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I. PRECLUSIVE EFFECT OF PRIOR ADJUDICATION: Res Judicata/Collateral Estoppel.
A. Res Judicata (thing adjudicated): Claim Preclusion
1. Purpose of Doctrine → Judicial Economy.
2. Cause of Action merges into judgment on merits. If later claims arise P is out of luck. Precludes claims which were litigated as well as those that should have been (mature compulsory counter-claims), arising fm the same COA, btwn same P and D. (Sawyer)
i. If P wins, claims and related claims merge in J & P may not bring those claims if future litigation against same D
ii. If P loses, claim and related claims are barred in future litigation brought by P against same D.
iii. RJ precludes claims that were litigated → compulsory counter-claims under R13a must be litigated as matter of law.
iv. Concept is Finality vs. Correctness of judgment → judgment may be wrong, but if final too bad…APPEAL! Perfect your right to appeal. Also have interlocutory (as in WWVW and Asahi).
3. RJ requires a joinder of claims but not a joinder of parties. Maximize use of R18 (Joinder of Claims). RJ does not bind parties.
4. Rule Against Splitting Claims. Per Moitie Case, RJ doctrine says can’t split claims. If have a Fed and State claim under same COA, then Fed Court can use § 1367 to get pendant jx.
i. Exception: While may be the same set of facts presented in each claim, may have different primary rights created (ie one Fed and on State). Per Sawyer, if facts are different (different witnesses, theories, & potentially conflicting evidence) then may want to try claims separately and application of RJ is not appropriate.
ii. California Test: A claim is part of the same COA under Calif law only if it is part of the same “primary right”.
5. How the RJ Defense is raised:
i. Normally party advantaged by the defense, raises it.
1. 12(b)(6) Failure to State a Claim. Raise by motion or in pleading.
2. 8©. Affirmative defense of Res Judicata → Raise in pleading to preceding pleading.
3. Keep an eye on Rules 8(a)3, 8(e)2, 13, 14, 18, 20
ii. Courts may raise Res Judicata defense on its own motion.
iii. Pleading in the alternative & RJ → R8(e)2. Also have Rule 15(b) which deals w/ supplemental pleading.
iv. Note on dismissals: Some such as for improper venue or lack of pers jx, do not bar a 2nd action bc the ct never reached the merits, must less decided it → not a final judgment on the merits.
B. COLLATERAL ESTOPPEL (issue preclusion)
1. Intro: RJ barrs efforts of party to relitigate events that have already been litigated and decided in prior suit or could have been litigated if arising out of same transaction or occurence. CE dissects lawsuit into issues & separates fm reconsideration any issues that have been decided in a prior action. CE precludes party fm relitigating issues that were actually litigated and decided in prior action. If issue could have been litigated in prior action but was not, CE will not bar litigation in a subsequent action. The transactions may have been separate but the issue is the same thus will be CE’d. Keep in mind that issues already litigated might come up again in later litigation but based on separate events.
i. CE is common law so lots of judicial discretion is exercised.
ii. CE is used to bar persons who have been parties to prior litigation.
iii. Watch out for CE and Due Process → remember can’t take one’s property without due process.
iv. Direct Estoppel: can’t refile based on adjudicated claim already lost, regardless of jx. Can only appeal.
2. 3 Questions Test:
i. Id the issue → is the issue to be litigated the same issue previously litigated?
ii. Finality → was there a final judgment on the merits?
iii. Parties → is the person against whom the plea of collateral estoppel is asserted
3. Rules to invoke CE (fm Tutuer)
i. Issue sought to be precluded must be the same as that involved in the prior action
ii. The issue must have actually been litigated
iii. The determination of the issue must have been essential to the final judgment.
iv. The party against whom estoppel is invoked must be fully represented in the prior action.
v. Additional criteria → party against whom CE is sought must have had a “fair opportunity to litigate” in the prior proceeding (including opportunity to offer direct and rebuttal evidence)
C. PERSONS PRECLUDED.
1. Claim preclusion against other parties.
i. Privity: Is a relationship btwn pers party to the litigation and a third party strong enough that the third party is barred from litigating the same claim. View is if privity, then the connection btwn the third pers and the pers party is close enough that the pers party to the litigation is said to represent the third party’s interest. Have “privity” and “virtual representation”.
ii. Interest of a 3rd party vs Precluding the legal Right of a 3rd party. If a 3rd party has legally enforceable rt, judgment entered in a suit which he did not participate cannot bind him.
2. Issue Preclusion against other parties: J may have CE effect not only btwn parties to original proceeding, but also between such a party on one who was not a party to the first actions. Mutual vs Non-Mutual
i. Mutual. Old rule that has been abandoned in many jx. Says CE should apply only when it can apply “mutually”. One pers should not be bound by J unless, if J had gone other way, opposing party would also have been bound. Converse is true. Privity comes into play.
1. if pers was in privity w/ winner, could take advantage of winner’s victory.
2. if pers was in privity w/ loser, was bound even though never had day in court.
ii. Non mutual (Parklane Case). Goes beyond the CE doctrine by allowing a new party to invoke CE against a party who litigated and lost on an issue in a prior action. Per Bernard Case → the party against whom estoppel was asserted, had been a party to the first action and had had a full and fair opportunity to litigate the issue there.
1. Defensive: defensive use occurs when D seeks to prevent P from asserting a claim the P had previously litigated and lost against another D. Cts like bc promotes judicial economy bc gives P a strong incentive to join all potential D in first action if possible (offensive CE provides the opposite incentive).
2. Offensive: offensive use of CE occurs when P seeks to foreclose the D fm litigating an issue the D has previously litigated unsuccessfully in an action w/ another party. Cts are cautious to apply nonmutual CE bc the party against whom estoppel is asserted in 2nd action was D in 1st suit and did not choose the forum in which issue was decided. Also, taking advantage of another P’s victory, also, D may not have litigated as aggressively in first actions ($$ small and bad forum). Thus only apply if meet regular CE criteria and where it would not be inequitable to D to do so.
a. Don’t allow offensive estoppel if:
i. P could easily have joined in earlier action, or
ii. The application of offensive estoppel would be unfair to D (see Parklane, pg 1324)
iii. RULE: In Fed ct (and CA) have the right to offensive, non-mutual Collateral Estoppel. However, USSC held that offensive nonmutual CE should not be available against the US.
3. Settlements to avoid preclusion. Sometimes litigants settle case to avoid preclusion that would result fm unfavorable J. Also, wrt successive cases w/ judgments entered, issue preclusion fm first case increases settlement value of later cases for P.
i. Vacation of a Judgment. If J vacated bc of appeal, has effect of wiping off the books to TC’s determination.
4. Preclusive Effects of Criminal Convictions: A criminal conviction can be relied on for preclusive effect in a subsequent civil action in which crim D is a party. Thus, if criminal conviction comes first the apply the 3-part test for CE.
D. FULL FAITH AND CREDIT IMPACT: Recognition of judgments from other jurisdictions:
1. Interstate Recognition of Judgments. Fauntleroy case. Per the Constitution, Full Faith and Credit must be given in 2 instances:
i. To judgments of sister states
ii. To the laws of sister states. Note: General rule is penal rules of one state are not given effect in another state.
iii. Note: Erroneous judgments on the merits are still entitled to full faith and credit.
iv. Not all judgments are entitled to FF&C.
1. Judgments not final don’t get FF&C
2. Judgments “not on the merits” ie, based on procedural faults rather than substantive law, need not be given preclusive effect (judgments based on faulty jx, venue, parties, pleading, or SOL are generally not subj to FFC).
v. Enforcement of judgments. Uniform Enforcement of Foreign Judgments Act.
2. Federal-State Recognition of Judgments.
i. State-Federal Recognition: Governed by the FF&C statute 28 U.S.C. § 1738. The later Fed Court is to give the same preclusive effect the rendering state court would have given.
1. USSC expanded Marrese holding beyond litigated judgments to include court-approved settlements.
ii. Federal-State Recognition: No statute, but caselaw (using combo of constitutional and statutory considerations) says state courts must give res judicata effect to the J’s of fed courts. The question is the scope of the state courts duty
iii. Marrese v. American Academy of Orthopaedic Surgeons. Dealt with the preclusive effect of a state ct J in a subsequent lawsuit involving federal antitrust claims w/in exclusive Jx of fed cts. P should have filed in Fed ct and pended the state claim. In this case the antitrust claim could not have been litigated in state ct. If law of the state is the no issue preclusion if did not have smjx over the claim, the no issue preclusion and claim is not barred fm litigation. (did not address if this was an implied exception to § 1738).
iv. Parsons Steel, Inc. v. First Alabama Bank. St ct said didn’t need to give RJ effect to fed ct & made own J. Resp does big NO NO and makes collateral attack…asks fed ct to enjoin any attempt by st ct to enforce st J. CT said resp should have appealed st ct J or sought injunction prior to final J by st ct. RULE: a final j last in time is the controlling j re’lss if is a J in error. RJ under § 1738 → ct said no exception offered by § 2283. “Anti-Injunction Act”.
3. Federal Injunctions to “protect or effectuate” Fed judgments. Applies to later state ct proceedings → Fed Ct has power to issue injunctions to protect its judgments.
i. Timeliness of seeking injunction under § 2283 (pg 1358). Injunction only applies to situations in which st ct has yet to rule on the merits of the RJ issue. Once state ct has ruled on the merits of the RJ claim then § 1738 kicks in and is a FF&C issue. Thus if you want an injuction under § 2283, seek it fm fed ct as an initial matter.
4. International Recognition. Not within mandates of FF&C Clause of Constitution or statutory provisions of FF&C Act. Absent a treaty, each country decides for itself if will recognize J of foreign country → voluntary process known as “comity”. Reciprocity Doctrine comes into play.
i. Note on Treble Damages. Act in England that provides only gives 2/3’s damages vice the whole.
E. Another Action Pending (Csohan Case → issue of interpleader). Abatement or staying of a pending state action. RJ, CE, and compulsory counterclaim are retrospective regulation. Concurrently applied devices are a plea to abate and a motion to stay on the ground that there is another pending action btwn same parties concerning same subj matter.
1. Plea in Abatement: consequence is ordinarily dismissal of 2nd action. Will be sustained when it appears 1st action, were it to go to J, would be RJ to the 2nd. Plea proper on when 1st action is in same jx and involves same alignment of parties.
2. Motion to Stay. May be granted when the prior action involves closely related issues even though is not clear that RJ will result.
3. Injunction against a Parallel Action. Can issue an injunction in one proceeding against the prosecution of a parallel or related action in another proceeding.
II. PLEADINGS
A. INTRODUCTION TO PLEADING
1. Two kinds of pleading in civil suits: Notice and Code. Central function of pleadings to provide notice to the other party of nature of pleader’s contentions and to provide basis for proceedings that follow.
i. Notice: Used in Fed Dist Court and in most state trial courts. To assert a substantive claim complaint need only provide:
1. “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2)
2. idea is just to give other side notice of what’s going on
ii. Code: Sometimes called fact pleading. Requires:
1. a statement of facts constituting the cause of action, in ordinary and concise language. (Cal C. Civ. P 425)
2. Requires lots of specificity
1. Burden of Production vs. Persuasion. The pers who has burden of pleading has burden of PRODUCTION (don’t say burden of proof) → He who pleads must prove.
ii. Burden of Production. Party with Bof Pro has burden of coming forward with evidence so support their case…must produce sufficient evi to allow factfinder (judge or juryP to find in their favor. (Pleading refers to making allegations; production refers to producing evidence to support those allegations).
iii. Burden of Persuasion. Party having BofPer bears risk of non-persuasion. If factfinder not persuaded that critical alleged facts have been proved, the party with BofPer loses. Standards of Persuasiveness:
1. Ordinary Civil Cases → P must prove by “preponderance of evidence”
2. Certain Civil Issues (ie, fraud) → higher proof burden… “clear and convincing evidence.”
3. Criminal Case → prosecutor must prove D’s guilt “beyond a reasonable doubt.”
1. Affirmative defenses & Rule 8©
ii. 8c lists 19 affirmative defenses that must be pleaded by D (or by party responding to a “preceding pleading”)…this is a non-exhaustive list…any matter constituting avoidance or affirmative defense. (pg 595).
1. Pleading and immunity under § 1983.
ii. D must proof good faith and then burden shifts back to P.
iii. Gomez Case → held that burden of pleading that official acted in bad faith was the D’s…ct didn’t decide question of burden of persuasion.
B. THE PLEADING PROCESS → What Must Be Pleaded.
1. Rule 7(a) Pleadings Allowed; Form of Motions → Pleadings
i. P files complaint
ii. D files answer
iii. If D wishes to complain against P, D files counter claim (13a, b)
iv. If D wishes to complain about co-D, D files a crossclaim (13g)
v. If D wishes to bring in 3rd party D, D files 3rd party complaint (14a)
vi. If P, co-D, or 3rd party D, responding to D, files answer to counterclaim, crossclaim, or 3rd party complaint.
vii. No other pleading allowed except that Ct may order a reply filed to the answer but usually not.
2. Rule 7(b) Motions and other Papers
i. Motions must be in writing (unless made during a hearing or trial)
ii. Shall state with particularity the grounds therefore AND the relief or order sought
iii. Must be sighed iaw Rule 11.
3. Motion: (per Black’s) A written or oral application requesting a court to make a specificed ruling or order.
4. Pleading: (per Black’s) A formal document in which a party to a legal proceeding (esp. lawsuit) sets forth or responds to allegations, claims, denials, or defenses.
5. PLAINTIFF’S CLAIM:
i. Rule 3 → “Civil action commenced by filing a complaint with the court.
ii. Rule 8 General Rules of Pleading → (a) Claims for Relief: 3 elements:
1. a short and plain statement of the grounds upon which the court’s JX, depends (unless already has jx)
2. a short and plain statement of the claim showing that the pleader is entitled to relief, and
3. a demand for judgment for the relief the pleader seeks. Relief in the alternative…may be demanded.
4. Is notice pleading.
5. Purpose: Short and to the point while maintaining enough for the other party to respond to.
6. Who Uses: Any party can use when making a claim that will be answered by other side but obviously starts with the P (P, D, 3rd party, counter & cross claims).
7. Policy: For sake of $ and time, complaints should broad so as to expedite the process; don’t want to deter claims from being brought bc of difficult pleading requirements.
iii. Rule 8(e)2 → Pleading in the alternative.
1. “A party may set forth two or more statements of a claim or defense alternately or hypothetically.”
2. the alternative pleading doesn’t have to be consistent with the original not is it’s sufficiency based on the original. No relationship btwn the claims is necessary.
3. Must meet Rule 11 obligations (in good faith, not frivolous, and in writing).
4. Used when pleader in not in posit to know all facts. The check is the pleader CANNOT recover on all the claims.
5. Purpose: To settle controversies in efficient time, money → in one action if poss. A great tool when witnesses are dead OR P truly doesn’t know what happened.
6. Limitations: If P knows the true facts, can’t plead in alternative.
iv. Rule 9 Pleading Special Matters → particularity.
1. Directly opposite the guidelines of 8(a)
2. Heightened requirements of specificity in an otherwise broad and general notice pleading system → Deals specifically with FRAUD or MISTAKE because involve greater chance for frivolity.
3. Must plead with particularity; need time and place; note if spec damages 9g says must be specifically stated.
4. Allegations of malice, knowledge, and conditions of mind pleaded generally → R9 is only for Fraud or Mistake.
5. Purpose: gives D who is alleged to have committed Fraud/Mistake ample notice of nature of claim & grounds on which it stands. Gives D protection against injury to reputation. Discourages in terrorem suits.
6. Scope: limited just to instances stated…Fraud/mistake
• 1983 Civil Rts claims will be exempt bc don’t want to deter.
• Municipality suits exempt.
• Only Legislature is to modify FRCP not Cts.
7. Other heightened pleading rules & statutes (p 638):
• Rule 23.1
• Rule 26(a)(1)(A) and (B)
• 42 U.S.C. § 1983 (p 637) → the substantive law of qualified immunity requires higher pleading standard for P
• Fed Private Securities Reform Act of 1995 → requires heightened pleading by P (pg 639)
v. Motion for a more definite statement: Rule 12(e).
1. Rule is in Contention with 8(a).
2. motion made when other side’s complaint is vague or so ambiguous that no sense can be made of it and a party can’t reasonably be required to frame a responsive pleading.
• Must point out defects
• If motion granted & order not obeyed w/I 10 days ct may strike the pleading.
vi. Okay to Provide More: may be more advantageous to provide more info than required by 8(a) but beware of pleading self out of court (See Nurse Case)
vii. Conely Rule:
6. Defendant’s Response. D’s statement denying or admitting any allegations. All defenses may be pleaded in ans to claim including 12(b)’s but they may also be made by motion. A motion making any of these defense shall be made b4 pleading if further.
i. When and How to answer:
1. Must answer complaint paragraph by paragraph.
2. D shall serve answer w/I 20 days after being served (see Rule 12(a) for is service waived)
ii. Pre-Answer Motions. Rule 12. This motion can negate the necessity for an answer; it is typical D objection to the complaint (hence, it must be made BEFORE) the answer.
1. 12(b)1 – Lack of Subject Matter Jx – the claim is in wrong court (see 12(h)3 connection)
2. 12(b)2 – lack of jx over the person (D)
3. 12(b)3 improper venue (see 12(h)1). Case is in wrong geographic region under Rules
4. 12(b)4 – insufficiency of process. Flaw in process (wrong heading, case name, address wrong etc. See 12(h)1)
5. 12(b)5 – insufficiency of service of process. Flaw in procedure (ie, minor served papers, etc. See 12(h)1).
6. 12(b)6 – failure to state a claim upon which relief can be granted. (See below) → relationship with Rule 56.
7. 12(b)7 – failure to join a party under Rule 19. (note 12(h)2)
8. Purpose: These, since made in the answer, give D chance to rebut what the claim says Legally.
• ALSO → motion takes center stage once raised, the D automatically buys more time (as long as R 11 not broken) → Best case, motion succeeds, case tossed; Worst Case, motion fails, but D bought way more time to prep.
9. Who Can Use: Either party who is put in a responsive position.
iii. 12(g) Consolidation of Defenses in Motion: Any of the above motions can be made before the ans, but once motion is file, any of above Rule 12 defenses NOT filed are lost forever, except those protected by 12(h).
1. Note that this deals with motions, not pre-answer pleadings.
2. This rule prevents serial motions.
iv. 12(h) Waiver or Preservation of Certain Defenses. Sets up hierarchy of 12(b) defenses, and when exactly they can be filed and when they are lost.
1. Disfavored defenses are WAIVED forever if failed to join motion per 12g or fail to make the motion, period (either in a responsive pleading or by amendment per 15(a)).
• Lack of pers jx
• Improper venue
• Insufficiency of process
• Insufficiency of service of process.
2. Favored defenses. Can be made in any pleading or by motion for judgment on the pleadings, or at trial on the merits. Purpose: D might not know has legal grounds or all necessary parties until discovery process. Favored:
• Failure to state a claim
• Failure to join a party under Rule 19
• Objection of failure to state a legal defense to a claim (Rule 7a)
3. If lack of SMJx, then courts shall dismiss the action.
v. 12(b)(6) Motion holds that on the facts thus presented, there is no legal ground on which P can stand → “So What” Motion – even if everything you say is true, you’ve got nothing!!
1. Purpose: To ferret out cases that aren’t bringing forward any legal theory that can be tested in court.
2. Ct looks to allegations in the light most favorable to the non-moving party (ie, the party that stands to be booted if motion is successful).
3. The non-moving party may or may not be granted leave to amend.
4. Replaces the cl and code pleading demurrer. (pg 645)
vi. FAILURE TO ANSWER AT ALL → Default judgment (55 & 60)
1. The “Do Nothing” option – D loses the case, and usually, whatever P sought as compensation → it can be raised at ANY time during litigation, but is most important at the beginning.
2. Rule 55 – Default.
• If a party has failed to plead, and
• Affirmative relief is sought against defaulting party, And
• Default is proved by affidavit or otherwise.
• Entered by clerk or court (see rule)
• May be set aside for good cause. 3 prong test:
i. Will P be prejudiced?
ii. Does D’s case posit a meritorious defense?
iii. Was default a result of culpable conduct of D or his atty’s?
3. Rule 60(b) – Relief From Judgment or Order. Default judgment may also be set aside under this rule for:
• Clerical mistakes
• Mistakes, inadvertence, surprise, excusable negligence
• Newly discovered evidence
• Fraud, misrep, or misconduct by other party
vii. THE ANSWER → D has 3 weapons.
1. 8b – Defenses; Form of Denials → shall state in short and plain terms the party’s defenses to each claim asserted.
• Admit – this is the D’s way of getting certain issues out of the way bc they’re not in dispute.
i. Per 8(d) → failure to deny in responsive pleading are admitted.
• Deny – The are the issue that D DOES intend to litigate; the burden of proving these is on P, so it’s in D’s best interest to deny as much as possible.
i. Specific. Applies only to part of the pleadings
ii. Complete. Applies to entire complaint
iii. General. Applies to entire complaint except paras specified
• Don’t Know – When bc without knowledge or info sufficient to form belief of “Yes” or “No”, is accepted as a denial and P must prove
i. Key is whether sufficient info was within control of D…if was just using to stalling then becomes an admission
ii. Must use good faith → Rule 11.
• Purpose: to set for a defense against the complaints.
• Who Uses: either party who is in position of answering a complaint
• Policy: To promote honesty in pleading.
• Consequences of Denial: (pg 664)
i. Imposes on P burden of proving the allegation denied
ii. Permits D to introduce evidence that would tend to disprove the allegation.
2. Rule 8c. Affirmative defenses. Have 19 + available. Allows you to escape the consequences of your conduct. Along the lines of 12(b)6; argue, “even if P can prove his case, I’m off the hook bc of something he did or bc I’m immune” → if 12(b)6 would say “so what,” but if 8c say, “Yes, but…”
• Not a question of legality of the claim, it posits an excuse instead.
• NOTE: if the defense serves to destroy the P’s coa by eliminating one or more of the essential elements, it is already part of the litigation and thus does not need to be affirmatively pled.
• What constitutes “new matter” iot be an affirm defense?
i. What are the essential elements of allegations pleaded by P?
ii. Which elements of P’s coa have been denied by the D?
iii. Elements which have been D are NOW “issues” of the case.
iv. Does the info offered by the D directly address one of these issues?
v. If so, the subj matter is not new and is admissible bc it is an issue already in litigation.
• CAVEAT! 8© is not “legal fiction; if D uses and fails CAN BE USED AS AN ADMISSION!!!!→ thus the importance of 8(e), pleading (even defensively) in the alternative…CYA!!!
• Example, Gomez Case: P claimed D acted in bad faith; as affirmative defense D raised qualified immunity (yet wanted P to PROVE bad faith)
i. This was § 1983 Civil Rights case: policy suggests we don’t over burden P in these cases bc don’t want to discourage
• Purpose: If D has an out, he may use it to alleviate himself of the suit (includes: assumption of risk, contrib. Negli, discharge in bankruptcy, duress, estoppel, fraud, res judicata, statute of frauds, statute of limitations, etc.)
• Who Can Use: Either party in position of answering a complaint. MUST BE PLEADED IN THE ANSWER or is waived.
i. Burden of Proof is on D to proof affirmative defense applies.
3. Rule 13 Counter Claim (Cclm) and Cross-Claim (Xclm). D may chose not only to ans P’s complaint but also to advance affirmative claims of own. Cclm is typically filed at same time as ans, but is in effect a complaint by D. (pg 720 & b-lo in Size of Litigation). Can be filed thru amendment using R. 15.
• Counter Claims: A claim presented by D in opposition to or to deduct fm P’s claim. If established will defeat or diminish strength of P’s case. They go “across the V”. Allows a party to counterclaim to a party who has asserted a claim against it.
i. Watch out for preclusive effect of Counterclaims that should have been made.
• R. 13(a) Compulsory Counter Claims. If cclm arises fm same transaction or occurrence, then D MUST assert it in the ANSWER or lose it for good.
i. Relationship doesn’t need to be factually identical; just needs to be logical relation to the complaint
ii. WigglesWorth Test:
1. Are issues of fact or law raised by cclm largely the same?
2. Would RJ bar subsequent action by D bc 2 claims closely related?
3. Can “same evidence” by applied in both claim & cclm?
4. Logical relation btwn clm & cclm?
iii. Supplemental Jx will apply to ANY compulsory cclm!
iv. Purpose: To force parties already in suit to litigate anything related that they want to get out in the open → expediency and $$$$.
v. Who Uses: Whomever is responding to a complaint/claim.
vi. Exeception: Claim need not be filed as a cclm in the present proceeding if it is already pending in another proceeding.
• R. 13(b) Permissive Counterclaims. Need not arise out of the same transaction or occurrence as P’s claim. It may, but need not, be asserted in the present proceeding
i. D may bring at leisure
ii. Any claim not arising fm same transaction/ occurrence may be raised as permissive cclm
iii. NOTE: Independent Jx is required!!
• R. 13(g) Cross-Claim Against Co-party. Same side of the “V”. Pleading may state as Xclm any claim by one party against a co-party:
i. Arising out of the transaction or occurrence that is the subj matter either of the original action or counter claim OR
ii. Relating to any property that is subj matter of original action.
iii. Basis for SMJx: must have an independent basis for smjx bc can’t use 1367(a) unless is so related to the original claim.
iv. See Same b-lo in Joinder.
7. Amended and Supplemental Pleadings → R. 15. Purpose of pleadings is to set out basic framework of dispute so claims & defenses are presented & discovery can commence. Amendment to pleadings is allowed liberally to correct mistakes or reflect facts revealed in discovery.
i. R. 15(a) Amendment.
1. Party may amend pleading ONCE as a matter of course (ie, w/o cts pergra) at ANY TIME b4 a responsive pleading is served,
2. OR, if pleading is not a responsive on, the party seeking to amend my do w/in 20 days fm time it is served on them.
• Exception> if amendment will cause undue prejudice & delay for other side, it is not OK.
• Factors to consider:
i. Undue delay
ii. Bad faith or dilatory motive on part of one who moved to amend
iii. Repeated failure to cure deficiencies by amendments previously allowed
iv. Undue prejudice to opposing party
v. Futility of the amendment.
ii. R. 15(b) Amendments to Conform to the Evidence. Covers amendments to pleadings made in response to evidence introduced at trial. Covers two situations in which such amendments may be made:
1. if issues not raised by the pleadings are tried by “express or implied consent of the parties”, R. 15 (b) directs they be treated as if they had be raised in pleadings, and that amendment of pleadings by allowed to conform to evidence presented.
2. If party objects to intro of evidence at trial bc not w/I framework est by pleadings, R. 15(b) allows amendment of pleadings “when objecting party fails to satisfy the ct that admission of such evid would prejudice the party maintaining the action or defense on the merits”
3. NOTE: Tension btwn R 15(b) and 16 (e). Latter is more stringent bc uses standard of “manifest unjustice” vice “prejudice”. (pg 671)
iii. R. 15© Relation Back of Amendments. Used when amendments must be made after applicable SOL has expired. Amendment of a pleading relates back to date of ORIGINAL pleading when:
1. 15©1 → is permitted by law that provides the Statute of Limitations applicable to action.
• Normally means state law unless something like FELA or other fed statute. Statute of Limitations in Fed Civ Rts case under 42 USC § 1983 is borrowed fm most closely analogous state SOL. Note: not only length is borrowed but also manner of tolling.
2. OR, per 15©2, the claim/defense the party wants to set forth arose out of same transaction or occurrence as orig pleading,
3. OR, per 15©3, the amendment changes party/naming of the party or subs a party and C2 is satisfied & w/I period provided by R. 4m (120 days), and party sought to be changed/added:
• (A) Has notice of action that party will not be prejudiced in maintaining a defense
• (B) Knew or should have known, but for a mistake concerning identity of party, he would have been named in original complaint.
• Note: by naming “John Doe” D, P correctly indicates that doesn’t know the name of the pers who injured them.
iv. R. 15(d) Supplemental Pleadings. Refers to “events which have happened since the date of the pleading sought to be supplemented.” Ct can allow party to set forth pleadings that have happened since original pleading.
1. Restrictions: Must be “in furtherance of and consistent with the original action.” Also, may not be used to cure defects in the original complaint. (pg 684)
v. Effect of Amended Pleadings.
1. Amended pleading displaces the prior pleading
2. Note amended complaint must be served on opposing party b4 case may progress (R. 5(a))
vi. Purpose of R. 15: Used when a party needs to amend pleading to add relevant info but the SOL on the action has already tolled.
vii. Who Uses. Any party who needs to make a change to a pleading already served.
8. Sanctions → Rule 11 and 28 USC § 1927. Modern devices used to encourage attnys and clients to make only claims with a substantial basis in fact and law. Purpose of R. 11 is to provide sanctions to COMPENSATE the D for legal costs of having to defend the claim and as a deterrence to others..
i. R. 11 Signing of Pleadings, Motions, and Other Papers; Representations to Court; SANCTIONS. Imposed by ct for abuse of power by party (any paper sent to the court, and which paper is found to violate requirements of rule. Applies an OBJECTIVE STANDARD” in determining whether a reasonable inquiry was made.
1. Per 11(b) Atty or unrepresented party shall certify to best of knowledge after reasonable inquiry conducted, the pleading, written motion or other paper is:
• For the proper purpose (ie, not to harass)
• Warranted by law
• Allegations have evidentiary support.
• Denials of factual contentions are warranted on the evidence.
2. Per R. 11© Sanctions.
• Initiated by motion
i. Must be served iaw R. 5
ii. Safe Harbor Provision: Must allow 21 days after service to file w/ or present to ct
iii. The law firm is held responsible for vio’s committed by its partners, assoc, & empls.
• On Cts Initiative. Ct can enter order on own initiative and DOES NOT have to wait 21-day Safe Harbor period.
i. Pleader must prove to ct that not in violation of Rule 11(b).
3. NOTE: R. 11(d) says R. 11 does not cover disclosures and discovery requests. R. 37 covers sanctions for failure to comply with discovery.
ii. § 1927 → Counsel’s Liability for Excessive Costs. forbids unreasonable and vexatious multiplication of proceedings. If so does, then may incur costs for such conduct.
1. Note: Per Ridder case, even without 1927, there is an “INHERENT POWER” of the court to sanction for frivolous claims.
9. Dismissal → Rule 41
i. Voluntary
ii. Involuntary
III. THE SIZE OF THE LITIGATION. General philosophy of both state and fed systems is to allow liberal joinder of claims and parties. Keep in mind that this gets crazy and there is significant interplay btwn the rules (18, 13, 14, 19, 12(b)7) jurisdiction issue (esp for permissive counterclaims).
A. Proper Parties to a Suit. (should not be on exam)
1. R. 17 Parties P and D; Capacity.
i. Real Parties in interest
ii. Capacity to be sued
iii. Infants or Incompetent Persons
2. The term “parties” covers any number of things (P, D, 3rd party P or D, named or unnamed mbr of class, an intervenor, an interpleading stakeholder or an interpleaded claimant, or an necessary or indispensable party who should be but has not been joined).
B. Joinder of Claims. All claims must have own (original) SMJx. Check diversity and fed question first; supplement jx available unless restricted by 1367(b)
1. By P. May join any other claims they have against an existing opposing party. (don’t forget about amt in controversy)
i. R.18(a) Party may join as a complaint, counter-claim, cross-claim, or third party claim, as many claims as it has against the opposing party (ie, as many claims re’ing as many different subjects – even though totally unrelated – as party sees fit → note: while originally applies to P, also for D, and 3rd party D)
ii. Rule works better in theory than in practice (ie, smjx, joinder of party issues will likely knock many claims out) → many times is subject to judges discretion.
iii. Purpose: To allow for expedient litigation; this permissiveness is more of the liberal pleading system designed to foster litigation that covers as much as possible.
iv. Remember, while originates with P, either party uses.
2. By D. Counter-claims (compulsory or permissive) and cross-claims per R. 13. Can also set up using R. 14 if have brought in 3rd party D (see joinder of parties b-lo).
i. Compulsory Cclm, R. 13 (a) (includes responses to cross-complaints)
1. Any claim against opposing party if arises out of the transaction or occurrence and that do not require presence of 3rd parties that ct does not have jx over.
2. Is waived if not used and has preclusive impact → RJ
3. Can use with 13(h) to implead another party
ii. Permissive CClaims, R 13 (b)
1. Party may state as cclm ANY claim against opposing party NOT arising out of same transaction.
a. Needs independent SMJx
b. Does not need to be related to existing claims
c. Can use with 13(h) to implead another party.
iii. Counterclaimant can join additional party under R. 13(h) Joinder of Additional Parties.
1. Persons other than those made party to original action may be joined to a counter claim OR a cross claim if iaw R. 19 and R. 20
2. This is a method of impleading. Differs fm 14a bc has nothing to do with derivative liability.
iv. Counterclaims are presented with responsive pleading or with leave of court.
v. If D counterclaims then P answer to that counterclaim is a “response” vice an “answer”
3. Cross-Claims. R. 13(g) May state as a xclm anyclaims against co-party arising out of same transaction or occurrence that is the subj matter of original action or counterclaim therein → is permissive.
i. If original case dismissed for lack of SMjx (12(b)1), xclm’s dependent upon supplemental jx dismissed as well. Otherwise xclm remains (ie, if based on independent smjx).
ii. Can use 13(h) to bring in (implead) another party wrt this claim
4. R. 14 Third-Party Practice. (see joinder of parties b-lo)
5. Consolidation. R. 42. Common for multiple actions in same court that involve common issues to be consolidated for trial. Used to avoid unnecessary costs or dely.
6. Separate Trials: Allowed per R. 20(b) and R. 42.
i. R. 42 The court may order separate trials for any claim, xclm, cclm, or 3rd party claim iot:
1. further convenience
2. avoid prejudice
3. increase judicial economy and expedition
C. Joinder of Parties → Art III of Constitution sets forth “standing”
1. Permissive Joinder of Parties. R. 20. Anyone may join as P or D (20a) on the basis of the same transactions or occurrence or series of transactions or occurrences and similar question of law or fact.
i. Purpose: To prevent trying of the same issue coming from same transaction or occurrence or with common quest of law or fact by different P’s.
ii. Who Uses: P’s!! This is their rule. Can use to join together as P’s or joint parties as D’s → remember P’s are masters of their suits!!
iii. Scope of permissible joinder under R. 20(a) is restricted by SMJx of fed cts.
1. Fed Q cases: bc 20(a) requires claims by or against joined parties arise out of same trans/occur, Art III is satisfied in all circumstances where rule permits joinder.
2. Diversity Cases: (pg 733 very confusing) 1367(a) vs 1367(b).
iv. NOTE: D’s can use when filing a counter bc they are then are then acting in the capacity of P (check this)
v. Once party is joined, unrelated claims can be brought per R. 18.
2. Compulsory Joinder R.19. Joinder of Persons Needed for Just Adjudication. Joinder is required for pers who have a material interest in the case and whose absence would result in substantial prejudice to the absentee or to parties already b4 the ct.
i. 19(a). Is the Party necessary? Person must be subj to service of process (pers jx) and will not deprive ct of smjx. Pers shall be joined if:
1. complete relief is not possible among the present parties w/o absent 3rd party, OR
2. Absent 3rd party claims a related interest in the action and its absence fm suit may
a. Impair its ability to protect that interest OR
b. If that interest will leave any of the present parties exposed to double liability or inconsistent verdicts.
3. If pers should be joined by refues, pers may be made a D or an involuntary P. If joined party objects to venue and joinder of party would render venue improper, that party shall be dismissed.
ii. 19(b) Is the Party Indespensable? If the necessary party (under 19a) can’t be joined bc will destroy diversity, is found to be indispensable, the case will be dismissed. Factors to determine whether “in equity and good conscience” action should proceed or be dismissed”
1. To what extent a judgment rendered in person’s absence be prejudicial to the person or those already parties.
2. Can that prejudice be lessened or avoided (ie by shaping the relief)?
3. Will judgment in the joinee’s absence by adequate?
4. Will P have adequate remedy if action is dismissed for non-joinder (ie, can the P take the issue to state court?)?
iii. Purpose: Some suits need an outside party.
iv. Who uses: Normally used by D’s (since P gets to use R. 20) → this is D’s weapon against a claim that might fail if an outside party is forced in.
v. Watch out for the supplemental jx issues under 1367(b) when P tries to use Rule 19.
vi. Rule 19 is closely tied to 12(b)(7) → remember 12(b)(7) is preserved under 12(h)2.
D. Devices for Adding Parties.
1. Impleading and Cross-claims R. 14.
i. Impleader Rules:
1. R 14a and 14b and Rule 13h are the impleader rules
ii. Rule 14 → Third Party Practice. A D may bring in a 3rd party D if he is: liable to the D for all or part of the P’s claim against him (concept of derivative liability). D must show more that just the P could assert a claim against the 3rd P D . D must show that D has a claim against 3rd P D .
1. 14(a) When D May Bring Third Party
a. D may bring in as a 3rd party P any pers not a party to the action who is or may be liable to D (3rd P P ) w/I 10 days of filing original ans
b. 3rd P D options for escaping liability: 3PD may escape liability by defeating either the P’s original claim, or the D’s derivative claim against him. Consequently, he can assert defenses in Rule 12.
c. 3rd P D can counter claim (13a) against 3rd P P (D) …the claim need not arise out of the same original transaction.
d. 3rd P D can assert any claim against P but must be out of the transaction or occurrence.
e. P may assert any claim against the 3rd P D arising out of the same transactions.
f. NOTE:
i. Still need to argue the smjx of each claim
ii. Still need to argue whether there is pers jx over the 3rd party D. (Rule 4K & LAS)
iii. Venue is a non-issue with the 3rd party D.
iv. Any party can make a motion to strike, sever 3rd party claim
2. 14(b) When Plaintiff May Bring in a Third Party.
a. If P becomes a D on a counterclaim, he may implead a party who may be liable to P for all or part of counterclaim asserted against him.
b. This is the “mirror image” of rule 14(a).
iii. Rule 13(h) → Joinder of Additional Parties.
1. If a party asserts either a counter or cross claim, they may use this to bring in others not made parties to the original action as long as iaw provision of 19 (compulsory joinder of pers) and Rule 20 (Permissive Joinder of Parties).
a. Per rule 20, the joinder is okay as long as the counter or cross claim against the added party and the original P arise out of same transaction or occurrence AND share common quest of law or fact.
2. Intervention R. 24
i. 24(a) Intervention of Right: Shall be permitted to intervene in action if:
1. US statute confers an unconditional rt to intervene, or
2. applicant claims an interest in property or transaction which is the subject action and applicant is so situated that disposition of the action as a practical matter impair or impede the applicant’s ability to protect interest, unless
3. interest is adequately represented by existing parties.
ii. 24(b) Permissive Intervention: Anyone may be permitted to intervene in an action:
1. When US state confers an conditional rt to intervene, or
2. when applicant’s claim/defense and the main action have a question of law of fact in common
3. The ct will consider whether intervention will unduly delay or prejudice the adjudication of the rts of original parties.
iii. Still need to ask if:
1. smjx → need independent jurisdictional grounds.
2. venue?
3. Pers Jurisdiction
3. Interpleader R. 22 and Statutory Interpleader
i. General: Is used to join persons who have claims against the stakeholder when the stakeholder may be exposed to double or multiple liability if not joined. Also used to avoid depleting the stake → unfair to D’s.
ii. Ask:
1. SMJx? Is there complete diversity (1332) or a fed question(1331)? If yes go to 4.
2. Is there minimal diversity (diversity among at least 2 adverse claimants), amt in contro equal to or exceeding $500, & has $ been deposited to registry of ct? If yes go to 7.
3. If no to both the neither rule nor statutory interpleader can be used.
4. Removal. If you are in state ct, then to use R22 stakeholder must remove under 1441(a) → 1332 jx to fd cts. Go to 6. However if any D (NOT claimant) is resident of forum state then you may not remove (1441b) if jx based on 1332. go to 8.
5. Venue: Now must transfer to forum where the claimants are amenable.
a. If 1332 jx: 1391(a) allows for venue (1) in judicial district where any D’s (claimants?) reside, if all reside in same state, (2) judicial district where substantial part of events occurred or property or (3) where any D is subj to pers jx at time of filing action.
b. If 1331 jx: 1391(b) allows for venue (1) in judicial district where any D’s (claimants?) reside, if all reside in same state, (2) judicial district where substantial part of events occurred or property or (3) where any D is subj to pers jx at time of filing action.
c. See 1391© if a corporation.
d. Transfer 1441(a): transfer if venue is not proper in current forum. Go to 6.
6. RULE 22: used to implead (need smx and venue); RULE 4: is for service of process using long arm statute of state for Pers jx. Done if under rule 22. If can’t get pers jx then look at 1335.
7. STATUTORY 1335: file new lawsuit in fed ct using 1335.
a. Venue → 1397: allows for action to be filed in a jud district in which one or more of claimants resides. Go to 8
b. Nationwide Service of Process → 2361. Provides nationwide service of process, so all claimants are amenable to ct’s jx (except foreign nationals)
8. Injunction: 2361 allows for all collateral proceeding to be enjoined iot prevent inconsistent judgements → get injunction to stay state ct proceedings. Keep in mind what the scope of the injunction is Go to 8.
9. Take judgement back to state ct and file motion for summary judgment based on res judicata of interpleader action.
iii. Rule 22 vs Statutory 1335
1. Rule 22 and 1335 and complementary. Rule 22 is in addition to and does not supercede 1335.
2. If have a prob getting pers jx under rule 22:
a. may look to 1335, OR
b. go for the 1404(a) transfer (pg 30 cn)
3. If have a foreign national may get service of process through rule 4 bc 2361 provides only for nationwide and does not extend to other countries.
a. NOTE: If using 1335 and have foreign national, can use Rule 4k/LAS vice 2361 to get service of process.
b. Also: if using 1335 and all claimants are of same state look at transfer under 1404???
iv. As a D’s tool:
1. look at interpleader more fm the D perspective bc is more likely to be used by D
2. See spiral 18 Mar 02
|INTER- |Rule → 22 |Statutory → 1335 |
|PLEADER | | |
|SMJ |General SMJ statutes (1330, 1331, 1332, 1345 (US as |28 USC 1335 NOTE: amt in controversy requirement of |
| |P)). NOTE: under 1332 need “complete” diversity per|$500 and the “minimal” diversity requirement. Minimal|
| |the Strawbridge rule btwn adverse parties (verify |diversity is diversity btwn 2 or more of the adverse |
| |adverse parties btwn P’s and D’s) and need $75K amt |Claimants. Do not look at the citizenship of the |
| |in controv. The citizenship of the stakeholder is |stakeholder. |
| |important | |
|Pers Jx |FRCP 4 (k) → Service of Process for pers jx |28 USC § 2361 Nationwide service of process for |
| |determined by reach of states long arm statute. Long|Interpleader under 1335 only. No ruling yet as to |
| |arm statute of the state which means can access |whether this applies to foreign nationals. If see |
| |foreign nationals (??) |this issue then nothing prevents you fm using rule 4k |
| | |and est min contacts with the foreign claimant. After|
| | |4K analyis need to bounce back to 1397 for venue. |
|Venue |28 USC § 1391(a) and (b) NOTE: this is a broader |28 USC § 1397 Interpleader venue Note: “may be |
| |statute than 1397 in that you can also bring the |brought in the judicial district in which one or more |
| |action i |of the claimants reside.” |
|Injunctions |28 USC § 2283 (allows a very limited authority for |28 USC § 2361 empowers the ct to enjoin collateral |
| |injunctive relief) |proceedings elsewhere. |
4. Class Actions. R 23 → not on exam!!
THE PRETRIAL STAGE
A. Disclosure of Evidence
1. Mechanics of Discovery: Principal justification of discovery is to enable the parties to obtain a more informed picture of facts of case than they could by reliance on their own unaided initiative. It is run automatically with oversight by the ct. An additional function is that it promotes settlements bc lets parties see what the value of their case is. Also, it allows parties to dispose of info before trial.
i. Scope of Discovery: Provided for in R 26(b)(1). The scope of discovery is very broad. The rule provides a party may obtain discovery concerning “any matter, not privileged, which is relevant to the subj matter involved in the pending action.”
1. There are exceptions for attny work product and for attny-client privileges. If claiming a privilege, 26(b)(5) says must be made expressly and describe info to be withheld in a manner that will enable other parties to assess applicability of the privilege.
2. NOTE: material is discoverable even if not admissible at trial (26(b)(1) pg 903)
3. Discovery fm sources abroad:
a. The Hague Convention on Taking of Evidence Abroad contains elaborate procedural provisions and specification of the permitted scope of discovery.
4. Discovery orders are not final judgments and hence ordinarily are not appealable.
ii. Informal Discovery. Much discovery takes place b4 lawsuit is files iot attny to determine strength of case/settlement options in deciding whether or not to file.
1. FRCP 11 says some informal discovery must take place b4 a complaint is filed.
2. Includes interviews conducted by a lawyer, by an investigator employed by lawyer’s office, or by a licensed private investigator; review of doc’s held by various people or property that is the subj of the suit.
iii. Rule 26 → General Provisions of Discovery
1. Required Disclosures 26(a)(1) → Initial disclosures (made w/I 10 days of the mettign of parties → see pg 913). A Party must produce these things unless otherwise stipulate or directed by order, to the other party without awaiting a discovery request. Watch out for those exempted by 26(a)(1)(E)
2. 26(a)(2) → Disclosure of Expert Testimony (pg 965):
a. Three types of experts that can be used that may or may not be discoverable. See 26(b)4 and Rule 35(b)
i. Expert at Trial (discoverable see below)
ii. Expert used to prepare for trial (may be discoverable) If “retained or specially employed” in anticipation of litigation or in prep for trial, but are not expected to be called as a witness is discoverable only if there are “exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subj by other means.” 26(b)(4)(B).
iii. Expert informally consulted (not discoverable) → neither the name nor experts infor or opinions may be discovered (this is not in the rules but is in caselaw)
b. 26(a)(2)A → Expert to be used at trial shall be disclosed to other party
i. The disclosure of expert must be accompanied by a written report that is signed by a witness per ct ordered discovery sked nlt 90 days prior to trial.
1. Expert may be deposed but only after the other party has received the report.
2. The other party, if uses deposition iso own case, must pay a fair portion of fees.
3. 26© Protective orders: the ct in district where depo to be taken may make any order which justice requires to protect a party or person for annoyance, embarrassment, oppression, or undue burden or expense, etc.
iv. Privileges/Exceptions to discovery. Protects disclosure of communications not disclosure of facts.
1. Attorney Work Product: Hickman and Rule 26(b)(3) and (5).
a. A party may not obtain in discovery material “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including other party’s attny, consultant, surety etc unless
i. Has substantial need of the materials in the preparation of the party’s case
ii. And the party is unable without undue hardship to obtain the substantial equivalent
b. Factors to consider:
i. Is the information prep’d by an attorney or an agent of the corporation?
ii. Is a lawsuit pending”
iii. Was the info prep’d iot avoid litigation rather than prep for a suit?
iv. Was the information compiled b4 dispute arose?
c. “Ordinary” work product can be discovered upon moving party’s showing of sub need and undue hardship.
d. “Opinion” work product remains entitled to protection no matter what hardship or need is proven. Rule 26(b)(3) explicitly restricts discovery to docs and tangible things. Rule 26(b)(3) defines what opinion work product includes:
i. Memo’s briefs, comms, and other writings prep’d by counsel for his own use in trying client’s case.
ii. Writings which reflect an attny’s mental impressions, conclusions, or legal theories.
iii. A report which is not the product of the attny or of his agents or empls is NOT attny work product.
2. Attorney Client Privilege: Protects only the communications btwn the lawyer and the client themselves from discovery.
a. Privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.
b. The privilege does not protect a party fm responding to discovery of facts about the case just bc those facts have been told to an attny.
c. In a suit where a corporation is named a party, a company employee who communicates with the company attorney can be considered “the company” and thus the client and comms will be privileged bc need to be able to predict with reasonable certainty that comms will be privileged.
d. Is effective even after death.
i. Exception: is testamentary stuff. Assume that trying to meet client’s intent by allowing the exception to apply.
ii. Post-humous disclosure may be just as impacting to attny client comms as disclosure during lifetime. (embarrassment to family, reputation, civil liability etc)
iii. Watch out if client confesses to murder on deathbed. Majority of cts say the privilege survives death in these cases.
v. Tools of Discovery: Three tools of discovery: Depositions, Interrogatories, and Production of Documents.
1. Depositions: Governed by FRCP 30, 31, 32 and limited to only 10 then have to get pergra fm ct. Is a formal questioning of a potential witness under oath conducted by a lawyer. Subj to perjury rules. May be taken of witnesses and doesn’t matter if is a party or not. Can do via audio or video tape. Is a very expensive process. Use this tool strategically (see pg 906)
2. Interrogatories: Governed by R 33 Interrogatories to Parties. W/o leave of ct or written stips, any party may serve upon the other written interrogatories nte 25. It is a written question sent to a party that must be answered under oath and in writing (can only be sent to parties) Answers are provided under oath and may be used at trial to extent permitted by FRE.
3. Production of Documents. R 34 Are usually sought fm parties by if necessary can be obtained by subpoena fm non parties. No presumptive upper limit on amt or physical things request.
vi. Physical and Mental Examinations: Rule 35
1. General: When the physical or mental state of a party is in issue, an opposing party may request an examination by a qualified expert. Some jx’s the party seeking the exam choses the expert in other jx is the ct.
2. Rule 35: CAN ONLY BE ORDERED FOR GOOD CAUSE.
a. P put mental state at issue and the mental or phys condition of a party is in controversy (Vinson case which differs fm Schleagehouf (pg 958) bc was the D not the P that put mental and phys condition “at issue”
b. If P puts mental condition “at issue” waives rt to privacy somewhat wrt that specific issue in the case.
c. Can only be ordered against a party.
d. Exam report must be provided to other party and to person examined.
3. See Rule 35(b) and 26(b)4(b) wrt experts.
4. Daubert Rule → re the use of scientific experts. Rule permits testimony of qualified experts, whether or not the specific conclusions of the expert are generally accepted by the scientifically community. THUS: is up to opposing to come up with an expert that is accepted by the scientific community.
vii. Sanctions and Protective Orders.
1. Contained in Rule 26 (see above) and Sanctions are in Rule 37.
2. Rule 37 Sanctions:
a. If don’t comply with discovery then will be sanctioned.
b. May have to pay attny fees, be put in jail, or even worse, case may be dismissed.
i. If dismissed is a dismissal on the merits and has RJ effect.
TRIAL
A. Summary Judgment. R. 56
1. Per Blacks. A request that the court enter a judgment without a trial bc there is no genuine issue of material fact to be decided by the fact finder – that is bc the evidence is legally insufficient to support a verdict in the nonmovant’s favor.
2. Burden of Proof (pg 1046): SJ seeks to establish that the non-moving party lacks sufficient evidence to meet his “BOP”
i. Burden of Persuasion: Burden of convincing the trier of fact (Judge or Jury) of the accuracy of factual claims.
ii. Burden of Production: Burden of Producing evidence → Does a party have enough evidence to go to trial in the first place…THIS IS WHAT SUMMARY JUDGMENT DEALS WITH!!
3. Burden Shifting:
i. P has initial burden of pleading and must effectively plead a claim.
1. D will challenge sufficiency of this claim using 12(b)(6)
ii. If P meets this challenge, then the burden shifts to D .
iii. If D effectively denied in his pleading (he creates an issue), now the burden shifts back to P. Is now the burden of PRODUCTION.
iv. As P now has the burden of production, P must come forth with evidence sufficient to support a verdict in its favor.
v. If P meets its burden of production then shifts back to the D to meet burden of production. Then it becomes the burden of Persuasion.
4. SUMMARY JUDGMENT: Is done BEFORE trial!
i. Think of it in terms of getting an issue out of the wy w/out trial. Based on the idea that there in no material issues of fact for jury to determine.
ii. Either P or D may move for SJ If P does nothing with the motion for summary judgment → ie put forth affidavits to say other wise, then will lose the motion.
iii. If the motion for SJ addresses all issue and include evidentiary support for the moving party, then non-moving party must come forth with evidence in opposition.
iv. If can’t come forth with something in opposition, then is probably true that no remaining issues of material fact.
v. You may not rest on allegations of the complaint. Must affirmatively address the issues that have been covered in the motion for the SJ. See Rule 56(e).
vi. The motion for summary judgment has not successfully addressed EVERY issue of material fact therefore it must go to the jury.
vii. When the P moves for summary judment it must show that at trial it can satisfy its burden of production. The P moves of the basis of the strength of its case. If D presents evidence that controverts the P, then will be an issue of genuine of fact thus is for the jury to conclude.
5. Adickes Holding: TO WIN in motion for SJ, moving party must produce evidence to eliminate the inference that there are genuine material issues of fact. The moving Party has the burden of production to show the ABSENCE of evidence (ie thru affidavits etc), and once does then the burden of production shifts to non-moving party to provide evidence.
6. Celotix Holding. The D’s in this case did not submit any affidavits of own to show P was NOT a person entitled to win on claim. When dealing with motion for SJ the D does not need to produce evidence…Rule 56e says there is no requirement to come forward with affidavits. Could a P ever more for SJ in this fashion? Keep in mind the burdens. P has initial burden of pleading → if satisfied then shifts to D who has to address the allegations in the complaint. If D meets burden then it shifts back to P. This is called the burden of production. So, could a P ever move for SJ in a way that D in Celotix did? NO!
7. BOTTOM LINE: So D can move to eliminate the inference by negating the evidence OR it can move on the weakness of the P’s case. If P is capable to do no more that it can do right now, then can on the basis of the evid given by P it would have to direct a verdict for the D, then should grant SJ. If P can’t satisfy the initial burden of pleading then the burden never shifts to D.
8. NOTE: the court will construe all evidence in favor of the NON moving party.
9. Purpose: If there is no way the other side can meet his burden of production, then the case is over – it should be tossed, and room made for cases that can be tried.
10. Who Uses? D at any time – it’s primarily his rule; however, P can use (more rare) but he has to wait at least 20 days until after the commencement of the action.
11. SUMMARY JUDGEMENT vs 12(B)6 MOTION:
i. 12(b)(6) deals with the legal issue → a matter of law.
ii. Summary Judgment (Rule 56) and Judgment as a Matter of Law deal with factual issues for the jury:
1. Sufficiency of evidence: What is sufficient?
a. A “mere scintilla” of evidence is not enough. If it’s a close call it goes to the jury.
2. If is a SJ in a libel suit, standard is “convincing clarity” pg 1048
b. Weird one: USC 1292 Deals with interlocutory decisions.
B. Judgment as a Matter of Law R. 50 → done in 3 stages (after P evidence, after all evidence,
a. Judgment as a Matter of Law (Directed Vedict) Rule 50(a): When the evidence that has been received, viewed in the light most favorable to non-movant, permits but one reasonable inference, in favor of movant.
i. Timing: done when the P rests (by D) or at the close of all the evidence (by P or by D).
ii. Preserving the rt to move for JMAL: there is no requirement that the D move for a directed verdict at the close of the P’s case iot preserve the rt to do so at the close of all the evidence. However, a party may only move for JNOV if he made a motion for a directed verdict during the trial (Rule 50b)
b. JNOV. Judgement Notwithstanding the Verdict. (50b). Same as JMAL, it’s just done after the verdict has been received.
i. Standard is whether the evidence is insufficient to support the verdict; it is not whether it is against the great weight of the evidence (Rule 59).
ii. Rule 50(b) requires that a motion for directed verdict b4 the case goes to the jury iot preserve the rt to make the motion for JNOV after the verdict.
1. Moving party may move for JNOV (nlt 10 days after entry of judgment) and in the alternative may request a new trial or join a motion for a new trial under Rule 59.
2. In ruling on a renewed motion ct may:
a. If verdict was returned
i. Allow judgment to stand
ii. Order a new trial, or
iii. Direct entry of judgment as a matter of law OR
b. If no verdict was returned:
i. Order new trial, or
ii. Direct entry of judgment as a matter of law.
C. NEW TRIALS; AMENDMENT OF JUDGMENTS → RULE 59.
a. Standard: if the verdict comes in against the great weight of the evidence → judge may grant a new trial.
i. Rule 59 does not require a prior motion for a directed verdict or for a new trial iot move for a new trial on the ground that the verdict is against the great wt of the evidence.
ii. Parties may not appeal the grant of a new trial until after the new trial is held bc a new trial is not considers a final judgment.
iii. Parties may join motions for JNOV and new trials. Most D’s will move for JNOV and alternatively move for a new trial.
D. RIGHT TO TRIAL BY JURY”
a. The right to trial by jury is ensured under the 7th Amendment only in actions at law and not actions in equity.
i. In any action of mixed legal and equitable claims, the legal issues will be sent to the jury first, and after the legal issues are decided, the court will rule on the equitable remedies if any still exist.
1. The ct will make individual decisions on a case per case basis re whether or not an action for declaratory relief is an action at law or an action in equity.
2. Three part test: the legal nature of an issue is determined by considering:
a. How the common law has traditionally classified the issue: if Eng cts classified as equitable the issue is more likely to be considered equitable and vice versa.
b. The remedy sought: if money is sought it is probably legal; if an injunction or specific performance is sought, then it is probably equitable.
c. Look at the nature of the claim.
d. The practical abilities and limitations of the juries. (Ross v. Bernhard pg 1081)
b. Beacon Theatres:
i. The ct holds that a DJ is a legal remedy for purposes of the 7th Amendment if the underlying is issues action are legal in nature.
ii. The ct holds that in a suit where a factual determination relevant to both legal and equitable issues, the determinations must be made by the jury.
c. Dairy Queen:
i. Ct found that the claim for an accounting was a legal rather than an equitable issue for purposes of 7th Amendment.
1. While accounting was traditionally an equitable proceeding it was really an action for “debt” or “damages”
2. Reaffirms the issue that the jury is required to decide all common factual issues.
d. Issue Preclusion:
i. Both Beacon and Dairy Queen were concerned with the preclusive effect of the judge’s factual determinations.
e. Declaratory Judgment Act:
i. 2201
ii. 2202
1. has preclusive effect.
iii. Ask in anyone has a controversy…becomes an issue with cases of mixed law. Thus in cases of mixed law the legal issues should be tried first by a jury and the court will decide if injunctive relief.
See notes on anti-dumping statutes case.
Random notes to keep track of:
→ An amended complaint supercedes and replaces the prior complaint (see Dioguardi case)
→ Rule 8a and the Conley v. Gibson standard pg645 “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief”.
→ smj dismissals are not judgments “on the merits” and have not RJ consequence in later litigation
→ a dismissal for want of diversity jx can never be RJ.
→ failure to grant leave to amend at least once is almost invariably held an abuse of discretion (pg 647)
→ preserving defenses under 12(h) and 12(g) pg 654
→ Relation Backs and Statute of Limitations – state v fed. (22 on notes)
→ Rule 82: Rules shall not be construed to extend or limit the jx of the US DC or the venue of actions therein (pg 133 of rules bk)
→ when think of FRCP keep jx and venue out of the picture. Jx and venue are provided by the 28 USC statutes → 1331, 32, 35, 67, 91 1404 etc.
→ watch out for jx issues when it comes to permissive counterclaims under rule 13.
→ can when does P stop uses rule 18?
→ WRT supplemental Jx ask: Is dismissal of the fed claim fatal to the state coa.
→ where do we put in Declaratory Judgment? Rule 57 and § 2201? What about 2202? Note the 2202 give 2201 res jud effect also 2201 is not jurisdictional it is an alternative remedy.
→ what is interlocutory – wrt Summary judment and Ct of appeals process?
Exam Notes
A. Joinder of Claims
1. Multiple Claims in the Complaint
• 18(a) P may bring all suits against a D in a single trial related or not
• 13(b) D may file a permissive counterclaim unrelated to c/a against a P
• 13(g) Party may cross-claim if it arises out of the original transaction
• 14(a) a third-party D may claim against the P and the P against the third party
• 15- a party can amend pleading anytime before answer or if no answer is required within 20 days of being served. Relation back 15 c as long as same transaction or occurrence.
• 20(a) allows joinder of parties related to transaction
• 19 compulsory and permissive joinder of persons needed for adjudication
• 1367 operates under same nucleus of operative fact
Judgmetn without Trial
• Judgement on the pleadings: Rule 12(c) made once pleadings are in. Its purpose is to challenge sufficiency of the pleadings.
• Summary Judgment: Rule 56(c) when there is no genuine issue of fact, the moving party is entitled to an SJ as a matter of law
• Voluntary Dismissal: Rule 41(a) where a P is allowed to dismiss once without prejudice if filed before answer. After answer, only a court order will provide dismissal
• Involuntary Dismissal: Rule 41(b) where the P has failed to comply with rules or orders.
Judgements during Trial
• Default Judgement (Rule 55) – no answer
• Judgement as a matter of law (directed Verdict) (Rule 50) – insufficiency of evidence
• Summary Judgement (rule 5) – No genuine issue of fact
• New Trial (rule 59) – Against the great weight of evidence
Defenses that are waived under 12 h - if not made at first opportuniy
1. lack of personal jurisciton
2. improper venue
3. insufficieny ofprocees
4. insufficenty of service
Alternatives to Litigation
Settlement
Mediation
Arbitration
Motion for Judgment on the Pleadings
Rule 12 – Defenses and Objections
-12b1 – lack of SMJ may be raised at any time, even on appeal
-12b6 – may be raised any time before the close of trial
-12b7 may be raised any time before the close of trial
12b2-5 are waived if:
-they aren’t raisedin a motion to dismiss (if one is filed) or in a responsive pleading (if a motion to dismiss isn’t filed); or
-they aren’t raised by amending a responsive pleading as a matter of course [under Rule 15(a), this means prior to the other party’s filing any further responsive pleading or w/in 20 days, if no further pleading is permitted]
Rule 13
-generally, these are waived if they aren’t raised during the pleading stage
-Distinction btwn a 12b(6) motion to dismiss and a 12c motion for judgment on the pleadings:
-Timing
-12b6 motion typically filed by D before he answers P’s complaint (although it can come at the close of the pleadings)
-12c motion is filed at the close of the pleadings and is decided on all the pleadings. It can be filed by P or D
-if a party attaches some documents to the motion, the 12c (judgment on pleadings only) turns into a motion for summary judgment Rule 56 (judgment on pleadings and facts)
-when this happens, the other party must be given the opportunity to submit affidavits, depositions, etc. opposing the motion
-Distinction btwn 12b6 and motion for summary judgment
-the difference is that one assumes the best statement of the party’s facts as alleged in the pleading and applies the law to see if any relief can be granted (Rule 12b6), while the other (summary judgment under Rule 56) considers facts presented by both sides to see if there is any factual issue requiring disposition at trial
-a summary judgment motion turns on whether there are, in fact, material issues in dispute. As a result, it is determined on affidavits and other relevant documents, not just the pleadings themselves
-a motion to dismiss for failure to state a claim addresses only a party’s pleadings. He may have a legit claim, but he’s got to state in his pleadings under a legal theory requiring relief
-12e – motion for more definite statement
-12f – motion to strike
Timing
Standard
When Used
Discovery- Rule 26
I. Standard for Dicovery= “reasonably clauculated to lead to discovery of admissible evidence”
1. Discovery of assents is only allowed if seeking punitives
2. Discoery is to be had of any matter not privileged that it relevant to the claim or defense of a party.
II. Timing of Discovery
26f – Discovery Conference - requires parties to meet and discuss discovery plan as soon as is practiacable.
26f Mandatory Disclosures ⋄ must be made w/in 14 days of discovery conference
Duty to update- you have a duty to update claims if it matterally hnages he claim. ⋄ Ruel 37 sanctions if they do not dislose.
Experts: the disclosures must be made within 90 days before trial, if only uses to rebut other testimony it must be made within 30 days of the dislcosrue of the evidence being rebutted
Pretrial Disclousres – 30 days before trial must dislcoe sand file with the court ⋄ at this time the other side has 14 days to raise objections to this evidence then it is waived unless can be objected at trial
III. Qwork Product is docverabel only upon shing a substantial need and to avoid undue hardship. -⋄ the court must secure against dislousres of mental imprssions opinions and conclusions.
Protective orders – rule 26c – limtii the nature and scope of discovery.
Rule 26 – Discovery – all non-privileged info leading to admissible evidence is discoverable
-Things not discoverable
-trial tactics
-work product – including opinions of non-testifying experts (qualified immunity)
-privileged info – complete immunity
-info not relevant to the litigation (i.e. facts sought merely to harass or embarrass opponent)
-Mandatory disclosure – 26a reqs automatic disclosure of certain basic info about the action
-Initial disclosure must be made w/in 10 days of a mandatory discovery meeting btwn the parties 26a(1)
-discovery meeting must be “as soon as practicable but in no event later than 14 days before a scheduling conference” 26f
-Four basic things to be included in initial discovery
-name, address and phone numbers of witnesses likely to have knowledge about disputed facts;
-copy or at least a description by category and location of documents and tangible things relevant to the disputed facts;
-a computation of damages claimed by the disclosing party, complete w/ back-up info and documents that aren’t privileged, and
-a copy of, or the right to inspect, any insurance policy that may help pay a judgment in the case
-A list of experts that will testify must also be provided at least 90 days prior to trial 26a(2)(c)
-a non-testifying expert can almost never be deposed
-except if “it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means” 26b(4)(B) (i.e. when the other side has hired all the experts already or the subject of the expert opinion is unavailable for examination, but the opposing expert has examined it)
-Pretrial disclosure – must occur at least 30 days prior to trial 26a(3)
-All material subject to disclosure must be updated at “appropriate intervals” if the correct info has not “otherwise been made available during the discovery process or in writing” 26e(1)
-D’s financial resources discoverable in 3 circumstances
-when punitive damages are sought by P
-when there is insurance coverage 26b(2)
-in suits for fraud
-Good cause must be shown by the party seeking the protective order 26c; such causes include
-invasion of privacy
-protection of business or trade secrets
-unnecessary inconvenience of place chosen for deposition
-unreasonable conduct of deposition (harassing, embarrassing)
-deposition not necessary
-burdensome interrogatories
-Protective order need not be sought in advance of deposition or interrogatory – Rule 37a
Rule 35 – Physical and Mental examination
-b/c of the intrusiveness of this discovery method, the court will req a showing of good cause before issuing an order for physical or mental evaluation
-good cause reqs a showing that the info can’t be acquired in any other way and that the mental or physical condition of the person to be examined is in controversy
Party Intiated Discovery? Discovery Methods
Depotiions – Rule 30
1. Single day
2. No more than seven hours
3. has to be within 100 miles of home or business
4. anserr with personal knowledge
5. protective orders can keep them from answering questions but must show why it is embarrassing
6. Attorney mau have no more than 10 depositons
7. Attoeny may only depose a witness once (unless leave of court or partiies consent)
8. depositions can be used in lieu of testimony when a witness cannot appear in court – dead, 100 miles, too odl
9. It can also be used to impeach any witness.
Interrogatoreis – FRCP 33
1. 25 questions
2. Can only compel parties to do it, may ask anyone to do it.
3. 30 days to answer
4. there is a duty to investigate – they are liable for any information available to them
5. may be asked to give opinions even on the application of law to fact.
Physical and Mental Examinations – rule 35
1. only availiablel if ordered by the court upon shoing good cause.
2. person examined may ask for a report on finding
3. Fi she takes a deposition fo the doctor then she waives all privilege.
Motion to compel – rule 37
1. must show that the other party has made a good attempt to obtain discovery.
2. May impose various sanctions liste din ruel 37
3. Imemdiate sanctions- can be had without amotion to compel for fialing to show up tot deposition or answer andy interrogatories
4. Automatic Santions – can be imposed when a perty without substantial jusitifaciton failes to disclose information as required by rule 26.
Limties on Discover
Work Product - documents prepared in anticipation of litigation – can get them but must show
1. Substantial need
2. cannot be obtained from other source. – undue hardship
3. this applies to any person working as a representative for the party.
Discovery Abuse: When you sign any form of discovery you are saying that you have conducted reasonably inquiry and to the best of your knowledge the information is accurate and complete
Order compelling discovery : if not cooperative you can get an order to compel discovery --. If they do nto cooperate then you can impose sanctions under 37 (2) -⋄ there is a proportionality requirement .
Priveleges
Resolution Before the Trail
Settlement –often they contain a confidentiality clause, but the clause can be overridden if subpoenaed in another court.
Default – If D has appeared he must be given notice of the pending default judgment 3 days prior to the judgment.
Sumamry Judgement rule 56 = resolve the case before the trial--. Look to evidence not just pleadings.
1. Standard = no genuine question of material fact.
a. You want to see who has the burden of production
b. D can move for summary judgment at any time but must be 10 days before trial
c. P can file for summary judgment 20 days after commencement and 10 days before trial.
d. The basketball player whose family was suing because the agent didn’t’ get lfie insurance. Agent said couldn’t get it and gave evidence that he did drugs so nobody would give him a plocu. Plaitniff’s failed to dispute this so D won summary judgment.
e. Summary Judgment is treated like a judgmenet on the merits.
f. If anything is used outside of the pleadings it si amotion for summary judgement
g. Affidavits depotions, interrogatories, etc are submitted with motion for SJ.
h. If the other side has one affidavit opposing then summary judgement cannot be greatned
i. If affidavits are made in bad fiath ⋄ contempt or make them pay for attornies fees.
Determing the Trier, 38
Seventh amendment- preserves it does not create the right
Two part test to see whether a person has the right to demand a jury trial
1. look to see if there is a historical analogue right on point
2. Analyze the nature of the remedy sought to see whether it is equitable or legal in nature.
3. The look at some cases which statutes specidically provide should be tried by a judge such as the Markman case which was a complicated patent case.
Deamdn a jury trial – FRCP 38 b- either party may demand a jury trial within ten days after the service of the last pleading. Must be a written demand filed with the court and with the parties, failure to do this results in a waiver of this right.
FRCP 48: No fewer than six no more than twelve
Bother Legal and Equtiabel- When there is algal and equitable claim the legal claim should first be treid byt eh jury and then the equitable claim by the court. The juries findings of facts are binding on the court. If damages are claims as part of an action seeking an injunction ⋄ the defendant cannot be denied a jruy rail on the damages uses on the grounds that they are incidental to his relief.
Jury = Legal
1. damages
2. replevin
3. ejectment
Judge = Equitable
1. injunctions
2. specific performance
3. recision fo a contract
4. “resituion damages “
5. the relief at law is inadequate.
6.
Equity v Legal ( judge v Jury)
Jury Selection- Rule 1865
Jury pool – 1862 – Discrimination not permitted on race, color religion, national origin or economic status.
163- how select jurors at random
Vior Dire
1. each party has unlimited challenges for cause
a. personal relationship
b. employed by
c. strong disposition towards one side
2. Preemtory challenges – each party has 3 preemptroy challenged that he can use for any purpose.
a. May not be based on race or gender- but almost any explanation will do⋄ need only provide a rational basis for the exlusion
b. Must show a pattern of exclusions-
Exlcuding Jurors
Judges – 144, 455
144. you can file a motion to remove judge for personal bias not less than 10 days before the beginning of the term . .. you msut allege the facts and reasons that you believe the prejudice exists.
455- disqualifying a justice or magistrate
a. a judge shall disqualify himself when his impartiality might reasonably be questioned.
b. – grounds for recussal - a judge shall disqualify himself where he has a particular relationship of financial interest.
In re Bosttons’ children – judge had should have recused himself because the public could believe that a prejudice exsited.
Disqualifying judges
Judgment as a Matter of Law- Rule 50
“ No legally sufficnet evidentiary basis for a reasonable jury to find for that party on that issue” ⋄ the party msut be fully heard on the issue.
When available
1. At any time before the case is submitted to the jury, but the pary must be fully heard on the issue. (Directed Verdict)
2. After the jury returns a verdict (judgment notwithstanding the Verdict)
a. this mst be filed 10 days after the vercit- you cannot amend this time period.
b. It is a renewal of the motion for a directed verdict⋄ so you only have the privilege of fileing for this if you first filed for a Judgmenet as a matter of law prior to jury findings.
3. The moving aprty msut specidy the judge,mnet sought and the law and the facts which which it is entitled to judgment.
This is different from summary judgment ( no issue of material fact) because it allows the judge to weigh the evidence. There can be a little evidence on the other side but overwhelming evidence on one side.
-summary judgment – no genuine issue of material fact must exist
-DV - no reasonable jury can decide any other way
-JNOV – no reasonable jury could decide as the jury did
Penn RR v Chamnerlain⋄ there was an eyewiness who was 800 feet way. JML was appropriate because there was overwhelming evidence in favor of other party.
-a verdict may be directed against a party if there’s no reasonable evidence to support a finding in his favor on any issue for which he bears the burden of production
-for DV the judge must view all the evidence in the light most favorable to the non-moving party
-Rulings on directed verdicts are appealable immediately if the motion is granted, if not granted, then the decision is interlocutory (i.e. not final) and therefore not appealable until there is a judgment on the merits
-in order to make a motion for JNOV, the moving party must have previously moved for a directed verdict (note: only the D can make a motion for DV at the close of P’s evidence, but both parties can make the motion once all the evidence has been submitted)
-A ruling on a motion for JNOV is immediately appealable
-if it’s granted it’s a final judgment and therefore appealable
-if it’s denied, the court proceeds to enter judgment on the jury’s verdict – the judgment is then final so the appellate court can review the court’s decision on the JNOV
New Trials FRCP 50, 59
3 times when there court will grant a motion for a new trial
1.Procedural Defects – there was a serious procedural error during the trail
1. party must show that the error prejudiced him and possibly changed the outcome of the case
2. The verdict was excessive
2. conditional new trials-⋄ give winner of changing the award or going to new trial (remitter)
3. Judgment as a matter of law – the jury clearly reached the wrong verdict
1. standard “the verdict is against the great weight of evidence”
2. The court ahs to rule on this if it rules on JNOV--. This si amcuh easier standard than the no reasonable jury could reach the conclusion.
3. Msut be filed 10 days after judgement
Claim Preclusion- Rule 13
3 standards
1. same transaction or occurrence
2. same evidence
3. same primary right test
You need
1. a finald judgement on the merits
i. On the merits
1. actual litigastion
2. default judgment
3. involuntarly dismissal (failure to state a claim)
ii. Not on the merits
1. lack of jurisdiction
2. improper venue
3. failure to join an indespendible party.
4. 41 b does not indicate which judgements are ont eh merits for a particual state so jx may take different views on which judgment are on the merits and you must look to the jx where the original claim was filed.
2. same claim in a later lawsuit.
3. same claimants and defednats
as long as there was an aswer filed rule 13 trumps.
1. Effect of Adjudication of Cause of Action – Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by claim preclusion from asserting any claims or defenses that arise out of the “same transaction or occurrence or series of transactiosn or occurrences”.
2. Requirements for Merger and Bar – It must be shown that the earlier judgment is
a. 1. Final Judgment on the Merits--⋄ Judgment on the Merits _ Any involuntary dismissal except those based on jurisdiction or venue (or unless the court in the previous action entered the judgment “without prejudice”) is considered a judgment on the merits. Thus, a default judgment may carry res judicata consequences. This is not true for collaterol estoppel (issue preclusion), in which actual litigation is the prior case of a particular issue is required.
i. Ruel 41 :
1. 12b6 dismissals are dismisslas on the merits
2. 41b : semtek⋄ dismisslas may only apply int eh Federal court that issued the dismissal. In other courts the preclusive effect of the dismissal will be govered by the law od the state where the federal court issued the order sits. So look to whether that state would preclude that type of claim….
b. 3. from the same cause of action or claim that is involved in the later lawsuit.
3. Party ⋄ in order for claim preclusion to apply you must be a party or a party in privity of a party in the first case
a. Prvity = when parties have the same legal right. When one party is the legal representative of the other party or where parties have a mutal or successive interest.
b. Searle Brothers⋄ divorce case where court rueld dad ad sons were nto in privity because two different legal rights one divorce setlltement the other a property dispute.
1. Res Judicata
a. Elements – requisites for a finding of res judicata
i. There must be a final judgment
ii. The judgment must be “on the merits”
iii. The claims must be the same in the first and second suits
iv. The parties in the second action must be the same as those in the first
1. Or have been represented by a party to the prior action
b. Doctrine of merger – claim extinguished and replaced by the judgment
i. Once the judgment is entered, a suit could be brought to enforce that judgment if necessary, but no further suit could be brought on the extinguished claim
c. “Same claim” requirement
i. essentially the same requirement as the “transaction or occurrence” test used for federal joinder rules
1. a party who has asserted a right to relief arising out of a particular transaction or occurrence must join all claims they have arising from it, or the omitted claims will be barred by res judicata
2. preclusion turns on the right to join the claim in the original action, no on whether the claim actually was asserted; claim only needs to have been available in the first suit, not litigated
ii. the rights of different Ps to relief arising out of a single incident are not considered one “claim’ simply b/c they arise out of one transaction or occurrence
1. every potential P who suffers an injury from a transaction or occurrence has a distinct claim for res judicata purposes
d. Judgment “On the Merits” – a full opportunity for trial followed by a verdict and judgment
i. Some dismissals do not bar a second action b/c the court never reached the merits on the first action, i.e. in dismissals for lack of PJ or improper venue
ii. However, some rules that preempt verdict have res judicata effects, i.e. 12b(6) dismissals
iii. Res judicata can apply even if the decision was wrong
1. If the party feels the decision was wrong, they should appeal instead of trying to relitigate a second action
e. Final Judgment
i. Even after there is a final judgment, res judicata must be pleaded as an affirmative defense by the party asserting that the second action is barred
1. If it is not pleaded, the case may go forward
Non-Mutual Collateral Estoppel – 2 Types
-offensive non-mutual collateral estoppel
-factors to examine in determining whether a P can use this:
-did the first loser have a “full and fair” opportunity to litigate?
-did he actually litigate?
-did he have the incentive to litigate (considering the size of the first claim)?
-was he in a position reasonably to foresee subsequent litigation on the same issue?
-could the new party (stranger, P in offensive cases) have joined in the first action (courts are very sensitive to Ps who take a “wait and see” approach)
-is the federal govt the other party? (if it is, estoppel is virtually never allowed against it)
-defensive non-mutual collateral estoppel
Barring Claims
Barring Defenses
Exceptions to claim
Issue Preclusion
General requirements
1. Same Issue
2. Actually Litigated - dfautl judgments and dismissals do not have issue preclusion effect
3. Actually Decided - The issue had to have been decided, alternate thwories and not able to tell how the jury ruled does not preclude the issue. It is only precluded if it” had to have been decided in a particular way”
a) Illinios Central v Parklane⋄ the guy did not win the first time but we don’t know if that was because he was contributorily negligent or because he did not prove damages. Because we don’t know why or how the jury decided he is not precluded.
1. this could be avoided by a special verdict or a bench trail
4. Necessary to Judgment
5. Same party – issue preclusion can only be asserted against a person who was a party to the first action. ⋄ due process requires this.
4. Nonmutual Offensive use is ok UNLESS ( this is only in some jurisdictions)
a. There are prior incosistent judgments
b. It would have been easy for the party seeking to use nonmutail offensive use to join the prior action (piggybacking problem)
c. Other reasons making it unfair ⋄ was not enough incentive in first case for D to fully and fairly litigate.
4 part test in Bar bri as to whether or not you can use collateral estoppel
1. issue decide din first case idnentical (all passengers on a bus)
2. Finall judgment on the merits
3. Did the party get a full and fair opportunity to be heard
4. is the posture of the case one in which it would be nto be unfair or inequitable to apply issue preclusion
Parties Benefited and Burdened
Exceptions to Issue Preclusion
1. diffferenc ein burden of persuation. If there is a lower burden of persuasion in the second case, then the issue is not precluded
2. Intervening change int eh law or interpretation of the law
3. Procedureal advantage
4. against public interest – Issue preclusion is not available against the Untied States government.
Full Faith and Credit Act, 1738
Essentaillyt eh Full Fiath and Credit act makes claim and issue preclusion apply accors state lines. So if an action is filed in state court and then the plaintiff tries to take the action to federal court in another JX the fed. Cout must look at whether the claim/issue would have been precluded under the original state laws.
Rule : look first to the law of the jurisdiction that decided the first action to determine whether the claim or issue is precluded.
1. state courts can give a braoder preclusive effect than the original court would have given
2. federal courts MAY NOT give preclusion a borader effect.
3. Full Fiath and Credit is VERY STRICT even if the calim is illegal or violates public policy in the second jurisction .
4. Lack of juriscdiotn⋄ full Fiath and credit act does not apply to cases that were decided with a lack of proper Jx.
a. Durfee v Duke ⋄ issue of jx was litigate din first case about the land under the river.. Then he tried to come and litigate in another state. The court said that the determination was made that personal jx was appropratie in the other state so they were precluded from allowing him to bring his case.
Reopening Judgments- rule 60
1. page 263 of emanuels.
a. New evidence that a diligent search would not have revaled
i. Beggerley- LA purchase case, the new evidence was a matter of public record so it would not be a “grave miscarriage of justice nto to allow the case to be reopened”
b. Farud misconduct
c. Juegement is void
d. Satified
e. Based on an earlier judgmenet that was overturned
f. No longer equitable.
2. Mations made under 60 1,2,3 have a 1 year time limit ( mistake, newly discovered evidence, or fraud)
3. Motions made under 60 4,5,6, must be made within a reasonable time. (misrepresentation, void, or satisfied.
Judicial Estoppel – Prevents a person who has taken a sworn position in one case from taking and incosnidetne position int eh second case.
Law of the case
Permissive Counterclaim- 13b, 18
18 says that a party may join as many claims as he would like. ⋄ but the catch is that you have to have alredy filed a complaint against the party so ruel 18 only applies subsequent to your first complaint.
1. does not use the rational relationship test
2. must have subject matter jx over all claims
3. alternate claims are allowable.
Rule 13 b = permissive Countercliams. Allows a person to bring any claim regardless of realionship
Permissive Counterclaim – any claim against the opposing party which is not compulsory under the Rules
-does not relate to the transaction or occurrence which forms the baiss of the opposing party’s claim
-requires independent SMJ
-if the counterclaim arises from the same “transaction or occurrence” as the main claim, no independent jxn is reqd. If it doesn’t, check for jxnal elements (e.g. complete diversity, amount in controversy req, etc.)
Compulsory Counterclaim- 13a, 18
-Rule 13a – Compulsory Counterclaim – one arising from the same transaction or occurrence as the subject matter of the original claim
1. Logical relationship test – majirty rule for if it meets the same transaction ro cocurence
2. Same Evidence TRest – core facts . signifigant minrotuy
3. issues of laws and facts are generally the same.
-exceptions to the general definition: claims reqing the presence of add’l parties over whom the court has no jxn (13a(1)) and claims which are in rem or quasi in rem
-13a does not need independent jxnal grounds, b/c they’re covered by supplemental jxn
-13a must be raised in the pleadings, or it is unavailable under res judicata
-however, the court may grant him leave to amend his pleading under Rule 13f
-exceptions – compulsory counterclaims that don’t have to be raised and won’t be waived or subject to res judicata:
1) . are the subject of another pending action when the action in question is filed; or
2) has nto arisen
3) would cause third parites to destroy diversity
4) in rem or quasi in rem.
5) are still available to D if P’s original claim is dismissed before D has an opportunity to file his answer
-statute of limitations is tolled when P files their complaint
-majority view is that if the counterclaim arises from the same transaction as P’s original claim, it will not be barred as long as P’s complaint is filed before the statute runs
-however, permissive counter claims would be barred if the counterclaim is made after the SoL has run on the non-related issue
-Significance of distinction – if a 13a is not raised, it’s usually waived; a subsequent suit on the same claim will be barred as res judicata; this is not true of permissive counter claims (13b)
Cross Claim – 13g
Rule 13g – Cross-Claim – claim by a party against another party on the same side of the litigation (a co-party)
-Scope: a cross-claim must relate to the same transaction or occurrence as the original claim or counterclaim or relate to the same property as the original claim or counterclaim
-The test used is whether there is a logical relationship between the cross claim and the original claim or counterclaim, similar to the compulsory counterclaim test
- Never have to file a cross- claim always permissive never compulsory
- Once you do file a cross claim, the party which you filed and you have a duty to raise anything that would be a compulsory counterclaim.
-Relief: the cross-claimant must seek affirmative relief in his crossclaim (i.e. indemnification); he can’t use a crossclaim merely to deny liability
-Supplemental Jxn: crossclaims are covered by supp jxn, so they need not meet independent jxnal reqs-⋄ this is when arising out of same transaction or occurrence. If they file crossclaims that do not arise out of the same transaction or occurrence there must be independent basis for jurisdiction.
-crossclaims do not raise venue issues
** sepearte trials provison 13i- cross and counterclaims may proceed.
Joinder of Parties, 19, 20
Multiple Plaintiffs and Defendants
A. Requirments for parties to join as plaintiffs
1. joint , several, in the alternative
2. same transaction or occurrence
3. common question of law or fact
B. Requirements for parties joined as defendant s
4. joint, severally, or in the alterntavie
5. same transaction or occurrence
Adding parties to Counterclaims or Cross claims
Impleader / Third party claims- Rule 14
14 a Allows the joing of aparty who is or may be liable to theird party plaintiff for all or part of antoehr parties existing claim against the 3PP.
1. don’t need permission of the court if 3PP implead 10 days of filing the origanl answer
2. If later than ten days after serving the original anser you need leave of the court and notice to all parties
3. should make all the counterclaims as rule 12 provides and cross claims as rule 13 applies
4. Any party can move to severe a third party claim or separate trial
5. You cannot use the “its him not me defense”
6. The person who is implead may not already be a party to the action.
7. 4k1b- - creates personal jurisdiction aon nay party under rul1 14 who is served at any place w/in 100 miles of the court that issued the summons.
8. This creates a suit within a suit so if origanl p ciles complaint against impleaded party he has to file any compulsory counterclaims that he may have.
A. Allows D to bring in another person who has not been sued by the P for the purpose of allowing D to file against 3rd Party that might arise out of the same subject matter of the claim filed by P (ex. thinks they have a share in the blame). Addresses problems that do not have an independent basis for jurisdiction (this is why use 1367 to gain jurisdiction so they claims can be heard and all parties that are at fault can be brought in and share blame).
B. 1367 (b) takes away Supplemental Jurisdiction if claim is made under Rule 14 (a) or others, check it to see if it takes Supp Juris given by 1367(a) away!!
Ex. Filed to implead by Plaintiff, not Defendant (cannot do this!!)
-Rule 14 – Impleader – allows a D (or a P against whom a counterclaim is asserted)0 to bring into an action an outsider who is, or may be, liable for all or some of P’s claim against the D
-Four principle circumstances in which impleader is appropriate:
-indemnity – right to indemnification can either be express (a contractual provision in which someone agrees to compensate for the damage cause by someone else) or implied (a person w/o fault is held legally liable for damages caused by another’s fault)
-subrogation – one person’s succession to the rights of another, making him a “subrogee.”
-i.e. insurance co is subrogee when it seeks recovery from the other party
-contribution – joint tortfeasor seeks contribution from his fellow tortfeasor to reflect his/their fair share of the burden
-breach of warranty – violation of a seller’s representation concerning the character of a product
-Procedure – D doesn’t req the courts permission to implead if he files a third-party impleader complaint w/in 10 days after he serves his original answer (after that he needs leave of the court)
-The impleaded third party must answer the third-party complaint
-in his answer, he may raise any defense, including any available to the original cause of action
-Jurisdiction – supplemental jxn covers third-party Ds; however the court still reqs personal jxn over the third-party D
-Impleaded party can take same actions as the original D
-can make a counterclaim against the third party P, can cross claim other Ds (as long as it arises out of the same transaction), can make a claim against the original P or counterclaim against the original P (only if the original P makes a claim against him, and has to arise out of the same transaction), may implead other outside parties liable to him derivatively
-however, the court must still have personal jxn on all the new impleaded outside parties
-all these claims are optional and are not waived for failure to plead them in the instant action
-the only claim by an impleaded party not covered by supp jxn is a permissive counterclaim
-the claim will req independent jxnal grounds (i.e. fed question, diversity and over the $75k)
-P may bring a claim directly against a third-party D only when the claim independently satisfies fed jxnal reqs and relates to the transaction or occurrence of the main claim
Compulsory Joinder- Rule 19 12 h(2)
a. Compulsory Joinder – Persons Needed for Just Adjudication
b. This is usually used as a defense and the Defednants says that it would be unfair to go on without this part
c. It is raised as a 12b7 motion int eh anser
Under Rule 19, a party is needed for just adjudication if
1. complete relief cannot be given to existing parties in her absence
2. disposition in her absence may impair her ability to protect her interest in the controversy or ( must be direct interst and legally protected)
3. her absence would expose existing parties to a substantial risk of double or inconsistent obligations.
d. This can be raised during the pleading sor during trail at any time
Matin v Wilks-⋄
**Must be joined if possible – if needed for adjudication, in amenable to process and her joinder will not destroy diversity –MUST B JOINED if feasible !!
***Where joinder impossible – if not feasible (party not subject to process, venue or destroy diversity) the court must decide whether the action can proceed in the parties absence or dismiss it. The court considers these four factors:
1. Whether the judgment is the parties absence would prejudice her or the other parties
2. Whether the prejudice can be reduced in shaping the judgment
3. Whether a judgment in the party’s absence would be adequate, and
4. Whether the P will be deprived of an adequate remedy if the action is dismissed.
*Cases have shown a preference for dismissal if there is a state forum where all the parties may be joined in practice as well as in theory.
1. if a pary cannto be joined the court weighs the factos in 19b to see if they should proceed with the case.
Two types of joinder of parties
-Rule 19 – compulsory joinder – party must be joined, if possible
-2 types of parties subject to compulsory joinder
-indispensable parties – i.e. patent holder when his licensee is suing a third party for patent infringment
-necessary parties – 2 part standard
-Single transaction – stem from the same transaction or occurrence
-Common question – that ties them all together
-Compulsory joinder is not subject to supplemental jxn
-if a non-party is considered an indispensable party, but his presence in the action would destroy diversity, the action must be dismissed
-Fed courts dislike dismissal and, as a result, will not categorize the non-party as an indispensable party if at all possible
-court looks to:
-Prejudice – extent to which absence of a party will be prejudicial to him or to existing parties
-Framing the Judgment – extent to which prejudice can be lessened or avoided
-Adequate Remedy – whether an adequate remedy can be rendered in the outsider’s absence
-Result of Dismissal – whether P will have an adequate remedy if the action is dismissed
-Determine the following in a fed court action
-SMJ: will joinder destroy diversity e.g. the outsider is a citizen of the same state as one of the Ps (and no fed question exists)
-Amount in Controversy: in a diversity case, the claim has to be more than $75k
-Personal Jxn: the outsider in a diversty suit is outside the court’s personal jxn b/c the long-arm statute of the jxn doesn’t cover him
-Venue: jxn in the district court is based on common residence in the same state and the non-party doesn’t live in the state. If the non-party objects to venue, then the case must be dismissed
-Basis for compulsory joinder
- to offer complete relief – his joinder is req’d in order to give complete relief to the parties; OR
- to avoid prejudice – w/o him, the proceeding would be substantially prejudicial b/c it would EITHER:
-impede the non-party’s ability to protect his interest in later proceedings, OR
-expose the existing parties to the risk of multiple liability or inconsistent obligations
-if either can be satisfied, and the non-party can be joined, then he must be joined
-if he can’t, the court must determine if, in equity and good conscience the action should be dismissed
-To make that decision, the court will weigh four factors (FRCP 19b)
-mitigation
-framing of judgment
-adequacy of remedy
-result of dismissal
-Dismissal due to inability to join an indispensable party is NOT adjudication on the merits
-It has no res judicata effect and the P can bring a new suit on the same claim
Permissive Joinder
e. Permissive Joinder –
1. Requirements –
a. Some claim is made by each P and against each D relating to or arising out of the same series of occurrences or transaction AND
b. There is a question of fact or law common to all parties
(Those injured in an auto accident are joined as P’s, common issue is D’s negligence, other issues like contributory negligence and damages are tried individually for each P).
Jurisdiction – rule permitting a broad joinder does not alter the requirements of jurisdiction…There must be complete diversity, and each claim must satisfy the jurisdictional amount except that ‘s had a common undivided interest in the claim exceeding 75000, may join together.
-Rule 20 – permissive joinder – party may be joined
-permitted for efficiency
-test is whether claim arises out of a single transaction and has a common question
-non-party’s rights or liabilities must stem from the same transaction or occurrence, AND there must be a common question of law or fact that ties them together
-must still meet jxn, venue and process reqs
-supplemental jxn does not apply to permissive joinder of Ds
-Jurisdiction
-Personal – must satisfy service reqs and outsider must meet long-arm statute of state, as
well as minimum contacts
-SMJ – must not violate diversity rules; also, amt claimed against each defendant must exceed amount in controversy minimum of $75k
-Venue
-Diversity cases – lies only in the district where any D resides, if all Ds reside in the same state; or where a substantial part of the events giving rise to the claim occurred; or if the subject matter relates to property, where a substantial part of the property is located; or where the Ds are subject to personal jxn when the action commences (i.e. when the P files a complaint in a fed court)
-Federal Question – lies only in the district where any D resides (if all Ds reside in the same state); or where a substantial part of the events giving rise to the cliam occurred or, if property is the subject matter of the suit, where a substantial part of the property is located; or where any D may be found, if venue isn’t proper in any other district
Intervention, rule 24
INTERVENTION – may be granted to a party of right or permissively.
1. Intervention of right – available whenever the applicant claims
i. an interest in the property or transaction that is the subject matter of the action, and
ii. The disposition fo the action may impeded or imapri the applicants ability to protect that interst UNLESS
iii. The applicant’s intest is adequately represented by current parties.
2. The possible stare decisis effect of a judgment may be sufficient interest to authorize intervention of right. (when the case is one of first impression like the nuclear case)
3. Traditionally, it invoked ancillary jurisdiction, so that no independent basis of subject matter jurisdiction was required over claims by or against the intervenor of right. Under the supplemental jurisdiction statute, it appears that there is no ancillary (supplemental) jurisdiction over claims by one seeking to intervene of right as a plaintiff. The statute appears to allow ancillary (supp) jurisdiction when one intervenes of right as a D. The US has a right of intervention in all cases where the constitutionality of a US statute is raised.
Permissive Intervention – Available when the applicant’s claim or defense and the main action have a question of fact or law in common; no direct personal or pecuniary interest is required. A claim in permissive intervention must not destroy complete diversity (if it does, intervention will be denied), and must be supported by its own jurisdictional ground.
4. Caveat – in all cases on intervention, the application must be timely, a matter within the court’s discretion.
Interpleader -22, 1335
1. To avoid double liability a person who is in position of a stakeholder requires two or more claimants to litigate among themselves to determine which, if any, has the valid claim where separate actions might result in double liability on a single obligation. Interpleader is available under Rule 22 and under FRCP Interpleader Statute (1335). There msut be two or more incosnsite claims.
2. Need complete Diversity
1335- stauturoy interpleader- requires only minimal diversity and an amount in controversy only exceeding 500 dollars.
1. can be served anywhere in US
2. Venue is proper where one or more claimants reside.
Rule 22 – Interpleader – permits someone against whom conflicting claims for the same relief or property are asserted to join all the adverse claimants in one action and let them fight it out amongst themselves and to determine who, if anyone is entitled to the debt/property
-Two Types of Interpleader
-Statutory Interpleader - § 1335
-Requirements:
-$500 minimum value of debt, instrument or property
-Minimal diversity – there needs to be diversity only btwn any two claimants
-Deposit – the “stake” must be deposited w/ the court (security deposit will suffice)
-Benefits:
-Venue – venue is proper in any district where any claimant is located (§ 1397)
-Service of Process – there’s nationwide service of process under statutory interpleader (§ 2361) – however, service may only be made in districts where the claimants reside or may be found (parties outside the country are outside the reach of statutory interpleader)
-Relaxed Diversity Jxn Reqs – does not require complete diversity (btwn any 2 adverse claimants) and the amt in controversy is reduced to $500
-Rule Interpleader – Rule 22
-applies normal jxnal reqs; i.e. complete diversity, amount in controversy = $75k, or fed question must exist
-must have diversity btwn stakeholder and all claimants (unless there’s a fed question, in which case no diversity is required at all)
-no deposit necessary
Rule Interpeleader
Statutory Interpleader
Severenace and Consolidation of Actions
Rule 42
When it is granted – the court can sever any claims, corss claims, or couner claims when severance will foster judicial economy.
Effect of severenace
***Jurisdiction Issues in Joinder ***
Perosnal Jurisdicion
Subject matter Jurisdcition
Supplemental Jxn § 1367
Types of claims a fed court can exercise supplemental jxn in cases based solely on diversity
-in general, those situations in which ancillary jxn was available before 1990, and in which the party obtaining supplemental jxn over another party is in a defensive posture
-compulsory counterclaims – Rule 13a (not permissive counterclaims)
-joinder of add’l parties to compulsory counterclaims – Rule 13h
-crossclaims – Rule 13g
-impleader of third-party Ds (Rule 14), but only as to claims by and against third party Ps and by and against third-party Ds, but not clais by original P against third party Ds
-multiple parties joined under Rule 20’s permissive joinder provisions
-class action Ps
-Supplemental jxn allows a claim to be joined to any fed suit, whether based on diversity, fed question or some other basis
-when supp. jxn applies, personal jxn and service of process reqs must still be met (but not venue, since venue applies only to P’s original claim)
-supp. jxn allows fed courts to assert jxn over claims that would not independently satisfy such jxnal reqs as amount in controversy, diversity and the like
Destorying Diversity
Ex. Owen v. Kroger – P filed wrongful death action suit against OPPD (D1) in US DC of NB. Federal jx was based on diversity (K of IA and OPPD = NB corp.). D1 then filed a 3rd party complaint against Owen, D2 alleging that the crane causing the death was owned & operated by D2 and that D2’s negligence = prox cause of P’s death. D1 moved for summary judgment which was granted, which left only D2 and P alone in the case. Court found federal court did not have jurisdiction since both parties were residenced in IA – no fed SMJ b/c no diversity of citizenship.
• the claim b/t P and D1 is ok to hear in federal court b/c of diversity
• the claim b/t D1 and D2 can be brought into federal court even though they are from the same state b/c of ancillary jurisdiction
• But the P in this case then tried to file a separate suit against D2 – court says this violates diversity b/c P and D2 both from IA
• If the P really wanted to sue D2, they could always sue D1 knowing that D1 would bring in D2 and they could get D2 automatically in a suit = unfair
• Court says this is too much of a stretch
Class Actions
CLASS ACTIONS
Prerequisites – Rule 23 takes a functional approach to the class action device. Named reps will be permitted to sue on behalf of a class if:
1. the class is so numerous that joinder of all members is impracticable;
2. there are questions of law or fact that are common to the class;
3. the named parties interests are typical to the class
4. The named reps will insure the fair and adequate representation of the interests of absent members of the class, and
5. The action meets any of the following requirements of Rule 23 (b)
A. Separate actions by class members would create a risk of inconsistent results or, would impair the interests of other absent members of the class OR
B. A D has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole (most civil rights actions) OR
C. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication.
When considering whether case is a class action, court takes into consideration:
1. interest of individual control
2. extent and nature of litigation elsewhere on the same subject
3. desirability of having whole package in this court
4. difficulties in managing the class action
Effect of Judgment – all class action members bound by judgment rendered except those in a “common question” class action (FRCP 23(b)(3) who notify the court they do not wish to be bound (OPT OUT!!).
Notice – Notice to all members of the class is required under Rule 23 only in “common question” suits (FRCP 23 (b)(3), so that class members have the option of opting out. Notice to other members of classes in other class action suits is at the discretion of the court.
Jurisdiction –
a. Diversity Action – In class actions on diversity, only the citizenship of the named reps of the class can be taken into acct to establish diversity. The amount in controversy may be aggregated only in the rare situation where the claims of the parties are “joint” or “common”.
In Zahn case, court held members had to each meet amt in controversy. Some courts have held that 1367 defeats Zahn and requires only that class reps exceed 75000 (Free v. Abbott Labs) There is a split of authority on this issue.
**There is not amt in controversy requirement if it is a Federal question class action suit.
**The court must approve the dismissal or settlement of a class action. The class must satisfy the requirements under Rules 23(a) and (b) before a court can approve a class settlement (Amchem Products Case).
Appeal of Class Action – Party may seek appeal of a decision of the court’s order granting or denying the certification of a class.
Constituional Concerns of class actions
Requirements of Ruel 23
Categories of Class Actions
Settlement
Judgmenet of class action
Subejct matter Jurisdiciton
Attorneys Fees
Phillips Petroleum Co. v. Shutts
• class action suit, 33,000 P’s, average claim of P = $100, suit filed in KS, Phillips didn’t complain about that, P’s all submitted to jurisdiction
• Does KS have jurisdiction over all these P’s who have nothing to do w/ KS – Yes the P’s contacts w/ forum state doesn’t matter (only the D’s contact matters)
• However, KS cannot use its own substantive law to decide all of these disputes (all of the causes of action weren’t in KS)
• Due Process Clause & Full Faith and Credit Clause- restrict the application of forum law: there must be a significant contact or significant aggregation of contacts in the forum state such that the choice of law is neither arbitrary nor fundamentally unfair (pg 372)
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