Pleadings

Amendments
Rule 15(a): declares that leave to amend "shall be freely given when justice so requires; a court
allows an amendment unless one of the following justifies denial: (a) undue delay; (b) bad faith
or dilatory motive by the moving party; (c) repeated failure to cure deficiencies by previous
amendments; (d) undue prejudice to the opposing party; or (e) futility of amendment
When one claim b4 SOL one claim after
(1) If the statute which complaint is suing on says this kind of complaint relates back
(2) Asserts claim or defense that arose out of the conduct, transaction or occurrence set out –
or attempted to be set out – in original pleading (think back to same case or controversy/
common nucleus)
(3) amendment changes the party or the naming of the party against whom a claim is asserted,
within 90 days of service of complaint and party brough in by amendment:
(1) the claim arise out of the same conduct, transaction, or occurrence
(2) received such notice of the action that will not be prejudiced in defending on the
merits; and
(3) Knew or should have known that action would have been brought against it, but for a
mistake concerning the proper parties’ identity.

Discovery
Scope of Discovery
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case
1. Proportionality to the needs of the case considering the:
a. Importance of the issue at stake in the action
b. The amount in controversy
c. The parties’ relative access to relevant information
d. The party’s resources
e. The importance of the discovery in resolving the issues and
f. Whether the burden/expense of proposed discovery outweighs its likely benefit
Protected information is outside the scope of discovery as well.
2. Now we ask if the information that is within the scope of discovery is either protected or
privileged.
3. We then apply the facts to the rule (elements)
Negligence: there was a duty, the duty was breached, that breach caused the
plaintiffs injuries, and the injuries of plaintiff results n damages.
Breach of K: there was a contract, the contract was breached, plaintiff suffered
damages.
The scope of discovery would be limited to information that has a tendency to prove or
disprove anything that the substantive law says matters.
Relevancy means: The information being requested must tend to prove or disprove
something the governing substantive law says matter
Consider if the request is proportional to the AOC
the court must limit the frequency or extent of discovery otherwise allowed by these rules
or by local rule if it determines that:
 (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by
discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

Claim Preclusion
High level rule
Claim preclusion is an affirmative defense that defendant raises in his pleading and makes a
motion for summary judgment barring the entire second action that occurs when the case
concerns the same claim as prior action, is litigated by the same parties to the prior action, the
first action resulted in a final judgement on the merits and was rendered by the court of
competent jurisdiction unless applying preclusion would be fundamentally unfair.
STEPS FOR ANALYSIS
1. Is it the same P filing suit against the same D?
a. If, Yes proceed to step 2
b. If, NO then no CP unless non-party preclusion exception apply?
i. Person who agrees to be bound by det. of action b/w others is precluded
ii. Pre-existing substantive legal relationship b/w person to be bound and
original party to judgment
iii. If "adequately represented" in another suit by person w/ same interests
iv. If party "assumed control" over another's litigation
v. Party bound by judgment cannot re-litigate by proxy
vi. Special statutory scheme consistent w/ due process, like bankruptcy
proceedings
2. Where was the 1st suit filed? Was it state or fed ct? What state? Sitting in diversity?
3. Claims are same from suit 1 and suit 2?
a. Narrow: same claim literally means same claim
i. Indiana (look to see what noyes says on exam)
b. Broad Test: Causes of action are identical where the evidence necessary to
sustain a second verdict would sustain the first, i.e., where the causes of action
are based upon a common core of operative facts (focus on the elements of the
causes of action and the proofs at trial
i. Fed cts acting as fed cts use this; Illinois use this
ii. If 1st action was done by fed ct → SMJ: fed question then broad test;
diversity: look at state & what they use
iii. Claims which could not have been joined should not be barred.
4. Final Judgment on the merits?
a. If judgment entered but then appealed
i. Majority: say that appeals process must be concluded.
ii. Minority: Other say that appeals process need not be completed to apply to
other jdgmt
b. On merits
i. Dismissal of case 4 failure to comply
ii. Full jury trial
iii. Judgment as matter of law
iv. Summary judgment
 v. Dismissal for failure to state claim (depends jx)
1. Fed ct – yes
2. CA – demurrer not judgment on merits
3. IL – depends no if failure to plead enough facts but yes if failure to
plead legally recognizable claim
vi. Dismissal to prosecute
vii. Want jx = NO but does bar same claim being brought in same ct
5. Of competent jurisdiction?
a. Think of exclusive jx (family ct, small claims ct) & SMJ
b. PJ issues raised on appeal in collateral attack
6. Fundamentally unfair
a. Does it spell the “smell wtf” test
b. Opportunity to litigate to its fullest

ISSUE PRECLUSION
Overarching rule
Issue preclusion prohibits relitigation of issues or facts. Issues or facts litigated in a prior action
may not be relitigated in a subsequent action between the same parties or their privies. An
issue or fact has been “litigated” or “decided” if it has been “actually litigated,” “determined,” and
was “essential” to the judgment in the prior action
STEPS FOR ANALYSIS
1. Who are the parties? (first case & second case)
a. Remember person must have had their day in court to IP!
2. Issue must be identical as litigated in first action.
a. What issue of law or fact was decided in the first case?
b. 2. Is the second lawsuit litigating the same issue of law or fact?
i. [Civil v. Criminal - not same issue]
3. Is the issue presented in case 2 actually litigated and determined in Case 1?
a. whether or not trier of fact had to make a decision on this
b. Motion for summary judgment, & directed verdicts, are essentially “actually
litigated” b/c judge is then ruling on finding as finder of fact, by saying “there is no
way jury could misinterpret this
4. Was there a valid and final judgment?
a. Validity of judgment – Think of jx issues, whether ct had SMJ or not
b. Finality of judgment
i. Whether or not judgment is appealable
ii. Remember: final judgment is judgment ends litigation on merits & leaves
nothing for ct to do but execute the judgment
5. Was resolution of the issue in question necessary to the judgment reached in the case?
a. Ask, Would a different decision regarding the issue have affected the outcome of
the case?
6. Did the party to be precluded have an “adequate opportunity and incentive” to litigate the
issue in the earlier proceeding? & P could not easily have joined earlier action & was it
fundamentally unfair (WTF test)
a. Even if IP is valid is there something off that would prejudice party
 JOINDER of PARTIES
First, find a joinder rule that allows the assertion of the claim. Second, assess subject matter
jurisdiction over that claim. When assessing subject matter jurisdiction, be equally relentless: (1) try
diversity of citizenship, (2) try federal question and, (3) if neither of those is met, try supplemental
jurisdiction
Remember, as with all joinder rules, Rule 18 is merely procedural. All claims joined will then have
to be assessed for subject matter jurisdiction

Required Joinder of Parties (don’t forget about SMJ)

Rule: In certain situations, a plaintiff must join all interested parties or face dismissal of the
lawsuit.
1. Should the Absentee Be Joined?
a. Person who is subject to service of process & whose joinder will not deprive the
court of subject-matter jx must be joined as party if:
i. Complete relief cannot be accorded among the other parties to the lawsuit
without the absentee being made a party; or
ii. The absentee has such an interest in the subject matter of the lawsuit that
a decision in his absence will:
1. As a practical matter, impair or impede his ability to protect the
interest; (join absentee to avoid having absentee herself subjected to
harm) or
2. Leave any of the other parties subject to a substantial risk of
incurring multiple or inconsistent obligations. (join absentee to avoid
subjecting D to harm of multiple or inconsistent obligations)
2. Is joinder feasible?
a. Will joinder deprive the court of personal jx?
b. Does the party object to venue? – if so party is dismissed
3. Should the Action Proceed Without the Absentee?
a. if a person who is required to be joined if feasible cannot be joined, ct must
determine whether, in equity & good conscience, action should proceed among
existing parties or should be dismissed. Factors for ct to consider include
i. The extent of prejudice to the absentee or available parties of a judgment;
ii. The extent to which the prejudice can be reduced or avoided by means of
protective provisions in the judgment, the shaping of relief, or other
measures;
iii. The adequacy of a judgment rendered without the absentee; and
iv. Whether P will have an adequate remedy in another forum if the case is
dismissed for nonjoinder.
Permissive Joinder of Ps – rule 20
Persons may join in one action as Ps if they are asserting a right to relief jointly, severally, or in
alternative with respect to or arising out of the same transaction and occurrence and involving a
common question of law or fact.
Permissive Joinder of Ds – rule 20
Persons as well as property may be joined in one action as Ds if any right to relief is asserted
against them jointly, severally, in alternative with respect to or arising out of the same
transaction and occurrence and involving a common question of law or fact.
Third Party Practice Impleader (think chicken coop) – rule 14
This will almost always involve claims for indemnity or contribution.
Example #8: P is a citizen of Florida. D is a citizen of Georgia. TPD is a citizen of Florida. All claims exceed
$75,000. The claim by P against D invokes diversity of citizenship and gets the case into federal court. Assume
that D has a claim against TPD for indemnity or contribution on the underlying case. Can D file an impleader
claim against TPD? If so, will it invoke federal subject matter jurisdiction?

The impleader claim is procedurally proper because D is joining someone who, she alleges, owes her indemnity
or contribution on the claim by P. The impleader claim invokes diversity of citizenship jurisdiction. It is asserted
by D, who is a citizen of Georgia, against TPD, who is a citizen of Florida, and the claim exceeds $75,000. So the
claim is proper in federal court.

Some students get confused in Example #8 because TPD and P are citizens of the same state. But that fact is
irrelevant. The claim we are addressing is between D and TPD, so only their citizenships

D may, as a third-party plaintiff, serve a summons and complaint to a non-party who is or may
be liable to it for all or part of the claim against it within 14 days of serving the original or obtain
leave of court if filed after 14 days.
Once TPD has been impleaded they must assert: (a) any defense against 3rd P’s claim under
FRCP 12; (b) counterclaim against 3rd party P under 13(a) & may assert any under 13(b) or any
crossclaim against another 3rd party D under 13(g); (c) may assert against P any defense that
3rd party P has to P’s claim; and (d) may also assert against P any claim arising out of
transaction/occurrence that is subject matter of P’s claim against 3rd party P
When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule
would allow a defendant to do so.
P can sue TPD BUT watch out for diversity. If P & TPD same state P cannot bring claims but
D can!!
Intervention (NO supplemental JX)
Sometimes someone not already a party to the suit seeks to intervene. In that case consider:
a.    Is the case one for intervention of right, in which the intervention is timely, disposition
in his absence could impair or impede his ability to protect an interest he claims in the
property or transaction sued on, and the existing parties do not adequately represent
his interest; or
b.    Is the case one in which the court may allow permissive intervention, with the
prospective intervenor’s claim or defense having a question of law or fact in common
with the main action
Interpleader - When you see facts that have two (or more) persons asserting a claim to money or property in
the hands of a third party (the “stakeholder”), think of interpleader. The stakeholder may deposit the property with
the court and seek a ruling as to which of the adverse claimants is entitled to the property. (USE RULE 22)

Enables a party against whom conflicting claims with respect to the same debt or property are
asserted (the “stakeholder”) to join all the adverse claimants in the same action and require
them to litigate among themselves to determine which, if any, has a valid claim to the debt or
property involved. Once the stakeholder’s right to interplead is established and he has
deposited the funds or property in court, he can be released or “discharged” from the litigation; it
is up to the adverse claimants to litigate their claims to the property.
There must be complete diversity between the plaintiff (or “stake-holder”) and all adverse
claimants, or there must be a federal question involved; the jurisdictional amount must be
$75,000; and process may be served under Rule 4.

JOINDER of CLAIMS
Joinder of Claims
Requires or permits existing parties to plead claims they have against other existing parties in a
single lawsuit. Applies to any party pleading a claim, counterclaim, crossclaim, or third-party
claim, but does not apply to trying these claims. Fairness or convenience may justify severance
of unrelated claims after pleading.

Must or may a D make an additional claim? (not limited by 1367(b)).

High level rule:
Requires or permits existing parties to plead claims they have against other existing parties in a
single lawsuit.

Against a P (or opposing party)? – counterclaims

Compulsory: must bring a compulsory counterclaim if it arises out of the same transaction or
occurrence as claim against him. If the claims are not asserted the right to bring this claim in the
future is waived.

Permissive: Also permits a party to assert a counterclaim against an opposing party unrelated
to the original claim

Against a co-party? – crossclaims

D1 may crossclaim against existing co-D [both parties to original action] that arises out of the
same transaction or occurrence that is the subject matter of original suit or counterclaim.

CLASS ACTIONS
Overarching Rule
Allows one or more persons to sue on behalf of similarly situated group of persons. Its class
members will be bound by the judgment. Class action kicks in when regular joinder is impractical –
doesn’t make sense to join individually. Rep commences the class action by filing a complaint stating
that the case is brought on behalf of a class. All classes are punitive unless & until court certifies
them as class.
To have a class certified, Rep must first satisfy all requirements of Rule 23(a):

(a) the class is so numerous that joinder of all members is impracticable

(b) there are questions of law or fact common to the class
(c) claims or defenses of the representative parties are typical of the claims or defenses of
the class; and
(d) representative parties will fairly and adequately protect the interests of the class
a. Representative
 i. Cannot be representative for sheer opportunity to gain more leverage in
their own case
ii. Representative interests must be aligned w/ interests of individual members
iii. Representative of class’s interests must be identical to absent class
members’ interest
1. If the representative’s interests are not identical, then absent class
members are not bound by judgment
b. Lawyer Rule 23(g) – must consider:
i. the work counsel has done in identifying or investigating potential claims in
the action;
ii. counsel's experience in handling class actions, other complex litigation, and
the types of claims asserted in the action;
iii. counsel's knowledge of the applicable law; and
iv. the resources that counsel will commit to representing the class
and qualify under at least one of the types of classes allowed in Rule 23(b):
(a) a class action is permitted if the prosecution of separate actions would create either of
the following risks: bringing separate lawsuits would create a risk of establishing multiple
or incompatible obligations for the class opponents or, as a practical matter, would
substantially impair the interests of class members
a. Opt. out is not available; parties are bound unless they can show due process
violation & Notice not required by the rule, courts generally order it
(b) the party opposing the class has acted or refused to act on grounds generally applicable
to the class so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole (injunctive or declaratory relief)
a. opt out not available unless show due process violation; Notice not required by the
rule, courts generally order it
(c) questions of law or fact common to the class predominate over questions affecting only
individual members, and, on balance, a class action is superior to other available
methods for adjudicating the controversy.
a. Notice is required and must be practicable under circumstances, including
individual notice to all members who can be identified through reasonable effort .
Could be by: US mail, electronic means, or other appropriate means. Notice must
state: (i) nature of action; (ii) definition of class certified; (ii) class claims, issues, or
defenses; (iv) class member may enter an appearance through an atty if member
so desires; (v) ct will exclude form class any member who requests exclusion; (vi)
time & manner for requesting exclusion; and (vii) binding effect of class judgment
on members under 23(c)(3) - (second opportunity to opt out after settlement)
b. Factors court must weigh to answer whether or not they should certify this
type of class:
i. (1) Class members’ interests in individually controlling the prosecution or
defense of separate actions;
ii. (2) Extent & nature of any litigation concerning controversy already begun
by or against class members;
iii. (3) Desirability or undesirability of concentrating litigation in the particular
forum, and
iv. (4) Likely management difficulties

DUE PROCESS AND CLASS ACTION (look at the CP PDF OL !)

District courts shall have original jurisdiction of any civil action in which the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in
which any member of a class of plaintiffs is a citizen of a State different from any defendant.
Class members who do not challenge a lack of PJ by opting out will be considered to have
waived the objection and will be bound by the decision even if they lack minimum contacts.