Civil Procedure Review

I. Jurisdiction
1. Subject Matter
Jurisdiction
2. Personal
Jurisdiction
3. Due Process
4. Service of
Process (Notice)
5. Venue
6. Removal

II. Erie

III. Joinder
1.
Joinder of Claims
Permissive Joinder of
Parties
Compulsory Joinder of
Parties
2.
Counterclaim
Crossclaim
3rd Party Claims

3.
Intervention
Interpleader (Not on
Final)
Class Action

IV. Res
Judicata

1. Res Judicata
(Claim Preclusion)

2. Collateral
Estoppel
(Issue Preclusion)

3. Parties
Who is subject to
claim or issue
preclusion?

7. Waiver

298326263.doc

-1-

I. Jurisdiction Checklist
1
Is There
Subject Matter
Jurisdiction?
United States Constitution, Article III: Federal Courts Are Courts of Limited

1
Federal
Question
28 U.S.C. 1331

2
Diversity
28 U.S.C. 1332

3
Alienage
28 U.S.C. 1333

4
Admiralty
28 U.S.C. 1333

5
Disputes Between
States, Counsels, and
Ambassadors

Federal Question Basics: 28 U.S.C. 1331

Does the claim arise under the constitution, treaties, or laws of the U.S.?
Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ?
Remember, NO $ Amount limit: Can have SMJ over a $1 dispute.
Federal Jurisdiction may be exclusive to federal court (e.g., patent or copyright claims); or
Federal Jurisdiction may be concurrent with state court jurisdiction (e.g., civil rights or federal
employment liability act (FELA) claims), subject to the right of removal.
Federal Question Flow Chart
Yes

Does the s well pleaded complaint allege an express or implied

federal cause of action?
Yes

No

Does the s well pleaded complaint allege a state law cause of action
in which federal law is an essential element?

Does the federal law that is an element authorize a private right of

action?
Yes
There is FQJ
298326263.doc

Dont rely too much on this. I derived this rule from Smith
v. Kansas City Title and Merrell Dow v. Thompson.
Aronovsky says the COA are still split and the SC has not
ruled. So, in some circuits this would work but dont treat
it as a hard and fast rule.

No

There is
NO FQJ.
-2-

IS THERE
SUBJECT MATTER
JURISDICTION?
United States Constitution, Article III: Federal Courts Are Courts of Limited
Jurisdiction:
1
Federal Question
18 U.S.C. 1331

2
Diversity
18 U.S.C. 1332

3
Alienage
18 U.S.C. 1333

DIVERSITY

OF

4
Admiralty
18 U.S.C. 1333

5
Disputes Between
States, Counsels, and
Ambassadors

CITIZENSHIP BASICS

1) COMPLETENESS: Diversity must be complete. There cannot be anyone on the left of the v and the right. All s must
be different from all s.
2) DATE: Diversity is calculated as of the date the action was instituted.
3) CITIZENSHIP (Domicile)
a) PERSONS: Where you were born and continues through your life unless:
i) You physically change your state; and
ii) You have the intention of remaining in the new state for the indefinite future.
iii) If person has multiple homes in different states, look of that persons center of gravity by looking at:
(1) Where does the person live?
(2) Where is the family?
(3) Where does the person pay taxes?
(4) Where does that person work?
(5) Where are the cars licensed?
(6) Where does the person vote?
b) CORPORATIONS:: Every corporation has two domiciles:
i) state of incorporation; and
ii) its principle place of business (usually where the corporate headquarters is located. Two tests for principle place
of business:
(1) Nerve Center Test place where corporate decisions are made; or
(2) Muscle (Plurality) Test - place where the corporation does most of its manufacturing or service providing.
c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member. So, a
national labor union like the Teamsters could never pass the federal diversity test because it has members in all 50
states.
d) PARTIES IN REPRESENTATIVE ACTIONS (e.g., representative of a child, probate, or derivative actions or class action
suits:
i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative.
ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party.
298326263.doc
-34) AMOUNT IN CONTROVERSY: must be over $75,000, exclusive of interest and costs but inclusive of punitive damages.

IS THERE
SUBJECT MATTER
JURISDICTION?
SUPPLEMENTAL JURISDICTION CREATED BY JUDICIAL INTERPRETATION
AND CODIFIED IN 28 U.S.C. 1367

1
Federal
Question
18 U.S.C.
1331

2
Diversity
18 U.S.C.
1332

2a
Supplemental
(Pendant &
Ancillary)
18 U.S.C. 1367

3
Alienage
18 U.S.C.
1333

4
Admiralty
18 U.S.C.
1333

5
Disputes Between
States, Counsels, and
Ambassadors

SUPPLEMENTAL JURISDICTION BASICS

1) Pendant & Ancillary Jurisdiction: United Mine Workers v. Gibbs state tort claim added to federal employment
question. Supreme Court ruled that federal court could assume jurisdiction over state claim because they all emanated
from the same set of facts. This ruling, called the pendant doctrine, expanded the definition of case and controversy
under Article III.
a) Ancillary claims doctrine allowed s to bring a case and allowed s to assert jurisdictionally insufficient compulsory
counter-claims, cross-claims, and 3rd party claims.
2) 1367: After some restrictions in Owens and Finley, Congress codified Gibbs in 1367.
a) 1367(a): Matters originating from a common nucleus of operative facts are now considered part of the same case or
controversy for Article III purposes.
b) 1367(b): Codifies Kroger but rejects Finley. limits reach of jurisdiction only in diversity only cases exercise of
jurisdiction must be consistent w/1332 (diversity
statute) 1367(b) applies
Remember,
i) No supplemental jurisdiction; must have independent
jurisdiction
forsole
claims by against persons made parties
ONLY if diversity
is the
by:
basis for being in federal court.
(1) Rule 14 (Impleader)
(2) Rule 19 (Compulsory Joinder of Parties)
(3) Rule 20 (Permissive Joinder of Parties)
(4) Rule 24 (Intervention)
c) 1367(c) gives Ct discretion to hear cases (like Gibbs but not clear whether list is illustrative or exhaustive)
i) Says that the Ct may decline to exercise j if:
(1) Claim raises a novel or complex issue of state law
(2) The claim substantially predominates over the claim(s) over which the dc has original jurisdiction
(3) The Court has dismissed all claims over which it has original jurisdiction
(4) In exceptional circumstances other reasons

298326263.doc

-4-

Supplemental Jurisdiction
Flowchart
18 U.S.C. 1367
Same case or
controversy?

No
No SMJ

This is a basic
requirement of
1367(a).

Yes
Federal Question
or
Diversity?

Diversity
Only
Claim by or ?

Fed. Ques.
SM
J

1367(b) limitation
does not apply to Fed
Ques.

SM
J

1367(b) limitation
does not apply to
claims brought by .

No SMJ

This is the 1367(b)

limitation.

Party added under

what Rule?

14 19 20 () 24

20(), 23

TROUBL
E!

298326263.doc

The literal language of 1367 lets the

claim in. But the legislative history
indicates that Congress wants the claim
to stay out. The Courts of Appeal are
split. The Supreme Court granted
certiorari in 2000, Justice OConnor

-5-

PERSONAL JURISDICTION
CONSTITUTIONAL BASES:
14TH AMENDMENT
DUE PROCESS
REQUIREMENT
Notice And
Opportunity to Be
Heard

ARTICLE IV, 1:
FULL FAITH & CREDIT
CLAUSE
Full Faith and Credit
Will Be Given in Each
State

CONSENT
EXPRESS: Carnival Cruise Lines
IMPLIED: Hess v. Pawloski
WAIVER: Insurance Corp of Ireland
Contract / Agent Appointment / Shows up
to Litigate

MODERN SERVICE

STATUTORY BASIS

Rule 4 (a-e, h, n)

State
Federal
Long Arm
Rule 4(k)
Statute
(2)
Can Restrict Constitutional
Personal Jurisdiction But

Traditional Bases of Personal

Jurisdiction

Reasonably Calculated
Under the Circumstances to
Give Notice
Mullane v. Central
Hanover Bank
PHYSICAL PRESENCE IN
STATE
Tag Jurisdiction Lives!
Burnham v. Superior Court

DOMICILE
Gordon v. Steele: Kid at
College
Milliken: WY Domicile Served
in CO

Ex-Husband Served While

Visiting Kids

MODERN BASIS OF PERSONAL JURISDICTION

must have sufficient minimum contacts within the forum state such that
maintenance of the suit does not offend traditional notions of fair play and
substantial justice.
International Shoe Co. v. Washington

S U F F I C I E N T M IN I M U M C O N TAC TS
(CAPFI)
1. Cause of Action: Where did the cause of action
arise?
2. Activities: Scrutinize these activities in the
forum state:
a. Systematic & Continuous = General
Jurisdiction
b. Sporadic = Specific Jurisdiction
c. Direct vs. Indirect
d. Dangerous activity?
3. Purposeful Availement: Has purposefully
availed itself of the benefits & protections of
forums laws? Hanson v. Denkla.
298326263.doc

F AI R P L AY

S U B S TAN TI AL J U S TI C E
(BLIM FEW)

AN D

1. Burden on the Parties: Economic, time, relative

burdens.
2. Law: What forums law?
3. Interest of the State: in providing a forum for &
protecting its citizens.
4. Multiplicity of Suits: Will they all be resolved?
5. Forum: Alternative forum available? Fair &
convenient?
6. Evidence: Where is the bulk of the evidence?
7. Witnesses: Where are the witnesses?
-6-

VENUE:
Underlying Policies: Judicial Efficiency; Limit Forum Shopping;
Possible Exam Questions

Venue Rules: 28 U.S.C. 1391

Transfer of Venue: 28 U.S.C.

Venue in diversity cases.

Federal Courts NEVER transfer

to State Courts. Use FNC in such
case.

1391(a).
1. Any dist. where any resides, if
all s reside in the same state.
2. Any dist. Where a substantial
part of the controverted events
occurred or where the disputed
property is located. Can have
venue in multiple locations.
Venue in all other cases.
1391(b).
1. Same as in diversity cases,
above.
2. Same as in diversity cases,
above.
3. Where any can be found only
Venue of corporate s
1391(c).
1. Anywhere corp. is subject to PJ.
Venue for aliens 28 U.S.C.
1391(d).
1. Any alien, incl. alien corps., can
298326263.doc

State Courts NEVER transfer to

federal Courts or to different
States. Use FNC in such case.
1404 Balancing Test
Convenience of parties & witnesses
+ Interests of justice must
substantially outweigh s interest
in choice of forum.
Choice of Law: Diversity Cases
Only
Laws of the transferring state apply
unless venue was improper, in

Forum Non Conveniens

Public vs. Private Factors Balancing Test
Private Interest Factors
1. Access to sources of proof
2. Ability to compel attendance of
witnesses
3. Convenience to voluntary
witnesses
4. Difference in substantive law that
will be applied in new forum is
not decisive in dismissing on
grounds of FNC, but could be
relevant if the law in the
alternative forum were
completely inadequate. Piper.
Public Interest Factors
1. Local interest in having disputes
resolved locally
2. Court congestion

Venue Exam Tricks

Transferring Court can only send a
case to a court where the action
could have been commenced or
initiated. Therefore, the receiving
Court must have all 3, even if the
transferring Court doesnt.
1. Subject Matter Jurisdiction
2. Personal Jurisdiction
3. Venue

General Rule
FNC is tough on s, especially in
light of statutes of limitation and
Pers. Juris. Courts know this and
wont grant FNC unless:
1. There is an alternative forum;
2. waives statute of limitations
defense;
-7-

Removal: 28 U.S.C. 1441

STATE Court

FEDERAL Court

4. State to Federal ONLY;

5. ALL s must consent;
6. ORIGINAL s only; no
counterclaim s
No Removal for In-State
Defendants in DiversityOnly Cases
Federal Question Claims
Pass Through Federal Question
Filter
28 U.S.C. 1331

1. Completely Discretionary
2. Must have been qualified to grant
original jurisdiction.
3. May grant supplemental
jurisdiction as long as at least one
separate and independent federal
claim eligible for removal.
Non- Federal Question Claims
Pass Through Supplemental
Jurisdiction Filter
28 U.S.C. 1367

Federal Question Flow Chart

Yes

Does the s well pleaded complaint

allege an express or implied federal
cause of action?
Yes

Same Case or
Common Nucleus of

N
o

Does the s well pleaded complaint

allege a state law cause of action in
which federal law is an essential
element?

Does the federal law that is an

element authorize a private right of
action?

No

Yes
There
is FQJ
298326263.doc

There
is NO
FQJ.

Meets Supplemental
Jurisdiction
Requirements under
1367?
Yes

1441(a)
Court May
Exercise or Decline
Per Authority
Granted under

No

Not Part of Same

Constitutional
Case
Separate &
Independent
Claim?

-8-

1441(a)
Court Must
Hear

298326263.doc

1441(c)
Court May Keep
Or
Court May
Remand

-9-

Waiver

What May NEVER Be Waived?

SMJ Is A Constitutional Issue and Cannot Be

Waived.
Parties to an Action May NEVER Consent to
Waiver of SMJ

298326263.doc

What May Be Waived?

Consolidation of
Defenses
Rules 12(g) and 12(h)

Personal Jurisdiction
Notice
Service of Process
Venue

- 10 -

Erie Doctrine Flowchart

The discouragement of forum shopping and avoidance of inequitable
administration of the laws
Is state law
substantive /
black letter
law?

YES

State law
applies (f/ Erie
& RDA)

N
O

Fed Rule on Point?

(look at twin aims of
Erie before deciding)
YES
Hanna Holding
Apply Fed Rule if its
valid.

Valid if reasonable
person would consider
it procedural

Possibly/N
o
(Grey
Area)
Byrd Test
Is state rule bound
up with
(implementing of)
state created rights&
obligations? Does it
regulate primary
behavior?
Y
N
State
law

Fed.
Countervailing
Interests (for fed
law)
(always have
uniformity, but
weak on its own.
Byrd was judge/jury
relationship which
outweighed
outcome
determinacy)

298326263.doc

Do BOTH

Rule of
form &
mode.
BALANCE

Hanna Dicta
Analyze in light of
twin aims of Erie.
1. Forum Shopping?
2. Inequitable admin.
of the laws?
N

Y
State
law

Fed law

Outcome
determinative
test (for state
law)
If outcome would
be different
depending on which
law applies (i.e.
statute of
limitations is very
determinative if its
run in state and not
fed)

- 11 -

III. Joinder

Joinder of Claims
3 Sentences at most on exam:
1. In federal practice a can join any claims he or
she has against the .
2. In a state following the FRCP, a can join any
claims he or she has against the because
those are the Federal Rules.
3. If state X follows the more traditional rule of
Permissive Joinder of Parties: 2 Prong Test
1 at most on exam.
T&O + CQ = Permissive Party Joinder
1. Claims or defenses stem from the same
transaction; AND
2. There is a common question of law or fact
Compulsory Joinder of Parties
Rule 19(a)
1. Who is necessary and should be joined if
possible?
a. Will parties be injured by failure to join
outsider?
b. Will outsiders be prejudiced by result?
Exam Tip: Probably only situation in which
outsider is not compulsory is tort action. Joint
tortfeasors are NOT compulsory; may only
want or need to sue the rich .
2. Can you join the outsider? If not, why not?
Exam Tip: look out! Reason could be SMJ
and/or PJ. If so, be ready to perform the entire
analysis.
3. I cant join this guy; what do I do now?
298326263.doc

- 12 -

Joinder- Big Picture

Must satisfy both FRCP and SM Jx.

FRCP

Joinder by

Joinder by
Or

Claims 18 (a)

Parties 20 (a)

Claims 13 (a, b, g)

A party asserting
a claim to relief as
an original claim,
counterclaim,
cross-claim, or
third-party claim,
may join, as
many claims as
the party has
against an
opposing party.

20(a) Permissive
Joinder. All persons
may join in one
action as plaintiffs
if they assert any
right to relief
arising out of the
same transaction,
occurrence, or
series of
transactions or
occurrences and if
any common
question of law or
fact common to all
these persons will
arise in the action.

(a) Compulsory
Counterclaims - A
pleading shall state
as a counterclaim
any claim it has
against any opposing
party, if it arises out
of the transaction or
occurrence that is
the subject matter of
the opposing party's
claim and does not
require for its
adjudication the
presence of third
parties of whom the
court cannot acquire
jurisdiction. But
(b) Permissive
(see
exception).
Counterclaims. A
pleading may state
as a counterclaim
any claim against an
opposing party not
arising out of the
transaction or
occurrence that is
the subject matter of
the opposing party's
(g) Cross-claim
claim.
Against Co-Party. A
pleading may state
as a cross-claim any
claim by one party
against a co-party
arising out of the
transaction or
occurrence that is
the subject matter
either of the original
action or of a
counterclaim therein
or relating to any
property that is the
subject matter of the
original action.

All persons may be

joined in one action
as defendants if
there is asserted
against them any
Definitions
right to relief
arising out of the
same transaction,
Real Party in interest:
occurrence, or
one who will benefit
series of
from action, one who
transactions or
has a substantial
20(b) Separate
occurrences and if
interest.
Trials. The court
any common
Original claims:
may make such
question
of law or
claims by s
orders as will
fact common to all
against s.
prevent a party
these persons will
Counterclaims:
from being
arise
in the action.
made by s against
embarrassed,
s, it is an
delayed, or put to
independent cause
expense by the
inclusion of a party
of action.
Cross-claims:
against whom the
party asserts no
claims between coparties.
claim and who
asserts no claim
3rd Parties: a party
against the party,
brought into the
and may order
action by a current
separate trials or
.
make other orders
3rd Party claims:
to prevent delay or
claim by acting as
prejudice.
3rd Party , 298326263.doc
to join a
3rd party.

Subject Matter Jx

AND

Parties 14, 19

O
r

14(a) When Defendant May

Bring in Third Party. At any
time after commencement
of the action a defending
party, as a third-party
plaintiff, may cause a
summons and complaint to
be served upon a person not
a party to the action who is
or may be liable to the thirdparty plaintiff for all or part
of the plaintiff's claim
against
thePlaintiff
third-party
14(b)
When
May
plaintiff.
Bring in Third
Party. When a

1331- Federal
Questions

1332- Diversity
and $ Amount

- District courts shall

have original Jx arising
under the Constitution
etc.
Note: this is not
exclusive JX

$75,000.01
minimum
&
COMPLETE
Diversity

Arising Under In
order to invoke federal
court jurisdiction the
federal issue must be a
sufficient or central part
of the dispute.

Amount claimed in
good faith is
relevant, not
amount the court
awards, UNLESS
to a legal certainty
cannot recover
$75k. Claim must
exceed 75,000 not
actual award.

Well Pleaded
Complaint Rule- For a
counterclaim is asserted
litigant to invoke federal
against a plaintiff, the
question jur. It is
plaintiff may cause a third
necessary both that the
party to be brought in under
case arise under the
circumstances which under
constitution or some
this rule would entitle a
other aspect of federal
defendant to do so.
law and that this fact
19(a) Persons to be Joined if
appear on the face of a
Feasible. A person who is
well pleaded complaint.
subject to service of process
If a substantial issue is
and whose joinder will not
not raised as a
deprive the court of
legitimate part of the
jurisdiction over the subject
plaintiffs own claim for
matter of the action shall
relief there is no federal
be joined as a party in the
question jurisdiction
action if
under the statute. Issue
(1) in the person's absence
that the D raises in the
complete relief cannot be
answer or that the
accorded among those
plaintiff
anticipates
Merrell
Dow-A are
already parties, or
irrelevant
for a
complaint
alleging
(2) the person claims an
jurisdictional
violation of apurposes.
federal
interest relating to the
statute in a state cause
subject of the action and is
of action, when
so situated that the
congress has
disposition of the action in
determined that there
the person's absence may :
should be no private,
(i) as a practical matter
federal, cause of action
impair or impede the
for the violation does
person's ability to protect
not state a claim
that interest or
arising under the
(ii) leave any of the
Constitution or Laws of
persons already parties
the United States.
subject to a substantial risk
19(b)
Determination
of incurring
double, by Court Whenever Joinder Not
Feasible.
If aorperson
as described in subdivision (a)(1) - (2)
multiple,
otherwise
hereof cannot
be made a
inconsistent
obligations
byparty, the court shall determine
whether
should proceed among the parties
reason ofthe
theaction
claimed
before it,interest.
or should be dismissed, the absent person being
thus regarded as indispensable. The factors to be
considered by the court include: first, to what extent a
judgment rendered in the person's absence might be
prejudicial to the person or those already parties; second,
the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether a
judgment rendered in the person's absence will be
adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.

Or

Where DC has
original Jx, they
shall have supp.
Jx over all other
claims that are
related to the
original claim
when they are
part of the same
claim or
controversy.
EXCEPTwhen
they original
claim arises
SOLELY under
1332 the DC
WILL NOT have
Jx over claims
made by s
against persons
under RULE 14,
19, 20, or 24.
Thesee
DC may
also
1367(b)

Diversity must
exist at the time
the complaint is
filed with the
clerk. It need
not exist at the
time of trial or
when the cause
action
arose
Aof
plaintiff
can
often

decline supp. Jx if:

1) A novel or
complex state law
issue
2) Claim dominates
the claim which
original Jx was
based.
3) Dc has
dismissed claims
under DCs
original Jx.
4) Other
compelling
Original Claim
reasons.
Counter Claim
Cross Claim
3rd party Claim
Claim by 3rd P

cure the lack of

diversity problem
by dismissing nondiverse parties.

1367Supplemental Jx

3rd
Part
y

- 13 -

Counterclaims, Crossclaims, and 3rd Party Claims

(Impleader)
Counterclaims
1. Compulsory: Rule 13(a); use it or lose it. Underlying policy concerns: efficiency and economy. A counter
claim is compulsory if it arises out of the same transaction or occurrence that is the subject matter of the s
claim (counterclaim must be pleaded)
2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same
transaction: (from Plant v. Blazer Financial Services) State Courts will usually respect Rule 13(a); but it is
not guaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will
probably not allow a new suit on the same facts.
a. Are the issues of fact and law raised by the claim and counterclaim largely the same?
b. Would res judicata bar a subsequent suit on s claim absent the compulsory counterclaim rule?
c. Will substantially the same evidence support or refute s claim as well as s counterclaim?
d. Is there any logical relation between the claim and the counterclaim?
3. Permissive: Rule 13(b); everything else.
4. Exam Tip: Rule 13 pretty much allows a to counterclaim against a for anything he wants. Remember
Pugsley said the title plaintiff doesnt mean squat in Tort law; it just means you filed first.
5. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no
diversity), invoke 1367 Supplemental Jurisdiction and be sure to use the buzzwords:
Cross-Claims
Rule 13(g) ( vs. )
1. Always Permissive
2. Can invoke 1367 if claim wont stand alone.
3. Exam Tip: When in doubt, examine Transaction & Occurrence; its pretty much the basis of everything in
CivPro, so if youre blanking out, start writing about T&O.
3rd Party Claims (Impleader)
Rule 14
1. Adding New Parties: Theoretically, an infinite number of parties may be added to the action, from retailer to
manufacturer, to each-and-every supplier involved along the way.
2. Exam Tip: Remember that every party added means you must establish personal jurisdiction over all these
parties. Big exam points here.
3. Can invoke 1367 if claim wont stand alone.
4. 3rd party s counterclaiming back will probably be compulsory because permissive counterclaims are usually
transactionally related and therefore NOT subject to supplemental jurisdiction.
5. Rule 14(a) Amendment: original may amend complaint to directly assert claim against newly impleaded 3 rd
party .
6. Kroger Rule: Original cannot assert supplemental 1367 claim against parties brought under Rule 14 (third
party practice); Rule 19 & 20 (Basic Joinder Rules); and Rule 24 (Intervention). It does NOT say anything
about Rule 13 (counterclaim and cross-claim).
298326263.doc
- 14 -

JOINDER DIAGRAMS

Rule 13(b) Permissive Counterclaim

Rule 13(a) Compulsory Counterclaim

Negligence or
Tort

Compulsory
Counterclaim
for

Negligence or
Tort
Permissive
Counterclaim
for
Negligence or
Tort

A counter claim is compulsory if it arises out of the

same transaction or occurrence that is the subject
matter of the s claim (counterclaim must be pleaded)
4 Part Test to define when a claim or counterclaim
arises from the same transaction: (from Plant v. Blazer
Financial Services)
1)
Are the issues of fact and law raised by
the claim and counterclaim largely the same?
2)
Would res judicata bar a subsequent suit
on s claim absent the compulsory counterclaim
rule?
3)
Will substantially the same evidence
support or refute s claim as well as s

298326263.doc

Rule 13(g) Crossclaims

Negligence or
Tort
Negligence or
Tort

Crossclaim
for Product
Liability
Existing Co-
(Party to Original
Action)

- 15 -

JOINDER DIAGRAMS

Rule 13(h) Joinder of Additional Parties to Crossclaims or Counterclaims

Rule 14(a) S1 Adding Third Party Defendant

Negligence or
Tort
Negligence or
Tort

Crossclaim

Existing Co-
(Party to Original
Action)
Joinder of
Additional Parties
(Not In Original
Action)

In this example, an
original crossclaims
against another
original AND joins a
3rd party as well.

298326263.doc

Negligence or
Tort

(3 Party
)
rd

Contribution
or Indemnity
Claim

3rd Party

3rd Party
(Newly Joined)

- 16 -

JOINDER DIAGRAMS

Rule 14(a) S7 Can Assert Claim

Against TPD

Rule 14(a) S6 TPD Can Assert Claim

Against

Requires same Transaction

or Occurrence as s claim
against 3rd Party

Negligence or Tort

Cont
ributi
on or
Inde
mnity
Clai
m

Negligence or Tort

(3rd Party )

Counterclaim
3rd Party

3rd Party
Requires same Transaction
or Occurrence as s claim
against 3rd Party

298326263.doc

(3rd Party )
C
ro
ss
cl
ai
m

TPD MUST assert

all defenses
available under
Rule 12 and
counterclaims and
crossclaims under
Rule 13.

- 17 -

JOINDER DIAGRAMS

Rule 14(a) S9 TPD Joining Another Third

Party Defendant

Negligence or
Tort

(3rd Party
)

Rule 18(a) Joinder of Claims

Negligence or
Tort

Breach of
Contract

Contribution
or Indemnity
Claim

3rd Party

Contribution
or Indemnity
Claim

3rd Party

298326263.doc

- 18 -

JOINDER OF PARTIES DIAGRAMS

Rule 20(a) S1 Joinder of Parties - s

Negligence or
Tort

Rule 20(a) S2 Joinder of Parties s

Negligence or
Tort

Negligence or
Tort

Negligence or
Tort

Co-

Permissive Joinder of Parties: 2 Prong Test

Permissive Joinder of Parties: 2 Prong Test

1 at most on exam.

1 at most on exam.

TO + CQ = Permissive Party Joinder

Claims or defenses stem from the same transaction;
AND
There is a common question of law or fact binding
the parties.

TO + CQ = Permissive Party Joinder

Claims or defenses stem from the same transaction;
AND
There is a common question of law or fact binding
the parties.

Co -

298326263.doc

- 19 -

Interpleader Rule 22, 28 U.S.C. 1335

You all figure out who I need to pay if I am liable (which I
may not be)
Interpleader Basics
Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) the
ownership of which is or may be claimed by more than one party. It is a device to resolve at one time the claims of
many persons to one piece of property or sum of money, such as a bank account claimed by more than one person.
Policy Objective: So that the stakeholder will not have to pay the same claim twice.
Practical Application: Interpleader is a s tool to join all claimants at once; but may be employed by a through
use of cross-claim [Rule 13(g)], compulsory counterclaim [Rule 13(a)], or permissive counterclaim [Rule 13(b)].

Issue
Subject Matter
Jurisdiction
- Diversity
- Amount
Personal Jurisdiction
and
Service of process
Venue

28 U.S.C. 1335

Rule 22

Minimal diversity; determined between

claimants. (At least 2 claimants diverse)

Complete diversity; stakeholder on one

side and claimants on the other

$500 in controversy

$75,000+

Nationwide service of process

Need personal Jurisdiction; service

under Rule 4

Residence of one or more claimants

Residence of any claimants (if all from one

state); district where dispute arose;
district where property is; district where
any claimant found if no other basis for
venue
Only basis is provision in 28 USC 2283
for stay where necessary in aid of . . .
jurisdiction
Deposit controverted property with the
Court.

Injunctions

Statutory authority for injunctions (28 USC

2361)

How to Invoke:
stakeholder invokes
and is called

Post a bond with the Court to cover value of

controverted property.

298326263.doc

Remember, you need PJ over all the

claimants in order for Rule 22
interpleader to work!
- 20 -

Intervention Rule 24
I wasnt invited, but I am coming anyway

Rule 24(a): Intervention of Right

Automatic, uncontestable right if:
1. Unconditional Right Granted by Federal Statute; OR
2. Applicant has interest in transaction or property + disposition will impair his interest - no existing party can
adequately represent his interest
At
1.
2.
3.

Rule 24(b): Permissive Intervention

discretion of Court if:
Conditional Right Granted by Statute; OR
Common Question of Law or Fact; OR
Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting
scope of protective orders and confidentiality agreements. Example: Environmental Lawyers intervene to
contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader

Rule 24(b): Limited Purpose Intervention

Judicial Expansion of Rule 24(b):
1. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting
scope of protective orders and confidentiality agreements.
2. Example: Environmental lawyers intervene to contest Oil Co. settlement agreement ordering destruction of
discovery documents which may show broader pattern of abuse, suppression of which arguably would be
contrary to public policy.

298326263.doc

- 21 -

Intervention Flowchart
Step 1:
STATUTORY ANALYSIS
Does a Federal Statute grant
unconditional right of
intervention?

Does a Federal Statute grant

conditional right of
intervention?

Yes

Yes

MUST Grant
This is Rule 24(a).

MAY Grant
This is Rule 24(b)
Court will consider delay or
prejudice to original
parties.

Step 2:
CANT SOMEONE ELSE DO IT?
Is there a party to the case
who will adequately
represent the applicants
legitimate interest in the
controverted matter?
(Can an existing party cover
your ass? )

Yes

MUST Grant
This is Rule 24(a).

Step 3:
CONSIDERATIONS OF JUDICIAL EFFICIENCY AND PUBLIC POLICY.
Is there:
A common question of law or
fact?
- or A limited purpose that would
serve public policy?
298326263.doc

Yes

MAY Grant
This is Rule 24(b)
Court will consider delay or
prejudice to original
parties.

- 22 -

Class Actions Rule 23:

We Were All Screwed Over!

23(A) CLASS PREREQUISITES (CEN C TAB)

1.
2.
3.

JURISDICTION
Federal Question: Normal Rule Applies

CLASS: is roughly definable and is a member;

ECONOMY: Judicial Economy is Served;
NUMEROUS: Potential s too numerous for

Diversity: Class action is a representative action.

Diversity is based on the representative. Just make
sure you pick a from another state.
Amount in Controversy cannot be aggregated.
If its classified as a 23(b)(2) injunctive claim, you
would value the injunction and that could get you
over the $75k
Or you could file it in state court.
But in a 23(b)(3) case youd have a big problem if
your individual claims were not each over the $75k
requirement.

joinder;
4.

COMMON LEGAL THEORY: Claims have a Common

legal theory or arise out of the same transaction or

occurrence;
5.

TYPICAL: Claim of named must be Typical of the

class;

6.

ADEQUACY OF REPRESENTATION: Named parties

must Adequately represent the class;

7. B RULE 23(B): Action must fall within one of
three categories of Fed Rule 23(b)
Identifiable Class
Named s (or s) are members of the
class

23(B) TYPES
Class
23(b)
(1)

Defined
Mass version of Rule 19 joinder.
Class members may NOT opt out
and are BOUND by the holding.

23(b)
(2)

Limited to Injunctive or
Declaratory Relief
No $ damages
Class members may NOT opt out
$ Monetary Damages
Must be superior to other
available methods

23(b)
(3)

298326263.doc

Personal Jurisdiction: Not the Shoe, Denkla, VW test.

Focuses mostly on notice.
For 23(b)(3) damages case, requires: Adequate
representative Notice Right to opt out. Not required for
23(b)(1) or (2) cases.
OF

CLASSES

Policy Objective
Avoid inconsistent decisions or
impairment of interests of class
members. Avoid harm to s and
absentees.
Protect rights where large numbers
of persons are affected.

Practical Application
In a limited fund case; if suits
brought individually, first takes it
all. Class Action protects other s.

Judicial efficiency
Allows relief where individual s
could not economically pursue

Class action for everyone who was

overcharged 10 cents on every can of
tuna they bought at Ralphs. No one

Civil rights cases.

- 23 -

 Must present common questions of

action

Could be only effective method of

law or fact. (Predominance of
PET
M
common question)
deterring
of some s
IV: RESbehavior
JUDICATA
Same P
rimary
bearsrights
cost of notice to all class
(many small violations).
involved?members.
vidence?
Notice must inform members Go
mayAway, Leave Me Alone, I Dont Want
Same E
To Talk About It Anymore!
opt-out. or
Same Transaction

would sue individually. But as a class

it would make sense and Ralphs
NIL
would have to react.
Issue Necessary to the
first action?
Identical Issues?

Collateral
Mutuality of Estoppel
Res Judicata
Res Judicata Basics
Estoppel
(Who or which parties are subject to claim or
(Claim
Preclusion)
1.
Definition:
RJ means you cannot re-litigate
a matter that you previously litigated or could
have
litigated.
issue
preclusion?
(Issue Preclusion)
2. Merger & Bar: The controverted matter (cause of action) is like a poker chip, you only get two choices: bet it or
dont bet it. You cant break it in half and play part now and part later. Additional theories that could have been plead
but werent are merged into the first judgment and further litigation is barred by RJ.
3. Claim for Relief is The Key: So, whats the claim for relief (cause of action)? Is it litigation to preserve a right or to
remedy a wrong? Courts have held both ways and a minority of jurisdictions still use the right-wrong test. But the
majority position is to focus on the transaction. On the exam, focus on transaction & occurrence. If the claim arises
from the same transaction or occurrence, its probably covered by RJ.
a. Example: In-other-words, if bought a toaster that exploded and killed her pet iguana, shes probably got half
a dozen theories of recovery under tort and contract law (strict liability, warranty, breach, etc.). But all those
actions arise from the same occurrence the toaster explosion. Most Courts would rule this a single cause-ofaction for RJ purposes.
4. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand its
central importance to the concept of res judicata.
5. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage
multiple litigation (judicial efficiency). But Courts will interpret claims narrowly if they are concerned about the
harshness of preclusion and the burden on the .
Collateral Estoppel Basics
1. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. If RJ is a
meat cleaver, lopping off the entire claim, CE is a scalpel, severing only the issues previously adjudicated. There are 3
requirements for CE:
a. Same Issue
b. Actually Litigated
c. Necessarily Decided (This is important. The issue may previously have been decided but was not necessary to
resolution of that case.
2. Example: Driver A hits Driver B, sues B for negligence, and wins. Assume that there was no compulsory
counterclaim rule, so B never counterclaimed against A. Now Driver B wants to sue Driver A for his injuries.
a. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence,
298326263.doc claims are specific to the , so that single accident gave rise to valid claims for both A and B.
- 24 b. But B will be estopped from asserting a claim of negligence against A. This is because A actually litigated and
necessarily determined that B was the negligent driver in the accident. For purposes of the exam, dont worry
about comparative negligence claims.

RES JUDICATA (CLAIM PRECLUSION) FLOWCHART

Do the issues in the current case stem from the same
transaction or occurrence as a previously litigated
case?
Yes
Was there a final judgment in the previous case?
(Final means all steps in the adjudication except
execution & appeal.)
Yes
Was it considered on the merits?

No
No
Jurisdiction
Venue
Joinder of an Indispensable
Party

Yes
12(b)(6)
Default judgment or Consent decree
Summary judgment & Directed Verdict
(JMOL)
Yes
Was it valid?
Proper court with subject matter and personal
jurisdiction?
1738 Full Faith & Credit valid state court
decisions are binding in federal court unless state
court lacked competency.
Does 2nd Action Involve Same
Yes Parties or Those In
Privity?
(Privity requires a legal relationship between the
parties)
298326263.doc
CLAIM PRECLUSION
Entire claim is precluded, including matters that
were or should have been litigated.

No

No

NO CLAIM PRECLUSION
- 25 RJ wont apply if the matter hasnt
been finally and validly decided by a
proper Court!

Yes

298326263.doc

- 26 -