Civil Procedure II

Question 1

Venue Rules

Answer 1

Under § 1391, venue in civil actions in the federal courts is proper in:

• (a) A judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located;
• (b) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
• (c) If there is no district anywhere in the United States which satisfies (a) or (b), a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

Note: These rules do not apply when a case is removed from state court to federal court. Venue only applies to cases that are filed in federal court originally.

Question 2

Rule 15 (Relation Back)

Answer 2

For statute of limitations purposes, an amendment to a pleading that arises from the same conduct, transaction, or occurrence that was set forth (or was attempted to be set forth) in the original pleading generally is deemed filed on the date that the original pleading was filed. In other words, the filing of the amendment relates back to the filing date of the original pleading. Of course, the original complaint must have been filed within the applicable statute of limitations period.

Question 3

Rule 15(c)(1)(A)

Answer 3

Under 15(c)(1)(A), the claim relates back if the law providing the statute of limitations allows it to relate back. In other words, the more generous law is applied. If the law does not allow it, then 15(c)(1)(C) might come to the rescue.

Question 4

Rule 15(c)(1)(C)

Answer 4

Under 15(c)(1)(C), an amendment changing the party or the naming of the party against whom a claim is asserted relates back if (1) the amendment concerns the same conduct, transaction, or occurrence as the original pleading and (2) if, within 90 days under Rule 4(m), the party to be brought in by amendment: (i) has received such notice of the action that she will not be prejudiced in maintaining her defense on the merits; and (ii) knew or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against her.

Note: A “John Doe” defendant cannot be named as a placeholder until the plaintiff figures out the name of the proper defendant. The Supreme Court has emphasized that it is the knowledge of the party to be brought in by amendment (not of the plaintiff) that is relevant. And again, the original complaint must have been filed within the applicable statute of limitations period.

Question 5

Rule 13(a)

Answer 5

Compulsory Counterclaims → If a claim arises from the same transaction or occurrence, it must be joined. If left out, it cannot be the subject of another suit.

Question 6

Rule 13(b)

Answer 6

Permissive Counterclaims → Claims not arising from the same transaction or occurrence may be joined but do not have to be.

Question 7

Rule 13(g)

Answer 7

Crossclaim Against Coparty → A party may only sue another coparty (crossclaim) if the claim arises out of the same transaction or occurrence. If a party has a crossclaim against another party, they may add other claims they have against that party as well. Under Rule 13(g), crossclaims are always permissive.

• Note: There is a split among the courts in whether an original defendant and a third party defendant are coparties. The Jorgensen court says they are, while the Asher court said they weren’t.

Question 8

Rule 13(h)

Answer 8

Joinder of Additional Parties → Allows a party to add a non-party to a crossclaim or counterclaim consistent with rules 19 or 20.

• Example: A sues B and C in federal court. If C had a 13(g) crossclaim against B, 13(h) could allow C to add D to that crossclaim, but only if Rule 20 allows it. Note that some courts wouldn’t allow C to add D if D was brought in already by B on another claim.

Question 9

Rule 14(a)(1)

Answer 9

Claims Against Third Party (Impleader) → A defendant may make a claim against a third party defendant if he feels that the third party is liable to him for some or all of the damages (derivative liability). It must be done by a defending party, and the claim must be against a nonparty. Once the third party is brought in, the party who brought them in can make other, even unrelated, claims against that party under Rule 18.

• Note the split in authorities regarding whether an original defendant and a third party defendant are coparties. Some courts will not consider a third party to be a nonparty after they are brought in by another party.

Question 10

Rule 21

Answer 10

Sever, File Claim, and Consolidate → Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may add or drop a party, and may also sever out any claim against a party.

Question 11

Rule 42

Answer 11

Consolidation and Separate Trials → Rule 42(a) allows the court to consolidate actions before it when the actions have a common question of law or fact. Rule 42(b) allows the court to order separate trials of any claim, cross-claim, counterclaim, or other issues when such separation will foster judicial economy.

Question 12

Rule 20

Answer 12

Permissive Joinder of Parties (Plaintiff’s Rule) → Parties may join as plaintiffs or be joined as defendants whenever:

• (1) All claims arise out of or relate to the same transaction or occurrence; and
• (2) There is a common question of law or fact to all the parties.
  
  • Note: When (1) is met, (2) is almost always met.

Question 13

Rule 19

Answer 13

A Rule 19 issue arises when an absent party is not included even though the plaintiff could have brought them in under Rule 20. The defendant may want to join the additional defending party, but cannot use Rule 20 because it is a plaintiff’s rule. The defendant then files a 12(b)(7) motion for failure to join someone under Rule 19. The Rule 19 analysis has three parts:

• (1) Does the absent party meet the requirements of 19(a)?
• (2) If so, is joinder feasible?
• (3) If not, should the action proceed without the absent party under 19(b)?

Question 14

Rule 19(a)

Answer 14

The absentee should be joined as a party when:

• (a) Complete relief cannot be accorded among the other parties to the lawsuit without the absentee being made a party; or
• (b) The absentee has such an interest in the subject matter of the lawsuit that a decision in his absence will:
  
  • (A) impair or impede his ability to protect the interest; or
  • (B) leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 15

Rule 19(b)

Answer 15

If the absentee cannot be joined, the court must determine whether the action should proceed among the parties before it, or should be dismissed, the absentee thus being regarded as indispensable. Most importantly, the decision requires consideration of the extent of prejudice to the absentee or available parties of a judgment, and whether the plaintiff will have an adequate remedy (e.g., in another forum) if the case is dismissed for nonjoinder.

Question 16

Rule 22 v. Statutory Interpleader

Answer 16

If Rule 22 interpleader is relied on, the normal rules as to personal jurisdiction, subject matter jurisdiction, and venue apply.

Under the Federal Interpleader Statute, on the other hand, the jurisdictional requirements are less restrictive. Under § 2361, a sort of federal long-arm statute, federal courts have personal jurisdiction over all U.S. citizens for statutory interpleader. The federal statute permits subject matter jurisdiction where the amount in controversy is $500 or more and where there is diversity between any two contending claimants. Venue lies where any claimant resides, and process may be served anywhere in the United States under the statute.

Question 17

Intervention of Right (24(a))

Answer 17

An absent party must be permitted to intervene when:

• (1) the motion is timely;
• (2) the party has an interest relating to the subject property or transaction;
• (3) there is a risk of impairment of the absent party’s ability to protect its interest; and
• (4) there is no adequate representation of that interest by the existing parties.

Question 18

Permissive Intervention (24(b))

Answer 18

On timely motion, the court may permit anyone to intervene who has a claim or defense that shares with the main action a common question of law or fact.

Question 19

Appellate Jurisdiction (§ 1291)

Answer 19

Under § 1291, only final orders are reviewable on appeal (“appeal as of right”). A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.

Question 20

Cohen Collateral Order Doctrine

Answer 20

If the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review, it may be classified as a judgment in a separate (“collateral”) proceeding and thus be appealable. In order to fit the exception, three requirements must be met:

• (1) the order must finally resolve the issue;
• (2) the issue must be collateral to the merits (not part of the suit but affected by it); and
• (3) it must be non-reviewable on appeal from a final judgement.

Hint: Think about whether the person’s rights would be lost if they had to wait until the end of the trial to appeal. Would the trial have already done its damage by the time the appeal would be heard?

Question 21

Matters of Law Standard of Review

Answer 21

On appeal, when it is alleged that the trial judge erred on a pure matter of law, the appellate court may substitute its judgment for that of the trial judge. This is called a de novo review. Appellants have a better chance of winning on a question of law, since there is less deference to the trial court.

Question 22

Questions of Fact Standard of Review

Answer 22

In a bench trial, the trial judge will make findings of fact. The trial judge’s findings of fact will not be disturbed on appeal unless they were “clearly erroneous.” A factual determination by the jury is afforded even greater weight on appeal. Findings of fact by a jury will be affirmed on appeal if, while viewing the evidence in the light most favorable to affirming the jury’s verdict, a reasonable jury could have reached the same conclusion. This is similar to the standard a trial judge faces when deciding whether to grant a judgment as a matter of law.

Question 23

Mixed Questions of Law and Fact Standard of Review

Answer 23

Mixed questions of law or fact are reviewed de novo. It is often difficult to determine whether the question is purely factual, purely legal, or mixed. Generally speaking, whether a set of facts meets a legal definition (e.g., whether the use of copyrighted material is “fair use” under copyright law) is considered to be a mixed question of law and fact.

Question 24

Discretionary Matters Standard of Review

Answer 24

Many decisions a trial judge makes are left to her discretion (e.g., whether to consolidate or sever cases, whether to grant leave to amend a pleading, etc.). On appeal, the standard of review is whether the judge “abused her discretion” in making her decision. This means that the judge’s ruling will not be overturned on appeal unless is it plainly wrong or without an appropriate basis.

Question 25

Claim Preclusion Requirements

Answer 25

Claim preclusion is a rule against claim splitting. For claim preclusion to operate, three elements must be present:

• (i) Only judgements that are final, valid, and on the merits have a preclusive effect.
• (ii) The parties in the second action must be identical or have privity with those in the first. It is not enough that the same litigants were also parties in the previous case; they must have been in the same configuration of one asserting a claim against the other.
• (iii) The claim in the second suit must involve matters properly considered to have been included in the first action.

Question 26

“Final & Valid” (Claim Preclusion)

Answer 26

A judgment is valid as long as it is not void (e.g., for lack of subject matter jurisdiction). Whether a judgment is final for these purposes is generally the same as whether it is final for purposes of taking an appeal.

Question 27

“On the Merits” (Claim Preclusion)

Answer 27

Often, a judgment will be based on actual litigation between the parties, but it can also be a default judgment entered as a penalty against a party (such as a dismissal for willful violation of discovery orders) or an involuntary dismissal closely related to the merits (such as for failure to state a claim upon which relief may be granted).

In contrast, other involuntary dismissals not involving the merits (such as those based on lack of jurisdiction, improper venue, or failure to join an indispensable party) are not a judgment on the merits and do not have claim preclusive effect.

Question 28

Transaction Test (Claim Preclusion)

Answer 28

Under the transaction test, weight must be given to such considerations as whether the facts of both actions are related in time, space, origin, or motivation. The critical issue is whether the two actions under consideration are based on the same nucleus of operative facts.

Question 29

Matters Not Advanced (Defense Preclusion)

Answer 29

A former defendant seeks to advance a claim against the original plaintiff, and the claim involves matters that were not advanced in the first action.

For example, in case 1, defendant wins because he was not negligent. In case 2, defendant brings an action based on the plaintiff’s negligence from the same incident. What effect does C1 have on C2? Is there a Rule 13(a) problem? This depends on whether the jurisdiction has a compulsory counterclaim rule. If it does not, then under Kirven, C2 is okay.

Question 30

Matters Advanced (Defense Preclusion)

Answer 30

A former defendant seeks to advance a claim against the original plaintiff, and the claim involves matters that were advanced in the first action but were not foreclosed by issue preclusion.

For example, in case 1, plaintiff loses because he was negligent. In case 2, defendant from case 1 sues plaintiff from case 1 and wins because plaintiff was negligent. If there is no 13(a) problem, then the shield/sword issue comes into play. There is a split in authority on whether the defendant from C1 would be able to do this:

• (a) The Mitchell court (minority) would not allow C2.
• (b) The Linderman court (majority/restatement) would allow C2, but then it must be determined whether there is an issue preclusion problem.

Question 31

Defense Preclusion

Answer 31

Second action by the original plaintiff in which the defendant seeks to raise defenses that were equally available in the first action but were not advanced there.

For example, in case 1, plaintiff wins because defendant did not assert a certain defense. In case 2, with the same alignment, defendant wants to use a defense that he could have used in the first case but did not. If plaintiff is enforcing the first judgement, then this is not allowed. If it is a new claim, then under Nesbit, the defendant can use the defense.

Question 32

Issue Preclusion Requirements

Answer 32

(1) There must be a final judgement.

(2) The issue in question must be the same as the one from the first trial.

(3) The issue must have been actually litigated, in order to prevent litigation of the same issue twice.

(4) The issue must have been necessarily decided. Generally, there needs to be certainty that the issue was litigated and that it was actually decided.

(5) The issue must be essential to the first judgement.

(6) Sometimes, mutuality is required.

Question 33

Defensive Non-Mutual Issue Preclusion

Answer 33

When a nonparty wishes to utilize a prior judgment to avoid liability in a subsequent suit, there are often compelling reasons for allowing her to do so. Fairness to the nonparty will also be considered.

Example: If P unsuccessfully sues a person primarily liable (e.g., an employee), P’s later suit against a person secondarily liable (e.g., against the employer for the employee’s acts) will be barred by issue preclusion in virtually all courts. Similarly, if P unsuccessfully sues a person secondarily liable, there is little reason why the person primarily liable should be subjected to a separate suit, and most courts so hold.

Question 34

Offensive Non-Mutual Issue Preclusion

Answer 34

In cases of nonmutual issue preclusion used offensively (wait-and-see plaintiffs), the key often is whether such use is fair and equitable. The court in Parklane Hosiery based its decision on three factors:

• (1) In light of foreseeability of subsequent suits, did the defendant have an incentive to win the first judgement to prevent more suits?
• (2) Is the judgement being used inconsistent with any previous action?
• (3) Are there any procedural opportunities that were not available to the defendant in the first action that might cause a different result in this one?