I. How do you gain personal jurisdiction? A. Territoriality (Tag jurisdiction) a. Pennoyer: power over people & property 1. Served with process while

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1 I. How do you gain personal jurisdiction? A. Territoriality (Tag jurisdiction) a. Pennoyer: power over people & property 1. Served with process while in forum, or property was properly attached by authorities i. Burnham: still stands (CA) 2. Defendants agent served while in forum 3. Domiciled in a particular forum 4. Actual consent B. Consent a. Hess: statute states that by use of some service you give consent 1. Appointed representative 2. Proof of service b. Bremen/Carnival Cruises: Forum clauses in contracts = consent/waiver of PJ c. Ireland: if you submit t the court for a challenge of PJ, you have consented to that ruling C. Minimum Contacts a. General jurisdiction: claim unrelated to contacts; requires more connection; continuous and systematic b. Specific jurisdiction: claim related to contacts; requires less connection c. MUST BE PRESENT AT THE TIME THE SUIT IS COMMENCED! 1. Hypo: when a person leaves before suit commenced, you are screwed and have to go sue them in their state d. How do you tackle a problem if the traditional basis from Pennoyer or Hess don't apply? (make sure to say they do not apply) 1. Statute: what is its scope? is there a limitation? if so, does this case fall within limitation? If no, stop. i. In-rem, quasi in rem statutes are generally attachment statutes 2. Specific or general jurisdiction? How much in contacts do we need? 3. Due process: meet minimum contacts first, and then notions of fair play? i. International Shoe: If the defendant has such minimum contacts that exercising jurisdiction does not offend traditional notions of fair play and substantial justice ii. WWVW (specific): purposeful availment of state's laws Mere possibility/foreseeability is not sufficient; you need conduct that would demonstrate they knew and anticipated a connection would arise (like, airing commercials or selling in the tristate area) --> demonstrate that it was foreseeable that they would be sued in OK iii. Burger King (specific): sought business in the state regardless of whether you have been there; good indication when contract has a choice of law provision Contract itself is not sufficient, but in connection with negotiations, actions, course of dealings (payments, notice) you

2 can have minimal contacts Fairness: Burden on defendant is to show it is unconstitutional --> need to show that it is GRAVELY inconvenient that you are at a severe disadvantage in the litigation (very tough to show) iv. McGee (specific): continuous and systematic; SOLICITED contract/business (BK); specific jurisdiction, so minimum contacts are less (relatedness); state's interest v. Hansen (specific): purposeful availment, which is what makes it different from McGee; the resident of FL sent things to the bank, not vice versa, so the bank never had anything to do with forum state vi. Kulko: plane ticket was not enough; he did not derive benefit from state; merely sent daughter to state vii. Asahi (specific): purposefully forum (stream of commerce) Some felt it was a contact if you put item in stream and reasonably anticipate it will get to the forum state Some felt you need above, plus the intent or purpose to serve other states; ie purposefully availed self of that state It is an unfair burden to grant jurisdiction over those who do not avail themselves viii. Helicopteros (general): they bought, sold, trained, maintained and made a contract w/in the state, but this was still insufficient to warrant jurisdiction - problem with this case is that it's up for debate as to whether the claim was general or specific ix. Perkins (general): hosting meetings, corresponding transfering funds, paying bills (otherwise conducting major business operations) were enough to grant Ohio jurisdiction over a Filipino company; continuous and systematic x. Schaffer: Shoe applys to in-rem claims; property is seen as another minimum contact of the defendant Real property will often be sufficient enough If it is not real property, you will need more contacts Needed more than stock - had never visited, seen, done business in, etc. in DE 4. Fairness i. Inconvenience for witnesses and defendant ii. State's interest iii. Plaintiff's interest iv. Legal system's interest in efficiency v. Interstate interest in shared substantive policies 5. Summation: purposeful availment, foreseeability of suit, continuous and systematic, related to contacts? If yes, then does it offend fair play? II. Notice A. Process: summons & a copy of the complaint

3 B. Must be given to someone who is at least 18 years or older C. Ways to serve a person - Rule 4(e)(1)(2) a. Personal service, anywhere in the state b. Substituted service --> must be at usual abode or dwelling and to someone who lives there c. Service defendant's agent d. Any method allowed by state law, the state being the one in which the defendant resides or where the court resides D. Ways to serve a corporation - Rule 4(h) a. An officer or manager or general agent b. Someone with sufficient responsibility such that we expect them to transmit important papers; serve within confines of (e) and (k) E. Rule 4(k): A federal court may serve process on someone in addition to within the state, in any other geographical location as provided for by state statute a. So, if state statute says a party must be served within a state, you cannot serve them outside the state ever F. Personal service is always okay, but other means work as well a. Mullane: must be reasonably calculated to reach someone (if you wanted to reach them, this is how you would do it) b. If you only have some parties' information, you must contact them individually and then may attempt the other parties in whichever way you can c. Publication is RARELY okay III. Opportunity to Be Heard A. Clearly, you ALWAYS have an opportunity to be heard, but certain circumstances where property is taken pre-judgment cause issues B. Typical fact pattern about someone owing someone money or company repossessing (attaching property or garnishing wages) C. Due process requires notice and a pre-seizure hearing unless extraordinary circumstances exist and a bond is put down to protect against abuse a. Fuentes: bond for a safety measure and assurance of plaintiff's seriousness; necessary for public and governmental interest; need some court action --> can't just go fill out a form and get the police to seize the items. A judge must direct the seizure. b. North Georgia: can't force the debtor to place down bond without a hearing/notice; unfair --> only plaintiff D. THREE PART TEST to determine if due process is satisfied for prejudgment relief (Doehr) a. Strength of D's private interest: how will D be harmed by prejudgment attachment? The more harm, the harder it is for DP to be satisfied b. Risk of erroneous deprivation: Consider what the level of proof is. 1. Do they require actual evidence to show likelihood of prevailment? The more evidence required of prevailment, the better. i. VERY WARY OF CONCLUSORY STATEMENTS --> need facts, proof, not allegations (Mitchell)

4 2. Who is making the judgment? Be very wary of clerks. c. Interest of plaintiff: is it a large sum likely to prevail? Evidence showing that is it likely that the defendant will try to hide assets? Balance with burden placed on government IV. Subject Matter Jurisdiction A. Diversity 1332 a. Cannot collusively change citizenship or enjoin unrelated people to gain jurisdiction 1. May do whatever you please to remain in state court b. Complete Diversity: no plaintiff may be of the same citizenship as the defendant (on same side of v. is okay) 1. Exception: mass torts, Person: legal domicile i. Mas v. Perry 3. Corporation: (1) state of incorporation & (2) primary place of business (both must meet complete diversity) i. Choose one of the following tests and go for it... ii. Nerve Center: location of decision making authority and overall control iii. Muscle: location of production or service activities iv. Hybrid: considers all of the business activities and circumstances 4. Business associations: consider citizenship of each of its members c. Amount in Controversy - MORE THAN!! $75, Good faith claim 2. No legal certainty that bars the recovery of that amount 3. Amount is determined at the time the complaint is filed 4. May aggregate when: i. Several claims against a single defendant ii. Several defendants to the same claim (supplemental) iii. Several plaintiffs in the same claim B. Federal Question Jurisdiction a. Must be constitutional: Article III -- must form an ingredient of the original cause of action b. Statutory 1331 c. How to tackle a problem 1. Well-pleaded complaint i. Mottley: on the face, the complaint is based on a federal question or statute; created by federal law ii. Anticipated defenses do not count 2. Does it really raise a question of federal law? Is it a substantial federal interest? i. Cause of action is created by federal law / courts have created CoA (violation of federal law) If yes, stop. If no, move to ii. ii. Is it a state action that relies on federal law or an interpretation of federal law? (interpretation is more likely to be a substantial fed

5 interest - Smith) No clear answer, but need to argue it is or isn't substantial Merrill Dow: state claim resting on federal law sans cause of action does not automatically create federal question Need to class benefiting, legislative intent, advance purposes of statute, whether it is something generally regulated by state law Found that the lack of federal cause of action or intent pointing to one created a less than substantial federal question Grable: does not always require fed CoA to be heard in fed court so long as substantial federal interest Whose interests are at stake? Does the gov't, like here (forum for tax suits), have a direct interest? Or is it the state's interest? Uniformity: would allowing cases like this one affect the currents of litigation? or is this a rare circumstance? C. Jurisdiction will always stay within the case UNLESS it is a supplemental claim and the main claim disappears (choice of judge) V. Supplemental Jurisdiction A. Pendant Party: plaintiff adds in a new party; if this destroys diversity in diversity cases, NOT OKAY a. Owen v. Kroger: this would allow abuse of the system b/c plaintiffs would amend complaints after they gained diversity 1. Possibly, if one party dropped out, diversity could be gained again b. Exxon: party may be joined even if they don't meet the AIC so long as original plaintiff does B. Pendant Claim: plaintiff adds in new claim C. Ancillary: Defendant impleads or counterclaims based on CNOF; if this destroys diversity, it is okay D. 28 USC 1367 (codifying Gibbs): presumption that 1331 and other statutes other than 1332 reach to the full extent of the constitution absent of clear contrary intent a. This is to overrule Finley, which basically said that absent a clear legislative intent to authorize certain claims, a state action cannot be joined with a federal action despite CNOF b. Now, so long as there is no express intent NOT to allow that claim, a CNOF will suffice to gain supplemental jurisdiction (both pendant and ancillary) E. How to tackle a problem a. Do you have diversity or FQ jurisdiction? If no, stop. (compare to FQJ cases) (original jurisdiction) b. Decide what kind of claim it is -- ancillary or pendant; party or claim 1. Do we have any problems with ruining diversity if pendant (added by plaintiff). If yes, stop. i. Remember: if defendant impleads someone, it does not matter if it ruins diversity 2. Can still go on if the separate claim does not meet AIC if new plaintiff

6 (Exxon) c (codifying Gibbs) 1. CNOF - one constitutional case? If no, stop. d. Are any criteria of 1367(c) met as to allow the federal court to decline jurisdiction? 1. Novel complex issue of state law 2. State law substantially predominates 3. District Court dismissed all federal claims 4. Exceptional circumstances, other compelling reasons (rare) (Exec. Software) VI. Removal Jurisdiction A. Defendant moves for removal --> state to federal only if case could have ORIGINALLY been brought in federal court; must be removed to proper division/district B. Federal court may only remand to state courts if it has been removed to their court originally C. Entire cases, including supplemental state claims, may be removed, but the District Court retains discretion remand those cases that fall under 1367(c) D. DIVERSITY CASES: DEFENDANTS CANNOT REMOVE IF THEY ARE FROM THE FORUM STATE!! NOT FOR FED QUESTION! VII. Venue, Transfer & Forum Non Conveniens A. Venue a. Purely based on statute; federal court usually grants venue based on state statute; may be waived b. Local Action Rule: When the claim is inherently local in nature, venue is only proper in one state (real property), not either state of the parties involved 1. Rarely agreed upon except when real property is located in a certain venue 2. Reasor Hill --> state courts can still entertain suits on real property in another state c. 28 USC Diversity Jurisdiction Cases i. District where ANY defendant resides, if all reside in the same state ii. District where substantial part of events occurred, or a substantial part of property that is subject is Bates --> where the mail was forwarded and located iii. District where any defendant is subject to PJ at the time action is commenced if (1) and (2) don't work 2. FQJ Cases i. Any district where D resides, if all D reside in same state ii. Substantial Part of events iii. A judicial district in which any defendant may be found if (1) and (2) don't work d. Corporate residence is much broader than for PJ 1. Where it is subject to personal jurisdiction at the time the action is

7 commenced i. If more than one district applies, then the one for which it has sufficient contacts to subject it to PJ in that district ii. If that does not apply, then the district with the most significant contacts e. What is substantial part of the events? It is fact intensive 1. Evidence, witnesses, actual acts, property, etc. B. Transfer of Venue a. Law does not change between transfer --> protect against venue shopping b. 1404: Must be to a place where the plaintiff could have originally brought suit (Hoffman) 1. May transfer between divisions within same district (between federal courts) for matters of convenience, justice C. Forum Non Conveniens a. Court dismisses case b/c litigation is more appropriate elsewhere and court does not have the ability to transfer b/c it is in a different judicial system b. Piper: consider public and private convenience factors c. Gulf Oil balancing test: while always presumption towards plaintiff's choice, we will only disturb it when private interest and public interest indicate a desire to be in a different forum. VIII. Choice of Law A. NO FEDERAL COMMON LAW B (Rules of Decision Act) requires that state substantive law be applied in diversity cases C. If area without federal directive, then states retain power to control the issue D. How do you know where something is substantive a. Some are just plainly substantive --> liability, elements of claim or defense. What do you do when not obvious? b. Hanna 1. Is there a valid FRCP on point? If yes, procedural and must apply so long as it is valid i. Court has never struck down an FRCP for not being procedural --> always upheld even if appear to be substantive ii. Rules Enabling Act provides that FRCP is valid, so yes. iii. Rules could be from statute, constitution or any federal directive, or even judge made rules iv. This case specifically said that the federal rule for service of process conflicts with state, and therefore applies c. If no, you do an Erie test 1. Guaranty Trust: outcome determinative? does it substantially impact case? (SOL is applicable as state law) 2. Byrd: balancing test between federal and state interest (federal interest in jury trial won) 3. Twin aims of Erie: forum shopping and inequitable administration of law i. Would ignoring state law cause litigants to flock to federal court?

8 E. How to tackle a problem a. Always ask: is there a Federal Directive on point? (Rule Enabling Act test) 1. If yes, then apply. i. Rules Enabling Act - does it really regulate procedure, or does it abridge or modify? Abridge, modifying or enlarging state given rights --> do not apply federal rule (Hanna) Does it really regulate procedure? FRCP, yes. Is it validly enacted? FRCP, yes. Can you interpret the rule broadly or narrowly as to not conflict with state law? If narrow and not conflicting, then apply state law. If conflicting, apply fed law. 2. If no, then do an Erie test. (Rule of Decision Act test) i. Is it a substantive rule? If yes, apply. Is it bound with substance or a form or mode of enforcement (procedural)? Is it outcome determinative? in light of twin aims of Erie What are the state and federal interests? Apply state rule if outcome determinative AND within twin aims of Erie UNLESS there is a federal interest that is superior (Byrd) ii. Things to consider: If something is iffy under twin aims, it is likely it is outcome determinative Substantive --> things that impact which court you are in Gasperini is an oddball case, so if you get something like it, go to it. If not, ignore. F. There is federal common law in FQJ cases --> certain decisional rules G. Ascertaining State Law (Boyle) a. What does statute say? Follow interpretation by state's highest court b. If none, look at lower courts c. Interpret selves IX. Pleading A. Complaint, Answer and Reply B. Rule 8 - Requirements of a complaint a. Statement of jurisdiction b. Short and plain statement showing that you are entitled to relief 1. Legal conclusions must be supported by facts --> mere legal conclusions ("i am suing for negligence") will not suffice --> need some explanation of WHY 2. Don't need to state the legal theory it rests on --> just facts that can support a claim and relief 3. Court may choose to be creative in figuring out complaint; can choose not to c. Demand for judgment of relief

9 C. Rule 3 a. Filing of a complaint commences a civil action in federal court 1. Some contention as to whether this tolls the statute of limitations D. Rule 9 b - some specific instances require more information in the pleading - fraud, mistake, condition of mind, etc. E. Rule 7 - Types of pleadings allowed a. Complaint & Answer b. Reply to Counterclaim, Answer to a cross-claim c. Third party complaint, and third party answer F. Difference between motion and pleading a. Motions are applications to the court for an action, whereas pleadings assert facts and claims to frame issues and disclose evidence G. Rule 11- Sanctions & Signing a. Must sign every document submitted to court b. Basically for improper pleading you get sanctioned 1. frivolous arguments 2. improper purposes, to harass 3. allegations sans evidentiary support c. Initiated by motion or by the court H. Rule 12 b(6) - Demurrer & Motions a. Failure to state a claim upon which relief can be granted b. Case: can't improperly construe complaint; can only dismiss if there is a legal certainty that the facts do not present ANY claim possible c. Other Motions: lack of jurisdiction, improper venue, insufficiency of process, insufficiency of service d. Must be made before pleading if a further pleading is permitted (before reply) e. Sometimes amendments are made, so take into consideration if that is allowed (we didn't really deal with amendments) X. Disclosure A. General Scope B. Rule 27 - Discovery Prior to Commencing Lawsuit (In re Shiela Roberts Ford) a. Can gain pre-lawsuit testimony only if it is meant to perpetuate a suit being filed b. Perpetuate: preserving testimony that might be lost, not figuring out who to sue c. Very limited instances and it generally depends on the jurisdiction C. Rule 26 - Relevance of Evidence, Mandatory Disclosure & the Discovery Plan a. Rule 26 (a) - Mandatory Disclosure 1. Duty to disclose: witnesses, documents, damages, insurance, people likely to have information i. Exception: if information is solely to be used for impeachment of witnesses ii. Identify expert witnesses in advance when they are determined

10 2. Information that will support its claims and defenses 3. Parties not required to automatically disclose items it does not intend to use (Cummings) 4. Always disclose insurance agreements b. 26 (b) - Relevance (has a lot to do with interrogatories) 1. Can only gain evidence relevant to claim or defense, but a court can get around this and expand the scope for specific things 2. Information aimed at developing new claims that are not identified in pleadings is NOT relevant 3. Information relevant to the claim/defense of ANY party is 4. Relevant to the subject matter of the action with good cause (decided by judge) c. 26 (b) - Limitations 1. Can never get work product or materials prepared in anticipation of litigation 2. Need not be admissible if it leads to the discovery of admissible evidence --> can't just ask for it for no reason 3. Things that create an undue burden or cost --> party who wants to avoid burden must make this showing d. 26 (f) - Conference for planning mandatory D. How do you get evidence? a. Depositions (Rule 30) b. Interrogatories (Rule 25/33) --> not binding c. Production of tangible evidence and documents (Rule 34) d. Request for admission (Rule 26) e. Medical exam (35) --> court order f. Request for admission (stipulation) (Rule 36) g. Discovery plan is required XI. Summary Judgment A. Rule 56 a. Plaintiff/Defendant do not need supporting evidence to allege no GIOMF and thus summary judgment b. Defense to motion requires admissible evidence 1. No allegations or denials, or reliance on complaint 2. Must show there IS a GIOMF 3. If NMP does not respond, summary judgment, if appropriate, will be entered c. Court my allow continuance if affidavits are not present d. NO AFFIDAVITS IN BAD FATH! get a fine and sanction. B. Adickes: Moving party bares the burden of demonstrating (officially, not with hearsay) that no issue of material fact exists or that no fact exists to support the claim of the non-moving party a. The facts alleged, or inadequacy of facts alleged, must be taken in light favorable to the non-moving party b. Must establish absence of genuine issue (meaning, in this case, they had to officially allege no policeman was present)

11 1. If the absence of genuine issue/critical fact is not established, then the opposing party doesn't have to say that the fact exists because of the light most favorable... i. If they had come up with evidence asserting the policeman wasn't there, which is a crit fact, THEN petitioner would have had to rebut c. Party opposing motion bears the burden of responding ONLY AFTER the moving party has met its burden of coming fwd with proof of the absence of any GIOMF C. Celotex a. When discovery shows that the non-moving party cannot prove an essential element of CoA, the moving party does not have to come forward with evidence demonstrating the absence of GIOMF b. Burden is not on MP to produce evidence showing absence with respect to issue that the NMP bears burden of proof 1. They can point out the absence of evidence 2. NMP needs to refute this claim XII. Trial A. Juries a. Rule 2: trial by jury is only for cases at law, not equity 1. Law: application of a rule, compensatory damages 2. Equity: injunction, specific performance, declaratory judgment, reformation, rescission 3. Generally speaking, the specific Acts discussing each action will tell you if there is a right to a jury or not b. Beacon Theaters: Cannot deprive a person of their right to a jury trial, thus when claims and counterclaims are crossed in law and equity, those in law will be decided by a jury and those in equity decided by a judge. 1. When so intertwined, as In this instance, the declaratory judgment should have received a jury trial because the subject matter was primarily legal. c. "Clean-up doctrine" - legal claims appearing in an equitable claim could be disposed of by court - overruled 1. Dairy Queen: with both legal and equitable issues, a partial jury trial must be given on the legal matters i. Breach of contract portion to be tried by jury; on the injunction, the court must decide ii. Law comes first, and then the court will be bound by those facts on the claim for equity d. Ross v. Bernhard: right to jury trial attaches to issues in derivative actions to which which the corporation would be entitled to a jury e. What happens when the statute does not tell you whether a jury is provided? - Chauffeurs 1. Always look to the statute first 2. Look for analogous common law action to see if legal or equitable 3. Look to see if claim is legal or equitable i. Here, we had one of each

12 4. Remedy sought is legal or equitable? here it is legal 5. Appears as though the type of relief wins out B. Judicial Control Over Jury Decision a. Province of Judge & Jury 1. Court: determine rules 2. Jury: determine facts that should govern these rules 3. Many times these get intermingled, as in Markman: i. Determining the meaning of a term is for the judge, not the jury --> interpreting documents is purely legal and a matter for judges b. Verdicts & Jury Misconduct 1. Rule 49: Form of Verdicts i. General: "yes" or "no" ii. Special Verdict - answer a series of questions regarding each facet of case; not just yes or no to the entire thing iii. General Verdict of Interrogatories - Yes or No and answers to series of questions that are less extensive than SV Usually meant to guarantee that the jury has followed the instructions properly iv. Quotient Verdict is NOT okay --> this is when the jurists guess and add and divide numbers to determine the basis for their award; is not based on facts and thus illegal 2. If the jury decides something beyond the issues submitted by the court, they make be disregarded (Robb) 3. Misconduct i. Improper to decide the case on anything but actual merits or award damages on anything besides each juror's evaluation ii. Personal affidavit of a juror may NOT be used to impeach a verdict; someone else must do it iii. Hukle v. Kimble - Award averaging is strictly forbidden 4. Judicial Power to Override Verdict i. Rule 50: Groups the two together as "judgment as a matter of law" ii. Directed Verdict - 50(a) Evidence is before the jury but they have not deliberated; motion can be made at any point before the facts are submitted for deliberation Standard - in light most favorable to NMP Scintilla Test: if there is a scintilla of evidence that the jury could find for the nonmoving party, not granted Substantial Evidence Test: grant motion UNLESS there is substantial evidence that the jury would find for the NMP -- used mostly iii. Judgment Notwithstanding the Verdict (NOV) - 50(b) Judge sets aside jury's verdict and rules in favor of losing party Must have made a motion for DV in order to move for NOV after Same standard as above iv. Rule 59 - Granting of a New Trial

13 Aetna: Judge may grant new trial if verdict is against the clear weight of evidence or is based upon false evidence Admittur - denial of new trial if D agrees to increasing award (could be against 7th amend) Remittitur - denial of new trial unless P will agree to reduction in award C. Relief From Judgment a. Rule Mistake or excusable neglect --> evidence is discovered that was not presented at trial 2. New evidence is obtained and was not presented at trial i. Must change result of trial, must be admissible, failure to present must be excusable, must be positive for moving party 3. Fraud XIII. Res Judicata and Collateral Estoppel A. Claim Preclusion (Res Judicata) a. Precluded when Final Valid Judgment on Merits i. Think Pennoyer ii. Des Moines Subject matter jurisdiction does not always invalidate a judgment for the purposes of RJ Will only allow SMJ to break validity when: abuse of authority, substantially infringed on party, rendering court lacked capacity to make judgment iii. Final - final conclusion iv. Merits - decided on merits, this includes motions to dismiss and summary judgment 2. Same Claim i. Rush - transaction is majority rule Transaction Preclusion - you must bring every claim related to a transaction/event otherwise once one portion is decided, following portions are precluded from litigation Recurring transactions, like rent, are the same transaction. If you don't sue for the entire thing (like, with acceleration clause), you lose the right to sue for the rest down the road - they merge (Jones) BARS ALL CLAIMS THAT WERE LITIGATED OR COULD HAVE BEEN LITIGATED REGARDLESS Primary Rights - Can do separate claims for all claims made (tort, contract, etc) 3. Same Parties i. This is how you distinguish between claim and issue preclusion ii. Privity between parties will one another --> Estate of A is bound by A's actions B. Issue Preclusion (Collateral Estoppel)

14 a. Same Issue? Think about the tree cutting --> title vs. other methods b. Actually Litigated? 1. Was not dismissed for failure to state a claim, summer judgment or other motion where the exploration of the issue did not continue. 2. Cromwell: need evidence that the ACTUAL ISSUE was presented and raised during litigation; not just same subject matter. c. Necessarily Decided? 1. Need to show that there was a judgment rendered on that issue --> on basis of issue i. If judgment was awarded on something else, it wasn't necessarily decided 2. Russell: If the issue that decided the case was not disclosed, no estoppel i. Uncertainty or case decided as a group of unspecified issues can be re-litigated d. Valid final judgment on merits C. Who is bound by issue preclusion? a. Old rule: only mutuality --> if bound by first case, bound by second. Bernhardt got rid of this. b. NONE OF THIS WORKS IF THE THIRD PARTY WANTING PRECLUSION COULD HAVE BEEN A PARTY IN THE FIRST CASE! c. Non-Mutual Defensive Issue Preclusion (Blonde-Tounge) 1. A sues B, B wins. A tries to sue C, C claims preclusion; can be allowed. 2. Party resisting must show that he did not have i. A fair chance to litigate procedurally, factually or evidentiary ii. Did he have an incentive to litigate to the fullest? Was it hard to litigate? iii. Did he present all the facts or evidence? d. Non-Mutual Offensive Issue Preclusion (Parklane) 1. A sues B, B loses; C sues B --> C wants 2. Did B have incentive to litigate? Was it fair? See above. e. The new party must assert preclusion, otherwise it is a due process violation