Civil Procedure II

Class Info

Law School: Liberty University School of Law

Course ID: LAW 522

Term: Spring 2018

Instructor: Prof. Hesch

My Grade Earned: B


Default is a failure to submit an answer within the time allowed.

A defendant in America has 21 days after being served to submit an answer or 60 days if he waived service under Rule 4(d). Rule 12(a)(1)(A).

The US government always gets 60 days. Rule 12(a)(2)

If a Rule 12 motion is filed, the deadline for an answer is postponed to 14 days after notice of the court's response. Rule 12(a)(4).

Entering a Default Judgment

A clerk must enter a default when the plaintiff requests it with an affidavit stating an amount of damages computable with certainty by the clerk and that the defendant defaulted. Rule 55(b)(1).

In all other cases, the court enters default after the plaintiff files a motion and serves the other side.

Setting Aside a Judgment

The court can only set aside a judgment for good cause as stated in Rule 60.

Federal Rule of Civil Procedure 60(b)

Grounds for Relief from a Final Judgment, Order, or Proceeding.

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On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

  1. mistake, inadvertence, surprise, or excusable neglect;
  2. newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
  3. fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
  4. the judgment is void;
  5. the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
  6. any other reason that justifies relief.

A Rule 60(b) motion must be filed in a reasonable time. This is capped at one year for for Rule 60(b)(1–3), but not (4–6).

Voluntary Dismissal

A plaintiff can voluntarily dismiss his case without a court order if done before either an answer or summary judgment motion is filed. Rule 41(a)(1)(A). However, most states allow dismissal after a motion to dismiss.

The first voluntary dismissal is without prejudice, but a second dismissal would be with prejudice. Rule 41(a)(1)(B).

A suit can also be dismissed by stipulation by both parties. This is without prejudice unless stipulated otherwise.

If an answer or summary judgment motion has been filed, court approval is needed to dismiss the suit. This is without prejudice unless the court orders otherwise, which it can do. Rule 41(a)(2).

Involuntary Dismissal

If a plaintiff fails to prosecute by letting a case sit idle, then the defendant may move to involuntarily dismiss the case. Rule 41(b).

A case may also be involuntarily dismissed if the plaintiff does not comply with orders or rules.

An involuntary dismissal normally operates as an adjudication on the merits, dismissing it with prejudice. An exception is if the dismissal is based on lack of jurisdiction, venue, or joinder.


Roughly 50–65% of cases end in settlement as it is faster, cheaper, more confidential, and less risky than going to trial.

If a settlement is reached prior to filing suit, a court does not need to approve it.

It is generally required that a new action be brought for a later breach of the settlement.

Settlement agreements can be oral, but it is risky.

As part of a settlement, generally all claims are dismissed with prejudice and a general release is signed.


A release can be general, releasing all known or unknown claims, or specific, only releasing the claims specified.

Confidentiality agreements are often considered in settlement agreements.

Alternative Dispute Resolution

To facilitate a settlement, parties may partake in alternative dispute resolution.


Mediation is a type of alternative dispute resolution where a mediator helps parties reach settlement agreements.


Arbitration is a type of alternative dispute resolution which is a mini trial by a private arbitrator.

Alternative dispute resolution can be binding or non-binding, depending on whether the parties agreed to it beforehand.

If binding, the result is not appealable.

A court can order mediation or arbitration, but not for it to be binding.

Summary Judgment
A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. . . .

Rule 56(a).

The movant has the burden of production, meaning it must produce material facts not in dispute establishing that there is no genuine dispute as to a material fact. The burden of production then shifts to the non-moving party to establish that there is a genuine dispute of material fact. Summary judgment must be entered when the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex.

All reasonable inferences must be drawn and conflicting evidence resolved in favor of the nonmovant. Liberty Lobby. However, if two things point equally to the same thing, no inference can be drawn and the party with the burden of proof loses.

Unless a local rule or court order says otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. Rule 56(b).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

  1. citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
  2. showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Rule 56(c).

Federal courts allow admissible affidavits to support summary judgment motions. Virginia courts do not.

Summary judgment is generally not appropriate in mixed question of law and fact.


A trial is the formal examination of legal and/or factual issues in a case.

The standard of proof in a civil action is a preponderance of the evidence.

Preponderance of the Evidence

Preponderance of the evidence means more likely than not—more than 50%.

Many jurisdictions require clear and convincing evidence for fraud, a higher standard.

Criminal trial require proof beyond a reasonable doubt—something like 99%.

Matter of Law

A matter of law is a legal determination to be made by the judge; not involving determining facts.

The party with the burden of proof can draw all reasonable inferences. However, if evidence points equally to two conclusions, the inference can not be drawn and the party with the burden of proof loses. If undisputed evidence of essential fact points equally to the defendant being liable and being not liable, then the plaintiff loses. Reid.

A jury cannot split damage awards. If the harm is a million dollars, the jury must award either $1 million or nothing, not some partial amount. (Some states reduce damages for contributory negligence, but not for the jury's uncertainty.)

Bench Trial

A bench trial is when the court finds facts instead of a jury. It is detailed in Rule 52.

Fact findings by a judge will not be set aside on appeal "unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility." Rule 52(a)(6).

  • Law is reviewed de novo by the appellate court.
  • Findings of fact are given deference by the appellate court and will only be overturned if the reviewing court is left with "the definite and firm conviction that a mistake has been committed."

A court can modify an order within 28 days. Rule 52(b).

Burden of Production

A burden of production means one must present evidence that a rational finder of fact could rely upon.

This is not the same as proving the fact at trial, as required by the burden of proof.

Burden of Proof

A burden of proof means one must satisfy the standard to be applied by the fact finder. In a civil trial, this is a preponderance of the evidence. If the standard is not met, the party without the burden of proof prevails on the issue.

Five procedural devices are used to limit the jury:

  1. Law of evidence
  2. Judgment as a Matter of Law

    Judgment as a matter of law, formerly known as a directed verdict, is a judgment entered during a jury trial upon finding that a reasonable jury would not have a legally sufficient evidentiary basis to find otherwise.

    In considering a motion for judgment as a matter of law, the judge must view all evidence in the light most favorable to the party opposing the motion. The judge cannot weigh the evidence or make credibility determinations between witnesses.

    A "mere scintilla of evidence" by the party with the burden of proof is not sufficient to survive motion for judgment as a matter of law.

    (The standard for judgment as a matter of law is almost the same as that of summary judgment.)

    A judgment as a matter of law motion must be filed after the opposing party has been fully heard, but before the case is submitted to the jury.

    Rule 50(a).

  3. Renewed Judgment as a Matter of Law

    A renewed judgment as a matter of law, formerly known as a judgment notwithstanding the verdict, is a judgment as a matter of law that is renewed after a case has been submitted to a jury and a judgment has been entered.

    A motion for a renewed judgment as a matter of law must be filed within 28 days after the judgment is entered and can only be filed if the party previously filed a motion for judgment as a matter of law.

    Rule 50(b).

  4. New Trial

    A judge may grant a new trial for any reason for which a new trial has been granted beforehand.

    The most common grounds for a new trial are for procedural flaws and substantive flaws.

    Procedural Flaws

    Procedural flaws are flaws in the procedure of a trial.

    If a procedural flaw affects the result of the trial, the only way to correct it is to grant a new trial.

    • Newly discovered evidence
    • Improper conduct by counsel
    • Jury misconduct
      • Visiting the scene of the incident
      • Reading news about the incident
    • Error by the court
      • Improper jury instructions
      • Improperly admitting or denying evidence
      • Incorrect ruling of law
    Substantive Flaws

    Substantive flaws are flaws where the jury returned a verdict they should not have.

    There are two types of substantive flaws:

    1. Where the jury splits the difference in its verdict
      • E.g., jury must either return a verdict for $10,000 or $0 and it instead returns $5,000.
    2. Where "the verdict is against the great weight of the evidence."
      • Most common ground for a new trial based on a substantive flaw
      • This is a lower standard than for a (renewed) judgment as a matter of law.
      • It must be "quite clear that the jury reached a seriously erroneous result."
      • This standard is somewhere between requiring no reasonable basis and the judge substituting how he would would have voted.

    Judges have wide discretion in granting new trials and will only be revered if they abuse their discretion.

    A motion for a new trial must be raised within 28 days after the entry of judgment.

    Rule 59.

    A new trial can concern only one particular issue.

    Conditional New Trial

    A judge can grant judgment as a matter of law, with the alternative of a new trial if the appellate court rules that judgment as a matter of law is improper. The appellate court would also have to rule the new trial proper however.

  5. Jury Instructions

    Each party may submit jury instructions to the court for it to consider.

    The judge must inform the parties of its proposed instructions and give them an opportunity to object before the instructions are delivered.

    • If a party does not object, it waives its right to unless the court finds "plain error" affecting substantial rights.

    Rule 51.


Additur is when a judge increases a jury's damage award. It is very rare and does not exist in federal court.


Remittitur is when the judge reduces damages below what the jury awarded.

It is permissible as long as the court offers the plaintiff the choice between the reduction and a new trial.

  • In essence, the court is informing the plaintiff that the damages award is "against the great weight of the evidence" and that he will order a new trial unless the plaintiff agrees to an amount believed to be supported by the evidence.
  • An exception is punitive damages, which a judge can reduce without asking the plaintiff.
Miscellaneous Jury Rules

One must request a jury trial within 14 days after the last pleading or the right will be waived and the matter will have a bench trial. Rule 38.

If a jury trial is demanded under Rule 38, it must be granted unless the parties stipulate otherwise or the judge finds that there is no right to a jury trial on the issues. If a jury trial is not requested, it will be a bench trial unless the judge orders a jury trial anyway. Rule 39.

Jury Selection

Voir dire, Latin for "to speak the truth", is the process of selecting a jury.

The court may permit the parties to ask questions of potential jurors or it may do it itself.

Challenge for Cause

A challenge for cause is a challenge to a potential juror on the ground that he is not impartial.

Peremptory Challenge

A peremptory challenge is a challenge to a potential juror for any reason provided by 28 U.S.C. § 1870.

Each party gets a maximum of three peremptory challenges.

Peremptory challenges cannot be based on race or gender.

Rule 47.

A jury must be 6–12 people unless fewer are stipulated too. Rule 48(b).

A jury must reach a unanimous decision unless the parties agree otherwise. Rule 48(b).

A judge may poll the jury after its verdict to ensure that the verdict was unanimous or met the parties' agreed standard. Rule 48(c).

A court may submit forms requiring a jury to return a general verdict—only containing the verdict; a special verdict—only containing written findings of fact; or a general verdict with written answers. If written answers are given, they dictate the verdict, not the given verdict. Rule 49.


An appeal is a timely resort by an unsuccessful party in a lawsuit to an appropriate superior court empowered to review a judgment or final decision.


For a person to appeal, he must have suffered an "adverse judgment" or be "adversely affected".

Adverse Judgment

An adverse judgment is a judgment for the other party or one that grants a type of relief different from that requested.

  • E.g., less money was awarded than requested or money damages were granted instead of an injunction.
  • The determination is result-based. If two causes of action or defenses would give the same outcome, it cannot be appealed if one prevails but not the other. If causes of action award different amounts of damages, it can be appealed if the cause of action with greater damages is rejected.

Getting less damages than sought can be enough to qualify a judgment as adverse, but it must be substantial.


During the losing party's appeal, the prevailing party can cross-appeal alternative issues that it lost on to support the judgment should the issue being appealed be reversed.

The appellee can make any argument to support the court's decision, unlike usual appeals, but new evidence cannot be introduced.


An appellant cannot raise arguments on appeal (to attack the court's ruling) that he did not raise below.


Generally, if circumstances have changed so that relief is no longer available, the case is moot and there is no longer a case or controversy for the court to address.

The exception is if the case is "capable of repetition, yet evading review."

Plain Error

The failure to raise an objection will act as a waiver on appeal unless the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.

It is extremely rare in a civil case, but in limited situations an appellate court can still hear an objection on appeal that was not preserved.

The legal standard tested is whether it is needed "to prevent manifest injustice."

Final Judgment

A final judgment is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

With limited exception, only a final judgment is appealable.

Interlocutory Order

An interlocutory order is an order or judgment that does not determine the plaintiff's primary claim(s), but directs some further proceeding in the process of leading to a final judgment.

Exceptions to the Final Judgment Rule
Collateral Order Doctrine

An interlocutory order is appealable under the collateral order doctrine if it meets three conditions:

  1. It conclusively determines the disputed question.
  2. It resolves an important issue completely separate from the merits of the action.
  3. It must be effectively unreviewable on appeal from a final judgment, as the right asserted would be essentially destroyed.

The collateral order doctrine is extremely rare.

FRCP 23 & 54

One has 14 days to appeal whether certification of a class action was granted or not. Rule 23(f).

When there are multiple claims, one can appeal a final ruling on the entirety of a discrete claim if the court determines there is no just reason for delay. Rule 54(b).

28 U.S.C. § 1292(a)

Interlocutory decisions

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  1. Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
    1. Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;
    2. Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;
    3. Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
28 U.S.C. § 1292(b)

Interlocutory decisions

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  1. When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Mandamus is not an appeal but a separate proceeding against a public official, such as a judge, to require him to perform an act required by law.

Mandamus is only granted in exceptional circumstances that amount to a judicial usurpation of power. One must show a refusal to act as required by law.

Writ of Prohibition

A party can ask a superior court to order a lower court to refrain from doing something that would exceed its authority or abuse its discretion.

Even if a trial court certifies an order for appeal, the party must actually appeal within 10 days and it is up to the discretion of the appellate court to take the appeal.

A notice of appeal must be filed with the district court clerk. Federal Rule of Appellate Procedure 3.

An appeal must be filed within 30 days from the entry of judgment (60 if the US government is a party). Federal Rule of Appellate Procedure 4.

Scope of Review

As a general rule, appellate courts will only correct errors where they are convinced that the error likely changed the outcome of the case.

Questions of law are reviewable de novo.

Questions of facts decided by the court are reviewable for clear error.

Matters of discretion are reviewable for abuse of discretion.

Mixed questions of law and fact and generally reviewed according to the predominate issue's standard.

Clear Error

A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

A judge's choice between two permissible views of the evidence cannot be clearly erroneous.

A jury's determination of facts cannot be reviewed.

  • However, a jury's special verdict can be relied upon to make changes.
Abuse of Discretion

How abuse of discretion is defined will depend on the jurisdiction.

  • Decision “was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment”
  • District court “made a clear error of judgment ... or ... applied an incorrect legal standard.”
  • “A definite and firm conviction that the trial court committed a clear error of judgment”
  • "Failing to exercise a sound, reasonable discretion"
  • Decision was "not justified by and clearly against reason and evidence"
Harmless Error

An appellate court cannot reverse and order/decision for errors not affecting the substantial rights of the parties. 28 U.S.C. § 2111.

The harmless error doctrine also applies to the trial court granting a new trial or setting aside a judgment.

Supplemental Jurisdiction

Supplemental jurisdiction gives subject matter jurisdiction over additional claims that do not independently qualify for federal subject matter jurisdiction when the original claim establishes federal question jurisdiction or diversity jurisdiction.

Under 28 U.S.C. § 1367(a), federal courts shall exercise supplemental jurisdiction over a claim "so related" that the claims "form part of the same case or controversy." This means the claims "derive from a common nucleus of operative fact" and are of such a nature that courts "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of America v. Gibbs.

In diversity-only cases, a plaintiff cannot bring a supplemental jurisdiction claim against another defendant or join another suit, when doing so would be inconsistent with complete diversity. 28 U.S.C. § 1367(b).

Courts have discretion under 28 U.S.C. § 1367(c) to decline supplemental jurisdiction if:

  1. it is a novel/complex issue of state law
  2. the state claim predominates the federal claim
  3. the court has dismissed the original claims upon which jurisdiction was granted
  4. there are other compelling reasons

If a claim is dismissed under 1367(b) or (c), the statute of limitations is tolled for at least 30 days. 28 U.S.C. § 1367(d)


Joinder allows multiple claims to be be consolidated into one action or for multiple parties to join one action.

Joinder of Claims

Rule 18 allows a single plaintiff to join all claims against a single defendant.

The total value of the claims is aggregated to establish the value of the case in controversy to establish diversity jurisdiction.

Two plaintiffs may not aggregate their claims if they are "separate and distinct." To do so, they must have a joint interest at stake.

The court must still have subject matter jurisdiction over all claims, so an unrelated car accident claim could not be joined with a federal question claim against a defendant from the same state.


A counterclaim is a claim seeking relief brought by a defendant against a plaintiff. Rule 13.

Compulsory Counterclaim

If a counterclaim arises out of the same transaction or occurrence as the plaintiff's claim, it is a compulsory counterclaim. Rule 13(a).

If a compulsory counterclaim is not made, the defendant is precluded from raising it later. R2J § 22.


Same Transaction or Occurrence

There are two tests for whether two claims arise out of the same transaction or occurrence—the logical relationship test and the same evidence test. Plant v. Blazer Financial Services.

Logical Relationship

The majority uses the logical relationship test, which states that a claim and counterclaim arise from the same transaction when there is a logical relationship between them.

A "logical relationship" exists when the counterclaim arises from the same "aggregate of operative facts" in that the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant. Plant v. Blazer Financial Services.

Same Evidence

The minority uses the same evidence test, which states that a claim and counterclaim arise from the same transaction or occurrence when substantially the same evidence will support or refute plaintiff's claim as well as defendant's counterclaim. Plant v. Blazer Financial Services.

This is a narrower test than the logical relationship test.

Permissive Counterclaim

A defendant may state any counterclaim that is not compulsory, but it must have an independent jurisdictional basis, and the court has discretion whether it comes in or not. Rule 13(b).

Joinder of Parties
Mandatory Joinder

A defendant can move to dismiss a case under Rule 19 for want of an indispensable party if the plaintiff does not join that party.

Indispensable Party

A party is indispensable if:

  1. complete relief cannot be given to the existing parties in its absence,
  2. its absence would expose an existing party to significant risk of double, multiple, or otherwise inconsistent obligations, or
  3. its absence would impair the missing party's ability to adequately protect its interest.

Rule 19(a).

Joint tortfeasors are jointly liable and a plaintiff can choose to sue only one, so absence of another is not indispensable, even in most comparative fault states.

A party can still only be joined if feasible, as personal jurisdiction, venue, and subject matter jurisdiction are still required.

If the plaintiff cannot join an indispensable party, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:

  1. The extent of prejudice to parties or non-party;
  2. The extent to which the court can lessen the prejudice by:
    1. protective provisions in the judgment;
    2. shaping the relief; or
    3. other measures;
  3. Whether judgment would be adequate without the missing party; and
  4. Whether the plaintiff would have an adequate remedy elsewhere.

Rule 19(b).

In the end, it turns on whether the plaintiff is worse with partial relief than if forced to sue elsewhere.

Permissive Joinder

Plaintiffs may join in one suit and file a complaint together if:

  1. They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and
  2. Any question of law or fact common to all plaintiffs will arise in the action.

Rule 20(a)(1).

Similarly, a plaintiff may sue multiple defendants in one action if:

  1. Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and
  2. Any question of law or fact common to all defendants will arise in the action.

Rule 20(a)(b).

Same Transaction or Occurrence

There are two tests for whether two claims arise out of the same transaction or occurrence—the logical relationship test and the same evidence test. Plant v. Blazer Financial Services.

Logical Relationship

The majority uses the logical relationship test, which states that a claim and counterclaim arise from the same transaction when there is a logical relationship between them.

A "logical relationship" exists when the counterclaim arises from the same "aggregate of operative facts" in that the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant. Plant v. Blazer Financial Services.

Same Evidence

The minority uses the same evidence test, which states that a claim and counterclaim arise from the same transaction or occurrence when substantially the same evidence will support or refute plaintiff's claim as well as defendant's counterclaim. Plant v. Blazer Financial Services.

This is a narrower test than the logical relationship test.

Third-Party Practice

Third-party practice, formerly known as impleading, is when a defending party, as a third-party plaintiff, serves a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.

The third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.

Rule 14(a).

The third-party defendant must be derivatively liable to the defendant, not just also liable to the plaintiff. Usually this means they are higher up in the supply chain or an insurance company.

In comparative fault states a joint tortfeasor can bring an action for contribution as third-party practice.

  • However, no contribution is allowed for intentional torts.
  • Virginia allows contribution unless the tort involved moral turpitude.

The plaintiff and third-party may afterwards assert any claims arising out of of the same transaction or occurrence and defenses thereto, as long as it is consistent with complete diversity as required in 28 U.S.C. § 1367(b).

Intervention of Right

A defendant must be allowed to intervene if:

  1. A statute gives him the right to intervene, or
  2. He has an interest in the subject matter of the suit that would be impaired and not adequately represented by a present party.
    • In determining if a present party adequately represents an interest, three factors are used:
      • Amount at stake
      • Ability and resources of parties
      • Any conflicts of interests

Rule 24(a).

One cannot intervene as a plaintiff if it would defeat complete diversity.

One can intervene as a defendant even if it would regardless of diversity, and a plaintiff cannot sue a newly-added defendant if it would be inconsistent with complete diversity.

Courts will often treat stare decisis as an interest in the subject matter.

Permissive Intervention

A court may allow anyone to intervene who has a claim or defense that shares a common question of law or fact with the main action.

Rule 24(b).

The court has wide discretion in this determination.

The delay or prejudice that would occur is major factor that the must consider. Rule 24(b)(3).

Claim Preclusion
Issue Preclusion