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90 Cards in this Set

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Joinder of Ps

Any number of plaintiffs may join if they assert claims arising out of the same transaction or occurrence AND there is a common question of law or fact.

Joinder of Ds

Any number of defendants may be joined in the same action if the claims against them arise outof the same transaction or occurrence and there is a common question of law or fact.

Joinder in diversity cases

NO party can be joined, either as a plaintiff or a defendant, whose presencewould defeat complete diversity.

If complete diversity is maintained, and if one plaintiff has a claim that exceeds $75,000,other plaintiffs with smaller claims can come in under one plaintiff.

Compulsory Joinder of Parties

• Joinder by Ds

• Necessary party – a person whose participation in the lawsuit is necessary for ajust adjudication.

o Absent that party, complete relief cannot be accorded to the existing parties;

o Necessary party has an interest in the litigation which will be impeded if the litigation goesforward without that party; OR

o There is a substantial risk of double liability.

Necessary party MUST be joined if feasible

o Feasible if (1) it will not deprive the court of SMJ (will not destroy complete diversity) and (2)the court can assert personal jurisdiction over the necessary party.

o "Bulge provision" - in addition to all other grounds for serving an out-of-state defendant, anecessary party may be served anywhere within 100 miles of the federalcourthouse.

If a necessary party CANNOT be joined

then the court decides whether to continue without thenecessary party (typically the case) or dismiss the suit (rare).


• Outsider who volunteers to enter a lawsuit

• Chiefly concerned with Ps

Intervention as of right

may be had when the outsider claims an interest in the subject matterof the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action.

Permissive intervention

May be allowed whenever there is a commonquestion of law or fact between theintervenor's claim and the main claim.

o Must ask the court's permission - matter of court’s sound discretion

• Both types must be timely - "reasonable promptness"

• NO supplemental jurisdiction for either kindof intervention.o Diversity case – intervenor must satisfy complete diversity and have a claim that exceeds $75,000.


o Used to resolve the problem of competing claims to the same property

o Designed to avoid inconsistent obligations or multiple claims


Property at issue

May be real or personal, tangible or intangible


Person holding the property

o Stakeholder can invoke interpleader either as a plaintiff OR a defendant.

Stakeholder-plaintiff sues all the claimants as defendants.

Stakeholder-defendant is one who has been sued by a claimant; all the other claimantsare joined as plaintiffs.


Persons claiming the property

Stakeholder may also be a claimant

Rule Interpleader

o Authorized by Rule 22o Remedy available in a lawsuit otherwise within the court’s jurisdiction

Statutory Interpleader

o Federal Interpleader Act

o Has special provisions:

Special jurisdictional amount: Need only exceed $500

Authorizes nationwide service of process

Venue is proper in any district whereany claimant resides.

SMJ based on minimal diversity.

• Any two claimants are from different states

Joinder of Claims

• As between the same plaintiff and the same defendant, ALL claims may be joined.o Need not be related

• Diversity case - plaintiff can add up ("aggregate") all claims against the same defendant toexceed the jurisdictional minimum ($75,000+).

• Federal question case – if diversity is lacking for additional state-law claims, additional state-lawclaims can be joined only if they are covered by supplemental jurisdiction (i.e., arise from thesame transaction or occurrence as the original claim).


o Claim by the defendant against the plaintiff

o Pleaded in the defendant's answer

Compulsory Counterclaims

o Lost if not pleaded - must be raised now

o A counterclaim is compulsory if it arises out of thesame transaction or occurrence as the claim to which it responds.

o Supplemental jurisdiction coverscompulsory counterclaims.

If there is SMJ over the main claim, there is SMJ over a compulsory counterclaim.

Diversity case – amount of compulsory counterclaim does not matter.

o Statute of Limitations - filing of the original complaint tolls the SOL for the original claim AND any compulsory counterclaim(s).

Permissive Counterclaims

o May be pleaded now OR raised later

o Counterclaims that do NOT arise out of the same transaction or occurrence – unrelated.

o Requires an independent jurisdictional base - must be afederal question, raise a federal claim or there must bediversity of citizenship with $75,000+ in issue.

o SOL - A permissive counterclaim must be timely as of the date it is filed or it’s time-barred.


• Claims asserted against a co-party

o Plaintiff v. co-plaintiff, defendant v. co-defendant

• MUST arise out of the same transaction or occurrence as the original claim

• Never compulsory

Impleader (Third-Party Practice)

Device by which the defendant brings into the suit someone who is or may be liable to theD for all or part of theP's claim against him

Impleader examples to learn

Example 11: Contribution among joint tortfeasors. Two tortfeasors injure aplaintiff. The plaintiff sues one but not the other. That defendant has a right toseek contribution from the other tortfeasor if he is found liable to the plaintiff.The sued defendant can implead the other tortfeasor, not because the othertortfeasor may be liable to the plaintiff, but, given the right of contribution,because the other tortfeasor is or may be liable to the defendant for all or partof the defendant’s liability to the plaintiff.

Example 12: Contract of indemnification. A general contractor makescontracts with subcontractors. Each contract requires the subcontractor toindemnify the general contractor for any defect in that subcontractor’s work. Ifthe owner sues the general contractor, the general contractor can implead thesubcontractor, who may be liable to the general contractor (the defendant) forall or part of the owner’s claim against him.


Subject Matter Jurisdiction

o Diversity cases - impleader comes within the court'ssupplemental jurisdiction.

Citizenship of the third-party defendant does NOT matter

Amount of claim against third-party defendant does NOT matter

Extends to claims by the defendant against a third-party defendant

o Supplemental jurisdiction does NOT extend to claims by the originalP against the impleaded third-partydefendant.

Plaintiff cannot make a claim against the third-party defendant UNLESS completediversity is met (or there is federal question jurisdiction for the claim).

Personal Jurisdiction

In addition to all other methods for asserting personal jurisdiction, impleader allows theassertion of PJ by service of process anywhere within 100 miles of the courthouse.

Class Actions Prerequisites

Prerequisites for a class action are:

o Numerousness - too many parties to be joined conventionally

o Common questions of law or fact

o Typicality of claims by the class representatives

o Adequacy of representation by the representatives’ lawyer(s)

Class actions

Dismissal or Compromise (Settlement)

Requires judicial approval

Class actions

Diversity Jurisdiction

Named representatives must be completelydiverse from the defendants AND at least one of them has a claim worth $75,000+


Mandatory Disclosures

Means disclosure without having to wait for a discovery request.

Three stages:

(1) Initial disclosures

(2) Disclosure of expert witnesses

(3) Pretrial disclosures

Initial disclosures

Name and addresses of personswith potentially discoverable information

Copies or descriptions of relevant documents or things

Computation of damages claimed

Applicable insurance agreement(s)

Disclosure of expert witnesses

Names of expert witnesses who will be called at trial

Qualifications, publications, opinions, information on which they will base theiropinions, other cases in which they have testified, and compensation

Pretrial Disclosures

30 days before trial

List of witnesses and exhibits

Any objections must be made within 14 days after disclosure or they are waived unlessexcused by the court for good cause.

Scope of Discovery

o General rule is relevance.

o You can discover anything that might be admissible at trial OR that might lead to somethingthat might be admissible at trial.

o Key point - the scope of discovery is not limited toadmissible evidence.

E.g., hearsay is NOT a valid objection to discovery - might lead to other evidence that isadmissible.


Courts are to consider the importance of the issues, the amount at stake, the parties’resources and access to information, the value of discovery in the case, and, mostimportantly, whether the burden or expense ofdiscovery outweighs its likely benefit.

Exceptions to Discovery

Evidentiary privilege

Work Product Rule

Evidentiary privilege

Anything covered by an evidentiary privilege, e.g., attorney-client privilege, is NOTdiscoverable.

Work product rule

Applies only to documents and things (not information) prepared in anticipation of litigation.

o Documents prepared before the cause of action arose are NOT protected by thework product rule.

Can NEVER discover mental impressions of the lawyer. Can always get a copy of your own statements whether you are a party or witness.

Work product rule can be overcome if the party seeking discovery shows:

o Need for the document or thing; and

o That the information cannot be obtained elsewhere.


o Distinction between experts who will be called to testify at trial and those who will not

If expert is going to be called, the other side, in fairness, has to prepare for crossexamination.

Other side can always discover the report of the testifying expert.

• Draft reports are generally NOT discoverable.

Communications between the lawyer and the expert are generally NOT discoverable.

• Can discover the amount of compensation, and the facts, data, and assumptionsprovided to the expert by the lawyer

o If expert is NOT going to be called as a witness, no discovery absent exceptionalcircumstances.

Protective Orders

o Court orders to compel or restrain discovery

o For good cause shown, court can basically doanything it wants, in its discretion, that justice may require.

Six Discovery Devices

(1) Oral deposition

(2) Written deposition

(3) Interrogatories

(4) Discovery and Inspection of Documents and Land

(5) Physical and Mental Examinations

(6) Request for admission

(1) Oral Deposition

o Questions are asked and answered orally and under oath.

o Limited to 10 depositions, unless the court allows more

o Each is limited to one day of 7 hours, unless the court allows more.

o Can be taken at any time after the party has made mandatory disclosures

o May be taken before any notary public who is not otherwise disqualified

What kind of notice suffices?

Any kind of notice suffices for the deposition of a party; buta deposition of a nonparty witness requires a subpoena.

subpoena duces tecum

requires the deponent to bring specified documents or things.

Deposing an organization

serve notice or subpoena on organization; organization thenselects person who will be deposed

(2) Written Deposition

o Questions asked in writing are delivered to an officer who asks orally the questions and thewitness answers orally under oath.

o Rarely used

(3) Interrogatories

o Questions asked in writing to be answered under oathin writing

o May only be used against a party

o Limited to 25 interrogatories, unless the court allows more

o Responses required within 30 days

(4) Discovery and Inspection of Documents and Land

o Called a request to produce and permit inspection.

o Applies only to documents, things, and land under the control of a party.

o The thing to be produced and inspected must be described withparticularity.

o Response is due within 30 days.

(5) Physical and Mental Examinations

o Available only against a party

o Only permitted when the party’s physical or mental condition is incontroversy

o Only for good cause shown

(6) Request for Admission

o Used to streamline the lawsuito Failure to respond within 30 days is an admission.

o Certification: Responses to requests for admissions (and all other documents) must besigned by the attorney of record.

The signature certifies that there is a reasonable basis and good faith for denying the request.

o Admissions have no preclusive effect. Only binding in the current lawsuit Cannot be used against the party in any future proceeding

Use of depositions

• Discoverability does not equal admissibility.

• Deposition of an adverse party is admissible as an admission against interest.

• Deposition of a witness can be used to impeach.

• Deposition of a witness who does NOT testify can be used if the witness is dead or beyond thecourt’s subpoena power or otherwise unavailable.

o Can also be used if the witness is more than 100 miles from the place of trial.

Enforcement Sanctions

• The court can immediately impose sanctions in three instances of complete default:

1) Failure to attend one’s own deposition;

2) Failure to respond to interrogatories; and

3) Failure to respond to a request for documents or things.

• In all other cases, the party seeking discovery must go to court and obtain an order compellingdiscovery; the court should first issue an order to compel based on the party’s request beforeimposing sanctions.

Electronically Stored Information

Should be preserved

• If lost through the unreasonable conduct of a party, the court may order measures to cure the prejudice to the other party.

• If the material was destroyed with the intent to prejudice theother party, the court may instruct the jury that it must presume the information wasunfavorable, or even order the end of the litigation.

Pre-Trial Conference

• Must be attended by the attorneys who will conduct the trial

• Must file a pre-trial statement detailing:

o Claims and defenses, itemization of damages, requests for stipulations and admissions, listof all witnesses and exhibits, etc.

• Failure to comply usually means that the attorney pays the costs and the other side's attorney'sfees.

Termination Without Trial

Judgment on the pleadings

Default judgment

Voluntary dismissal

Involuntary dismissal

Summary judgment

Voluntary Dismissal

o "Without prejudice" - plaintiff whose claim has been dismissed can bring that claim again ina new lawsuit.

o Plaintiff has a right to a voluntary dismissal once at any time prior to the defendant servingan answer or a motion forsummary judgment.

The defendant’s motion to dismiss (e.g., for lack of jurisdiction or improper venue)before filing an answer does NOT cut off the right to a voluntary dismissal.

o After a defendant has filed an answer or motion for summary judgment, or if the plaintiffhas already voluntarily dismissed once, plaintiff may seek a dismissal without prejudice on leave of court.

Involuntary Dismissal

o Involuntary dismissal for lack of jurisdiction, improper venue,or failure to join a necessary party is without prejudice.

o All other cases - involuntary dismissal is with prejudice.

Dismissal with prejudice is an adjudication on the merits.

Given full res judicata effect(preclusive)

o May be imposed for plaintiff’s failure to prosecute or for failure to comply with the FRCP orany court order

o Standard for appellate review: abuse of discretion

Summary Judgment (SJ)

Summary judgment can be used to test both the facts AND the law (MD only tests legal sufficiency).

o Standard: there is no genuine dispute as to any material fact and the moving party isentitled to judgment as a matter of law.

Do equity issues require a jury?

No. Equity issues, such as request for an injunction andspecific performance, do NOTrequire trial by jury.

What triggers jury trial?

Damages (remedy at law)

If Legal and equity issues overlap in one lawsuit,

Try the legal issues first.

Demand for Trial by Jury

Must be made not later than 14 days after service of the answer

Jury Selection amount =

How many peremptory challenges?

Minimum of 6, maximum of 12.

3 peremptory challenges per party.

Bench trial

Judge is required to make findings of fact and state conclusions of law.

Jury Instructions

o Parties may request specific instructions.

o Judge must inform the parties of his actions on those requests and the court’s proposedinstructions before final argument.

o Court must provide an opportunity to object to proposed instructions - objections must beon the record.

o Any objection to the instructions must be made BEFORE the jury retires.

Motion for Judgment as a Matter of Law (formerly Directed Verdict)

• Essentially a motion for summary judgment AFTER the trial has begun.

• Standard: viewing the evidence in the light most favorable to the opposing party, the evidencecannot support a contrary verdict and the moving party is therefore entitled to judgment as a matter of law.

• Credibility of a witness - if the case turns on this issue, then there is a dispute as to an issue ofmaterial fact and the motion for JMOL will be denied; the issue is for the jury.

• Typically made by the D at the close of the plaintiff's case and by either or both sides at the close of ALL evidence.

Renewed Motion for Judgment as a Matter of Law (formerly J.N.O.V.)

• A motion for JMOL made at the close of all the evidence and denied by the court may berenewed after the verdict.

• Standard is the same: the evidence cannot support the jury's verdict and the moving party istherefore entitled to judgment as a matter of law.

• Prior motion is required: It is a condition precedent to a post-verdict motion that the motion forJMOL had been made at the close of all evidence.

o If you fail to ask originally, you cannot renew.

• Usually made with a motion for a new trial


Motions to Terminate Without Trial

• A motion to dismiss for failure to state a claim, motion for judgment on the pleadings, motionfor summary judgment, or motion for judgment as a matter of law made before the jury retiresare waived if the moving partyproceeds with trial once the motions are denied.

• Preliminary motions are no longer relevant once there has been a full trial.

• Appellate review is based on the judgment rendered after full trial, not the earlier motion.


• Grounds for new trial include:

o Errors during trial that rendered the judgment unfair;

o Newly discovered evidence;

o Prejudicial misconduct by a lawyer, party, or juror; and For jurors, includes the failure to answer voir dire honestly if an honest response wouldhave been a valid basis for challenging the juror’s service

o Excessive verdict and the winning party refused to accept a reduction (remittitur).

How does an appellate court review questions of law?

De novo.

Final Judgment Rule

Resolves ALL the claims of ALL the parties on the merits.

Partial final judgment:

the court may, by express designation, enter a final judgment onsome claims. Such a judgment is immediately appealable.

When must notice of appeal be filed?

o Notice of appeal must be filed in the trial court within 30 days of entry ofjudgment. A timely post-judgment motion (e.g., renewed motion for JMOL or a new trial motion)tolls/suspends the 30-day limit.

Interlocutory Orders Immediately Appealable as of Right


Any order that changes or affects property

Discretionary Interlocutory Appeal

Any interlocutory order is appealable onleave of courts.• BOTH the trial and appellate courts must agree to allow the appeal.

Collateral-Order Doctrine

o Authorizes immediate appeal of orders separable from and collateral to the main suit andtoo important to deny immediate review

o Most likely case: The denial of a motion to dismiss for forum non conveniens is almostalways a collateral order and immediately appealable.


Provides for immediate appellate review of an order that is an abuse of authority

Class actions

Appellate courts have discretion to hear interlocutory appeals from orderscertifying or refusing to certify a class action.

Appellate court Standards of Review

Questions of Law - de novo

Findings of fact:

Jury verdicts must be affirmed if supported bysubstantial evidence.

Judge's findings of fact must be affirmed unlessclearly erroneous. Judge's conclusions of law are reviewed de novo.

Matters of Discretion

Standard of appellate review isabuse of discretion.

Any reasonable decision will be upheld.

Full Faith and Credit

Courts in the United States, both state and federal, must give full faith and credit to judgmentsrendered by courts of other states, provided that the rendering court had jurisdiction.

What 2 questions to ask regarding preclusion?

(1) Is the claim in the second suit precluded by the prioradjudication?

(2) If not, is the issue in the second suit precludedby the prior adjudication?

Exam Tip 7: Always ask these questions separately and in order.

Claim Preclusion

o A final judgment on the merits of a claim bars re-litigation of that claim by the same partiesor those in privity with the parties.

o Prevents re-litigation of every claim that was raised OR should have been raised in the firstsuit.

Claim preclusion requirements:

o There must have been a final judgment on the merits in the first suit;

o The second suit must be between the same parties or their successors in interest; and

o The second suit must involve the same claim or cause of action.

Final Judgment on the Merits

o Includes a default judgment,summary judgment, and dismissal with prejudice

o NOT necessary that there had been a trial

Re-litigation between the Same Parties or Their Successors in Interest

o Both parties must have been parties to thefirst action or successors in interest to the original parties.

o Same parties - must be same plaintiff and same defendant

o The only "exception" is when re-litigation involves successors in interest - stands in theshoes of his or her predecessor.

o Examples of successors in interest include:

The assignor and assignee of a claim;

A decedent and the executor of the estate; and

The executor of an estate and persons who claim under the will.

Re-litigation of the Same Claim or Cause of Action

o ALL legal theories to recover for harm arising out of a single transaction or occurrence areone claim.

o Unless state law provides otherwise, if both contract and tort claims seek redress for thesame harm, they are the SAME claim.

o Installment sales - creditor must sue for all that is due at the time of the suit. All debt owedat the time of the action is one claim even if it was due in 3 or 4 separate payments.Creditor cannot sue for payments that are not "due and owing." Future debts or obligationsare another claim.

Issue Preclusion requirements

o The same issue of fact must arise in two suits;

o That issue must have been actually and necessarily decided in the first suit; and

o The party to be precluded must have been a party to the first suit.

Same Issue of Fact

It doesn’t matter if the two suits involve entirely different claims, so long as they have a factualissue in common.

Actually and Necessarily Decided

o Only applies to issues actually litigated; not to those that MIGHT have been litigated

o Default judgment - results in full claim preclusive effect,but no issue preclusive effect.

Party to be Precluded Must Have Been a Party to the First Suit

o The party against whom preclusion is invoked must have been a party to the first suit or asuccessor in interest.

o The party invoking preclusion need not have been a partyto the prior action, nor in any way involved in the action.

o NO requirement for mutuality of estoppel

Rule at least applies to the defensive use of issue preclusion.

Whether a succession of plaintiffs could invoke issue preclusion offensively is not clear.