Civil Procedure Outline

Civil Procedure define I. Personal Jx- in what fixs cease the ? fulfil the ?. a. In personam- pwr over the person. General jx- the ? target be sued in that domain for a exact that arose anywhere in the world. Specific jx- the ? is being sued for a direct that arose from their actions w/in the fabrication. i. Constitutional Limits- Due Process Circle 1. Pennoyer v. Neff- Traditional ground for in personam 1. The ? is service of processd with member in the forum- presence- general jx 2. Service on the ? agent in the forum 3. The ? is domiciled in the forum- general jx 4. The ? consents to jx 2. Hess v Pelosky- expanded the handed-down basis for in personam jx 1.The ? wanted to sue the ? for ca use an accident in the e assert, unless nether the traditional way couldnt serve process bc the ? had left-hand(a) the state. That state motor hotel was able to uphold jx through the non absorbnt motorist order- if you drive in our state you argon consent to in personam jx and appointing a state official as your agent for service. Always special jx. 3. International garment v. Washington 1. There is jx if the ? has such minimum wrap ups with the forum so that jx, does non offend traditional notions, median(a) play and social in force(p)ice. i. You stick out serve process out gradient the forum by this quantify, as retentive as you meet the Shoe Test ii.There are 2 move adjoin and fairness iii. Doesnt over overtop Pennoyer, test if ? is not present when served 4. McGee 1. The TX company solicited the business in CA 2. CA had an worry in providing referee for its residents. 5. Hansen 1. Under Internaitonl shoe the contact btwn the ? and the forum mustiness result from the ? s purposeful availment. The ? must reach out to the forum. 2. No jx in FL over a DE bank, the bank and serviced a client in the forum, didnt reach out. 6. World Wide Volkswagen- 1. NY family buys car in NY to move to AZ, in car accident in OK sue in OK for a car defect, sue 2 NY ? n OK, no jx 2. No purposeful availment by the ?. 3. It must be foreseeable that the ? could choose sued in that state, not that your crop could farm to the state. 7. Burger King- MI residents owned a franchise in FL got sued on that point and the ? argued that it was unfair to altogetherow slip in FL 1. Court makes it clear that in that location are 2 parts under International Shoe contact and fairness. 2. Contact is assessed commencement ceremony-year, it no applicable contact accordingly it could be fair to sue there but still no jx. 3. The ? had reached into FL for a franchise so contact met, the ? said it was unfair and the Court said tough you piece of ass travel i.Court said that you have to set up that you are at such a great disadvantage that it would be unfair to process there ii. Tough to prove bc wealth of the parties is irrelevant. 8. Asahi Metal v. Superior Court NO LAW 4-4 disassemble catamenia of commerce upshot. 1. Brennan theory -it is a contact if I put the product in the stream of commerce and I reasonably anticipate it could end up in states c, d, e 2. OConnor theory- conduct the Brennan theory plus an intent to serve states c, d, e 9. McIntyre- stream of commerce NO LAW- split 3 ways- position company only reaches out to Ohio the Ohio Company thus sells everywhere.Individual hurt in Jersey and sues the English company there, Supreme Court no jx, Majority agreed on no jx 1. 4 justices necessitate OConner theory- found no intent 2. Bryer and some other dont take sides, agrees with both tests just doesnt see enough facts 3. Ginsburg- dissent- would have found jx, she said if you target the US, then you can be sued in any state where your product does harm 10. Burnham- Jersey ? sued in CA, the ? is present in CA when served with process. Sued on general jx. The heading raised is whether traditional service is good by itself or do you need to go through the International Shoe test as well.Split 4-4 1. Scalia theory- that presence when served is ok by itself. Traditional basis is an alternative to International Shoe test. 2. Brennan theory- always declare International Shoe test, it has replaced the traditional basis. 11. Goodyear- when is there general jx. 1. Prior to Goodyear, Court said that there was general jx provided that the ? had continuous and systematic contact with the forum. 2. Goodyear -not enough, nowadays need this, and also the forum must be a place where the ? is essentially at home i. For ppl- domicile ii. For business- state of incorporation and principle place of business 3.This cannot be based hardly on buying and selling in the state. ii. Steps for analysis 1. Constitutional epitome- does a traditional basis apply- it may be enough, then mention the split that International Shoe always applies 2. The Shoe Analysis 1. essential be relevant contact with the forum i. Purposeful availment on the part of the ?. ii. Foreseeable that you could get sued there, not t hat your product gets there. 2. Specific or General Jx -relatedness- does this take aim arise from the ? contact with the forum. i. If yes, then you can sue for specific jx. ii. If no, then you can only sue for general jx. 3. fairness factors- its up to the ? to show that it is a burden 1. inconvenience for the ? 2. forum states evoke 3.? interest 4. interest in efficiency 5. shared crucial policy iii. Statutes- every state has statutes for residents for service and notice. 1. Every state has statutes for traditional service- domicile. 2. For non-residents 1. Nonresident Motorist Statute- specific jx- had to stem from a car accident 2. Long encircle Statute- go by and by nonresidents, specific jx, i. CA- we have jx to the fullest extent of Constitution. ii. Laundry List- transacting business, commits a tortuous act in the forum. I. e. ? akes a widget in State A and sells widget to ? in State B and ? is injured, did tort occur in state b- romances are split. b. In Rem- pwr of the law dally over a ? plaza w/in jx- the fight btwn ? and ? is about the property, the fight is whose land is it i. Attachment statutes- solicit can augment property that ? owns or reads to own ii. Constitution- Shaffer v Heitner- held that seizing property at the outset of the suit is not enough. Additionally, the ? must meet the International Shoe standards. c. Quasi In Rem- pwr of the solicit over a ? w/in the jx-the suit at hand has nothing to do with property ownership. i. Pennoyer v.Neff- dealt with the underlying result btwn Mitchell and Neff- breach of contract. Court held that it is fine to use property but the property had to be attached at the time of filing the suit. ii. Attachment statutes and Constitutional Tests are the comparable for quasi in rem. II. Notice- has to be precondition to the ? and she has to have a chance to be heard a. Service of Process- FRCP regularise 4- process- consist of the summons and a copy of the complaint i. Summons content- reg ularisation 4 a 1 ii. Service can be made by any non company who is at least age 18- persist 4 c 2 iii. How to serve an individual- run 4 e 2- 3 ways 1. Personal service- can be through anywhere . Substituted service- must be d bingle at ? dwelling or usual abode, and must serve someone of suitable and discretion WHO RESIDES THERE 3. Serve the ? agent iv. Also look to swayer 4 e 1- allows methods of state law where either the national royal court of justice sits or the state laws in the state where process is served v. Serving a Business- Rule 4 h 1- you can serve an officer, or a managing or general agent. Rule 4 e 1 also applies vi. Waiver of Service- Rule 4 d- waiving process by mail. If form not mailed back, have to do it the normal way, but the ? provide have to pay for the service of process b. Constitutional Element- if you become aware that the ? idnt gain service, you talent have to try another way. III. Subject Matter Jx a. Diversity of Citizenship i. 28 US 1332 a 1- 2 Requirements for Diversity 1. Case is between citizens of different states 2. Amount in animosity exceeds $75,000 1. Citizens of different states i. Comp permite renewal rule- there is not vicissitude if any ? is a citizen of the aforementioned(prenominal) state as any ?. ii. A US citizen is a citizen of the US state in which you are domiciled. YOU ONLY stool ONE dwelling house 1. Physical presence 2. Form the intent to make it your permanent home 3. Citizenship of a Corporation 28 US 1332 i. State of incorporation AND i. Where the principle place of business 1. Hertz movement- the principle place is where the managers direct, control, and arrange the business activities- Nerve Center (usually headquarters) 4. Non incorporated business 1. Look at citizenship of all the partners/members ii. Amount in controversy 1. Must exceed $75,000 2. Aggregation- adding duple claims to reach the required amount. We aggregate claims if there is one ? and one ?. Cannot aggregate if th ere are multiple ? and multiple ?. 3. If there are joint claims, use the intact amount of the claim. Here the number of parties is irrelevant. b. Federal Question i. 8 US 1331- we need a question that arises under federal official law ii. Well pleaded complaint rule 1. Look only that the compliant. 2. Focus on the claim itself 3. Is the ? enforcing a federal in good order, is so meets the well pleaded complaint rule. 4. RR v Mottley- Court held that the Mottleys werent enforcing a indemnify under the federal law and not a federal question. c. Supplemental legal power i. 28 US 1367- gets non-federal question, non-diversity claim into federal court ii. Mine Workers v Gibbs-labor disputes in mines- ? sued the ? on a federal claim and a state claim that arose from the uniform accomplishment or item.Supplemental jx is ok if claim 1 and claim 2 shares a common nucleus of operative fact, then both claims can come in. Gibbs test- alike overall dispute. Gibbs is always met if the 2 c laims arise from the aforesaid(prenominal) transaction or occurrence 1. Does 1367 a grant jx? Yes if it meets Gibbs 2. Does 1367 b take jx away(predicate)? ONLY APPLIES IN DIVERSITY CASES and only takes away jx over claims by the ? , not the ?. d. Removal -1441, 1446, 1447 i. Allows a ? sued in state court to have a caseful reversed from state court to federal court. If the case doesnt belong there, then the federal court leave behind remand it back to the state court. i. General rule it is removable if there is federal subject matter jx 1. EXCEPTION- you cannot remove a diversity case if any ? is a citizen of the forum, in state ? rule. except applies in diversity, not federal question. 2. All ? must agree to the removal 3. You must remove w/in 30 days of service of the archive that first makes the case removable. Usually, 30 days of service of process, from service, not from filing. 4. You can remove only to the federal di stiff court that embraces that states courts (I. e . if filed in St Louis, then you can only remove to Eastern Dist. of Missouri) IV. Venue . 1391 a- diversity and b- federal question- same for both diversity and federal question i. Lay venue in any district where all ? reside. 1. If all ? reside in the same state but different districts, you can lay venue where any of them reside. 2. Reside- for ppl- domicile- same as citizenship. For businesses- 1391 c (applies to all businesses)- business resides in all district where it is subject to personal jx when the case is filed. ii. Lay venue in any district where a substantial part of the claim arose b. pitch of Venue- moving from one court to another in the same judicial system.The original federal court- transferor. The court to which we send it is the transferee. 1404 and 1406- IN BOTH STATUTES THE TRANSFEREE MUST BE A PROPER VENUE AND HAVE PERSONAL JX OVER THE ? W/O WAIVER BY THE ?. i. 1404- Convenience for parties and witnesses and in the interest of justice 1. Public and Private Factors- footnote 6 of Piper case ii. 1406 a- The transferor is an improper venue- you can dismiss or transfer the case in the interest c. Forum non convenient- a court dismisses bc there is another court that makes to a greater extent sense for the case to be tried. You dismiss bc transfer is impossible.The proper court is in a different judicial system. Usually applies in cases where the proper court would be a foreign court. i. Piper Case- case dismissed in the US fed court by of forum non convenient- should have been filed in Scotland 1. Reasons to dismiss- footnote 6 of Piper case. Common sense. V. Erie Doctrine a. In federal court in a diversity case- an figure is to be unconquerable, the judge must decide if she must apply state law. i. Erie- In a diversity case, the judge must apply state law for meaty state law. Erie decides this- Rules of Decision Act 1652 and the US Constitution- 10th Amendment. . Element of a claim is always substantive law ii. Hannah v. Plumer- show s that Erie Doctrine is 2 doctrines 1. Is there a federal law on point that instantly conflicts with state law, Ie FRCP, statutes, Rules of Evidence. , If there is yes, we apply the federal law as long as it is effectual (based upon the Supremacy Clause of the Constitution. ) 1. Test validity under the Rules Enabling Act 2072- Shady Grove-4 justices said that all you have to show that the rule is arguably procedural Stevenson- said you have to look and see if the rule intrudes into state policy.A FRCP has ever been invalidated. 2. If there is no federal law, Erie Prong- Rules of Decision act and Constitution- if substance, must mention state law. iii. Three tests for is it substantive law 1. Outcome Determinative- Guarantee Trust v. York- under state statute of limitations case was filed too late, case filed in federal court, judge wanted to ignore state on statute of limitations, court held no bc it is outcome determinative. If you apply the state law, case dismissed. If you app ly federal rules, the case goes forward. Bc there are different outcomes, it is substantive. 2.Balance the interest- Byrd v Blueridge- state law said a specific issue is decided by a judge, not jury. Filed in federal court, judge wanted to let it go to the jury. Not clearly outcome determinative, but court said if something is not clearly substantive, follow state law, unless the federal court has an interest in doing it differently. Weigh the interests of the 2 systems. In this case there was no reason for this rule, so the federal interest outweighed the state interest in this case. 3. Twin aims of Erie- comes from Hanna 1. debar forum shopping 2. Avoid inequitable administration of law. i.To apply this, ask at the beginning of the case, if the federal judge ignores this state law, will it cause parties to flock to federal court. We dont want this bc it provides an advantage to diversity cases. VI. Pleadings a. Complaint- pleading filed by ?. Rule 8 a i. Statement of subject matt er jx ii. Short and plain statement of the claim iii. Demand for relief 1. Historically- notice pleading. Put enough in there to put the others side on notice. 1. Twombly and Iqbal- interpretation of Rule 8 a 2 i. The court will ignore conclusions of law ii. The ? must plead facts supporting a plausible claim iii.Court will use its own experience and common sense to decide what is plausible- Subjective 2. You must give more facts/plead detail for fraud, special damages b. The ? response- Rule 12 i. The ? must respond w/in 21 days ii.? can respond by answer or campaign 1. Rule 12 e- motion for a more definite statement 2. Rule 12 f- motion to strike from a pleading iii. Rule 12 b Defenses- 7 defenses- motions to dismiss, can be made by motion or by answer 1. Subject matter jx 2. Personal jx 3. Improper venue 4. Insufficient process- document px 5. Improper service of process- px with service 6. sorrow to state a claim . Failure to join a companionship under Rule 19 (indispensable ships company) iv. Rule 12 g and h- strict things about waiver 1. Defenses Rule 12 b 2-5 must be put in the first Rule 12 response (motion or answer- which ever you do first) if you dont put them in, then they are waived 2. Rule 12 b 6 and 7 can be raised for the first time any time through examination (not on invoke) 3. Rule 12 b 1 can be raised at any time (any time even on greet) v. dissolve must include 1. Must respond to the complaint 1. Rule 8 b 2. Failure to cut across- is an accession, expulsion for damages 2. Must raise affirmative defenses Rule 8 c . Raises a new fact, and if ? is right they win 2. Must plead them or risk waiver of them VII. Joinder a. Determined the scope of the litigation. First denudation the Joinder rule then look for subject matter jx i. Claims of joinder Rule 18 a- you can put in any claims you want b. Claim Joinder by the ? i. Counterclaim- Rule 13 a and b- claim against an opposing party (against someone who sued you. 1. Rule 13 a- compuls ory counterclaim- one that arises from the same transaction or occurrence. Must be claimed now or waived. Cannot be brought separately. Only compulsory counterclaim.Always meets 1367 a and doesnt get knocked about by 1367 b bc b only applied to claims by ?. This is a counterclaim by a ?. 2. Rule 13 b-Permissive counterclaim- doesnt arise from the same transaction or occurrence, can be brought now but doesnt have to be. ii. Crossclaim- Rule 13 g- against a co-party 1. Always must arise from the same transaction or occurrence. Not compulsory, can be filed not or later. c. Proper Parties i. Rule 20 a- tool available to the ?. 1. Rule 20 a 1- can join together if claims arise from the same transaction or occurrence and raise at least one common question 2.Rule 20 a 2- which ? can the ? join. Same as above d. Necessary and indispensable parties i. Absentee party is necessary (party A) ii. Rule 19. Is A necessary? Rule 19 a 1- A is necessary if the meet any of the tests under 19 a 1 1. 19 a 1 A- w/o A the court cannot accord complete relief. 2. 19 a 1 B i- if A interest may be harmed if they are harmed. 3. 19 a 1 B ii- if A interest may subject ? to multiple or at odds(predicate) obligations. Joint tortfeasers are not necessary to found into a suit. iii. Is it feasible to bring in party A 1. Will bringing in party A mess up diversity 2.Is there no personal jx over party A iv. If they are necessary and the party cannot be joined 1. Proceed w/o party A- run risk of harms 2. Dismiss the blameless case- not fair to the ? 1. 19 b tells you what to consider- 4- we dont dismiss unless the ? has another forum to receive relief in (i. e. maybe a court that has jx over all parties where the case could be refiled. ) i. hold back in mind, when the court decides to dismiss, then we label the absent party as indispensable and Rule 12 b 7 kicks in. e. Impleader- Rule 14- joining someone new- tertiary party practice. The third party ? may be liable to the ? or the ? s claim i. e. -indemnity or contribution i. Can only be brought by the ?. This new party is third party ?. Rule 14 a 1 ii. at a time the third party ? is brought in, the ? can assert a claim against the third party ? as long as the claim arises from the same transaction or occurrence. Rule 14 a 3 iii. The third party ? can assert a claim against the ? as long as it arises from the same transaction or occurrence. Rule 14 a 2 f. Intervention- Rule 24 the absentee party brings themselves into the case i. Must do so timely ii. Must choose what side to join (on the ? or ? ) iii. 2 types 1.Intervention of right Rule 24 a 2- you have a right to intervene if your interests may be harmed if you are not joined. 2. Permissive Intervention Rule 24 b 1- you can join at the courts discretion if your claim has a common question with the underlying claim. g. Class Action- always brought by the representative- they sue on behalf of the ? class i. Meet the requirements of Rule 23 a 1. Numerocity- joinder of a ll parties would be verbose 2. There has to be a question in common with all claims 3. Representative parties claims are usual of the class 4. Representative parties will adequately protect the interest of the class ii.Types of Class Action 1. Rule 23 b 3- have to show common questions predominate over individual questions. 2. The class action is the best way to settle the suit. iii. Motion to certify 1. Not a class action until the court certifies. If it does certify then it must define the class and appoint class council Rule 23 c iv. Notice of Pendency 1. IN THE RULE 23 b 3 CLASS THE COURT GIVES NOTICE TO either PPL IN THE CLASS. You have the right to opt out of the class or risk being hold in by the result. This notice is paid for by the representative. 2. All parties of the class are bound unless they opted out of the class.You can only opt out of a B 3 class, not a B 1 or 2 v. Settlement of a certified class action 1. Must be approved by the court- they get feedback from members of the class action vi. Subject Matter Jx 1. Citizenship of the class action is determined by the representative party 2. Amount of controversy is the representatives claim amount VIII. Discovery a. undeniable Disclosures- Rule 26 a 1 i. Must identify ppl anyone who has discoverable information that could be utilize on the merits during foot race ii. Must identify documents, electronic info, or things that may be used iii. Rule 26 a 3- Pretrial disclosures . Discovery Tools i. Deposition Rule 30-oral deposition and 31- written deposition 1. You can depose a party or non party. To deposition a nonparty, you need to serve with subpoena bc they dont have to show up. ii. Interrogatories Rule 33 1. Written answers under oath must respond to them in 30 days 2. Only go to parties iii. Request to produce Rule 34- asking to see stuff 1. Can be sent to parties and non parties. To get the nonparty you need a subpoena iv. medical checkup examination 1. Need a court order 1. Need to show that the condition is in controversy 2. Must show cause 2.Can only get a medical exam from a party or someone w/in that partys control. (IE parent-child, but not employer-employee) v. Request for admission Rule 36 1. THESE CAN ONLY BE SENT TO PARTIES 2. Force you to admit or deny any discoverable matter (if you dont deny- you admit) c. Scope of discovery i. You can discover anything that is relevant to a claim or a defense. You can discover anything that could reasonably lead admissible render ii. Privileged matter is not discoverable. Confidential communication in certain relationships iii. Work product- Rule 26 b 3- trial prep materials Hickman v Taylor 1.Material prepared in anticipation of litigation. Not discoverable. 2. Work product protection can be overcome if you can show 1. Substantial need 2. Not differently available 3. Mental impressions, conclusions, opinions, and legal theories are never discoverable 4. DOES NOT HAVE TO BE GENERATED BY A LAWYER Can be generate d by a party themselves or a representative. IX. Pre mental testing Adjudication a. Rule 12 b 6- Motion to dismiss for failure to state a claim i. Only looks at the complaint- determine if everything the ? said is true, would she win? If not, then no need to continue the matter for trial. ii.Looks at complaint- complaint must show enough facts to support the claim. (IE all elements necessary for a tort, if one left out, grounds for 12 b 6). Courts usually allow pleadings to be amend b. Summary Judgment Rule 56 a- judge looks at facts/ differentiate i. Moving party must show 1. There is no genuine dispute on a material fact 2. She is entitled to concept as a matter of law ii. This evidence is provided by parties to the judge. The information is written and given under oath. iii. The court takes the evidence and decides if there is a genuine dispute of material fact- if there is then there must be a trial to settle the dispute.X. Trial a. Right to control panel Trial- 7th amendment -Civil Cases i. Preserves the right to a jury in actions at law, not equity. ii. Depends on whether we would have had the right to a jury in England in 1791 1. Is this claim analogous to an action that was available in England in 1791 2. We focus on the redress the ? is seeking 1. Remedy at law- damages to compensate you for the harm suffered. Jury 2. Equity courts- No Jury i. Injunction ii. Specific performance iii. Rescission iv. Reformation 3. Historically, it was all or nothing for a jury, miscellany in 1950. Now, we do it issue by issue.Every factual issue for legal relief- you get a jury, if the claim has both, you get a jury. Usually the jury issues are heard first. b. Motions- you dont get to a jury until you present enough info to get to the jury i. Motion of Judgment as a matter of law- Directed verdict- Rule 50 a- if it is granted the case is taken from the jury and the judge decided 1. Rule 50 a 1- reasonable ppl could not disagree on the results, therefore the judge is button to rule. Must be done by motion. 2. Rule 50 a 2- cannot move for this until the other side has been heard at trial. ii.Renew motion for Judgment as a matter of law- Judgment notwithstanding the verdict- Rule 50 b- comes up after trial, after a return of the verdict by the jury. 1. If granted, the court is express that the jury reached a conclusion that reasonable ppl could not have reached. 1. Must be moved for w/in 28 days after the judgment. 2. To make this motion, you have moved for this at the appropriate time at trial. If you didnt, you waived the right to do this after trial. iii. Motion for New Trial 1. Timing the same as judgment notwithstanding the verdict, 28 days after entering the judgment. 2.Something went wrong in the first trial that affected the outcome and a redo is needed. No limit to the possibilities. 3. This can be granted w/o a motion. XI. Appeals a. The final judgment rule i. In federal court you cannot appeal until the trial court enters a final jud gment on the merits of the entire case. 1. To determine if it is a final judgment- after making this order, does the trial court judge have anything left to do on the merits? 1. Interlocutory appeal- an appeal taken before final judgment is entered. b. Interlocutory Review i. Statutory 1. 1292 a- orders about injunctions 2. 1292 b-trial court and appellant court agree to review ii. FRCP 1. Rule 23 f- allows you to ask for an appeal following the certification of a class action class. 2. Rule 54 b- cases with multiple claims or parties, court may allow appeal iii. Collateral Order Rule- common law 1. Issue separate from the merits of the case. 2. Comes up in cases when the ? claims immunity from suit XII. Preclusion always involves two cases a. Claim Preclusion/Res Judicata- you get one suit to apologize a claim you can only sue on a claim once. i. 3 elements for claim preclusion 1. Must show that both cases were brought by the same ? against the same ?. . Case one ended in a valid final judgment on the merits. 1. Rule 41 b- every judgment is a judgment on the merits unless it was based on jx, venue, joinder of parties. 3. Both cases are based on the same claim 1. Claim is the same transaction or occurrence- Majority View 2. Primary rights- you get a different claim for each right invaded- Minority View b. Issue Preclusion/ Collateral Estoppel you only have to litigate issues in the 2nd trial that werent litigated in the first trial i. 5 elements 1. Case ended in a valid judgment on the merits 2. Have to show that same issue was litigated and decided in the first trial 3.Have to show that that issue was essential to the judgment in the first case. 4. Against whom is issue preclusion used. You can only you it against someone who was a party to the first trial. 5. By who is issue preclusion being used- Mutuality- issue preclusion can only be used if you were a party to the first trial. Most states have gone to allowing non-mutual issue preclusion- means it is being used by someone who is not a party to the first trial as long as there was the opportunity to fully litigate in the first trial. 1. Non-mutual defensive issue preclusion- being used by someone who was not a party to the first trial and she is the ? sing issue preclusion. 2. Non-mutual offensive issue preclusion- being used by someone who was not a party to the first trial and she is the ? using issue preclusion. Most courts say no to non-mutual offensive issue preclusion. In the federal courts it can be allowed if it is fair. Parklane Hosiery i. Did the party that issue preclusion is being used against have the chance to fully litigate the issue. ii. Foreseeable litigation iii. You could not have easily joined in the first trial. iv. No inconsistent judgments v. No new procedural options.