Jurisdiction: a court’s power to decide a case or enter a decree. Types of Jurisdiction: Subject Matter Jurisdiction: Jurisdiction over the nature of the case and the type of relief sought

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  Relative ease of access to sources of proof
  
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  Availability/ability to compel witness
  
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  The cost of obtaining attendance of willing witness
  
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  Administrative difficulties (congested court), local interest in local decision
  
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  Fairness of burdening citizens with jury duty for an unrelated case
  

IPJ

Venue yes

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  Transfer statute: §1404 (a)- a district court may transfer to any other district court with jurisdiction for the sake of convenience. Note: a case can only be transferred to a place in which the original claim could have been brought. In Hoffman, the court rejects the defendant’s contention that a venue objection can change where a case can be brought (“happy court”).
  

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  - A federal court sitting in diversity applies substantive state law. With transfer, if the first court is a “happy court,” you use their choice of law rules (in other words, if the transferring court could exercise ipj over a defendant and a plaintiff could properly lay venue there, that court’s law applies, regardless of where the case is ultimately transferred.) [Note: this is because the point of transfer is to provide a new, more convenient venue, not new law.] If the lawsuit is filed or removed in a court that lacks venue or in personam jurisdiction, the law of the state of the receiving court applies, regardless of who initiated the transfer.
  
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  Swift v. Tyson: If a check issuer writes a check to a swindler, who then transfers it to another party, who transfers it to someone else, etc, can the final person make an intermediate party honor that check once the swindler has been discovered? The court determined that federal courts only have to follow the statutory law of the states, and that in the absence of a local statute were allowed to exercise their independent judgment as to what the law is or should be (apply federal common law). Thus, the holdings in Swift were as follow: a federal court-exercising jurisdiction on the grounds of diversity need not apply the unwritten law of the state. The federal court thus assumed a field of “general law” that gave them the power to declare rules of decision within which Congress lacked power to enact statutes. This general law included everything from contractual obligations to tort liability. This idea was completely overturned by Erie (1938), in which the court determined that, except in matters in which federal law is controlling, federal courts sitting in diversity should apply the law of the state, both written and unwritten. The shift to the Erie doctrine was prompted by cases like the taxicab case, in which a company purposefully incorporated in one state to enjoin the competition of another company in another state, sued in federal court under diversity in the latter state, and the federal court, using Swift, relied on the lack of state common law and upheld the first company’s right to exclude competition. Swift also allowed discrimination by noncitizens of a state against citizens of that state and made rights enjoyed under the unwritten “general law” vary according to whether enforcement was sought in the state or in the federal court (thus allowing a noncitizen the privilege of selecting the court), preventing equal protection. Further, noncitizens (including corporations) could avail themselves of the federal rule simply by reincorporating in another state. Thus, the Erie holding mandates “except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state,” regardless of whether the law is statutory or common law. There is no general federal common law. Court uses state law for substantive issues and federal law for procedural issues. The “federal common law” promulgated by the Swift doctrine often amounted to little more than an individual judge’s desires when they were attempting to govern conflicting state rules. (In essence, the Walker test determines that federal rules should not be read narrowly, but interprets the rule there to avoid collision with state law.)
  
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  What are the legal foundations of Erie? (Is it really a constitutional problem, as Justice Brandeis suggests?) Possibilities: 1) Constitutional concerns: Federalism (imbalance of power between national and local governments); separation of powers: idea that Congress can do things that the federal courts cannot, and that federal courts derive their power from Congress, thus any action aside of the Congressional grant of power is necessarily unconstitutional; equal protection. 2) Statutory foundation: §1652 codifies the Erie doctrine: the laws of the states are required to apply unless the Constitution, treaties of the U.S., or Acts of Congress apply.; 3) Common law: federal court has prudence (this foundation is of course somewhat circular, since federal common law cannot be the foundation if, as the Erie majority suggests, there is no such thing as federal common law).
  
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  Guaranty Trust presented a new issue: what about when the federal court was sitting in diversity over an issue of equity, not law. Does an equitable remedy in state court have to be available in federal court? Can the court take on a case that would be barred by a state statute of limitations based on the diversity of citizenship? (Is the statute of limitations a substantive or procedural issue?) The court ultimately declares these questions irrelevant, saying that the real question is whether the statutory limitation concerns merely the manner and the means by which a right to recover, as recognized by the state, is enforced, or whether such statutory limitation is a matter of substance-does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by same parties in a State court? It identifies the following policy underlying Erie: To ensure that, in a case where a federal court was sitting in diversity, the outcome of the litigation should be substantially the same as it would be if tried in State court; a case in federal court by a nonresident for a transaction that would be in a state court for a resident should not have substantially different results. Thus, diversity allows another tribunal, not another body of law. Thus, Guaranty Trust test: Is the determination of which law to use going to be outcome determinative? (Can the plaintiff win without it). If yes, use state law, if no, use federal law.
  
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  Congress adopted the Rules Enabling Act in an attempt to create uniformity in federal procedure. As a result, there were some direct conflicts between state and federal procedural law, leading to Hanna and Walker. Hanna: Case asked how a defendant has to be served? Court clarified the Twin Aims of Erie : 1) to prevent forum shopping and 2) to avoid inequitable administration of the law. Hanna Test: 1) Is there a valid and applicable federal statute? (Narrowly construe Federal Rules of Civil Procedure). If yes, use federal law. If no  2) Would applying state law prevent either forum shopping or the inequitable administration of the laws? If yes, apply state law, if no, apply federal law. Harlan Concurrence Test: Would applying federal law cause alteration in the primary conduct of the parties? (Would the parties have changed their behavior if they knew a different set of laws applied?) If so, state law prevails, even in the face of a conflicting federal rule.
  
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  Walker also dealt with the issue of how a defendant must be served process. Federal rules are narrowly construed. Conflicted with Hanna, in that it held federal law inapplicable to the issue of service on defendant by narrowly construing federal law. In Stewart, the court was less willing to narrowly construe a Congressional statute (1404 (a)).
  

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  A) Complaint: A plaintiff must make a claim that includes a claim for relief. The level of specificity that is required in such a complaint in order for the plaintiff to have access to discovery varies between a requirement that the complaint state the facts that are going to be proven (code pleading) and a requirement that the complaint give the defendant notice of what they are being sued for. Code pleading thus requires heightened specificity. Once the FRCP were adopted in 1938, federal rules were generally interpreted to require notice pleading. Conley standard: unless there was no set of facts that the plaintiff could prove that would allow the plaintiff to get relief, the motion to dismiss is denied-sets up a very broad standard. Note: in notice pleading, the test of the sufficiency of evidence begins at the summary judgment phase (post-discovery- which can be costly and less time efficient)
  
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  B) Motion to Dismiss: A defendant can file a Rule 12 (b) (6) and Rule 8 (a) (2) lay out the standard for a motion to dismiss for failure to state a claim. In doing so, a defendant cannot make any factual claims, instead the court has to take all the allegations of the complaint as true. The court will accept facts as true that lead to a particular inference, not facts that set out a conclusion. Bell-Atlantic (2007) (anti-trust case) and Iqbal (2009) (plaintiff claimed he was held in a maximum security prison because of his religion) focused on code-pleading. In Bell-Atlantic, the court held that there was no heightened requirement of pleading specifics in a complaint, rather that there need only be enough facts to state a claim of relief that is plausible on its face. If the plaintiff’s claim fails to state a claim of relief that nudges their claim across the line from plausible to conceivable, their motion must be dismissed. In Iqbal, the court asked what the defendants did personally to further the discrimination, rather than asking what they failed to oversee. Thus, in Bell-Atlantic the court disregarded the claim of conspiracy because it was a conclusory statement, but considered the allegations of parallel tactics. Under Iqbal: 1) Separate the conclusory statements “mere recitations of elements of the cause of action” from those that can lead to an inference; 2) With the remainder of the allegations (those not rendered conclusory in step one) are taken as true, along with all reasonable inferences in favor of the plaintiff, and then consider the line between plausibility and conceivability. “Nudge the line across the line from merely conceivable/possible to the plausible.” Those that are deemed plausible continue (motion to dismiss denied). In other words, the focus is on the underlying facts rather than the ultimate conclusion.
  

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  C) Injunctions (Rule 65): Preliminary injunctions tend to happen immediately following the filing of a complaint-even before one has proven their entitlement to relief. The following factors are considered by the court when determining whether to grant an injunction: 1) likelihood of success on the merits; 2) balance of harms; 3) affect on public 4) irreparable suffering/harm would occur if granted. Under Alk, irreparable harm occurs when damages would be inadequate to prevent the harm or damages are impracticable.
  
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  D) Discovery (Rule 26): Discovery is used to determine the likelihood of winning, the legitimacy of the evidence/legal issues, eliminate matters in dispute, protect third parties, etc. The discovery process implicates third party interests. Most discovery rulings are considered “harmless error” at the appeals stage (extremely deferential standard of review); and discovery decisions are not normally appealable until the end of trial. Three items must be agreed upon between the attorneys: : 1) date upon which discovery will be closed; 2) date for dispositive motions like summary judgments. (Rule 56 amended for summary judgment to make them by default due at any point 30 days after discovery); 3) trial date. Four basic discovery tools that can be used (typically used in this order): request for production of documents, interrogatories, depositions, and requests for admission. If a party does not comply with discovery rules, a court will sanction them-this may include taking certain facts to be true or monetary fines. The scope of discovery is dictated by the complaint. Based on the complaint and Rule 26 (b) (1) this includes anything that is “relevant to the claim or defense of either party.” Such information need not be admissible if it leads to other admissible evidence (discoverable information). Rule 30 (b) (6) allows a plaintiff suing a corporation to list categories of discovery rather than every individually requested document.
  

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  E) Summary Judgment: After discovery, a motion for summary judgment is used to decide whether or not to go to trial. (Very similar to motion to dismiss except it occurs after discovery rather than before.) The shifting burden of summary judgment is described in Celotex: The party moving for summary judgment has a burden with two components: 1) Burden of production, which shifts to the nonmoving party if satisfied by the moving party, to show that the plaintiff cannot meet its burden of proof because there is no evidence of an essential element of their case; 2) Burden of Persuasion: Offer affirmative evidence disproving an element that is claimed (showing that the nonmoving party cannot win on that element) or by showing an absence of evidence in regard to an element. In holding this burden, the moving party asks the court to assume that the nonmoving party has presented the best possible case, and then shows that such a case is still insufficient for their claim to go forward. When the burden of production shifts, the nonmoving must show, through credible evidence, that there are triable issues of fact. The court construes that evidence in the light most favorable to the nonmoving party, engage in all reasonable inferences from the evidence in the same light, and asks itself the following question on the basis of that record of evidence provided by the parties: could any rational jury/trier of fact find for the non-moving party? If so, under Reeves, summary judgment is precluded. If there is no genuine issue as to material fact and if the moving party is entitled to judgment as a matter of law, the judge will grant the summary judgment motion. However: If the moving party is also the party that bears the burden of persuasion in the trial, the party only has to bear the burden of producing evidence, which if unrefuted, will compel a rational trier of fact to find in your favor. On the basis of the evidence you demonstrate, there is only one rational inference-simply bear the burden of producing what you would try to persuade the trier of fact to see at trial. That will then shift the burden to the nonmoving party to produce evidence (burden of production) showing that there is some genuine issue of material fact. If the defendant is unable to do so, there is no need for a trial. If the defendant has tried to do that, the court will consider all the evidences the parties have provided it and ask: construing the evidence in the light most favorable to the non-moving party, making all rational inferences in the light most favorable to that party, is the moving party entitled to win as a matter of law?
  

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  F) If the suing party survives summary judgment litigation, the case moves into a stage of pre-trial orders, in which parties, informed by discovery, the parties list their contentions (or defenses), their witnesses, and the documents to be included. Pre-trial orders take the place of the complaint and answer, so if an issue is raised in the pto that was not raised in the complaint it can be litigated but if it is not raised in the pto it cannot be litigated, even if it was raised in the complaint. Under Scott v. Harris, if the evidence directly contradicts the witness’s testimony on deposition, interrogatory, etc., that issue can be dismissed by the court.
  

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  The Due Process clause requires that parties have a right to be heard before the government effects a deprivation of their liberty or property. In Mullane, the court set out the following standard for procedural due process: Notice must be reasonably calculated to inform known parties whose interests are affected by the proceedings. Constructive notice (such as publication in newspapers) is acceptable with regard to missing or unknown parties or for those whose whereabouts could not be ascertained by due diligence. The court defines reasonable notice as what a person, putting themselves in the role of the person to whom notice is due would want (“desirous of actually informing the absentee”).
  
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  Old Property -Relationship of property to dispute - Bond/counter-bond - Risk of loss of property (waste/some other exigent circumstance)

  Both - Decision maker quality (clerk vs. judge) - Personal knowledge (of the person filing the affidavit) - Level of specificity - Nature of proof (medical v. circumstantial; who won the bar fight) - Consequences on the defendant

  New Property - Purpose/nature of statutory scheme (benefits), e.g. disability or welfare

  The term “new property” is used to encompass things the state confers upon its citizens, including things like licenses, social security benefits, etc. The court in Sniadach, a case in which an employee’s wages were garnished, set out a standard for due process stating that notice and a prior hearing were required before garnishment could occur. Goldberg set forth the due process requirements before a government can deprive someone of new property, including an opportunity for an evidentiary hearing. In Matthews, the court set out a third part test for consideration in determining what process is required: 1) private interests effected (interests of each private litigant); 2) the risk of deprivation and the efficacy of the attempts to offset that risk (risk of erroneous decision); 3) Government interest and the burden that the additional procedural requirement would entail. The final prong is slightly altered when the government is not a party to the case. Note: The State always has an interest in ensuring that it has a monopoly on the legitimate use of force.
  
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  In determining whether due process was met/violated, the court considers the quality of the decision maker (clerk v. judge); personal knowledge of the person filing the affidavit, making the claim for action, etc.; level of specificity of that claim/affidavit, etc.
  

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  Consider these standards in comparison with quasi in rem jurisdiction, in which seizure was allowed before the plaintiff proved entitlement.
  

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  The fairness/adequate due process of a scheme may involve a question of whether the person is entitled to help in the proceedings, which may include, but is not limited to, an attorney. As stated in Lassiter, states are not typically required to provide counsel unless a person is in danger of being deprived of their personal liberty. However, in Vitech, a case in which a prisoner was transferred to a mental health facility without his consent, the court determined that a hearing was required along with assistance of some kind (not necessarily legal). Legal counsel is not a requirement because the court wants to avoid adversarial proceedings as much as possible.
  
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  Eldridge Elements: Those factors include: 1) the nature of the private interest that will be affected; 2) the comparative risk of an erroneous deprivation of that interest with and without additional or substitute safeguards; 3) the procedures used and the probable value, if any, of the procedural safeguards, and 4) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail (the nature and magnitude of any countervailing interest in not providing additional or substitute procedural requirements.)
  

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  Historically, there was separation between courts in law and courts in equity. Law courts typically had the following remedies: compensatory damages, punitive damages or ejectment, while equity courts, which dealt with the kinds of issues seen in Mottley and Mullane (trust beneficiaries, arbitration, etc.), had remedies like: injunction, disgorgement, restitution, and trust. Rule 2 effectively merged law and equity, though claimants with issues that would traditionally have come before a court in equity are not entitled to jury trials. In making a determination of whether the issue was traditionally one of law or equity, one should look to the type of relief the plaintiff requests. There is a two-part test for determining the law/equity split (set forth in Chauffers): 1) Consider the nature of the case: try to analogize the case to the 18^th century (because of the 7^th Amendment). 2) Consider the remedy.
  
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  Atlas set out a public rights exception to the right to a jury trial in law cases: if Congress sets out a new public right or remedy by statute, it can commit the statute’s enforcement to a tribunal other than a court, such as an administrative agency, in which facts are not found by juries. The government must be suing in its sovereign capacity and must be acting to enforce regulations/sovereign rights. (Granfinanciera specifically rejects claim that bankruptcy is a public rights exception-unless the government is the suing party, the exception does not apply).
  
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  In Markman, the Court made a distinction between fact and law, determining that juries are better at making credibility determinations, while judges are better at interpreting written documents. Cases with questions of fact tend to have stronger arguments for being heard by a jury. A judge can employ an advisory jury at any time. With judges, we require conclusions of law and findings of fact, and judges are required to orally state on the record or write down the bases of their decisions for the sake of transparency, uniformity, and a basis for the appellate court to make their decision in reviewing that fact-finding, though there is no such option in jury trials. (Based on Rule 52). The hope is that the action of writing it down/articulating it will provide better quality decisions because they will be organized and each issue will be thought through. This becomes important in later discussions of preclusion.
  

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  Jury Instructions: Typically rendered orally; Each party proposes instructions to court at the appropriate time, if the judge omits an instruction or includes one that you oppose, you should object. Failure to object has immense consequences of the standard of review on the appellate level. In Kennedy, the Court determined that if a party raises an instruction that isn’t exactly correct but raises appropriate issues, the judge has a duty to correct the problem and give the correct instruction. A party must object to jury instructions if they dislike them, otherwise the instructions that are given are not subject to appellate review. If jury instructions come up on appeal, harmless error analysis is applied to them, often before the court makes a determination based on the merits.
  

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  1) De novo: “anew,” no deference is given to the trial court’s decision, appellate court considers it as if it were sitting in the shoes of the trial court. These issues include issues of law, statutory interpretation, etc.
  
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  2) Abuse of discretion: there is a lot of discretion given to trial court’s determination; appellate court considers whether the decision with which they disagree is discretionary. If it is, unless there is some kind of gross error of reasoning, the court will uphold it. This standard applies to all discovery rulings;
  
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  3) Clear error: applied to judicial fact-finding under Rule 52. It cannot be just any error, but must clear. (Circular). “Definite and firm conviction that a mistake has been made.” A fair amount of deference is given here. Factual findings are reviewed for clear error as are evidentiary conclusions.
  
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  4) Plain error: error so obvious that the judge is supposed to notice it on his/her own without any help from the parties. Applies in an evidentiary problem or a jury trial instruction when there is no objection. Extremely deferential.
  

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  Not an appellate review standard, this standard occurs in the midst of trial when a party requests a decision based on partial evidence because no rational jury could find otherwise than in their favor or it may be applied after a jury has entered a verdict based on a claim that only an irrational jury could have reached that conclusion. (Thus, a party can move for a review of this type either pre-verdict or post-verdict). This type of judgment cannot turn on a matter of credibility.
  
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  It has the same standard as a summary judgment (could a rational jury find for the nonmoving party if the evidence is construed in the light most favorable to the nonmoving party), except it applies to the trial record as opposed to the pre-trial record. You need to make this type of motion twice, pre and post verdict, for the sake of reserving the issue for appeal. The pre-verdict motion is typically made at the close of the evidence, and post-trial motion is made after the jury has rendered its verdict (up to 24 days after, according to Rule 6 (b)). Note: None of this applies if a judge is the fact-finder. The court has the option of granting a party another chance to produce evidence on a given element/correct some problem in its case when the motion is made pre-verdict. According to Rule 50, when the judge sends evidence to jury, he is not commenting on the sufficiency of the evidence, rather he defers on that issue until after the trial, hoping that the jury will make the “right” choice without his intervention because the appellate court is going to apply the same reasonable jury standard. An appellant court determines whether the appropriate motions/rulings were made applying the de novo standard to the judge (and granting extraordinary deference to the jury). A party can make a motion for a JAMOL post-trial (Rule 59). A post-verdict motion was previously called a judgment n.o.v., and was based on credibility determinations.
  

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  There is a limited amount of investment that we as a society can make in the resolution of a single dispute, thus there has to be a limit on how long a party can continue litigation. For the purpose of finality (a party can only appeal from a final judgment ending litigation on the merits), a jury verdict is not considered a final judgment.
  
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  Under Rule 59, there are several ways to get a new trial: 1) Trial Judge Error: if you can convince the judge that they made a mistake in running the trial, e.g. admitted evidence that is inadmissible, gave the wrong jury instruction, etc., a new trial may be granted. Note: A denial of a new trial is appealable, a grant of a new trial is not. 2) Weight: If the verdict is against the great weight of the evidence, a new trial can be granted. 3) Verdict will result in a miscarriage of justice
  
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  A remittitur is used to describe an order denying the defendant’s application for a new trial on condition that the plaintiff consents to a specified reduction in the jury’s award. An additur is used to describe an order denying the plaintiff’s application for a new trial on condition that the defendant consents to a specified increase in the jury’s award. Remittiturs are recognized almost everywhere while additurs are outlawed by most states. The federal court has determined that under the 7^th Amendment, remittiturs are allowed but additurs are not.
  
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  A party can seek relief from judgment under Rule 60, but it is an extremely high standard and is uncommonly used.
  

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  For a federal appellate court to have jurisdiction, the trial court must have jurisdiction and the appellant court must have appellate jurisdiction. Appellate jurisdiction can be raised by either party at any time or sua sponte (by the court itself).
  
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  Appellate jurisdiction is always available when the issue of the case would materially advance the resolution.
  
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  Questions of appellate jurisdiction can be brought at any time. Appellate jurisdiction has the following bases: 1) Final Order Rule: §1291: appeals are only allowed on final judgments. In order for there to be a final order on all the elements of a claim (defined here as a set of facts plus a theory of relief). Rule 54 (b) requires that a trial judge must rule that there is no just reason for delay in finalizing the ruling (the claim must be independent of other claims in the litigation). The merits of the claim must be ruled upon in order for the judgment to be final. The standard of review here is abuse of discretion. This rule is based on the belief that most judgments are correct, that those that are wrong are typically harmless and will not affect the outcome of litigation, and for the sake of efficiency (to prevent lawsuits being drawn out for a long time).
  

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  Collateral Order Rule: If there is an issue at the beginning of a case that would require the plaintiff to buy a bond to cover the defendant’s costs if the plaintiff loses, the requirement of the bond would not be reviewable at the end, an order can be granted then. Rule: Issue is separable from the merits (order must be collateral to the merits of the case), effectively unreviewable at the end of the case; and final with respect to the issue, an order can be issued before the final judgment. (Also called the) Cohen Exception: If the rights conferred by a statute would be lost if they waited until the final order to review it, it can be reviewed before the final judgment. Expense is not enough to warrant this exception. Thus, if an issue is sufficiently separate from the merits, reasonably important-effectively unreviewable, decision you’re appealing from must be reasonably final and not discretionary (this element is not a part of the formal rule), it can be decided. Must ask: is the right for which the moving party is requesting protection a right of litigation or judgment? If it is a right of litigation, the decision is unreviewable until final judgment. If it is one of judgment, it is reviewable. (Cohen acts as an early Erie test)
  

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  Double Discretion/Interlocutory Appeal: Section 1292 (b): Express finding from a judge in writing showing that an interlocutory appeal would materially effect the litigation. The trial judge is supposed to do say something is appealable when there is a controlling question of law and grounds for substantial disagreement and materially advances the ultimate termination of the litigation. There are 10 days to do so. Have to ordinarily file a notice of appeal in trial court in 30 days. Appellate court does not have to agree to hear the appeal just because of the trial court’s determination. “Passing on Defense”: articulated in Atlantic City (suppliers of an electric company with a monopoly conspired to fix prices, in response to an allegation of conspiracy, they refused to turn over discovery on the basis that the company itself wasn’t suffering from any damage because they were able to pass it on to their customers). Note: there is no right to appeal a refusal to rule on an injunction motion.
  

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  Issuance of Writs: In LaBuy (case where district judge kept transferring cases he didn’t want to hear-note: transfers are not final orders), the court ruled that writs should be used/issued only in extreme circumstances-when there is an immediate need for entitlement to relief due to a present harm that cannot be reviewed later. To successfully obtain a writ, you must show that you are likely to prevail on the merits. Elements needed for a writ: there must be a strong reason that involves an irreparable harm (can’t be repaired at the end of litigation), there must be clear entitlement to the relief (likelihood of winning later), and it must be an unusual case (want to limit the number of consequent petitions), may also be a supervisory element-to prevent a judge from continuing to do something that the court does not look favorably on.
  

(Under what circumstances can parties be added-either through their request or the request of the parties?) To add parties, there must be a federal rule allowing you to do so and there has to be a basis of subject matter jurisdiction.

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  Under Rule 13 there are two types of counterclaims: 1) Compulsory: must bring them at this time, if you don’t and the case goes to judgment, there is no other avenue to bring them. A counterclaim is compulsory when it comes out of the same transaction or occurrence under Rule 13 (a) or the same series of transactions or occurrences (similar to supplemental jurisdiction: case or controversy 1367). May be a way to combat declaratory judgment; 2) Permissive: you could bring them, if you don’t, there is a chance to litigate them later. Whether a counterclaim is permissive or compulsory depends on whether they arise from the same claim (meaning here: the same transaction or occurrence or series of transactions or occurrences). In Heyward (Navy and Stelma contracts; general contractor arguing that the entire verdict has to be vacated because they are not separated in the verdict): Court determined that the claims came from the same common nucleus of operative fact, reading “same transaction or occurrence broadly,” with the result that to not be considered in the same transaction or occurrence, the two things have to be really unrelated.
  
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  Permissive joinder: In order for two or more plaintiffs to join together in a suit, they must demonstrate that there is a common issue or fact. (Rule 20 (a) (b). Rule 1367 (b) (supplemental jurisdiction) requires care when plaintiffs attempt to cross claim in federal court when the jurisdiction is based on diversity. However, a defendant can bring any claim against another defendant once there is an initial claim between parties.
  
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  Intervention: Rule 24: In order to intervene as a plaintiff or defendant, you must file a proposed pleading, which does not include a motion to dismiss or a motion for summary judgment. There are two types of intervention: 1)
  
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  : Elements: if the party claims an interest, related to the property or transaction that is subject to the occurrence, whose interest will be impaired or impeded unless they are allowed to adequately represent that interest. Smuck (case of parents in D.C. wanting to intervene on a case between the school Board and poor black parents when the school Board refused to intervene). 2) Permissive. Determination of whether a party should be allowed to intervene requires consideration of the incentives of each party (in Smuck, the school Board had an incentive not to appeal-it was the only way they could desegregate without backlash). (There is no such thing as a compulsory intervention-one that would require plaintiffs to determine what other parties could possibly be interested so that they could serve them.)
  

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  Claim Preclusion: (Using the term “claim” broadly to mean transaction or occurrence). The purpose of claim preclusion is to encourage parties to bring as many of their theories of relief as possible in one case. A defendant never has to be worried about being claim precluded. Once a lawsuit is finished (trial judgment sufficiently final), a party can preclude another party from bringing a claim or issue in another case. While claim preclusion only runs against people who have or would assert claims (only against people who could have been plaintiffs or defendants), issue preclusion can include anyone who tries to bring the same issue. Most important case to remember here is Gonzalez, the class action where the real estate agents tried to sell swampland, and there were two different classes of plaintiffs-the Gonzalez plaintiffs and the Rodriguez plaintiffs. The test for determining whether a claim arises from the same transaction or occurrence is whether they had the same nucleus of common operative fact. In order for parties to be considered in privity, they have to be virtually identical. The Jones case (repossessed car after he defaulted on payments following a lawsuit for due payments-claimed acceleration clause required them to bring the entire suit at one time) brings up the issue of whether a default judgment against a party who failed to show up is sufficiently “on the merits” for preclusion. The court determined that it is sufficient for claim preclusion, but is not considered “actually litigated” for issue preclusion. Judgments that are not considered “on the merits” are: dismissal for lack of subject matter jurisdiction, dismissal for lack of personal jurisdiction, venue-dismissal on any of those grounds do not include an attachment of claim preclusion, although issue preclusion may apply (in terms of jurisdiction and venue). Note: a claim does not have to be actually asserted in lawsuit 1 to be precluded in lawsuit 2: it is enough that the claim could have been brought.
  
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  Issue Preclusion: While the term “claim” is pretty malleable in terms of claim preclusion, issue tends to be a little more static. As demonstrated in Cromwell, the requirements of issue preclusion that the issue be “actually litigated” and the “same issue” are closely related. The “necessary to decision” prong is articulated in the Rio v. Davis case (car pileup case): Court determined that the third party’s negligence was immaterial to the outcome of the case and thus not issue precluded. The following elements are taken into consideration with this prong: a) would the defense have been vigorous in the first suit; b) did the party have the incentive to fight the claim; c) was the jury rational. This prong is designed to ensure quality-don’t want to have to worry about the quality of decisions to issues that are immaterial to the outcome of the case. In Russell, the Court held that a general verdict will generally not be sufficient for issue preclusion, because it does not detail which issues were decided/material. The “same parties” element is a question because we don’t always require mutuality (same parties) to prevent litigation of a subsequent lawsuit. Note: “collateral estoppel” can be used in place of “issue preclusion” for the sake of clarity, e.g. “defendant was estopped from claiming xyz” versus “defendant was issue precluded.”