Civil Procedure Final Exam Outline
Civil Procedure Final Exam Outline
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Date Created: 02/09/15
Civil Procedure 1 Personal Jurisdiction to check that a court has personal jurisdiction or jurisdiction over parties 1 D must have minimum contacts with the forum state AND 2 D must receive notice and opportunity to be heard as to satisfy constitutional requirements of due process 2 Venue Requirement describes what judicial district cases can be heard in Must be heard either 1 In any district where the defendant resides OR 2 In any district in which a substantial part of the events giving rise to the claim occurred 28 USC 1391 3 Subject matter jurisdiction In federal cases to establish jurisdiction 1 Diversity Either the case is between citizens of dijferent states with a Complete diversity required and at least 75K at stake OR 2 Federal Question Case raises a federal question P s right to recover stems from the constitution a federal treaty or Congress a There is no minimum amount in federal question cases 4 Pleading 5 Discovery 6 Ascertaining applicable law Which jurisdiction s law should be used in the case Most importantly in diversity cases may federal courts apply federal common law or must they use the law of the state where the fcourt sits IF state has substantive law on point f court sitting in diversity must use it Erie Doctrine 7 Trial Procedure 8 Multiparty and multiclaim litigation If multiple claims or more than 1 P v 1 D various methods for bringing multiple partiesclaims in a case 1 Counterclaim D may make a claim against P Permissive or compulsory 2 J oinder of claims Once a party has made a claim against some other she may make any other claim she wishes Rule 18a 3 J oinder of Parties Multiple parties may join their actions together either permissive joinder or compulsory joinder Each of these types can apply to either multiple plaintiffs or multiple defendants FRCP 19 amp 20 4 Class Actions Many P or many similar claims against one D Requires 25 or more similarlysituated P or Ds FRCP 23 5 Intervention Under intervention a person who is not initially involved may enter a suit of his own initiative FRCP 24 Options interventions of right and permissive 6 Interpleader Where a party owes something to two or more persons but is unsure which interpleader can be use to prevent paying the same claim twice Options statutory or Rule interpleader 28 USC 1335 statutory and FRCP 22 Rule 7 Thirdparty practice impleader D has a potential claim against a third person not already in suit by which that 3rd will be liable to D for some or all of P s recovery against D D should be able to implead the 3rd person FRCP 14a 8 Crossclaims Any party making a claim against a coparty FRCP 13g 9 Jurisdiction Check if P and SM have been satisfied Know if supplemental jurisdiction applies if not party must independently meet req ts of federal subject matter jurisdiction 10 Former adjudication Whether results in some prior litigation are binding in current suit Distinguish between situations in which the judgment in the prior suit is binding the entire cause of action merger and bar and when a finding of fact is binding on the current suit even where judgment is not collateral estoppel a Nonmutual collateral estoppel Where a stranger to the first action seeks to take advantage of a finding of facts in that first suit consider whether this nonmutual collateral estoppel should be allowed b Full Faith and Credit If the two suits have taken place in di erent jurisdictions consider to what extent the principles of faithcredit limit the second court s freedom to ignore what happened in the first suit Chapter 2 I Jurisdiction over the Parties 1 Two kinds of jdx exist over parties and subject matter a Subject MatterJurisdiction subject matterjdx is the court s power to decide the kind of case b de over parties Whether court has jdx to decide a case between the particular parties or concerning the property 2 Jurisdiction over the parties Two distinct req ts must be met a Substantive due process Court must have power to act either upon given property or on a given person so as to subject her to personal liability 14th Amendment s Due Process Clause imposes this req t b Procedural due process The court must have given the defendant adequate notice of the action against him and an opportunity to be heard Also imposed by the 14th Amendment s Due Process Clause 3 3 kinds of jdx over parties One of the three must be present for the case to go forward a In personam Jurisdiction over the D s person gives the court power to issue a judgment against D personally All of a person s assets may be seized to satisfy jdgmt and jgmt can be sued upon in other states as well b In rem de over a thing Gives court power to adjudicate a claim about a piece of property or a status c Quasi in rem jdx An action begun by seizing a piece of property owned by attachment or a debt owed to garnishment the D within the forum state The thing seized is pretext for the court to decide the case without having jdx over the D s person Any judgment affects only the property seized and jgmts can t be sued upon in other courts d quotMinimum contactsquot requirement ifjdx is in personam or quasi in rem the court may not exercise jdx unless D has suf cient minimum contacts with state in which court sits i Purposefully directed towards the forum state Req ts of minimum contacts usually means that D has to have taken actions that were purposefully directed towards the forum state Ex D sold goods goods in the state D is a corporation incorporated in that state D is served in the state D has bought property in the state ii Consequence of the lack of contacts Without such minimum contacts between D and the forum state exerceise of jurisdiction would violate D s 14th Amendment right to due process 4 Due Process Exercise ofjdx by a state court must satisfy D s rights under due process If D entirely lacks connections to forum state suit would violate due process to exercise in personam jdx over D a Speci c v general jdx i Speci c Jurisdiction A court s exercise of personal jurisdiction to hear a claim related to and arising out ofthe D s voluntary contacts With the forum state A Lesser contacts required A smaller degree of contact is required for speci c than general jdx D must still have some voluntary contacts minimum contacts with forum state ii General jurisdiction Court is exercising in personamjdx to hear a claim that does not arise out of or relate to defendant s contacts with the forum state A Extensive contacts required Supreme court requires much more extensive contacts between defendant and the forum state when the state court is exercising general jurisdiction as opposed to speci c jurisdiction Court may require a D to either be domiciled in or else personaly served With process in that state iii Speci c form more common Majority of statecourt H ga ons 5 Longarm statutes Where req ts of due process are satis ed D may not be served outside of the forum state unless the forum state has enacted a statute authorizing outof state service under certain circumstances Such statutes allowing the courts to obtain jdx over persons not physically present within the state at the time of service are called quotlongarm statutesquot a Links to forum state Longarm statutes allow jdx on the basis of speci ed links between defendant and forum state le Domicile ownership of property commission of a tortious act in that state b Substitute service Longarms typically provide for substitute means of service when instate personal service is not possible le Registered mail ll jurisdiction over Individuals A Different categories Different criteria include 1 Presence within the forum state 2 Domicile or residence within the forum state 3 Consent to be sued within the forum state 4 Driving a car within the forum state 5 Committing a tortious act within the state or outofstate act withinstate consequences 6 Ownership of property in the forum state 7 Conducting business in the forum state 8 Being married in or living while married in the forum state note regardless of criteria due process requires individual contacts wforum state before pj may be exercised B Presence de may be exercised over an individual by virtue of his presence within the forum state at the time he is served with process C Domicile de may be exercised over any person domiciled in the state 1 A person is considered to be domiciled in the place where he has his current dwelling place if he also has the intention to remain in that place for an inde nite period 2 Corporation s domicile is considered by 28 USC 1332c to be where the state of incorporation and principal place of business D Residence Some states allow jurisdiction to be exercised on the basis of D residence in the forum state even if he is absent from the state E Consent de can be exercised with no contacts if consented to F Nonresident motorist States often have statutes allowing courts to exercise jdx over nonresident motorists who have been involved in accidents in the state 1 Service on state official Statutes provide for service of process on a designated state official and for registered mail service on the outofstate defendant himself 2 Speci c jdx only Nonresident motorist statutes confer only sp J only for a suit involving the instate auto accident G lnstate tortiousness Many states have statutes allowing their courts jdx over persons committing tortious acts within the state 1 Outof state acts with instate consequences Some longarm statutes have been interpreted to include acts done outside the state which produce tortious consequences within the state In a products liability situation vender selling products with knowledge of use in state will be liable in that state if product causes injury H Owners of instate property many states exercise jdx over owners in causes of action arising from that property Conducting Business States often exercise jdx over nonresidents who conduct businesses within the state 1 Limited to speci c jdx applies only to a suit arising out of the nonresident unincorporated business instate business activities J Limits of quotdue processquot unde ned for suits against individuals International Shoe minimum contacts McGee speci c jurisdiction case applying lnt l Shoe min contacts analysis quotsuit based on a contract with substantial connection to the forum statequot Represents the least contact wforum state that has been approved by the Supreme Court as basis for R Hanson D corp s contacts with forum state didn t suf ce for jdx Concerned disposition of funds from a trust Case stands for the still valid proposition that only the D s voluntary contacts with the forum state not forumstate contacts thrust on the D by other people s actions will count in a minimumcontacts analysis FL could not exercise jdx over Delaware trustee Hanson differs from McGee on the grounds that in Hanson the contacts with the forum state were initiated by the settlor not the D The unilateral activities of those who claim some relationship with a nonresident defendant cannot satisfy req ts of contact with the forum state It is essential that in each case there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State thus involving the bene t and protections of its laws WorldWide Volkswagen must anticipate being haled into court Notice and Opportunity to be Heard Once court establishes authority it must then be sure D received adequate notice 1 Reasonableness Test It is not necessary D actually learns of the suit Rather procedures must be reasonably likely to inform him even if they fail 2 In rem and quasi in rem Less strict notice req ts are applied in these than in personam cases 3 Mail notice Many statutes today allow service by registered mail in addition to quotinhand service required before Pennoyer Opportunity to defend D must be given adequate time to prepare defense Constitutional standard adequacy of notice and hearing are measured by Constitutional standard Constructive notice helpful for growing longarm statutes Mail notice reasonableness test service on state official estoppel of D if D s own acts make traditional service impossible publication Defenses to JDX 1 Special appearance D may litigate wo automatically subjecting himself to pj by appearance 2 Collateral attack on another court s default judgment 3 Defense that jdx was obtained by fraudduress 4 Defense that D is immune from service of process where suit is in progress Venue Venue is not a substitute for pj Suit can only be brought in a jdx which satis es BOTH venue and pj of all defendants Refers to a place within a sovereign jdx in which a given action is to be brought It becomes consideration only when jdx over the parties has been established States almost exclusively determined by statutes Forum non conveniens Courts will sometimes refuse to exercise their jdx over the parties on the grounds that it would be more convenient to try the case elsewhere The mere fact that the law of the alternative forum is less favorable to the P is not by itself grounds for denying the defendant s forum non con veniens motion Piper Aircraft Co v Reyno Venue in fed cases is controlled by 28 USC 1391 general federal venue statute It provides mainly for venue based on the defendant s residence wehre a substantial part of the relevant events occurred or the place where a defendant can be made subject to personal jdx Subject Matter JDX Two types 1 Diversity citizens of different states and 2 Federal queonn 1 Diversity requires 28 USC 133228 USC a An amount in excess of 75K 1332a good faith proof not required eventual recovery irrelevant claims may be aggregated where at least one P meets req t exxon mobi corp v Alapattah services OR where claims enforce a single title may be aggregated regardless of one P meeting req t b Complete diversity c Corp is a citizen of the state where it s incorporated and of the state where it has its principal place of business 2 Federal question 28 USC 1331 Suit quotarising under the Constitution laws or treaties of the USquot fed law the source of P s claim a Other cases Ambassadors admiralty or if US a pary 3 Supplemental jdx 28 USC 1367 If satis es fed Subject matter jdx then additional claims and parites may be brought into litigation Exclusions ThirdParty D Rule 14a Compulsory joinder Rule 19a Rule 20 joinder of D Claims still allowed Compulsory counterclaims Rule 13a Additional parties to the counterclaim Rule 13h joinder Multiple P s under Rule 20 permissive joinder Class Action Ps Rule 23 Crossclaims Rule 13g lmpleader Rule 14 impleader of thirdparty D5 4 Removal 28 USC 1441 under doctrine any action brought in state court which could have been brought in fed Court may be removed by D to fed Exception in diversity cases case cannot be removed if a D is a citizen of state in which action is pending unless it s a class action then exception does not apply see 28 USC 1453b Pleading Two types Complaint and answer Sometimes also a reply Rule 7a Complaint Rule 8a jursidiction Short and plain statement of the claim Demand for judgement of relief Defenses against validity Rule 12b either in answer or by separate motion D may attack validity of complaint in a number of respects including lack of jdx over person or subject improper venue insufficiency of process or service of process failure to state a claim upon which relief may be granted 12b6 failure to join a necessary party Plausibility test Twomby must be able to infer that the D is liable and lckbal broadened Twombly ANSWER Rule 8b Rule 15 Amendment to the pleadings amendment of right or responsive pleading Relation back requirement Change of party etc Krupski v Costa Cruciere where P may le against the wrong party regardless of her awareness of D2 s existence as long as she believed the correct party to sue was D1 Af rmative Defense Some defenses must be explicitly pleaded in answer Ex Contributory negligence fraud res judicata statute of limitations illegality Counterclaim If D is required to plead it compulsory counterclaim quotarises out of the transaction or occurrence that is the subject matter of the P s claimquot lF D has option permissive counterclaim Variance of proof from pleading Fed Rules allow a substantial deviation of proof at trial as long as it does not prejudice No frivolous pleading Rule 11 leads to sanctions Lawyer s job to ensure pleadings are not frivolous not issued to harass or delay adversary Failure in this duty is nable or sanctionable Methods of Discovery Rule 30 31 33 34 36 Forms of discovery Automatic Disclosure deposition interrogatories requests to inspect requests for admission requests for physical or mental examination Scope FRCP 26b Use of discovery Rule 34 requests to produce Erie problems concurrent jdx Burden of Proof Adjudication without trial Voluntaryinvoluntary dismissal judgement on apartial ndings Remedies compensatory punitive aggequaitble remedies injunction speci c performance Equitable will be awarded when legal is insuf cient Class actions rule 23 Prereqs size common questions typical of all in class claims and Fair and adequate representation Intervention Rule 24 Of right and permissive lmpleader thirdparty 14a Claim Preclusion Merger amp Bar res judicata quotthings which have been decidedquot If P wins rst action claim is merged into judgment If P loses rst action claim is extinguished and he is barrd from suing again Collateral Estoppel each party is collaterally estopped form caliming issue should be decided differently than in rst action Issue v claim preclusion Full Faith amp Credit Sample Answers For the question about the plane crash jurisdiction answers There are two preliminary subject matter jurisdictional issues which will be dealt with rst 1 Is there diversity And 2 Is the amount in controversy requirement met 1 Diversity Under 28 USC 1332c corporation is a citizen of the state in which it is incorporated and has its principal place of business Individual p is a citizen of another state Ames so there is diversity 2 Amount in controversy 75000 requirement In personam jdx Keep in mind rst that since this is a diversity action the federal court for Ames will exercise personal jurisdiction over the outof state Muenster only if the Ames state courts would exercise such jdx So even if the Ames courts could constitutionally exercise jdx over Muenster corp if M had minimum contacts if the Ames longarm wouldn t reach M the federal court sitting in diversity can t exercise jdx either Determine if travel agent acted as 39agent if they sold so many tickets that had he not been in business the corporation would likely have set up its own of ce there then he is considered their agent If he only rarely sold their tickets agency relationship would be found lacking Even if longarm reaches Muenster on account of the agent s activities Muenster could still plausibly argue the Ames federal court s exercise of pj over Muenster and outofAmes corporation would violate Muenster s right to due process under the 14th Amendment of the US Constitution As noted a federal court sitting in diversity won t hear a case that wouldn t fall within the pj of the sate where the federal court sits In this case it seems likely that the Ames federal court will need to exercise only speci c jdx over Muenster not general jdx Speci c jdx is jdx for a claim arising at least in part out of the D s instate activities Ames claim arises from a ight taken on a ticket that StiltonP bought while an Ames resident and that Muenster kenw from the beginning was bought by an Ames resident also Stilton bought the ticket in response to an inAmes ad campaign conducted by Muenster Thus Stilton s claim would likely be found to arise in signi cant part from Muenster s inAmes activities so that speci c jdx would suf ce For suits based on speci c jdx an outof state corporate defendant s due process rights are not violated so long as the D has quotminimum contactsquot with the forum state Thus here there will be no violation of Muenster s due process rights as long as Muenster had minimum contacts with Ames Here the combination of Muenster s use of an inames agent to sell tickets in Ames combined with M s decision to advertise its tour in the state would almost certainly be suf cient to establish min contacts between M and Ames Thus the fed court should be found to have speci c pj to hear the cases assuming the longarm applies Notice that if the claim didn t arise out of any voluntary contacts between M and the state of Ames as would be the case if M operated and advertised only in New England and stilton bought his ticket in NE then the Ames fed court would need general and not speci c jdx over M General jdx over a defendant corporation may constitutionally be exercised only in the corporation s state of incorporation or its state of principal business Daimler Quasi in Rem jdx If it is held that pj did not exist quasi in rem jdx may be present Quasi in Rem is allowed in fed actions of if a the plaintiff cannot obtain pj over D through reasonable efforts and b the law of the state in which the federal court sits permits such jdx FRCP 4n However M will have a good chance of arguing that under Shaffer v Heitner quasi in rem jdx over it is unconstitutional because M lacks minimum contacts with Ames This will certainly be the case if in personam jdx is lacking since under Shafferthe two tests are the same Notice issues Was registered mail service a suf cient from of notice to M Federal Rule 4e1 allows service by any method eg registered mail allowable under the law of the state in which the fed court sits Since we re told registered mail serice on an outof state D is acceptable service here is suf cient Q of summary judgment Here it ought be denied P is seeking an offensive use of collateral estoppel That is he as a P is trying to apply the nding of liability in the Cheddar case previous against M Such offensive use of collateral estoppel was allowed by the Supreme ct in Parkane Hosiery but in that case only two lawsuits were involved Here there is the likelihood of not only these two but of many other injured passengers This would lead to the quotmultiple plaintiff anomalyquot Though denying the use of collateral estoppel here may promote additional litigation the negligence issue will be retried perhaps many times over Further allowing c estoppel here would effectively penalize the P in the rst case because they would have been better off waiting and using collateral estoppel as well to apply the nding in another case serving justice 10 If the court had already taken a position on whether offensive use of collateral estoppel should be allowed to be made by a stranger to the rst action on the facts like these the Supreme court s decision in Semtek v Lockheed Martin would require the Ames fed Court to apply the preclusion rule that the NJ would apply Q 2 Service antitrust counterclaim addition of parties PJ ls added party Vinyl amenable to a suit in Langdell If so was service on Vinyl made within geographical boundaries for service speci cally required by Fed Rules 1 Amenability ln fed question cases fed courts have generally held that a corp is amenable to a suit ie suable as long as it has minimum contacts with the state in which the district court sits sufficient to meet the International Shoe test in other words the fact that the state courts might not exercise jdx over this particular outof state D on a statelaw claim would be ingnored in determing the D s amenability to a fed suit In cases not raising a federal question however the prevailing rule is that the fed courts exercise only the jdx that would be exercised by the courts of the state in which the fed court sits even if the state courts do not extend theirjdx as far as is constitutionally permissible 2 Speci c de A state court s exercise of speci c jdx over an out of state company requires merely that the company have minimum contacts with the forum state So the Langdell state courts would have constitutionallysuf cient speci c jdx over Plastic sol long as Vinyl has minimum contacts with Langdell Burger King establishes that an outof stater s signing of a franchise contract that s closely related to the forum state is normally enough to constitute minimum contacts between the outof stater and the forum state By extension from BK probably an outof stater s inducement of breach of a contract that s closely tied to the forum state also constitutes minimum contacts with the forum state By this analysis the Langdell state courts could constitutionally exercise speci c jdx for the inducement claim Consequently the L fed court should and will also exercise such speci c jdx as long as the fed court also believes that the L state cts would elect to exercise that speci c jdx a If fed court believes L state courts would not exercise jdx over Vinyl it gets dif cult Since the claim is based solely on state law the fed court should probably treat the problem of amenability as if that claim were based purely on diversity And in diversity cases the dfed courts will 11 generally not exercise jdx if the courts of the sate where the fed courts sits would not exercise jdx Geographical Boundaries for service According to Rule 4k1A service must be made anywhere the lasws of Lnagdell permit if the L longarm would permit service on Vinyl s ames of ces then federal service which occurred is valid If L law would not permit such service the service may nonetheless be valid under the quot100milebulgequot provision of 4k1B allowing service on persons who are brought in as additional parties to a counterclaim pursuant to Rule 19 Rule 19 allows joinder of certain persons who are subject to service of process and whose joinder will not destroy subject matterjdx If these req ts are met it is joinable under Rule 19 if it quotclaims an interest relating to the subject of the action and is so situated that disposing of the action in its absence may i as a practical matter impair or impede its ability to protect the interestquot Subjectmatter jdx supplemental jdx The doctrine of supplemental jdx codi ed in 28 USC 1367 allows a federal court which has jdx over an initial claim to also hear a related claim even though that related claim would not independently satisfy the requirements of federal subjectmatterjurisdiction diversity and amount in controversy One of the ways supplemental jurisdiction can apply is to allow a court to hear a statecreated claim closely related to a federalquestion claim that is the quotcorequot claim supplying the original jurisdiction For a court to exercise its supplemental jdx the two claims must form part of the quotsame case or controversy under Article IIIquot of the constitution The test is usually deemed satis ed if the state created claim and the federal claim derive from a quotcommon nucleus of operative factquot UMW v Gibbs Since both the federal claim that the franchise agreement violated the antitrust laws and the counterclaim against both Staley and Vinyl alleging that Vinyl induced Plastic to breach the franchise agreement relate to the franchise agreement probably the quotcommon nucleus of operative factquot test would be satis ed and supplemental jdx would govern the counterclaim Supplemental jdx 1367a expressly allows quotclaims that involve the joinder or intervention of additional partiesquot Rule 13h allows additional parties to a counterclaim to be brought in accordance with the provisions of Rules 19 and 20 Rule 20 allows joinder of persons as defendants if quotA any right to relief is asserted against them jointly severally or in the alternative with respect to or arising out of the same transaction occurrence or series of transactions or occurrences and B any question of law or fact 12 common to all defendants will arise in the actionquot Rue 13h joinder is at the discretion of the counterclaimant Q4 Procedurally if the D has moved for judgment as a matter of law or for a new trial failed then led appeal to renew two arguments that were raised and rejected in trial court what should P do P should le an answer to D s motions in the Appeals court and request a new tiral on burden of proof in the alternative The conditional new trial is protection in case we fail to refute D s arguments otherwise upon failure the Appeals Court would have no choice but to grant judgment as a matter of law for D We should speci cally state if the denial is found to have been incorrect we wish a new trial on burden of proof The contention is speci cally provided for by Rule 50e which allows the Appeals Ct either to decide our new trial motion itself or to remand for a determination of this issue by the trial court 05 Our client is asked a Rule 33 interrogatory asking for speci c doctors is cocktail party advice to be included Consistent with Fed Rules and our sense of professionalism The scope of discovery cannot reach someone informally consulted but not retained nor called at trial Rule 26b4B deals with the expert whohasbeenretainedbutwon ttestify Rule 35b exception applies only to medical examination No quotexceptional circumstancesquot nor professional responsibility to quotdo the other side s workquot exists Q6 Erie problem the federal interest in consolidation of the litigation con icts with a state interest in enforcing licensing requirements Erie doctrine applies to those situations in which there is no federal rule on point and the underlying claim is a statecreated one The quottwin evilsquot to which the Erie doctrine was addressed are 1 discrimination against the citizen of the forum state and 2 forum shopping Both of these evils would result to a certain extent if the court here refuses to follow Ames common law Bc D still has the right to remove Prior to the Supreme Court s decision in Byrd v Blue Ridge the problem could have been easily disposed of by resort to the quotoutcome determinativequot test rst espoused in Guaranty Trust v York Guaranty held that state law must be followed if it would quotsigni cantly affect the result of a litigation for a federal court to disregard a law of a State that would be controllingquot had the action been brought in state court The effect of ignoring Ames law here is nearly the same as the effect would have been in Guaranty of ignoring the state statute of limitations Guaranty held that it was quotoutcomedeterminativequot to ignore a statute 13 of limitations since this would allow prosecution in federal court of a claim which would be completely barred in state court There are varying degrees of quotoutcomedeterminativenessquot and the fact that the decision of which law to apply will be somewhat outcome determinative does not settle the matter there may be stronger countervailing considerations Thus the decision to try an issue to a judge or to a jury is less likely to determine the outcome of a lawsuit than is a decision whether to bar an action as untimely Strong federal interest in consolidating all related litigation between two parties into a single action so as to reduce judicially wasteful acUons If however the counterclaim is compulsory then it may be waived if it is not brought in this action Since the counterclaim arises out of the same contract that is the subject of Paci c s claim for breach it probably meets the quottransaction or occurrencequot test of Rule 13aand is thus compulsory Q7 Bar to claims The basic prerequisites for the application of bar are the following 1 the present and former suits must represent very similar quotcauses of actionquot 2 the parties to both suits must have been the same and 3 the former adjudication must have been quoton the meritsquot 1 Similarity While it was formerly the case that absolute identity of the two claims had to be shown the courts have now adopted a looser test which serves to bar a greater number of claims Devious will be able to cite the principle that a judgment is conclusive not only as to matters which were decided but also as to all matters which might have been decided Of course this principle does not mean that any claim which could have been asserted in the rst action is barred if that were the case there would be no hope because we could have asserted the unfair competition claim by the doctrine of supplemental jurisdiction The test for determining whether the second cause of action is so closely related to the previously litigated claim as to be barred by it is a pragmatic one if two actions allege very similar facts and claim violation of the same legal right bar will apply even though two different legal theories for recovery are involved The facts of our case are somewhat similar to Williamson v Columbia Gas in which it was held that a claim under the Sherman Act was so similar toa previously litigated Clayton Act claim that the latter bound the former We should argue that the elements of unfair competition are different from those of antitrust violation and that the protected legal right is not the same in both cases 14 IF the kind of relief we are seeking now was not available from the court in which we tried the previous action we will not be barred 2 Identity of parties Same 3 Adjudication on the merits A 12b6 dismissal for failure to state a valid claim might arguably be considered not on the merits summary judgment is as nal and dispositive of the issue as a jury tiral 15
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