Civil Procedure

Subject Matter JX

2 Main Types:

1. Diversity JX/Citizenship

2. Federal Question

Diversity of Citizenship Cases

Requirements

2 Requirements:

1. action must be between citizens of different states AND

2. the amount in controversy must exceed $75,000.

How do you determine a litigant's citizenship?

A person if a US citizen, citizenship is the state of her domicile. 

Domicile is established by 2 factors:

1. Presence instate (physical req) AND

2. Subjective intent to make it her permanent home (mental Req)

(only 1 domicile at a time and test when case is filed)

What about Corporation Citizenship?

Corporation citizenship is (1) state where incorporated AND (2) the one state where the corporation has its PPB.

Thus, Corporations, unlike humans, can have more than one citizenship.

(1) nerve center (where decisions are made, where headquarters are located) AND

(2) muscle center (where coporation does more stuff than anywhere else)

Usually use Nerve Center unless all corporate activity is in one state.

Unincorporated Associations / Minors / Incompetents

Citizenship

Unincorporated Associations: for unincorporated association and LLCs, LLPs, use the citizenship of ALL members

Decedents/Minors/Incompetents: look to THEIR citizenship, not the citizenship of their representative

Diversity in Citizenship Cases

(citizens of different states) AND - AMOUNT in Controversy must exceed $75K

Rules

1. must be greater than 75K

2. whatever P claims in GOOD FAITH is OK unless it is clear to a legal certainty that she cannot recover more than 75K

3. What P actually ends up winning is irrelevant

4. If P wins less than 75K, may have to pay D's litigation costs.

Diversity in Citizenship - over 75K

Aggregation Rules

Aggregation means adding 2 or more claims to meet the minimum requirement

- we aggregate the P's claims IF it is one P versus one D. 

- we cannot aggregate claims unless it is ONE P v. ONE D.

- For JOINT TORTFEASORS or Joint claims, use the total value of the claim. 

Diversity in Citizenship - over 75K

Equitable Relief Rules

For Injunctions etc. = 2 tests, either can work:

Plaintiffs View: does the injury cause $75K in loss

Defendants View: Would it cost D more than $75K to comply with the injunction>

Diversity in Citizenship

Exclusions

Even if requirements are met (citizens of different states + 75K)

Federal Courts will not hear actions involving issuance of DIVORCE, ALIMONY or CHILD CUSTODY or to probate an estate.

Are we in the Right Court?

FEDERAL QUESTION CASES

Citizenship of the parties is NOT relevant

The amount in controversy is NOT relevant

RR Example: arguing that a statute doesnt apply isnt a federal question, whereas arguing a statute is invalid WOULD BE a federal question

Diversity + FQ get you into Fed Court, what about additional claims?

SUPPLEMENTAL JX

Supplemental JX only works once case is in Fed Ct. 

TEST: the claim we want to get into federal court must share a "common nucleus of operative fact" - this test is ALWAYS met by claims that arise from the same transaction or occurrence (T/O) as the underlying claim

Limitation: in diversity case, P cannot use supp JX to overcome lack of diversity; this limitation does not apply in FQ cases! Can use Supp to overcome lack of amount in controversy; any party but P can use Supp to overcome lack of diversity or amount in controversy 

Supplemental JX and

Discretionary Factors

Court has discretion NOT to hear the supplemental claim

1. if federal question is dismissed early in the proceedings or

2. state law claim is complex OR

3. state law issues would predominate

Removal allows ONLY defendants to have case that was filed in state court removed to federal court

Federal court can remand back to state court

TEST: D can remove if the case could be heard in federal court (Federal Subject Matter JX - diversity in citizenship or FQ)

REMOVAL

Where and When?

WHERE? - the case can be removed ONLY to the federal disctrict embracing the state cout in which the case was originally filed.

WHEN? - D must remove no later than 30 days after service of the first removable document

All Ds must agree to removal, Ps cannot remove

Special Rule: No removal if any defendant is a citizen of the forum - the in state defendant rule

REMOVAL 

what if P dismisses the claim against an in-state D with one out of state D left. Can he remove?

The remaining D has 30 days from service of dismissal in which to remove.

In diversity case, no removal more than 1 year after the case was filed in state court.

REMOVAL

P wants to remand back to State Court

limitations

The Erie Doctrine

What is it and what does it include?

In diversity cases, federal court must apply state SUBSTANTIVE law

What is Substantive law? 

(1) elements of a claim or defense; (2) statute of limitations; (3) rules for tolling statutes of limitations; (4) conflict/choice of law rules

If there is a Federal Law on point that directly conflicts with state law - apply federal law due to Supremacy Clause

1. Outcome Determinative: would applying or ignoring the state rule affect outcome of case? If so, its probably a substantive rule, so use state law.

2. Balancing of Interests: does either federal or state system have strong interest in having its rule applied?

3. Avoid Forum Shopping: if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, apply state law.

Venue ... subject matter JX gets us into court, venue tells us exactly which Federal Court

Where Can P lay venue?

P can lay venue in any district where

1. all defendants reside OR

2. a substantial part of the claim arose

Special Rule: in case where all D's reside in different districts of the same state, P can lay venue in district in which any of them resides.

Humans - residence basically equals DOMICILE so same place as citizenship for diversity of citizenship purposes

Corporations - reside in all districts where they are subject to personal JX when case is filed

- Can ONLY transfer to a district where case could have been filed

- that is to one that is a proper venue to another that is a proper venue AND has personal JX over the defendant

- can transfer based on convenience to the parties and in the "interests of justice"

- Court has discretion to order transfer based on (1) public factors and (2) private factors

- If venue in original forum is improper, court may transfer in the interests of justice or DISMISS

If far more appropriate court elsewhere, a court may dismiss (or stay) to let P sue D there.

- Cannot transfer b/c that is impossible - a different judicial system

- doesnt matter that P may recover less in the other court, but FNC almost never granted if P is resident of present forum

Service of Process

Who can Serve? 

How is Process Served?

This is how you give notice of lawsuit to D!

must deliver a Summons and (2) copy of the complaint; serve within 120 days of filing a case or case dismissed w/o prejudice

Any nonparty over 18 can serve process, does not need to be appointed by court

Can PERSONALLY serve process anywhere in the forum state or use substituted service: to a nonparty if at D's usual abode and of suitable age and discretion to who lives there

You may serve D's agent (if w/i scope of agency)

can also service w/ methods permitted by state law of state where fed ct sits

Waiver by Mail: If returned w/i 30 days D waives formal service of process but nothing else. If she does not return waiver form, serve personally and make her pay costs

Geographic limitation: Can serve D in another state if forum state allows 

D is immune from service while instate to be a witness or party in another civil case

Pleadings - documents that set forth claims/defenses

Rule 11

Attorney must sign all pleadings/written motions & papers; signature certifies:

1. Purpose: paper is not for improper purpose

2. Law: legal contentions warranted by law

Factual Contentions: the contentions have evidentiary support

Motion for violation of Rule 11 is served on other parties but is not immediately filed w/ court - 21 day safe harbor to fix the problem. If fix - no sanctions

Sanctions are intended to deter repeat bad conduct, sanctions can be non-$$, Court can raise Rule 11 problems on its own and then NO safe harbor

Complaint - Principal pleading by P that commences an action. 

Requirements

1. Statement of Subject Matter JX

2. Short and Plain statement of the claim, showing entitled relief

3. demand for judgment 

- MUST plead FACTS supporting a plausible claim

- Special Matters: fraud/mistake/special damage claims must be pleaded with particularity/specificity - meaning you must give MORE details

Complaint

Rule 12 & Defendant's Response

Can respond in 1 of 2 ways:

1. by motion OR

2 by answer

Each must be filed w/i 20 days after service of process

Defendant's Response

-The Motion

Motions are requests for court order

Motion Defenses:

1. Lack of Subject matter JX

2. lack of personal JX

3. improper venue

4. insufficiency of process

5. insufficient service of process

6. fail to state a claim

7. failure to join indispensable party

Defendant's Response - The Motion

What 12b defenses are waivable?

lack of personal JX

improper venue

insufficiency of process

insufficient service of process

REMEMBER: waivable ones must be put in the FIRST rule 12 response (motion or answer) or else they are WAIVED

Defendant's Response - The Motion

What 12b motions are never waived?

lack of subject matter JX

failure to state a claim

failure to join indispensable party

Timing - must be served w/i 20 days after service of process; if D waived service than has 60 days from P's mailing of waiver from in which to answer

What to do in Answer-->

1. Respond to allegations of complaint (if you want to deny must be specific denial or can be deemed an admission)

2. Raise Affirmative Defenses - you must plead all affirmative defenses, if you do not plead than you risk waiver

Defendant's Response - 

The CounterClaim (fed Ct)

Claim against an opposing party, it is to be filed with D's answer/response (if procedurally OK then assess whether it invokes diversity or FQ JX, if not look to supplemental jx). 

Compulsory: arises from the same T/O as P's claim. MUST be filed in pending case or it is waived, cannot be asserted in another case.

Permissive: doesn't arise from same T/O as P's claim. You can file in same case or assert in separate case

Defendants Response - CrossClaim

This is a claim against a co/party. It must arise from the same T/O as the underlying action. 

- these are never compulsory so do NOT have to file

What is Supplemental JX Test: (1) T/O test, and (2) P cannot use to overcome lack of diveristy, BUT D is not so limited. So for D, just need (1) and mention that (2) doesn't apply. 

Amending Pleadings 

Right to Amend

- Plaintiff has right to amend once before D serves his answer (if P amends, D must respond w/i 10 days or amount of time remaining on hi 20 days)

- D has a right to amend once w/i 20 days of serving his answer

- If time has expired, than seek leave of court. Court can grant if "justice so requires" - looking at DELAY and PREJUDICE

Amending Pleadings

Variance and Relation Back

Variance: evidence @ trial doesn't match what was pleaded, party can seek to amend complaint to conform to evidence to shown at trial. 

- if party objects to the evidence admitted at trial, than it is b/c "variance w/ the pleadings"

Relation Back- S/L has run: Amended pleadings relate back if they concern the same conduct, T/O as original pleading

Change D after S/L: will relate back if T/O, new party new of action w/i 120 of filing, and but for mistake would have been named anyway

Discovery 

Depositions, Interrogatories, Request to Produce, Physical/Mental Exams, Request for Admission

1) Can depose nonparties or parties. Nonparty should be subpoenaed or they are NOT compelled to attend. 

2)Interrogatories I: written questions to ANOTHER PARTY to be answered in writing under oath. 30 days to respond/object

3) Request to Produce: to another party (non/party with subpoena) to make things availabe to review

4) Physical/Mental Exams: Only available through court order on showing that party's health in controversy OR "good cause" 

5) Request for Admission: request by one party to another to admit truth of discoverable matters.

Discovery 

Scope of Discovery

1) Discovery must be relevant to something in pleadings. (reasonably calculated to lead to discovery of admissible evidence)

2) Privileged matter is not discoverable, object with particularity (why is it privileged)

3) Work Product - prepared in anticipation, doesn 't need to be lawyer (can be any rep. of a party) of litigation is generally not discoverable BUT...

- unless SUBSTANTIAL NEED and not otherwise available

4) Experts - parties must produce info about experts w/o other party request, Consulting expert is not discoverable absent exceptional need

Partial Violations = light sanction; Total Violation = heavy sanction

Sanctions: party must show she tried in good faith to get the information w/o court involvement 

Partial: get court order to compel party to answer, then get RAMBO

Total: get RAMBO + costs

Joining Parties

Necessary and Indispensable Parties

A) Proper Parties = arise from same T/O, raise at least ONE common question; then assess subject matter JX

B) Necessary & Indispensable Parties: absentee required if: 1) w/o A court cannot accord complete relief; 2) A's interest may be harmed is she isn't joined; or 3) A claims interest that subjects a party to multiple obligations

- Joint tortfeasors are NOT necessary

Joining Parties

Can the Absentee be Joined?

1) see if JOINDER is feasible...

- it is feasible if (A) personal jx over A, and (B) joining him will not make it impossible to maintain diversity

2) if A cannot be Joined:

- proceed without A or

- dismiss the case

Court looks at: if alternative forum available, actual likelihood of prejudice, can court shape relief to avoid prejudice 

Joining Parties

Impleader

Defending party wants to bring in someone new for one reason - TPD may owe indemnity or contribution to defending party on underlying claim

- Right to Implead w/ 10 days after serving answer

- After joined P may assert claim against TPD if T/O and TPD can assert claim against P if T/o

- Then assess subject matter JX or, if necessary Supplemental JX

Joining Parties 

Intervention

Absentee wants to join a pending suit, application to intervene must be "timely"

Intervention of Right: interest may be harmed if she is NOT joined and her interest is not adequately rep now

Permissive Intervention: A's claim/defense and pending case have at least one common question

Joining Parties

Interpleader

The Class Action

Class Action Initial Requirements

Numerosity: too many members for practical joinder

Commonality: there are some common questions of law/fact that are common to the class

Typicality: representative's claims/defenses typical of those of the class, AND

Representative is Adequate: the class rep. will fairly and adequately represent the class

The Class Action 

The Case must fit within 3 Types

(1) Prejudice: class treatment to avoid harm to class members or party opposing class

(2) Injunction/Declaratory Judgment - this relief sought because class was treated alike by the other party

(3) Damages: common questions predominate over individual questions AND class action is the superior method to handle the dispute ...like a mass tort

The Class Action

Certifying the Class

- The court must determine at early practical time whether to cert

- if cert court must define the class, claims, issues, and defenses

- court must also APPOINT CLASS COUNSEL

- in type 3 court must NOTICE class members who can opt out, notify that bound if do not opt out, and can enter separate appearance through counsel

- representative pays to give notice

- in all 3 types, settlement or dismissal of claims requires COURT APPROVAL, in class 3 court must give members a second chance to OPT OUT

- Subject Matter JX: as long as Rep is diverse from all defendants and his claim is over $75K than good to go

Pretrial Adjudication:

Voluntary Dismissal

Default & Default Judgment

Failure to State a Claim

Vol/Dismiss: P sometimes has a right to dismiss by simply filing a written notice, other times allowed on court order (P then pays D costs) - first dismissal ok, 2nd time it is with PREJUDICE

Default/Default Jud.: often where D failed to respond, P can collect limited to amount in complaint, and D can try and later set aside judgment good cause and viable defense (excusable neglect)

Failure to State a Claim: Court assumes all P said was true and asks If P proved all she has alleged would she win a judgment? - Court only looks at face of complaint, not at evidence

Pretrial Adjudication

Summary Judgment

Moving Party must show (1) no genuine dispute as to material issue of fact AND (2) she is entiteld to judgment as a matter of law

- court can look at evidence, and often in most favorable light to nonmoving party

- that means each side need to offer some evidence OR no dispute on material issue/fact

- evidence needs to be FIRSTHAND KNOWLEDGE, hearsay is probably not good

Pretrial Adjudication

Pretrial Conferences

- final pretrial conferences determine issues to be triad and evidence to be proffered

- recorded in pretrial conferences order that basically supercedes the pleadins

- final pretrial conference is a roadmap of issues to be tried, so there are no surprises at trial.

Right to a Jury Trial: 7th A only applies in Federal Court and preserves the right to jury in "civil actions at law"

- do not get jury for equitable claims (injunctions)

- in federal court we try jury issues first, than equity issues

- Preemptory strikes must be used in a race and gender neutral way

Motion for Judgment as a Matter of Law

JMOL

Takes case away from jury made after the other side has been heard at trial (usually defendant can move 2x

Standard: Reasonable people could NOT disagree on the result

Judge lets the case go to the jury which returns a verdict for one party and the court enters judgment. Losing party files a renewed motion for judgment within 10 days

Standard: Reasonable people could not disagree on the result

NOTE: you must first move for this motion at trial to make a RENEWED motion after close of trial

Judgment entered but errors at trial require a new trial...something happened that makes judge think parties should start over

Reasons: prejudicial error, wrong jury instruction, new evidence, prejudicial misconduct judgment is against the weight of the evidence, excessive or inadequate damages

Basic Rule: Can only appeal from final judgments which means an ultimate decision by the trial court of the merits of the entire case

- File notice of appeal in trial court within 30 days after entry of final judgment 

There is some interlocutory Review:

- when one or more claim is presented

- Class actions, court can grant/deny cert of class action

California Civ Pro

Are We in the right court?

Personal Jx Analysis

1. Satisfy a Statute, AND

2. Satisfy the Constitution (due process)

analysis is the same for Federal & State Court.

Mention both steps in Cal, but only Constitutional step is most important

In California, the statute reaches the constitutional limit - "In Cal, statutes reach to the constitutional limit"

Contact: there must be a relevant tie between D and the forum state...contact must result from purposeful availment

Foreseeability...must be foreseeable that D could get sued here

Fairness...would JX be fair & reasonable; relatedness btw contact and P's claim

Do we have Specific Personal JX OR general personal JX due to D's continuous and systematic ties with the forum state. (Domicile, incorporation, doing continuous biz in Cal)

Convenience - the forum is OK unless it puts D at a severe disadvantage in litigation

State's Interest provide forum for its citizens

Cal Civ Pro

Personal JX

Constitutional Anaylsis

Easy ones

First there are some easy cases of Personal JX: If D is domiciled in the forum or consents, or is present in the forum when served with process - those meet constitutional test.

TEST: Does D have such "minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?"

California Personal JX Constitutional Analysis

How to Remember Personal JX????

MPFF-to-RCS

Minimum Contacts

Purposeful Availment 

Foreseeability

Fair Play & Substantial Justice

Relatedness of contact and Claim

Convenience

State's Interest

California Subject Matter JX

Superior Court: The California Superior Court has general subject matter JX, cannot hear only those cases that invoke exclusive federal subject matter JX

Limited Civil Case: less than $25K, no claimant can recover more than $25K

Unlimited Civil Case: exceed $25K

- P initially determines what kind of case it is, it can be reclassified, the amount does NOT include attorney fees/interest/costs

Recall that the whole case is either UNLIMITED or LIMITED

1. Venue is appropriate in County.

- for Property: lay venue in county where property is

- Transitory Action: venue is OK where nay D resides when the case if filed 

- Contract Cases: venue is also OK in county where K was entered into or performed

Personal Injury: venue OK where injury occurred

Corp: PPB, where entered K, where breach/liability arose

California 

Transfer of Venue

From one Superior Court to Another Superior Court

- If improper venue, D can move to transfer to proper county (must do w/ or before responsive pleading)

- If proper venue, court can transfer if: 

reason to believe impartial trial cannot be had OR

convenience of witnesses and ends of justice would be promoted, OR

no judge is qualified to act

- transfer to county where parties agree, if no agree than judge will choose

California

Forum Non-Conveniens 

Like federal, this is where a court dismisses/stays because far more convenient forum in different judicial system

"in the interest of substantial justice an action should be heard in a forum outside Cal"

look @ public and private factors

- court can require D waive a personal JX or S/L objection in the other forum

Any Non-party who is at least 18 can serve

Methods of Service: Personal Service, Substituted service IF personal service "cannot with reasonable diligence" be had. 

Substituted Service: must be made to usual abode, made to competent member of household @ least 18; must be informed of contents; mailed by First Class postage

Immunity of Service: California has abolished immunity of service, you can be served while in state for another litigation

California 

Pleadings

In Cal, also have demurrer and cross-complaint

Fact Pleading: this means that state courts require MORE detail than federal court.

Frivolous Litigation: 21 day safe harbor applies to issues raised by the court as well as by a party; also Cal allows for attorneys fees where one party uses BAD FAITH or frivolous litigation tactics.

California

Complaint

Filing of the complaint commences the action

Contents: Cal requires statement of ULTIMATE FACTS; demand for judgment; state the amount of damages, UNLESS

- Personal Injury or Wrongful death cases OR

- whenever P claims punitive damages she cannot state that amount

- Plead these with particularity: FRAUD, Civil Conspiracy, tortious breach of contract, unfair biz practices

California 

Fictitious Defendants

If P genuinely unaware of D identity, she may name the D as a "Doe" defendant She must also allege that she is unaware of the D's true identity and must state the cause of action against the "doe" defendant

D must respond within 30 days after service of process

Cal 

General Demurrer 

Used for 2 Cases:

(1) Where P failed to state facts sufficient to constitute a cause of action OR

(2) lack of subject matter JX

Cal

Special Demurrer

The complain is uncertain, ambiguous, or unintelligible. 

The complaint is unclear about which theories of liability are asserted against each of the defendants.

Generally, these are waived if not raised by demurrer or in the ANSWER

CAL

Motion to Quash Service of Summons

This is used to assert:

A lack of Personal JX or Improper Process or Improper Service of Process

This motion must be made BEFORE or WITH a demurrer or a motion to strike, or else D waives these defenses

If court denies the motion to quash, seek writ of mandate with Appellate Court w/i 10 days

CAL

Anti-SLAPP motion to Strike

Legislature concerned about suits brought to chill the valid exercise of free speech & petition. When P sues D for an act D took in furtherance of her free speech right D can make an anti-SLAPP motion to strike.

- D makes showing that P's cause of action arises from protected activity - burden shifts to P to show probability of winning on merits.

CAL

Answer

This is just like federal court where D responds to allegations of complaint and raises affirmative defenses

- Remember to state the ULTIMATE FACTS

- if D's answer is insufficient, P can DEMUR to just the answer

- 30 days to answer (fed court = 20 days)

CAL

Cross Complaints

Similar to Counter Claims in Federal Court, but all called Cross Complaints

Cross Claim against P is again COMPULSORY

Cross Claim against co-party is NOT compulsory

Cross Complaint against 3d Party - can be filed anytime before trial date set; can bring in 3d party for any claim that the TPD is liable in underlying case

CAL 

Medical Exams

Same as in Federal, but in california the lawyer has the right to attend the physical exam. 

If it is a mental exam, the lawyer can attend ONLY if there is a court order allowing it. 

D has the right to demand 1 physical examination of P.I. plaintiff)

CAL

Work Product Rules

In federal Court, work product can be generated by the party or any part representative, not just by attorneys.

In Cal, the work must be generated by the ATTORNEY or ATTORNEY agent.

CAL

Sanctions

CAL

Class Action

"When the questionis one of a common or general interest, of many persons,...and it is impractical to bring them all before the court, one or more may sue or defend for benefit of all."

- show ascertainable class

- well defined community of interest = common questions predominate, rep is adequate, class action will result in substantial benefit to parties/court

Individual notice not required, court decides who pays for notice, opt out MAY be allowed by court, no need to appoint class counsel - aggregate class claims to get the total amount in controversy

CAL

Mandatory Dismissal

Case must be dismissed if 

(1) not brought to trial within 5 years after filing OR

(2) process is not served within 3 years after filing

No discretion with these

CAL 

Jury Trial

7A does not apply in state court

The Cal Constitution grants right to trail, largely along same lines as 7A. 

- In Cal try, equity issues first, then legal issues.

12 Jurors unless parties agree to fewer

Verdicit: federal court verdict must be unanimous, CAL only requires 3/4

CAL

JNOV - Judgment not withstanding the law

- Party making the motion is not required to make motion for directed verdict at trial, this is unlike federal court. 

Motion for Directed Verdict - like motion for judgement as a matter of law in federal court. 

CAL

Remittitur or Additur 

Remittitur: if the jury award shocks the conscious and is TOO HIGH. The court can order new trial or remittitur. This gives P the choice of taking a lesser figure or else a new trial. - this is good in Federal and State court

Additur: Case where P suffered great harm and jury award so low it shocks the conscious. Court can order new trial OR additur. this gives D choice of paying a greater amount in damages or a new trial. 

Claim & Issue Preclusion

Whenever there has been an earlier case, watch for these issues which concern preclusive effect of a prior judgment on the merits. 

This can be tested in Fed/State

Prior Judgments

(1) different court systems: system that decided case 1 applies regarding claim/issue preclusion

(2) Claim and issue preclusion are affirmative defenses, D must raise in he answer - often a motion for summary judgment.

Remember: Cal claims are not final until time to appeal has expired; federal claims final when district court judge rules

Claim Preclusion (Res Judicata)

3 Requirements

(1) Case 1 & 2 brought by same claimant against same defendant

(2) Case 1 ended in a valid judgment on the merits

- any judgment is on the merits unless it is Venue, JX, or indispensable parties

(3) Case 1 & 2 asserted the same cause of action (or claim) - in CAL u get cause of action for each right invaded; Federal law claim means T/O

Issue Preclusion

Collateral Estoppel

This is narrower and precludes relitigation of a particular ISSUE litigated/Determined before. 5 Req

1. Case 1 ended in valid, final judgment on merits

2. The same issue was actually litigated & determined in Case 1. (default judgment will not work)

3. Issue was essential to teh judgment in case 1. Without this issue, judgment in Case 1 would be different. 

4. Against whom can issue be asserted? ONLY against one who was a party to Case 1. 

5. Who can assert Issue Preclusion?

- mutuality rule says only by someone who was a party in case 1.

- Under Cal/Fed can be brought by non-party in case 1 if it is not unfair: FULL/FAIR opportunity to litigate issue in case 1