place of business? (2)
HQ

OR

Most commercial activities

ONLY ONE principal place of business
Jurisdiction

How to determine citizenship of UNincorporated association?
See citizenship of ALL members
Jurisdiction

What about decedents, minors, incompetents?
Look at THEIR citizenship, NOT their rep's
Jurisdiction

For amount in controversy, is aggregation okay?
Yes, ONLY IF each individual P aggregates
Jurisdiction

What is well-pleaded complaint rule?
Ask: is P enforcing a federal right?

If yes, then it's a well-pleaded complaint
Jurisdiction

What does supplemental jurisdiction do?
Once case is already in fed ct, supplemental jurisdiction will bring a claim in even though that claim doesn't meet fed question or diversity jurisdiction
Jurisdiction

What is the supplemental jurisdiction test? The limitation?
Supplemental claim must share a common nucleus of operative fact (same transaction or occurence)

Limitation: in a diversity case, P canNOT use supplemental jurisdiction to overcome a lack of diversity

So it's still OKAY to use supp jurisdiction to overcome fed question and amount in controversy
Jurisdiction

When can ct exercise discretion to knock out supplemental claim?
IF federal question claim was dismissed early in the proceedings

State law claim is complex

State law issues would predominate
Jurisdiction

When can case be removed? (3)
Case that could be heard in fed ct can be removed to fed ct

AND all Ds agree (only Ds can remove)
Jurisdiction

What is the where and when of removal?
Can be removed to fed district ct that embraces the state ct in which it was originally filed

Must remove within 30 days after service of the first removal document
Jurisdiction
Removal and special rules for diversity cases
NO removal more than one year after the case was filed in state ct

NONE of Ds can be from the forum
Jurisdiction

What is Erie doctrine?
In diversity cases, fed ct must apply state substantive law
Jurisdiction

What is the three step Erie process?
If there is clearly substantive law, use state law (e.g. elements of a claim/defense; statute of limitations; rules for tolling; conflict of laws)

If there is a fed law on point that directly conflicts with state law, apply fed law

If there is no fed law on point but judge wants to avoid state law, apply these three tests:

1 Outcome determinative
2 Balance of interests
3 Avoid forum shopping
Jurisdiction

What are the two varieties of cases w/re to venue?
Local IF it involves land in the forum

Transitory
Jurisdiction

In a transitory case, where can P lay venue?
ANY "district" where:

EITHER ALL Ds reside

OR substantial part of the claim arose
Jurisdiction

What is the "same state" rule for venue?
If multiple Ds ALL reside in different districts in the SAME state, then P can lay venue in any of the D's districts
Jurisdiction

Where do natural persons reside for venue purposes? Corporations?
Natural persons: same as domicile

Corporations: in ALL districts where they are subject to personal jurisdiction when the case if filed
Jurisdiction

What is required for lateral venue transfer? (2 prelim elements + balancing test)
New venue is proper venue

AND

New venue would have had personal jurisdiction over D at time case was filed

AND balancing of private and public interests
Jurisdiction

What is forum non conveniens?
If there is a far more appropriate court elsewhere, a court may DISMISS (not merely transfer b/c transfer would be impossible) to let P sue D there.
Jurisdiction

What is the test for forum on conveniens? What is the burden?
Heavy burden on moving party

Adequate alternative venue

Balancing of public and private interests

BIG private factor: if P is resident of original forum
Jurisdiction

What two docs are required to serve process?
Summons AND complaint
Jurisdiction

What kinds of service are okay?
Personal (anywhere in forum state)
Substituted
Service on D's agent
Waiver by mail
Pleadings

What is notice pleading?
Pleading with details that merely puts D on notice

AND

"Must plead facts supporting a plausible claim" (recent SCOTUS case)
Pleadings
What is Rule 11's connection to filing pleadings?
Atty MUST sign ALL pleadings EXCEPT discovery docs
Pleadings

Rule 11 sanctions: who serves, to whom, timing?
Atty serves opposing parties BEFORE filing w/ct; served party has a 21 day safe harbor period to cure
Pleadings

Rule 11 monetary sanctions go to whom?
The court, NOT serving party
Pleadings

What if court raises Rule 11 sua sponte?
NO safe harbor
Pleadings

What MUST be in complaint? (3)
Stmt of subject matter jurisdiction

Stmt of the claim, showing entitled to relief

Demand for judgment/relief
Pleadings

What must be pleaded w/particularity?
Fraud
Mistake
Special damages
Pleadings

What form must D's response take? (2)
Motion

OR

Answer
Pleadings

What are the kinds of responsive motions Ds can file? (2)
Form issues: 1 12e motion for more definite stmt; 2 12f motion to strike

12b defenses
Pleadings

What are the 12b defenses? In what form of response can they be filed?
12b...

1 Lack of subject matter jurisdiction
2 Lack of personal jurisdiction
3 Improper venue
4 Insufficiency of process
5 Insufficient service of process
6 Failure to state a claim
7 Failure to join indispensable party

Filed EITHER as motion OR as answer
Pleadings

Which of the 12b motions are waivable? Why does it matter?
12b2
12b3
12b4
12b5

Waivable matters b/c waivable 12b defenses MUST appear in the FIRST FRCP12 response (motion or answer) or else they're waived!

E.g. D files 12b5 motion, court denies, then D files answer asserting a 12b3 defense. CAN'T b/c be not including 12b3 in the first "response" (the motion, here), it's waived
Pleading
Timing of answer? Exception? Effect of D's waiver of service?
Within 20 days after service of process UNLESS D responds first w/FRCP12 motion and is denied, in which case must be within 10 days of court's ruling on motion

Waiver of service gives D 60 days from P's mailing of waiver form
Pleading

What are the three possible responses in answer?
Admit
Deny
State lack of info
Pleading

Consequence of failure to deny in an answer? Exception?
Admission UNLESS it's about damages
Pleading

When must D plead affirmative defenses? Counterclaim?
BOTH (unless permissive counterclaim) in answer OR ELSE waived
Pleading

Compulsory vs permissive counterclaims. Test for each? Can they be asserted in another action?
COMPULSORY: arises from same transactions/occurrences as P's claim; canNOT be asserted in another action

PERMISSIVE: does NOT arise from same transactions/occurrences; CAN be asserted later
Pleading

Can compulsory counterclaims satisfy supplemental jurisdiction?
ALWAYS b/c they meet test and D, NOT P, is involved
Pleading

Standard for bringing cross-claim?
MUST arise out of same transactions/occurrences as underlying action
Pleadings
When does P have a right to amend? Consequences to D?

When does D have a right to amend?
P ONCE before D serves his answer; D must respond within 10 days OR amount of time remaining on his 20 days, whichever longer

D has right to amend ONCE within 20 days of serving answer
Pleadings

When no rt to amend, what does ct consider for leave to amend? (2)
Delay AND prejudice
Pleadings

What is a variance w/re to amending pleadings?
Where evidence at trial does not match what was pleaded, P can move to amend complaint to conform
Pleadings

What is relation back doctrine? How does it affect amending claims? Changing Defendants?
To amend after a statute of limitations, you may be able to relate back

To join a new claim, amended pleading relates back IF it concerns same transactions/occurrences as original

To change D, relates back IF P sued wrong D first, the right D knew about it, AND concerns same occurrences/transactions
Discovery

What are the required disclosures?
Initial disclosures
Experts
Info about trial evidence
Discovery

Can you depose nonparties? How? Exception?
YES, with subpoena (can be duces tecum subpoena if she is to bring stuff with her)

EXCEPTION: 100+ miles
Discovery

To whom can you propound interrogatories?
ONLY parties
Discovery

To whom can you propound requests for production?
Parties AND non-parties (via subpoena)
Discovery

What are all the discovery tools?
Interrogatories
Depositions
Requests for production
Physical/mental exams
Requests for admisision
Discovery

Scope of discovery
Anything relevant to claim or defense

So broader than admissibility scope
Discovery

Is privileged matter discoverable?
NO; object with particularity
Discovery

Definition of work product
Prepared in anticipation of litigation
Discovery

What are the four kinds of work product that are NEVER discoverable?

Unless never discoverable, what is the test to rebut presumption of protection?
NEVER discoverable:

1 Mental impressions
2 Opinions
3 Conclusions
4 Legal theories

To rebut something else, must have: substantial need AND not otw available
Discovery

Consulting experts
Retained in anticipation of litigation but will NOT testify at trial

Can only depose them IF exceptional need
Discovery

Three main ways discovery issues get to court's attention
Protective orders b/c request is burdensome OR trade secret

Partial violation of discovery rules (light sanctions)

Total violation of discovery rules (heavy sanctions)
Complex cases, joining parties
When is permissive joinder okay?
Some claim made by each P and against each D involves same transactions/occurrences

AND

Question of fact or law common to all parties
Complex cases, joining parties

For compulsory joinder, a party should be joined IF...
1 W/o absentee, ct cannot accord complete relief (multiple suit concern)

2 Absentee's interest may be harmed if not joined (MOST tested)

OR

3 Claims in interest which subject a party to multiple obligation

AND party is amenable to process + joinder will NOT destroy diversity
Complex cases, joining parties

What is the outline for a joinder issue? Ask 2 questions

What are the elements of compulsory joinder (1 of 3, + 2 elements)? What does court consider if joinder not feasible but ct wants to go ahead?
2 questions are: 1 Should there be compulsory joinder? 2 If joinder is not feasible, can court proceed anyway w/o necessary party?

Joinder requires 1 of the following 3:
--Complete relief cannot be given to existing parties in putatively joined party's absence
--Disposition in his absence may impair his ability to protect his interests
OR
--Absence would expose existing parties to substantial risk
AND
1 Amenable to process
2 Will not destroy diversity

If not feasible, ct considers factors:

--Whether judgment in party's absence would prejudice him or existing parties
--Prejudice can be reduced by shaping judgment
--Judgement in party's absence would be adequate
--Whether P will be deprived of adequate remedy if action is dismissed
Complex cases, joining parties

Which joinder rules apply to present parties? Which to new parties?
C vs I

Present parties, C

Counterclaim, cross-claim

New parties, I

Impleader, intervention, interpleader
Complex cases, joining parties

What is impleader? When must you do it?
D wants to bring someone into suit for indemnity or contribution on underlying claim

Rt to implead within 10 days of serving answer; than, leave of ct
Complex cases, joining parties

What is intervention? Intervention of rt vs. permissive intervention
Intervention is when absent party wants to join as P or D

Intervention of rt: absentee's interest would be harmed if not joined AND her interest is not adequately rep'd now

Permissive intervention: discretion of ct IF NO undue delay or prejudice
Complex cases, joining parties

What is interpleader?
When one holding property forces all potential claimants into single lawsuit to deal with property interest issues
Class action
What are the prelim requirements of a class action?
Numerosity
Commonality
Typicality
Representative is adequate

AND

One of the following situations is present:

1 Separate actions would create risk of inconsistent results
2 D has not/acted on grounds applicable to the class and INJUNCTIVE or DECLARATORY relief is appropriate for the whole class
OR
3 Common questions of law or fact predominate AND class action is superior to alternate methods of adjudication
Class action

What must court if it wants to go ahead with class?
Certify AND appoint class counsel
Class action

If the type of class action is "Common questions of law or fact predominate AND class action is superior to alternate methods of adjudication", then court MUST give notice to class members which includes
Opt-out
Binding if no opt-out
Can enter separate appearance via counsel
Class action

How does ct determine citizenship and amount in controversy in class action?
Look ONLY to class reps, NOT individual members
Pretrial adjudication
What is voluntary dismissal?
P gets to do it once w/o prejudice BEFORE D answers complaint
Pretrial adjudication

After entry of default, when can P get an actual judgment entered by a clerk? (4)

What if clerk can't enter judgment?

What can D use as excuse to set aside default?
D made no response
Claim is for money
Claimant gives affidavit of sum owed
AND
D is NOT incompetent/minor

If all four are not met, P must go to ct for judgment

Good cause AND viable defense
Pretrial adjudication

Explain failure to state a claim

What is it called if filed after D's answer?
D moves to dismiss based ONLY on pleadings


Ct assumes all allegations are true and asks, if P proved it all, would she win or still lose?

Motion for judgment on pleadings
Pretrial adjudication

What must movant show for summary judgment?
NO genuine issue of material fact AND entitled to judgment as matter of law
Trial, judgment, post-trial motions
Rt to jury; 2 aspects

What must party do to exercise right?
ONLY in fed ct and ONLY for cases at law

Ask in writing within 10 days after service
Trial, judgment, post-trial motions

What are the two varieties of juror strikes? What quantities?
For cause, unlimited

Peremptory, 3 and NO gender/race bias
Trial, judgment, post-trial motions

Motion for judgment as matter of law, or directed verdict

vs

Renewed motion for judgment as a matter of law, or JNOV

Timing, standard, burden
MJML:

Brought after last side closes but before jury
Reasonable people would NOT disagree on the result
Evid in light most favorable to nonmoving party

JNOV

Brought after jury verdict
Reasonable people would NOT disagree on the result
Evid in light most favorable to nonmoving party
AND
MUST HAVE BROUGHT MJML TO GET JNOV
Trial, judgment, post-trial motions

Motion for new trial
Judgment entered, but errors at trial require new trial
Appellate review
Final judgment rule
Can ONLY appeal from final judgments, which are ultimate decisions of trial ct on merits of ENTIRE case
Appellate review

Where/when to file notice of appeal?
Trial court

Within 30 days of judgment entry
Appellate review

Collateral order exception to general ban on interlocutory review (3)
Issue is:

1 Distinct from merits of case
2 Involves important legal question
AND
3 Is unreviewable if parties must await final judgment

E.g. claim of immunity from suit
Appellate review

If there are multiple issues or parties, what can ct do to allow some appeal?
Expressly direct entry of final judgment as to some claims or parties
Appellate review

What aspect of class actions can be reviewed immediately? Where to file?
Certification, if appealed within 10 days of order

File in ct of appeals
Jurisdiction

2-step analysis for personal jurisdiction
Satisfy long arm statute (CA's broad; anything constitutional is okay)

Satisfy due process
Jurisdiction

What about the internet and personal jurisdiction?
Think interactive vs passive websites
California
Subject matter jurisdictions distinctions
Federal: ONLY for diversity and federal question

CA: General subject matter jurisdiction EXCEPT cases that involve exclusive federal jurisdiction like patents and bankruptcy
California

Limited vs unlimited civil cases: How to classify? Consequences?
Limited if amount in controversy is $25,000 OR LESS

Limitations on limited civil cases:

NO more than $25,000 in relief
NO special demurrers available

Discovery limitations like:
-ONLY ONE deposition
-COMBINED TOTAL of 35 interrogatories, inspection demands, requests for admission
-NO supplemental discovery
California

How to reclassify un/limited civil case?
Automatic where P amends complaint in a way that changes amount in controversy

On motion, and only after hearing, if after complaint
California

Can court go beyond pleadings to reclassify?
Yes
California

Standard to reclassify from unlimited to limited, and vice versa?
For unlimited to limited, case will necessarily result in verdict $25,000 or less

For limited to unlimited, probability that case will produce $25,000+ verdict
California

Effect of multiple claims on classification?
Aggregate; a case is EITHER limited OR unlimited
California

General venue rule
Venus okay in county where ANY D resides, measured when case is filed
California

Additional venue rules?
For K cases, venue okay in county where K was entered/performed

For personal injury OR wrongful death cases, venue okay where injury occurred
California

Venue and corporations
Wherever corporation has principal place of business
California

If Ds are all NONresidents of CA, where is venue?
Any county in CA
California

To transfer venue from one county to another, what is timing of motion?
Before OR with D's responsive pleading
California

If original venue is proper, court may nevertheless transfer venue IF any of the following...
Impartial trial cannot be had in original

Convenience of witnesses and ends of justice

OR

No judge is qualified in original
California

Forum non conveniens; CA specific definition; test
Court must find that dismissal/stay is in the interest of "substantial justice" an action should be heard in forum outside CA

Test is same as fed
California

Service of process; substituted service 2-steps
FIRST try personal service

SECOND, try substituted service IF (4)

-At D's abode or mailing address
-Left w/competent member of house who is at least 18 (fed, no age requirement)
-Person must be informed of contents
AND
-Process mailed first-class mail, posted prepaid
California

Immunity from process if a witness or party in another civil case?
NO in CA

YES in fed
California

What kind of pleading in fed? CA?
Notice in fed

Fact in CA
California

Fact pleading definition
P must plead ultimate facts for each cause of action
California

R11 distinctions
CA: 21 day safe harbor provisions applies to motions by party AND ct sua sponte motions (in fed, only party motions)
California

What is frivolous litigation law?
NOT R11

Allows ct to impose expenses, attorneys fees, for frivilous litigation; NO safe harbor at all
California

If pleading damages, must P quantify amount? Exceptions
YES

EXCEPT

Personal injury, wrongful death

Punitive damages
California

How can D request damages in personal injury and wrongful death cases if P doesn't list them in complaint? 3 aspects
Request stmt of damages
P provides it within 15 days
P must serve stmt of damages before she can take a default
California

Fictitious Ds; 3 requirements; benefit?
1 IF P is genuinely unaware of D's identity, name her Doe

2 Allege that identify is unknown

3 State cause of action against unknown D (called charging allegation)

Benefit: relation back IF substitute real party within 3 yrs

NOT okay in fed ct
California

Why verify pleadings?
To use as affidavits
California

Timing of D's response after service of process?
30 days in CA

20 in fed
California

What is general demurrer? Can defenses raised in it be raised in answer too?
Can assert important defense: failure to state facts sufficient to constitute a cause of action (like 12b6)

YES; as affirmative defenses b/c general demurrer is a pleading
California

What is a special demurrer? When not available?
Can assert multiple defenses

NOT available in limited cases
California

What defenses is a motion to quash service of summons used for? Timing? How to get denial reviewed?
-Lack of personal jurisdiction
-Improper process
-Improper service of process

Must be BEFORE or WITH demurrer or a motion to strike, OR ELSE waived; canNOT be made in answer

Reviewed by filing write of mandate with Ct of Appeal within 10 days of denial
California

Anti-SLAPP. Definition? What motion to bring? Scope? What can D then do if he succeeds on motion to strike the SLAPP?
Suits brought to chill valid exercise of free speech and petition (strategic lawsuits against public participation)

Motion to strike

ONLY for suits with true public interest value

D can sue for malicious prosecution in SLAPP-back suit
California

What are the names of the claims that D can bring?
Cross-complaint, which is name for impleader, cross-claim AND counterclaim
California

Interrogatories
CA has form interrogatories

IF party wants to draft specific ones, ONLY 35

Can serve more than 35 IF serve declaration supporting the need for more

D can seek protective order
California

Procedure for getting a non-party to respond to a request to produce?
CanNOT serve these on non-parties

INSTEAD, depose and serve subpoena duces tecum
California

Supplemental discovery; when available?; why needed?
UNlimited cases ONLY

Needed b/c in CA, there is NO duty to supplement discovery responses

In CA, must propound supplemental discovery TWICE before trial date set, ONCE after (but before trial)
California

Work product distinction
In CA, MUST be produced by attorney or her agent

Not so in fed
California

Class action; 2 prelim requirements
P must show:

-Ascertainable class
-"Well-defined community of interest"
California

What will court consider to evaluate "well-defined community of interest"
Do common ?s predominate?

Is class rep adequate?

Will class action result in substantial benefit to parties AND ct?
California

Other class action distinctions
NO separate types of classes/scenarios in CA

Ct decides who pays for notice
California

Mandatory dismissal IF one of two
Case not brought to trial within 5 yrs of filing

Process not served within 3 yrs of filing
California

Rt to jury in mixed law/equity cases

Fed ct?
Ct hears EQUITY first; THEN law

In fed ct, reversed
California

Juror unanimity in CA?
????
California

JNOV distinction
NO need to first more for directed verdict in CA
California

Standard for ordering new trial due to damages issues?
Shocks the conscience
California

Remittitur vs additur; definitions; validity in CA and fed?
Remittitur where court gives P choice of taking less damages OR getting new trial; okay in CA and fed

Additur where court gives D choice of accepting more damages OR getting new trial; okay in CA but NOT CONSTITUTIONAL in fed (7th amendment)
California

Extraordinary writ: definition? 3 requirements? when can party seek review of denial of writ?
For order not otw appealable, aggrieved party may seek writ of mandate OR writ of prohibition

Requirements:

1 Irreparable harm
2 Normal appeal route is inadequate
3 Beneficial interest in outcome of writ proceeding

Party can seek review of denial of writ ONLY FOR denials of writs against forum non conveniens
Res judicata and collateral estoppel
Is a case being appealed still eligible for res judicata and collateral estoppel treatment in CA? Fed?
CA: NO

Fed: Yes
Res judicata and collateral estoppel

Res judicata requirements? (3)
Case 1 and Case 2 brought by same claimant against same D

Case 1 ended in final judgment on merits (NOT merits IF personal jurisdiction, venue OR indispensable party dismissals; BUT default IS on merits)

Case 1 and Case 2 asserted same claim (fed/CA distinction is that in fed, same claim means same transaction/occurence; in CA, primary rts theory that treats each cause of action, NOT transaction/occurrence)
Res judicata and collateral estoppel

Collateral estoppel requirements? (5)
Case 1 ended in valid, final judgment on merits

Same issue was litigated in Case 1

Issue was essential to Case 1

Estoppel asserted AGAINST one was was a party in Case 1

Estoppel asserted BY one who was a party in Case 1 (REJECTED by most courts; so NONMUTUAL estoppel is okay in fed and CA)
Res judicata and collateral estoppel

Nonmutual defensive vs nonmutual offensive issue preclusion
Nonmutual defensive if raised by new D (wasn't party to Case 1) against party to Case 1 IF party to Case 1 had opportunity to litigate the issue in Case 1

Nonmutual offensive if raised by new P against party to Case 1 IF party to Case 1 had opportunity to litigate the issue in Case 1 AND: new P could not have joined Case 1 easily AND no inconsistent judgments as to issue
Is there a rt to a jury trial? What legal basis? CA distinction?
7th amendment

Rt to jury trial in fed ct for ANY case over $20 UNLESS pure equity

With mixed equity/law, fed ct allows jury to hear law first, then judge hears equity

CA: Equity first, then law