Fed Civ Pro

Front 1

PERSONAL JURISDICTION

Back 1

Court's power over the parties

Ask: In what state(s) can P sue D?

Front 2

PJ Analysis

Back 2

2 step analysis:

(1) Satisfy a statutes (e.g., a state long-arm statute) AND
(2) Satisfy the Constitution (Due Process)

Same analysis that state courts must perform.

Front 3

In personam jurisdiction - Statutory Analysis

Back 3

4 ways:
(1) Domicile,
(2) Presence instate when served with process,
(3) Consent (actual or implied), or
(4) State Long-Arm Statute allowing jurisdiction over nonresidents:

Some long-arms simply say they reach to the constitutional limit, so only the constitutional analysis needs to be done. Others list things that a nonresident might do in the forum to submit herself to jurisdiction there. If exam gives such a statute, argue how it is satisfied based on the facts.

Front 4

In personam - Constitutional Analysis

Back 4

(International Shoe)

Test: Does defendant have "such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?"

"My Parents Frequently Forget to Read Children's Stories."

Assess each factor and come to a reasonable conclusion.

Front 5

Minimum Contacts

Back 5

There must be some contact b/t D and forum.
(1) Purposeful Availment and
(2) Foreseeability

Not just any contact - the contact MUST result from PURPOSEFUL AVAILMENT: D's voluntary act (D must reach out to the forum where being sued. Aimed contact at forum). Examples: D ships goods into the forum state; D uses roads in the forum state, D causes an effect in the forum.

Then, that contact must render it FORESEEABLE that: the D could get sued in the forum.

Front 6

Fairness (fair play and substantial justice)

Back 6

(1) Relatedness,
(2) Convenience, and
(3) State's interest.

RELATEDNESS between the contact and claim. Does P's claim arise from D's contact with the forum state? Smaller the contact, more we need relatedness. Relatedness is NOT needed if D has "substantial ties with the forum (domiciled there, served with process, continuous business there) - in which cases the forum has GENERAL JURISDICTION over D, so that D can be sued in that forum for claims arising anywhere in the world.

CONVENIENCE: D may complain that the forum makes it tough for her to litigate there because it's far from her home, so it's tough to get her witnesses there, etc. Forum is OK unless it puts D at a "severe disadvantage" in the litigation, which is very tough to show.

STATE'S INTEREST, e.g., provide forum for its citizens.

Front 7

SUBJECT MATTER JURISDICTION

Back 7

Court's power of the case.

Now we know that P will sue D in a particular state. But: in what court in that state? the state court or the federal court?

Test: Generally, state courts can hear any case, but federal courts can only hear limited types of suits.

2 types of cases Federal Courts can hear:
Diversity of Citizenship
Federal question

Front 8

Diversity of Citizenship

Back 8

2 requirements:
(1) the action must be between "citizens of different states" (or between a citizen of a state and a foreign citizen AND
(2) the amount in controversy must EXCEED $75,000.

Front 9

"Citizens of different states"

Back 9

"states" includes DC and Puerto Rico

COMPLETE DIVERSITY RULE - There is no diversity of citizenship jurisdiction if ANY plaintiff is a citizen of the SAME state as any defendant. P and D cannot be co-citizens and be diverse for fed court.

Front 10

Citizenship - Natural Person

Back 10

How do we determine a litigant's citizenship?

(1) natural person (U.S. citizen) - citizenship is the state of DOMICILE: which is established by 2 concurrent factors
(a) presence in-state [physical requirement] AND
(b) the subjective intent to make it her permanent home [mental requirement] - no single factor is determinantive - courts look at all relevant evidence (instate tuition, voting, etc)

Person cannot have more than ONE domicile at a time. Look at citizenship at the time the case was FILED.

Front 11

Citizenship - Corporation

Back 11

(2) Corporation - Citizenship equals:
(a) state where incorporated AND
(b) the ONE state where the corporation has its PRINCIPAL PLACE OF BUSINESS (PPB).

So, Corporations, unlike natural persons can have MORE than one citizenship.

Front 12

Principal Place of Business (PPB)

Back 12

Nerve Center (headquarters - where decisions are made)

NOTE: There is only ONE nerve center.

Front 13

Citizenship - Unincorporated Association (like partnerships)

Back 13

Use citizenship of ALL members (includes general and limited partners)

Front 14

Citizenship - decedents, minors, and incompetents

Back 14

Use THEIR citizenship - NOT the citizenship of their representative.

Front 15

Amount in Controversy (AIC)

Back 15

In addition to the complete diversity rule, P must have a good faith allegation that her claim EXCEEDS $75,000, not counting interest or costs.

Good Faith - whatever the plaintiff claims in good faith is OK UNLESS it is "clear to a legal certainty" that she cannot recover more than $75,000 (rare - for example statutory ceiling on recovery.

NOTE - what plaintiff wins is irrelevant (jurisdiction is still ok even if P wins less) - but might have to have to pay D's litigation costs.

Front 16

Aggregation (AIC)

Back 16

Aggregate (add) P's claims IF there is one P and one D.

For Joint claims, use TOTAL VALUE of claim to meet AIC.

Front 17

Equitable Relief (AIC)

Back 17

Such as P sues D for an injunction.

Two tests (if either is met, most courts say it is ok):
(1) Plaintiff's view point: Does D's conduct DECREASE the value of P's property by more than $75,000?
(2) Defendant's view point: Would it cost D more than $75,000 to comply with the injunction?

Front 18

FEDERAL QUESTION JURISDICTION (FQ)

Back 18

Complaint MUST show a right of interest founded substantially on a federal law. The claim must "arise under" federal law.

Citizenship and AIC are irrelevant.

Front 19

Well-pleaded Complaint Rule

Back 19

Not enough that "some" federal issue is raised by the complaint. The claim itself must "arise under" federal law.

Ask: Is the Plaintiff enforcing (or attempting to enforce) a federal right?

Front 20

SUPPLEMENTAL JURISDICTION

Back 20

Diversity and FQ may get a CASE into federal court. Once the case is there however, there may be additional CLAIMS in that case. For EVERY SINGLE CLAIM, test whether it invokes diversity or FQ. If it does, it can come into the case. If not, perform a supplemental jurisdiction analysis.

Test: the claim we want to get into federal court MUST share a 'common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction. This test is always met by claims that "arise from the same transaction or occurrence (T/O) as the underlying claim."

LIMITATION: In a DIVERSITY CASE, P cannot use supplemental Jurisdiction to overcome a lack of diversity BUT P can ALWAYS use supplemental jurisdiction to overcome a lack of diversity for a claim in a federal question case and to overcome a lack of AIC for a diversity claim. Also, ANY party but P can use SJ to overcome either a lack of complete diversity or amount in controversy in any case.

Front 21

SJ Summary

Back 21

So, a non-federal, non-diversity claim can be heard in federal court IF it meets "the test" UNLESS it is:
1. Asserted by a plaintiff
2. In a diversity of citizenship (not FQ) case AND
3. Would violate complete diversity.

Discretionary factors: Court has the discretion NOT to hear the supplemental claim if:
(1) the FQ is dismissed early in the proceedings OR
(2) the state law claim is complex OR
(3) state law issues would predominate.

Front 22

REMOVAL/REMAND

Back 22

Allows D (ONLY) to have a case filed in state court "removed" (transferred) to federal court.

Removal is a one-way street - it ONLY GOES from state trial court to federal trial court.

If improper, the federal court can REMAND to state court.

General Test for Removal: D can remove if case could be heard in federal court (federal subject matter jurisdiction - invokes FQ or diversity of citizenship).

Where? only to the federal district embracing the state court in which case was originally filed.

When? Must remove no later than 30 days after SERVICE of the first removable document but in diversity cases, no removal more than one year after the case was filed in state court. AND (if multiple D) ALL D must agree.

Special rule for diversity cases - No removal if any D is a citizen of the forum.

Front 23

Procedure for Removal

Back 23

D files NOTICE OF REMOVAL
in federal court
stating grounds of removal
signed under Rule 11
attach all documents served on D in state action
copy to all adverse parties
THEN file copy of notice in state court.

If removal was procedurally improper, P moves to remand to state court. Must do so within 30 days of removal. BUT if there is no federal subject matter jurisdiction, P can move to remand anytime (or fed court can remove anytime). No time limit for raising SMJ.

Note: D who files a permissive counterclaim in state court probably waives the right to remove. Filing a compulsory counterclaim in state court, though, probably does NOT waive right to remove.

Front 24

Erie Doctrine

Back 24

Issue: Whether the federal court must apply state law on some issue.

Rule: In diversity cases, federal court MUST apply state substantive law.

Ask:
(1) Is there a federal law on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid. (Supremacy Clause)

(2) If there is no federal law on point, ask: is this issue one of the easy ones? (a) elements of claim or defense (2) statute of limitations (3) rules for tolling statute of limitations, and (4) conflict (or choice) of law rules. Why are these easy? These are all substantive issues (according to Supreme Court) so Apply State Law!

(3) If there is no federal law on point, and it is not an easy one, but federal judge wants to ignore state law. If the issue is one of substantive law, judge MUST follow state law. Analyze the facts per these 3 tests and come to a reasonable conclusion:

(1) Outcome Determinative - Would applying or ignoring state rule affect outcome of case? If so, it's probably a substantive rule, so should use state law.

(2) Balance of Interests - Does either federal or state system have a strong interest in having its rule applied?

(3) Avoid Forum Shopping - If the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, probably apply state law.

Front 25

Venue

Back 25

In which federal court district do you file? ("P wants to lay venue in an appropriate district.")

Rule:
Local Actions - Actions re ownership, possession, or injury (including trespass to land) to LAND must be filed in the district where the land lies.

Transitory - everything else: P may lay venue in "any district where
(1) ALL defendants reside* OR
(2) a substantial part of the claim arose.

*Special rule in cases where all D's reside in different districts of the SAME STATE, P can lay venue in the district in which any of them resides.

Front 26

Where do defendants RESIDE for venue purposes?

Back 26

Natural Persons - Residence basically equals domicile, so usually same place as citizenship for diversity of citizenship purposes.

Corporations and Other Business Associations "reside" in all districts where it is subject to personal jurisdiction when the case is filed. (Very Broad).
- Note: do not confuse corporation citizenship for diversity with citizenship jurisdiction. Ford Motor Company is a CITIZEN of Deleware (inc.) and Michigan (PPB), but it RESIDES in every district in the US because it is subject to personal jurisdiction in every district (because it does business in every district in the U.S.).

Front 27

Transfer of Venue

Back 27

Definition: Sending a case from one federal district court to another federal district court.

Rule: Can only transfer to a district where the case could have been filed. Means - transfer ONLY to a proper venue having PJ over D.

Front 28

2 statutory ways to transfer venue:

Back 28

(1) From Proper to Proper: If venue in original district is proper, may transfer to another federal district based upon convenience for the parties and witnesses and "the interests of justice." Court has discretion to order transfer based upon
(a) public factors (what law applies, what community should be burdened with jury service) and
(b) private factors (convenience - where witnesses and evidence are).

Note the court to which case is transfered under this first staute applies the CHOICE OF LAW RULES of ORIGINAL COURT (even if plaintiff sought the transfer). Always.

(2) From Improper to Proper - If venue in the original district is improper, court may transfer in the interest of justice or dismiss.

Front 29

II. Learning about the case

Back 29

Service of Process
Pleadings
Discovery

Front 30

Service of Process

Back 30

In addition to personal jurisdiction, P must give notice to D. Done by delivering to D
(1) a copy of the summons (formal court notice of suit and time for response) and
(2) a copy of the complaint.

Together, these two documents are called PROCESS.

Front 31

WHO can serve process?

Back 31

Any nonparty who is at least 18 years old. (Does not have to be appointed by court).

Front 32

HOW is process served?

Back 32

(1) Personal Service
(2) Substituted Service
(3) Service on D's Agent
(4) State Law

Front 33

Personal Service

Back 33

Paper are given to D personally - ANYWHERE in the forum state.

Front 34

Substituted Service

Back 34

Can do only if:
(1) It's D's usual place of abode
(2) and serve someone of suitable age and discretion WHO RESIDES THERE.

Front 35

Service on D's agent

Back 35

Process can be delivered to D's agent - OK if receiving service is within the scope of agency (agent appointed by contract or corporation's registered agent, managing agent or officer).

Front 36

State Law (service of process)

Back 36

In addition, can use methods of service permitted by state law of the state where the federal court sits OR where service is effected.

Front 37

Waiver by mail

Back 37

Process is mailed to D by first class mail, postage prepaid. OK if D executes and mails the waiver form to P within 30 days. By doing so, D waives only FORMAL serivce of process - nothing else (as in lack of personal jurisdiction).

P then files D's waiver in court.

If D fails to return the waiver form. P then has her served either personally or by substituted service. BUT PENALTY FOR D - unless she shows good cause for her failure, she pays the expenses of service of process.

Front 38

Geographic limitation - Service of Process

Back 38

Federal court can serve process outside the state in which it sits ONLY if a state law allows (e.g., a long-arm statute).

Front 39

Pleadings

Back 39

Documents setting forth claims and defenses.

In theory - "notice pleading" - you only need enough detail to allow the other side to be on notice and make a meaningful response.

Front 40

Rule 11

Back 40

Requires attorney (or party representing herself - called a pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule).

With signature, the person is CERTIFYING that to the best of her knowledge and belief, after reasonable inquiry:
(1) the paper is not for an improper PURPOSE
(2) legal contentions are warranted by LAW (or nonfrivolous argument for law change), adn
(3) that FACTUAL CONTENTIONS and denials of factual contentions have "evidentiary support" (or are likely to after further investigation).

CONTINUING CERTIFICATION - This certification effective every time position is "presented" to the court (at signing, at filing, when later advocating a position).

Front 41

Rule 11 Violations

Back 41

Sanctions may be levied (they are discretionary) against attorney, firm, or party. They are to deter a repeat of bad conduct, not to punish.

Can be non-monetary sanctions. Monetary sanctions are often paid to court, not to the other party.

Also imposing sanctions, court MUST give a chance to be heard.

21 Day Safe Harbor - If other party violates Rule 11, cannot move for sanctions immediately. Motion for violation of Rule 11 is SERVED on other party but cannot be filed - must give other party 21 days ("safe harbor") to withdraw the the document or fix the problem. If she does, NO SANCTIONS. If she does not do so, then the motion can be filed.

Court can raise Rule 11 problems on its own ("sua sponte") - show cause.

Front 42

Complaint

Back 42

Filing complaint commences an action.

Requirements:
(1) statement of grounds subject matter jurisdiction (must allege why case is in federal court);
(2) sort and plain statement of the claim, showing entitled to relief;
(3) demand for the relief sought.

Front 43

Pleading Standard

Back 43

In stating the claim, federal courts have used "notice pleading," which means you only need enough detail to put the other side on notice.

But - in 2007 Supreme Court in TWOMBLY AND ICHBAL seemed to impose a stricter requirement - you must plead "facts supporting a PLAUSIBLE claim."

Fraud, mistake, and special damages must be pleaded with particularity or specificity.

Special damages are those that do not normally flow from an event.

Front 44

Defendant's Response

Back 44

Rule 12 requires D to response in one of two ways:
(1) by motion or
(2) by answer.

To avoid default, must respond no later than 21 days after service of process.

Front 45

Motions (Rule 12)

Back 45

Motions are NOT pleadings - they are requests for a court order.

Front 46

Classic Motions on Issues of Form:

Back 46

(1) Motion for more definite statement - pelading so vague D can't frame a response (rare)

(2) Motion to Strike - which is aimed at immaterial things (demand for jury when no right exists) - any party can bring - rare.

Front 47

Rule 12 Defenses - Motion to Dismiss based on:

Back 47

(1) Lack of Subject Matter Jurisdiction;
(2) Lack of Personal Jurisdiction;
(3) Improper Venue;
(4) Insufficiency of Process (problem with the papers);
(5) Insufficient SERVICE of process (docs ok - just not served right);
(6) failure to state a claim;
(7) Failure to join indispensable party.

These defenses can be raised either by motion or in the answer.

#2 - 5 Waivable - meaning they MUST be put in the FIRST rule 12 response (motion or answer) or else they are WAIVED.

#7 - can be raised any time through trial (including at trial).

#1 - is NEVER waived (even after trial and on appeal).

Front 48

Answer

Back 48

IS a pleading

Serve within 21 days after service of process. BUT if D made a Rule 12 motion and it is DENIED, D must serve her answer with 14 days after court rules on motion.

Front 49

Pleadings

Back 49

Documents setting forth claims and defenses.

In theory - "notice pleading" - you only need enough detail to allow the other side to be on notice and make a meaningful response.

Front 50

Rule 11

Back 50

Requires attorney (or party representing herself - called a pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule).

With signature, the person is CERTIFYING that to the best of her knowledge and belief, after reasonable inquiry:
(1) the paper is not for an improper PURPOSE
(2) legal contentions are warranted by LAW (or nonfrivolous argument for law change), adn
(3) that FACTUAL CONTENTIONS and denials of factual contentions have "evidentiary support" (or are likely to after further investigation).

CONTINUING CERTIFICATION - This certification effective every time position is "presented" to the court (at signing, at filing, when later advocating a position).

Front 51

Rule 11 Violations

Back 51

Sanctions may be levied (they are discretionary) against attorney, firm, or party. They are to deter a repeat of bad conduct, not to punish.

Can be non-monetary sanctions. Monetary sanctions are often paid to court, not to the other party.

Also imposing sanctions, court MUST give a chance to be heard.

21 Day Safe Harbor - If other party violates Rule 11, cannot move for sanctions immediately. Motion for violation of Rule 11 is SERVED on other party but cannot be filed - must give other party 21 days ("safe harbor") to withdraw the the document or fix the problem. If she does, NO SANCTIONS. If she does not do so, then the motion can be filed.

Court can raise Rule 11 problems on its own ("sua sponte") - show cause.

Front 52

Complaint

Back 52

Filing complaint commences an action.

Requirements:
(1) statement of grounds subject matter jurisdiction (must allege why case is in federal court);
(2) sort and plain statement of the claim, showing entitled to relief;
(3) demand for the relief sought.

Front 53

Pleading Standard

Back 53

In stating the claim, federal courts have used "notice pleading," which means you only need enough detail to put the other side on notice.

But - in 2007 Supreme Court in TWOMBLY AND ICHBAL seemed to impose a stricter requirement - you must plead "facts supporting a PLAUSIBLE claim."

Fraud, mistake, and special damages must be pleaded with particularity or specificity.

Special damages are those that do not normally flow from an event.

Front 54

Defendant's Response

Back 54

Rule 12 requires D to response in one of two ways:
(1) by motion or
(2) by answer.

To avoid default, must respond no later than 21 days after service of process.

Front 55

Motions (Rule 12)

Back 55

Motions are NOT pleadings - they are requests for a court order.

Front 56

Classic Motions on Issues of Form:

Back 56

(1) Motion for more definite statement - pelading so vague D can't frame a response (rare)

(2) Motion to Strike - which is aimed at immaterial things (demand for jury when no right exists) - any party can bring - rare.

Front 57

Rule 12 Defenses - Motion to Dismiss based on:

Back 57

(1) Lack of Subject Matter Jurisdiction;
(2) Lack of Personal Jurisdiction;
(3) Improper Venue;
(4) Insufficiency of Process (problem with the papers);
(5) Insufficient SERVICE of process (docs ok - just not served right);
(6) failure to state a claim;
(7) Failure to join indispensable party.

These defenses can be raised either by motion or in the answer.

#2 - 5 Waivable - meaning they MUST be put in the FIRST rule 12 response (motion or answer) or else they are WAIVED.

#7 - can be raised any time through trial (including at trial).

#1 - is NEVER waived (even after trial and on appeal).

Front 58

Answer

Back 58

IS a pleading

Serve within 21 days after service of process. BUT if D made a Rule 12 motion and it is DENIED, D must serve her answer with 14 days after court rules on motion.

Front 59

Service on D's agent

Back 59

Process can be delivered to D's agent - OK if receiving service is within the scope of agency (agent appointed by contract or corporation's registered agent, managing agent or officer).

Front 60

State Law (service of process)

Back 60

In addition, can use methods of service permitted by state law of the state where the federal court sits OR where service is effected.

Front 61

Waiver by mail

Back 61

Process is mailed to D by first class mail, postage prepaid. OK if D executes and mails the waiver form to P within 30 days. By doing so, D waives only FORMAL serivce of process - nothing else (as in lack of personal jurisdiction).

P then files D's waiver in court.

If D fails to return the waiver form. P then has her served either personally or by substituted service. BUT PENALTY FOR D - unless she shows good cause for her failure, she pays the expenses of service of process.

Front 62

Geographic limitation - Service of Process

Back 62

Federal court can serve process outside the state in which it sits ONLY if a state law allows (e.g., a long-arm statute).

Front 63

Pleadings

Back 63

Documents setting forth claims and defenses.

In theory - "notice pleading" - you only need enough detail to allow the other side to be on notice and make a meaningful response.

Front 64

Rule 11

Back 64

Requires attorney (or party representing herself - called a pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule).

With signature, the person is CERTIFYING that to the best of her knowledge and belief, after reasonable inquiry:
(1) the paper is not for an improper PURPOSE
(2) legal contentions are warranted by LAW (or nonfrivolous argument for law change), adn
(3) that FACTUAL CONTENTIONS and denials of factual contentions have "evidentiary support" (or are likely to after further investigation).

CONTINUING CERTIFICATION - This certification effective every time position is "presented" to the court (at signing, at filing, when later advocating a position).

Front 65

Rule 11 Violations

Back 65

Sanctions may be levied (they are discretionary) against attorney, firm, or party. They are to deter a repeat of bad conduct, not to punish.

Can be non-monetary sanctions. Monetary sanctions are often paid to court, not to the other party.

Also imposing sanctions, court MUST give a chance to be heard.

21 Day Safe Harbor - If other party violates Rule 11, cannot move for sanctions immediately. Motion for violation of Rule 11 is SERVED on other party but cannot be filed - must give other party 21 days ("safe harbor") to withdraw the the document or fix the problem. If she does, NO SANCTIONS. If she does not do so, then the motion can be filed.

Court can raise Rule 11 problems on its own ("sua sponte") - show cause.

Front 66

Complaint

Back 66

Filing complaint commences an action.

Requirements:
(1) statement of grounds subject matter jurisdiction (must allege why case is in federal court);
(2) sort and plain statement of the claim, showing entitled to relief;
(3) demand for the relief sought.

Front 67

Pleading Standard

Back 67

In stating the claim, federal courts have used "notice pleading," which means you only need enough detail to put the other side on notice.

But - in 2007 Supreme Court in TWOMBLY AND ICHBAL seemed to impose a stricter requirement - you must plead "facts supporting a PLAUSIBLE claim."

Fraud, mistake, and special damages must be pleaded with particularity or specificity.

Special damages are those that do not normally flow from an event.

Front 68

Defendant's Response

Back 68

Rule 12 requires D to response in one of two ways:
(1) by motion or
(2) by answer.

To avoid default, must respond no later than 21 days after service of process.

Front 69

Motions (Rule 12)

Back 69

Motions are NOT pleadings - they are requests for a court order.

Front 70

Classic Motions on Issues of Form:

Back 70

(1) Motion for more definite statement - pelading so vague D can't frame a response (rare)

(2) Motion to Strike - which is aimed at immaterial things (demand for jury when no right exists) - any party can bring - rare.

Front 71

Rule 12 Defenses - Motion to Dismiss based on:

Back 71

(1) Lack of Subject Matter Jurisdiction;
(2) Lack of Personal Jurisdiction;
(3) Improper Venue;
(4) Insufficiency of Process (problem with the papers);
(5) Insufficient SERVICE of process (docs ok - just not served right);
(6) failure to state a claim;
(7) Failure to join indispensable party.

These defenses can be raised either by motion or in the answer.

#2 - 5 Waivable - meaning they MUST be put in the FIRST rule 12 response (motion or answer) or else they are WAIVED.

#7 - can be raised any time through trial (including at trial).

#1 - is NEVER waived (even after trial and on appeal).

Front 72

Answer

Back 72

IS a pleading

Serve within 21 days after service of process. BUT if D made a Rule 12 motion and it is DENIED, D must serve her answer with 14 days after court rules on motion.

Front 73

What do you do in the ANSWER? (2 things)

Back 73

(1) Respond to allegations of complaint:
(a) admit;
(b) deny;
(c) state that you lack sufficient information to admit or deny - acts as a denial, but cannot be sued if the information is public knowledge or is in defendant's control (have to look for it).

NOTE - failure to deny can constitute an admission on any matter EXCEPT damages. Do not argue - if you want to deny, then deny!

(2) Raise affirmative defenses. These basically say "even if I did all the terrible things P says, P still cannot win." Classics include statute of limitations, statute of frauds, res judicata, self-defense.

NOTE - must plead affirmative defenses or risk waiver b/c D has the burden of proof.

Front 74

Counterclaim

Back 74

Claim against an opposing party (D v. P). It is part of D's answer. 2 types:
(1) Compulsory
(2) Permissive

Remember - if a counterclaim is procedurally ok, then assess whether it invoke diversity or FQ jurisdiction. If so, it is ok in federal court. If not, try supplemental jurisdiction [can be heard as long as it meets "the test - must share a common nucleus of operative fact (same as T/O)", is not asserted by P, not in a diversity of citizenship case, and would not violate complete diversity.]

Front 75

Compulsory Counterclaim

Back 75

Arises from the same T/O as P's claim.

MUST BE FILED IN THE PENDING CASE, OR IT IS WAIVED. Claim cannot be asserted in another action. Use it or lose it!

NOTE - a compulsory counterclaim is the ONLY type of compulsory claim.

Front 76

Permissive Counterclaim

Back 76

Does NOT arise from the same T/O as P's claim. MAY (don't have to) file it with your answer or can assert it in separate case.

Front 77

Crossclaim

Back 77

Claim against a co-party. (P v. P; D v. D).

Must arise from the same T/O as the underlying action.

If you have a crossclaim, you do NOT have to file it in the pending case - can file in separate action - because all crossclaims are permissive. NO SUCH THING as a compulsory crossclaim.

Still must decide if claim invokes diversity or FQ - or if not, supplemental jurisdiction.

Front 78

Amending Pleadings

Back 78

Right to Amend - P has a right to amend ONCE within 21 days after D serves her first Rule 12 response (motion or answer).

Defendant has right to amend ONCE within 21 days of serving his answer.

If there is NO right to amend, party must seek leave of court (court's permission). It will be granted if "justice so requires." Usually granted unless delay, prejudice, or futility of amendment.

Varience - when evidence at trial does not match what was plead - If evidence introduced an other party does NOT object, then evidence admitted and P can move to amend the complaint to conform to the evidence. Policy - we want the pleadings to reflect what was tried.
-- Not required (technical formality)
-- If D does object, evidence is inadmissible because it is "at variance with the pleadings." Good objection.

Front 79

Relation Back

Back 79

Amendment after the statute of limitations has run.

Issue - Want to amend pleading to add new claim but statue ran. Is the claim time barred because the statute ran?

Rule: Amended pleadings "relate back" if they concern the same CONDUCT, TRANSACTION, OR OCCURRENCE as the original pleading.

Relation Back means that you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

Front 80

Discovery Tools

Back 80

5 Discovery Tools:
(1) Depositions (parties AND nonparties)
(2) Interrogatories (parties only)
(3) Requests to Produce (parties and nonparties)
(4) Physical or Mental Examination (party by court order)
(5) Request for Admission (party only)

May not be used until after Rule 26(f) conference UNLESS court order or stipulation allows.

Key issue - Which ones can we use to get info from a NON-party?

Front 81

Required Disclosures

Back 81

These materials MUST be produced even though NO ONE asks for it:

(1) Initial disclosures - Unless court order or stipulation of parties differes, in most cases, within 14 days of the Rule 26(f) conference, MUST identify persons, electronically stored info, and documents that are "likely to have discoverable information that the disclosing party may use to support its claims or defenses," computation of damages and insurance for any of judgment.

(2) Experts - As directed by court by the court, must identify experts "who may be used at trial" and produce written report containing opinions, data used, qualifications, compensation for study, etc.

(3) Pretrial - No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.

Front 82

Depositions

Back 82

Questions can be oral or written.

Deponent gives sworn oral testimony in response to questions by counsel (or pro se parties). It is recorded by sound or video/sound or stenographically and a transcript can then be made.

Can depose nonparties or parties. Nonparty should be subpoenaed, however, or she is not compelled to attend.
-- Subpoena should be "duces tecum," which requires the deponent to bring material (e.g., documents) with her.

Party need not be subpoenaed; notice of the deposition, properly served, is sufficient to compel attendance.

(a) Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

(b) Use at trial (all subject to rules of evidence):
(1) impeach the deponent;
(2) any purpose if the deponent is an adverse party;
(3) any purpose if the deponent is unavailable for trial (regardless of wether a party), unless that absence was procured by the party seeking to introduce the evidence.

(c) Unless she agrees, a nonparty cannot be required to travel more than 100 miles from her residence or place where she regularly transacts business for her depo.

(d) Notice or subpoena to a business may require it to designate the right person fro deposition (e.g., to depose the person who designed a particular product).

Front 83

Interrogatories

Back 83

Questions propounded in writing to another party, to be answered in writing under oath.

Must respond with answers or objections within 30 days.

Can say you do not know the answer, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to find it, can allow propounder access to those records, including electronically stored info.

At trial, cannot use your own answers; others may be used per regular rules of evidence.

Cannot serve more than 25 (including subparts) without court order or stipulation.

Front 84

Requests to Produce

Back 84

Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various documents or things, including electronically stored info, or to permit entry upon designated property for inspection, measuring, etc.

Must respond within 30 days of service, stating that that the material will be produced or stating objection.

Front 85

Physical or Mental Examination

Back 85

Only available through court order
on showing that the party's (or person in party's control, e.g., parent in control of child) health is in actual controversy and "good cause" (i.e., you need it and can't get it anywhere else).

Party seeking the order may obtain copy of report without making this showing, but by doing so waives his doctor-patient privilege re reports by his doctors re that condition.

Unique - otherwise would be harassment.

Front 86

Request for Admission

Back 86

A request by one party to another party to admit the truth of any discoverable matters.

Often used to authenticate documents; the propounding party will send copies of the documents to be authenticated with the request.

Must respond within 30 days of service.

The response is to admit or deny; can indicate lack of information only if indicate you've made a reasonable inquiry.

Failure to deny is tantamount to admission. Can amend if failure is not in bad faith.

Front 87

Other Discovery Info

Back 87

Parties sign substantive answers to discovery under oath. Every discovery request and response is signed by counsel certifying
(1) it is warranted,
(2) not interposed for improper purpose, and
(3) not unduly burdensome.
(Remember, Rule 11 does NOT apply to discovery documents, so this is a SEPARATE certification for them.)

Duty to supplement - If a party learns that its response to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, must supplement its response.

Front 88

Scope of Discovery

Back 88

What information can we get through discovery?

Standard - What can a party discover? Anything RELEVANT to a claim or defense.

Front 89

Relevant Discovery

Back 89

Relevant means "reasonably calculated to lead to the discovery of admissible evidence."

Note - this is broader than "admissible." Admissibility is NOT the test. BUT, privileged matter is NOT discoverable.

Front 90

Work Product - "Trial Preparation Materials"

Back 90

Material prepared in anticipation of litigation (not just routine stuff).

Generally protected from discovery. A witness statement is discoverable IF shows 2 things:
(1) substantive need and
(2) it is not otherwise available.

Mental impressions, Opinions, Conclusions, and Legal Theories are NEVER discoverable (always protected) - doesn't have to be generated by a lawyer, either.

Front 91

Experts

Back 91

Required disclosures mean that each party must give info about experts she may use at trial - even though no one requests that info. In addition, any party may take deposition of any expert "whose opinions may be presented at trial."

Consulting expert (retained in anticipation of litigation but will not testify at trial): NO Discovery absent "exceptional need" (probably means not available elsewhere).

Front 92

Enforcement of Discovery Rules

Back 92

3 main ways discovery problems are presented to the court:

(a) Protective Order
(b) Partial Violation
(c) Total Violation

Front 93

Protective Order

Back 93

FRCP 26(c) - Receiving party seeks protective order - request is overburdensome or involves electronically stored info not reasonably accessible (e.g., deleted film), or involves trade secrets and we want an order limiting disclosure to the litigation.

Front 94

Partial Violation

Back 94

Receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation, so we expect a light sanction.

2 steps:
(1) Can get an order compelling the party to answer the unanswered questions, plus costs (including attorney's fees) of bringing the motion.
(2) If the party violates the order compelling him to answer, RAMBO sanctions plus costs (including attorney's fees re the motion) and could be held in contempt for violating a court order (except no contempt to refusal to submit to a medical exam).

Note - party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement.

Front 95

Total Violation

Back 95

One step - RAMBO plus costs (and attorney's fees re the motion). No need to get an order compelling answers. Go directly to RAMBO.

Again, party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement.

Generally, failing to produce electronically stored info (ESI) because it was lost in the good faith, routine operation of an electronic information system will not result in sanctions against this party absent exceptional circumstances.

Front 96

RAMBO Sanctions

Back 96

Choices available to judge:
- Establishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues re discovery)
- Disallow evidence form the disobedient party (as to issues re discovery)
- Dismiss plaintiff's case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown)

Front 97

Party Joinder - Proper defendants and Plaintiffs

Back 97

who MAY be joined:

P - Parties may sue together as co-plaintiffs where their claims:
(1) arise from the same T/O
(2) Raise at least one common question.

D - same test.

Then - with these parties, assess whether case invokes subject matter jurisdiction (can case as we've structured it get into federal court?)

Joinder rules starting with C are claims between present parties.

Joinder rules starting with I involve joining someone new to the case.

Front 98

Necessary and Indispensable Parties

Back 98

Some absentees (non-parties) MUST be forced to join in the case. Why? because they are necessary (or "required"). If the parties cannot be joined, then the court must proceed without him or dismiss the case at which point we call that person "indispensable."

Front 99

Who's necessary?

Back 99

An absentee (A) who meets ANY of these 3 tests:

(1) Without A, the court cannot accord complete relief (worried about multiple suits - not efficient);

(2) A's interest may be harmed if he isn't joined (practical harm - focus is on A); or

(3) A claims an interest which subjects a party (usually defendant) to a risk of multiple obligations (focus is on D).

Most likely - test #2 - worried about A who may be harmed if not joined.

Note - joint tortfeasors are not "necessary" per Supreme Court.

Front 100

So, A is necessary but is it feasible to join him?

Back 100

A's joinder is feasible if there is
(1) personal jurisdiction over him and
(2) joining him will not make it impossible to maintain diversity.

If joinder is feasible, A will be brought into the case.

Again, if A cannot be joined, the court must proceed without him OR dismiss the case.

Front 101

Dismissal (A is indispensable)

Back 101

Court looks at:
(a) Is there an alternative forum available? (like state court)
(b) What is the actual likelihood of prejudice?
(c) Can the court shape relief to avoid that prejudice?

Front 102

Impleader

Back 102

Third party practice

A defending party wants to bring in someone new (third party defendant - TPD) for one reason: the TPD may owe indemnity or contribution to the defending party on the underlying claim.

There is a right to implead within 14 days of serving answer; after that need court approval.

Steps for impleading TPD: (2 things)
(1) File third-party complaint naming party as TPD and
(2) Serve process on the TPD (so must have personal jurisdiction over TPD).

After TPD is joined, the plaintiff may assert a claim against the TPD and vice versa. BUT must be subject matter jurisdiction (diversity, FQ, supplemental).

Front 103

Intervention

Back 103

A wants to join a pending suit. She chooses to come in as a P or D. The court may realign her it if thinks she came in on the wrong side. Application to intervene must be "timely."

Intervention of right - A's interest may be harmed if she is not joined and her interest is not adequately represented now (Similar to test #2 for necessary parties).

Permissive Intervention - A's claim or defense and the pending case have at least one common question. Discretionary with court - it will be ok unless delay or prejudice.

Suppose we have a diversity of citizenship case and that the plaintiff intervenor is not diverse from the defendant (or vice versa) - Is there supplemental jurisdiction over a claim by or against an intervenor? Generally no.

Front 104

Class Action

Back 104

Representative(s) sue on behalf of a group.

Initial Requirements: Must demonstrate ALL 4 -
(1) Numerosity - Too many class members for practicable joinder (no magic # - just make the argument);
(2) Commonality - There are some questions of law or fact in common to the the class;
(3) Typicality - Representative's claims/defenses are typical of those of the class; AND
(4) Representative Adequate - the class representative will fairly and adequately.

THEN - Must fit the case within ONE of THREE types:

(1) "Prejudice" - class treatment necessary to avoid harm either to class members OR to party opposing class. An example is many claimants to a fund. Individual suits might deplete the fund, leaving some without a remedy.

(2) Injunction or Declaratory Judgment (not damages) - sought because class was treated alike by other party. Example - employment discrimination.

(3) "Damages" - Must show (1) common questions predominate over individual questions; AND (2) class action is the superior method to handle the dispute. Example - mass tort.

No matter what type, the court MUST determine "at an early practicable time" whether to "CERTIFY" the case to proceed as a class action. If the court certifies the class, it MUST "define the class and the class claims, issues, or defenses."

Also, court must appoint class counsel if certifying the class. Class counsel must fairly and adequately represent the interests of the class.

Court MUST NOTIFY type 3 class members of the pendency of the class action - includes individual notice usually by mail to all "reasonably identifiable class members." Notice tells them various things like opting out, be bound if they do not and can enter a separate appearance through counsel.

Rep pays to give notice.

All class members except those type 3 opt outs are bound by the judgment (no right to opt out in type 1 or 2).

Parties can settle or dismiss a certified class action ONLY with court approval.

AND in all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed. If it is type 3 class, the court MIGHT give members a second chance to opt out.

SMJ - the class could invoke FQ jurisdiction by asserting a claim arising under federal law BUT for diversity of citizenship, ONLY consider the REP - and the REP's claim must exceed $75,000 (absolute clarity).
-- This means that as long as the rep is diverse from all defendants and as long as the rep's claim exceeds $75,000, then the class action will invoke diversity.
-- Be aware of Class Action Fairness Act of 2005 which contains a grant of SMJ separate from regular diversity of citizenship jurisdiction.

Front 105

Class Action Fairness Act of 2005

Back 105

Allows federal courts to hear a class action if ANY class member (not just rep) is diverse from ANY defendant AND IF the aggregated claims of the class exceed $5,000,000.

The whole idea is to make it easier for interstate class actions to go to federal court. There are complicated provisions for ensuring that essentially local classes (where most class members and the primary defendants are citizens of the same state) cannot stay in federal court. They are dismissed by the federal court (or, if they were removed from state court, are remanded to state court).

Front 106

ADJUDICATING THE DISPUTE

Back 106

Pretrial Adjudication
Conferences and Meetings
Trial, Judgment, and Post-trial Motions

Front 107

Pre-trial Adjudication

Back 107

Failure to state a claim
Summary Judgment

Front 108

Failure to State a Claim

Back 108

Under FRCP 12(b)(6), D can move to dismiss for failure to state a claim.

Tests ONLY the sufficiency P's allegations.

Standard: The court assumes all allegations are true and asks:
-- if P proved all she has alleged, would she win a judgment?

Testing to see whether the facts alleged state a claim that the law would recognize.

Court only looks at the face of the complaint - Did P allege enough? [Note: Motion for Judgment on the Pleadings, which is the same motion as a Rule 12(b)(6) but made after D has answered, is the same test).

Front 109

Summary Judgment

Back 109

Moving party must show
(1) there is no genuine dispute as to material issue of fact and
(2) that she is entitled to judgment as a matter of law.

Court can (and usually does) look at evidence. Court views the evidence in the light most favorable to the non-moving party.

Idea of summary judgment is to week out cases in which we do not need a trial (since no disputes of fact, which a jury would decide).

Affidavits are sworn statements (made under penalty of perjury) - so they can be treated as evidence.

First-hand knowledge creates genuine disputes of fact.

Front 110

Conferences and Meetings

Back 110

Rule 26(f) Conference
Scheduling Order
Pretrial Conferences

Front 111

Rule 26(f) Conference

Back 111

Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses, and settlement. Must form discovery plan and present it to court in writing within 14 days. Part of the discussion must be potential difficulties in discovering electronically stored info.

Front 112

Scheduling Order

Back 112

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for discovery, joinder, amendment, motions, etc.

Front 113

Pre-trial Conferences

Back 113

The court may hold "pretrial conferences" as needed to expedite the case and foster settlement. Final pretrial conference determines issues to be tried and evidence to be proffered. Recorded in pretrial conference order that basically supersedes the pleadings; may be amended "to prevent manifest injustice" (a tough standard).
-- The final pretrial conference order is an important document - it is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc., so there are no surprises at trial.

Front 114

Jury Trial

Back 114

Juries determine FACTS, and are instructed on the law by the judge.

(1) Right to jury trial in federal court - 7th amendment (which only applies in fed ct, not state ct, preserves the right to jury in "civil actions at law," but NOT suits in equity. If case involves both, then jury decides the facts underlying the damages claim but NOT the equity claim (which the judge decides). Jury issues are tried first.

(2) Requirement of DEMAND - Must demand in writing no later than 14 days after service of the last pleading raising jury triable issue.

(3) In the jury selection process ("voir dire"), each side has unlimited "strikes for cause" (e.g., bias, prejudice, related to a party) and 3 peremptory strikes (which must be used in a race or gender-neutral way b/c jury selection is state action).

(4) Motion for Judgment as a Matter of Law (JMOL) (old name: directed verdict) - This is an exceptional order, the effect of which is to take the case away from the jury [way to control the jury].

Front 115

Judgment as a Matter of Law (JMOL)

Back 115

Brought after the other side has been heard. So, generally D can move twice: at close of P's evidence AND at close of all evidence. P - only at close of all evidence.

Standard for Granting - reasonable people could not disagree on the result. (Case is so lopsided that it can only come out one way.)

Front 116

AFTER Trial - Renewed Motion for Judgment as a Matter of Law (RJMOL)

Back 116

(old name - JNOV) - Same as JMOL but comes up AFTER TRIAL.

1. Situation - Judge did not grant motion for JMOL, and the case went to the jury. It returns a verdict for one party, and the court enters judgment on the basis of the verdict. NOW the losing party files a renewed motion for judgment as a matter of law. If RJMOL is granted, the court enters judgment for the party that lost the jury verdict. Move within 28 days after entry of judgment.

(2) Standard - Same as Motion for JMOL. So, if granted, the jury reached a conclusion reasonable people could NOT have reached.

(3) Motion for JMOL at an appropriate time DURING trial is a PREREQUISITE. If you did not move for JMOL at trial, you CANNOT move for the renewed JMOL afterwards.

Front 117

Motion for a New Trial

Back 117

(1) Situation - Judgment entered, but errors at trial require a new trial. Something happened that makes the judge think the parties should start over and re-try the case. Move within 28 days after judgment.

(2) Grounds (classic list)
- Prejudicial (not harmless) error at trial makes judgment unfair (wrong jury instruction, evidentiary ruling)
- New evidence that could not have been obtained with due diligence for the original trial
- Prejudicial misconduct of party, attorney, third party, or juror
- Judgment is against the overwhelming weight of the evidence (serious error of judgment by jury)

(3) Compare - Grant of new trial is less radical than grant of renewed JMOL because it means the court will simply start over and decide who should win.

Front 118

APPEAL

Back 118

Final Judgment Rule
Interlocutory Review

Front 119

Final Judgment Rule

Back 119

As a general rule, can appeal ONLY from final judgments, which means an ultimate decision by the trial court of the merits of the entire case.

File notice of appeal in TRIAL COURT within 30 days after entry of final judgment.

To determine whether it's a final judgment, ask: after making this order, does the trial court have anything left to do on the merits of the case? If so, it is not final.
- Denial of Motion for Summary Judgment NOT final b/c trial court still has entire case before it.
- Grant of Motion for new trial not final b/c still has to hold a new trial.

Front 120

Interlocutory (non-final) Review

Back 120

May be appealable even though not final judgment:

(1) Interlocutory orders reviewable as a matter of right: orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property, e.g. attachments.

(2) Interlocutory Appeals Act - Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion AND the court of appeals agrees to hear it.

(3) "Collateral Order" Exception - Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state's claim of Eleventh Amendment immunity from suit of damages).

(4) When more than one claim is presented in a case or when there are multiple parties, the trial court may expressly direct entry of a final judgment as to one or more of the them if it makes an express finding that there is no just reason for delay.

(5) Extraordinary Writ - Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty.

(6) Class Action - Court of appeals has discretion to review order granting or denying certification of class action. Must seek review within 14 days of order. Appeal does not stay proceeding at trial court unless trial judge or court of appeals so orders. Must file this petition with court of appeals.

Front 121

PRECLUSION

Back 121

Claim Preclusion (Res Judicata)
Issue Preclusion (Collateral Estoppel)

Wherever there has been an earlier case, watch for these issues, which concern the preclusive effect of a prior judgment on the merits.

Issue - Whether a judgment already entered (case 1) precludes litigation of any matters in another case (case 2).

Front 122

Claim Preclusion (Res Judicata)

Back 122

You only get to sue on a claim once. So you only get one case in which to vindicate all rights to relief for that claim.

Requirements:
(1) Case 1 and Case 2 were brought by the same claimant against the same defendant (not just same parties but same configuration).

(2) Case 1 ended in a valid final judgment on the merits. General rule - unless the court said otherwise when it entered the judgment, any judgment is "on the merits" UNLESS it was based on
- jurisdiction
- venue, or
- indispensable parties.

(3) Case 1 and Case 2 asserted the same "claim." (Split of authority)
-- Majority View (including federal law): a claim is any right to relief arising from a T/O.
-- Important Minority View: there are separate claims for property damage and for personal injuries because those are different "primary rights."

Front 123

Issue Preclusion (Collateral Estoppel)

Back 123

Narrower - it precludes relitigation of a particular issue litigated and determined before. That issue is deemed established in a second action, so it cannot be relitigated.

Requirements:
(1) Case 1 ended in a valid, final judgment on the merits (same as RJ).

(2) The same issue was ACTUALLY litigated and determined in Case 1 (vastly different from claim preclusion - RJ. A default judgment might give RJ but not CE.)

(3) The issue was essential to the judgment in Case 1. Without this issue, the judgment in Case 1 would have been different.

(4) Against WHOM can issue preclusion be asserted? ONLY against one who was a party or rep in Case 1. (Due process - constitutionally required).

(5) BY WHOM can issue preclusion be asserted?
-- Starting point (mutuality) - only by one who was a party to Case 1. This is NOT required by Due Process, and some courts have rejected it to allow "nonmutual" assertion of issue preclusion: 2 ways -
(a) Nonmutual Defensive Issue Preclusion (just means the one using it was NOT a party in case 1 and is DEFENDANT in case 2).
-Go through steps 1-4
- At 5, under the mutuality rule, non party would not be allowed to assert issue preclusion but most courts today would allow this if the party had a full chance to litigate in case 1.

(b) Nonmutual Offensive Issue Preclusion (just means that the one using it was NOT a party in Case 1 and is the Plaintiff in Case 2)
- Steps 1 through 4
- Step 5: still could not be done under mutuality rule, but most courts still would not allow it. Trend, however, will allow it IF it is NOT "unfair". Factors:
-party had full and fair opportunity to litigate in case 1
-party could foresee multiple suits
-nonparty could not have joined easily in case 1
-There are no inconsistent judgments on record. If there had been multiple litigation, and sometimes party was found negligent and sometimes not, it would be unfair to let nonparty get issue preclusion on that finding.