Civil Procedure Outline (No. 4)

CIVIL PROCDURE OUTLINE

I. RESOLUTION WITHOUT TRIAL

A. DEFAULT JUDGMENT - Rule 55

1. Policies:

a. dismiss w/o trial because of failure to appear

b. One side hasn't moved the case along.

c. the losing side is never heard on any side of the merits. This is why cts tend to pause before entering a default judgment.

2. Ways to get default judgment.

a.fail to answer the complaint

b.failure to plead or otherwise defend(very broad)

-Can be the P's fault

3. How do we get a default judgment?

a.need a DEFAULT; clerk enters this, (a) tells what we need

(1)failure

(2)affadavit

b.Default Judgment

(1)Clerk

(a)Claim is for a SUM CERTAIN

(b)failure to appear, there is nothing in the docket from the D.

(2)Court - any other time, matter of discretion

(a)3 days notice

(b)judgment heraing to dtermine amount of damages

4. Relief from Default

a. 55(c) setting aside DEFAULT - for GOOD CAUSE SHOWN

b. 60(b) relief from Default Judgment, lists grounds for relief. Goes to the same judge who entered judgment.

Peralta--D guarranteed med. debt. Peralta files motion like 60(b), claims judgment is void becuase not served.

Rule 60 - time limits

1,2,&3 1 yr limit

4,5,&6 reasonable time; he has to convince the ct he's reasonable

SC holds for Peralta even w/o a meritorious defense. Due Process protection regarded very seriously.

-If there was notice, and they brought it up on another thing, most states and fed cts require some showing of a meritorious defense.

60b4 motion--peralta rule good for federal ct as well as state, based on a lack of service and don't have to show a meritorious defense.

5. relation of default judgment of rule 37 and 55:

under rule 37 get a default judgment if one side fails to comply with a ct order ruling on discovery. Unclear that 3 days notice is required(should be given to be safe).

rule 55 is just a broader version, applies to any default

6. "Prove up damages" may be required for amount of damages.

B. INVOLUNTARY DISMISSALS - Rule 41(b) where P has failed to do something

1. again very broad, matter of trial ct discretion, very factual

2. cts cautious because again it hasn't been heard on the merits and could hurt innocent party

3. a judge may indeed dismiss a case on her own, it says the D may make a motion and SC interpreted as to give the judge more discretion.

4. rule doesn't require that the D be prejudice, but most cts do consider that

5. unless otherwise specified it operates as an adjudication upon the merits...see res judicata later

6. federal rules put limits on times can file and dismiss-to avoid harassing

C. VOLUNTARY DISMISSALS - RULE 41a

can dismiss w/o going to the judge

1. before D answers or Sum judgment = dismissal w/o prejudice, can only be done once.

2. consent of the other parties - usually filed when a settlement is filed. Want it dismissed w/ prejudice = can't be rebrought. W/o prejudice it can be rebrought.

can only be filed and vol dismissal 2 times, a third attempt to file will be barred by res judicata. game can only be played once.

Manshack v Southwestern Electric Power Co (p650)

standard of review on appeal = only for abuse of discretion

Ct says the key is whether the D has suffered any plain legal prejudice. 5th Circuit says it's not prejudicial here. This is questionable.

D. SUMMARY JUDGMENT

1. Standard for summ judgment: part c, usually made at end of discovery.

a. no genuine issue as to any material fact

b. On basis of undisputed facts, the movant is entitled to judgment as a matter of law.

(1) judge only asks if there is a dispute of the facts (ie, 10 witnesses v 1 witness still a dispute)

-psychic example, not a "genuine issue", just speculation

-not just any fact that's in dispute, but must be a material fact

-if facts are ambiguous, deny summ judgment view "most favorable to the non-moving party"

(2) Judge doesn't determine credibility of witness; only for a jury.

2. policy: to get rid of cases in which there is nothing for the jury to decide. tax payers pay less, the party who receives judgment, free dockets

3. Summ judgment particularly important in notice pleading. Purpose is to get behind the pleadings, so non-moving party cannot rest on pleadings but must how additional evidence -pierce the pleadings.

4. partial summary judgment: move to dismiss part of the case; streamline the case, get rid to the junk actions

5. criticisms: taking away the case w/o letting the jury every hear the witnesses, taking away from the jury

6. differences between 12b motions and SJ

-12B motion at the pleading stage, right after the complaint is in

look at the complaints

venue, service of process motions, etc are not motions on the merits, they can refile on these

-motion for summ judgment to come after DISCOVERY

look beyond the pleadings, parties can introduce various things found during discovery

all summ judgment motions are on the merits

can't refile

-come back to this w/ res judicata

7. not a violation of a rt to a jury trial because there's not rt to jury trial on a frivolous claim

8. historically summ judgment is limited, has expanded to any kind of case in the fed rules

9. procedure

a. SJ decided on paper, 56c list

b. need to be thinking about summ judgment on your discovery request

c. (e) need to rely on more than just the pleading, pierce the pleading

d. appealability: can appeal a summ judgment, can't appeal a denial of summ judgment because can only appeal a final decision on a case, there will still be a trial

10. Standard: Celotex Corp v Catrett(654)--burdens in SJ. Did Celotex carry their burden of the SJ? SC yes because P had the burden of proof.

a. standard (Brennan's dissent) for SJ can be supported by:

(1) affirmative evidence or

(2) Show the lack of evidence in reocrd on an issue P has the burden of proof. (the was nothing in the answer to interrogatory)

(a) non-moving party must do:

i) call the ct's attention to supporting evidence in the record that was overlooked or ignored by the moving party,

ii) submit an affidavit - MUST BE SPECIFIC

(SC added this rule) Must go beyond the pleadings w/ more proof

iii) show real evidence

b. Majority standard = akin to burden in directed verdict

11. Rules of evidence are critical in SJ

a. rules of evidence rule 56(e)

b. At trial evidence cannot be submitted as affadaivts, but in SJ the content of the affidavit must be admissible as evidence but can be in the form of affadavit.

c. judge cannot weigh evidence or determine credibility

d. see notes on Visser

E. PRE-TRIAL CONFERENCE

1. Purposes:

a. to promote settlment -- Lockhart

b. to prepare -- what are the real issues McKey

2. Judges - some are very active in pretrial; othere are not involved at all.

Judge cannot order parties to settle, there is nothng the the rules that require good faith or negotiations.

3. Majority of civil cases are settled.

a. Saves on costs & lawyer's fees and gets aroung uncertainty of jury decisions.

b. Settlment usually made after discovery: learn loopholes and problem in both sides, etc.

c. 2 types of civil cases that go to trial:

(1) insane person on one side

(2) one party dems it a matter of principle (to prevent the uprising of suits because of easy settlment; or religious reasons)

d. Helps to ahve the judge put a number $ on the case, because judge knows exactly what juries in their area will do, etc.

II. RIGHT TO A JURY TRIAL - 7th Amendment

A. How to determine if you have a rt to a jury trial

1. 7th Amendment speaks of preserving a rt to a jury trial, just look at history to find out what's being preserved.

a. Difference between law & equity cts

(1) no rt to a jury trial if seeking equitable relief.

(2) Usually easy to tell difference but get some fuzziness because of the merger of law & equity in 1938, some overlap or it's a new cause of action.

b. Historical Analysis -- Terry

(1) Nature of the issue - cts usually can't decide

(2) Nature of the remedy

c. Ability of jury to decide the issue is frequently an undercurrent.

B. Congress

1. Can expand rt to jury trial when creates a new cause of action. No Issue.

Only way to avoid a jury trial at that point is to say the case is too complicated for a jury (5th Amendment rt would be violated)

2. Congress implicitely states that they don't want a jury trial--assign to an agency or specialized ct that normally has no jury .

Can Congress do this? Does it violate the 7th Amendment?

a. Is this a legal cause of action as opposed to equitable? What happens if it's a new cause of action that's essentially legal?

b. Is it a private or public cause of action? Problem ct has been unclear what is a public rt. Language of Granfinanciere suggested that a public rt could exist even if a private party was suing under particular circumstances.

c. What forum did Congress specify? If specified to go to District Ct may well have rt to jury, but with Atlas it was sent to an agency...Is a jury trial compatible with the forum set by Congress?

C. What to do w/ mixed claims?

1. Try the law claims first--there's a constituional rt to a jury trial and no constituional rt to a non-jury trial. This is true even thoughit may mean that hte law claim may dispose the equity claim. American Life no longer good case law.

2. Use of equitable procedure to get into ct, but seeking legal relief. Bernhart--still good law.

a. Rt to a jury trial is determined by the issue. If the underlying complaint is law then get a jury trial. See class actions, same.

D. Rule 38 - if have rt to a jury trial under 7th amendment, then follow 38 to get the jury trial.

1. any party

2. written demand w/in 10 days of the last pleading or include jury trial demand in a pleading

3. waived if not demanded (d)

4. if forgotten - 39(b) Dist Ct judge can give relief of the waiver by discretion of the judge

5. once demanded the only way to get rid of it is to get the consent of all the parties

E. Who will be on the jury?

1. Challenges to the jury panel aray - fairly represents the population

a. Want a fair cross-representation of society. Why? different opinions = more just, the appearance of justice - I'll accept the verdict better if I think I was represented fairly in the jury

b. 1862 for federal juries can't systematic exclude these classes, 14th Amendment applies this to the states

c. voter registration = civic minded people, problem = leaving out alot of people, disproportionate effect on minorities, etc. Many states are not including other lists: drivers license, agency lists, etc. Same lists are used for civil and criminal cases

d. 1867 challenge of the panel (c) before voir dire

e. what groups get protection?

f. Rule 48 need at least 6 jurors, unanimous unless stipulated otherwise by the parties

2. Challenge individual jurors

a. For Cause - looking for bias

(1) actual or

(2) imputed - don't say that I'm biased but know the parties or lawyer, etc; impute from the facts some bias. Unlimited. Judge decides.

(3) McDonough-

(a) Need ct's permission before questioning the jurors; need some evidence before you'll get it

(b) lower ct says Question is: how would an average juror have answered this question? SC says this is wrong, too difficult of a test, who can define what an average juror would say.

(c) STANDARD = must show dishonesty as to a material question such that an honest answer would've led to a challenge for cause. No one guarranteed a perfect trial. akin to a harmless error.

(d) CONCURRING OPINIONS = there may be situations where the juror answers honestly but there may still be sufficient for a challenge for cause inferred. All require showing that could've exercised a challenge for cause, not simply a preemtory challenge.

(4) Rule 47 - if judge asks questions, can be supplemanted by attorney's questions

b. peremptory - legal previlege to exclude a witness w/o showing cause.

(1) No ct approval needed

(2) Limit of 3

(3) Sense of appearance of justice. Works ag/ the fair representation goal.

(4) A civil litigant may not use a preemptory challenge solely on the basis of race.

Edmonson v. Leesville Concrete Co.

(a) SC already held in a criminal case this is unconstitutional.

(b) 5th amendment rt of the excluded juror--Ct says this case falls in the exception to the black letter law that each person can only complain about their rts being violated. The excluded juror will not likely raise their rts, thus will allow the P to do it.

(c) Ct says that jury selection is a gov action simply done by the private parties. The jury is party of the government. Maj says don't like discrimination in the courthouse. Judge involved in the selection thus gov involved.

(d) dissent: (O'Connor) it's a private action and the gov it simply supervising. (Scalia) It'll hurt minorities who won't be able to exclude white males and it'll create another appeal dealing w/ nothing to do with the merits.

(e) ?s raised: does it apply to a criminal D? does it apply beyond race? sex? age? How are the cts supposed to manage the procedure?-when are you supposed to raise this challenge, what's the threshold burden?

III. SELECTING JUDGES--especially important in bench trials

A. history: until 1950 almost impossible to get judge excused. Difficulties of a replacement (# of judges, transportation, presumption that judges were fair). Duty to sit mentality. This has changed over the years. Changes in tech and increase in sensitivity to appearance of justice. If all judges are excused, no judges are excused. (conspiracy action ag/ all) of all judges in a particular area are excused, can bring in one from another area.

B. 28 USC 455 Disqualification of justice, judge or magistrate

1. Doesn't carry any remedy, again depends on the facts and their showing of appearing impropriety.

-Remedies: because of importance of appearance of justice, give a new trial. Rule 60(b) time = reasonable time limit Liljeberg

2. (a) = an judge will disqualify himself in any proceeding in which his impartiality might reasonable be questioned.

a. SC interpreted to not require knowledge, makes the section apply retroactively-judge should've disqualified himself.

b. care about appearance of fairness as well as actual bias, thus won't read knowledge into (a)

c. construction of statute - if read knowledge into (a) don't need (b)4

d. (a) section can be waived.

3. (b) = disqualify under list of circumstances

(b) sections can't be waived, This was a change made by congress as old rule allowed all waived and it created problems in small communities where the lawyers will be before the judge repeatedly.

4. 455(f) added after this case; only applies

a. if spent substantial judicial time on the matter and

b. he divests himself of the interest that provides the grounds for the disqualification Congress had the concrete case in mind - small financial interest, etc

IV. JUDICIAL CONTROL OF JURY ACTION

A. How to take it away after the trial has begun:

Directed Verdict, JNOV - Rule 50 Now called MOTION FOR JUDGEMENT AS A MATTER OF LAW

1. General info

a. called a non-suit in some states

b. originally called a directed verdict because judge would direct the jury to come back w/ a specific verdict. Today judge simply gives the verdict.

2. Can be brought by D after P's case is presented or after all the evidence either party can move for a directed verdict

3. Difference w/ summ judgement is after witnesses and evidence not simply affadavits

4. After jury comes back the judge can JNOV - same standard as directed verdict, simply a matter of timing.

5. standard: a reasonable jury couldn't find for the non-moving party

a. In a directed verdict situation judge doesn't weigh the evidence, no assessment of the credibility; simply find if there's an issue for the jury to look at

Chamberlain--Ct saying that P's witness was legally insufficient for a reasonable jury to find in favor of the P.

b. If one party is determined by the ct to have NO evidence from what they put forward, then the ct will give a directed verdict.

c. test sounds black and white but the rule can be manipulated

d. what evidence does a ct look at in deciding directed verdict/jnov -- does the ct also consider undisputed evidence of the moving party, most cts say yes

Stout--tc ->P RR on appeal saying there was no neg established thus there should've been a directed verdict.

-facts aren't in dispute

-dispute is over what inference to draw from these facts, was there neg? thus it as appropriate to send it to the jury.

-SC says neg is just the sort of thing that want juries to decide

-ct includes a long recitation of undisputed facts because they're backing up their decision by showing that it was reasonable for a jury to go either way

-there can be situations where neg action can be subject to a directed verdict

B. JURY INSTRUCTIONS - RULE 51

1. Judge must instruct the jury

2. Must be a written request from each side

3. Objection to an instruction must be done before the jury retires and it must be a SPECIFIC objection

4. Minority "plain error rule" isn't very strong, don't count on it.

C. CONTROLLING JURIES BY EXCLUDING IMPROPER INFLUENCES

In re Beverly Hills Fire Litigation--P's case hinged on old aluminum wiring. Dist ct divided(bifurcated) the trial/issues. Juror did a personal experiment that contradicted with the expert testimony. Problem is that this stuff isn't subject to cross-examination.

1. A juror may not impeach the verdict.

a. Fed Rule of Evidence 606(b) - a juror may not testify about what went on in the jury room.

(1) "a juror" language = prohibition for the internal matters to the jury, anyone other than a juror may testify.

(2) Includes an understanding of the law or the facts.

(3) SC aded drug and alcohol use as internal matters, aking to one juror saying the other juror was sick or sleeping. Tanner

b. Jurors are expected to rely on their experiences in life, want their imput part of the jury process.

c. Policy

(1) finality, questioning the juror would lead to an endless questioning.

(2) Avoid harassment of jurors.

(3) Might lead to an inhibited discussion among the jurors.

(4) Confidence in the jury system, if you start questioning the jury you'd find no jury to meet the standard.

(5) Corruption - Could buy a juror after the fact that could impeach the verdict.

(6) Give up = some truth and justice in some cases.

(7) A very old common law rule.

(8) Voir dire gives you the opportunity to exclude a juror that you think might cause undue sway.

(9) Applies to internal matters, things in the jury room.

2. 606(b)exception = external matters

a. can have jury testimony

b. comes from common law

c. Examples: bribe, newspaper, book, talk to a non-juror, visit the site. Ct says that the experiment is external.

(1) The line between internal and external is fuzzy, many things are decided by the discretion of the court. Notes 801 (2)

(2) Common demoninator for the external things are that they are easily determinable, more of a factual, physical evaluation than a mental evaluation.

(3) Timing: reasonable time for a 60(b), ten days for new trial or ten days to a month for an appeal

d. states may have different rules

D. POST TRIAL MOTIONS

1. JNOV - no reasonable jury could have reached this decision, 50(b), same standard as directed verdict.

a. Reasons for a jnov over a directed verdict: a directed verdict motion comes at the heat of the trial, jnov comes after the trial, also policy to leaving things to the jury; if reversed w/ a directed verdict have to have a new trial, jnov simply reinstate the jury verdict.

b. procedure:

(1) 10 days after entry of judgment

(2) can only be entered if one party moves for it

(3) ct can't take the intiative

(4) pre-requisite: the party must have moved for a directed verdict at the close of the evidence.

Reason = history, jnov a modern invention, fiction is that jnov is a renewed motion for a directed verdict, takes away from 7th amendment problems.

c. jnov CAN'T be done for procedural errors, only get a new trial

d. Can ask for both jnov and a new trial motion - rule allows appeals ct to rule on both of these at the same time

2. New Trial - Rule 59; very broad standard

new trial used much more often than jnov--grant a new trial, there no immediate appeal, a very safe thing for a judge to do, not taking a jury rt from anyone

a. standard:

(1) procedural errors - Rule 61, must show that the error was more than a harmless error

**procedural error grants for a new trial are much more protected from review than the weight of evidence grant because need to limit judges vetoing the jury on such questions.

(2) weakness of the evidence

(a) standard = juror's verdict is against the GREAT weight of the evidence; this standard is lower than jnov

(b) the judge weighs the evidence for this motion, standard of review is an abuse of discretion

(c) factors of weighing evidence: complication and length of the trial, etc

b. 7th amendment, no problem granting a new trial because it's not reexamined by another jury not a court

c. A new trial can be granted on all or part of the issues, Rule 59(a) thus could be done for just the damages

d. remittitur, conditionally grant a new trial unless they accept a lower award. fiction used ag/ 7th amendment argument, jury found every amount under the award as well

e. additur - not allowed in fed cts, increasing the amount or a new trial. some state cts allow additur

f. procedure:

(1) 10 days from entry of the judgment to move for a new trial. This can't be changed, "shall" no power to enlarge the 10 days.

(2) (d)the judge on her own can take the intiative to enter an order for new trial

(3) again 10 days from entry of judgment

3. Neely

a. SC says the ct of appeals can enter jnov w/o infringing on the 7th Amendment

b. Rule 50

(c) governs jnov being granted

(d) governs jnov being denied...new trial rg may be raised in the dist or ct of appeals

c. Sc say only get 2 chances because of jud efficiency, no going back to dist ct to argue for a new trial

d. Notes p825

E. BENCH TRIALS - Rule 52

1. dist ct judge tries a case w/o a jury must enter findings of fact and conclusions of law

2. why? appeals ct knows why and what found and there's just one person instead of 12 like in a jury and less likely to overlook something.

3. Conclusions of law are the substitute for the jury instructions.

4. standard of review:

a. clearly erroneous for findings of fact - dist ct better finder of fact, substituting for the jury thus more leeway

b. de novo for conclusions of law

5. drawing line between fact finding and conclusions of law - fuzzy--negligence considered ? of fact; obscenity it considered ? of law

--often must look at the particular issue and look at the case law

6. much harder to reverse a jury than a judge

7. applies to documentary evidence as well as oral

V. RESPECT FOR JUDGMENT--COMMON LAW DOCTRINES - CLAIM PRECLUSION AND ISSUE PRECLUSION

A. RES JUDICATA/CLAIM PRECLUSION - don't get to try the same case twice

1. c/l doctrine - prevents party from trying the same case twice.

a. merger - old term, if P won in first action her claim was merged w/ her judgment so she couldn't bring her claim again.

b. bar - old term, P lost and barred from bringing another claim

2. Black-letter law:

a. same cause of action

(1) includes not only what was brought but claims the P didn't bring, theorie the P didn't use but might have used.

(2) other claims/theories arising out of hte same nucleus of facts.

(3) defenses that actually were brought and those that might have been brought.

(4) counterclaims - Rule 13(a)--some counter claims are compulsory.."shall" state a counter claim if it arises out of the transaction or occurrence

(a) nothing sets out the sanction, it's in the c/l doctrine of res judicata

(b) puts same resp on P and D, both sides must bring their claims at first time possible

(5) doesn't apply to claims that don't exist yet, that aren't ripe yet

(6) Different cts define cause of action differently

(a) fed ct define more broadly "whether the claims arise out of a common core of facts"

(b) some states are narrower

(c) Can have 2 different legal theories and 2 different remedies. There may be slightly different evidence for the actions.

(7) P will thus be encouraged to bring every possible claim in the first action, the judge can sever the issues w/ rule 42 if it's too complicated.

b. same parties

(1) includes parties who are in privity w/the parties in the first action

(2) absent parties

-When is an absent party bound by a previous judgment?

-When may an absent party use a prior judgment?

-No duty to intervene in the first action.

(a) Basic rule - No one is bound by a judgment w/o an opportunity to litigate. Fundamental rt of due process.

(b) exception: when there's privity betwen the parties

i) Was the absentee fairly represented in action #1?

ii) some cases well settled: trustee/beneficiary; guardian/minor

(c) What is enough to conclude on the facts "privity"?

i) Must evaluate the facts, if find the absentee was adequately represented then there is privity and the absentee will be bound.

ii) Did you ahve rt of control, coss-examine witnesses, present evidence, etc.

iii) It's very fact specific to see if the absentee was adequately represented, effectively acted as a party.

c. final judgment

d. judgment on the merits - may be much less htan trial jury judgment

(1) includes all of the following: trial, directed verdict after all evidence, after P's case, summary judgment, Rule 37, Dismissal-failure to procecute = yes

(2) does not include involuntary dismissal for lack of js, venue or failure to join a party (rule 41b)

3. policy:

a. finality, harassment of parties, judicial efficiency, appearance of justice, inconsistent results

CONSISTENCY OF JUDGMENTS don't want to have a contrary decision, preserve the integrity of judgments and protect those who rely on them.

b. opposing forces - some claims never get litigated

4. procedural: These defenses are brought up in the second action, P must think about this in the first action

a. Rule 18 - permissive joinder -- c/l tells when you HAVE TO JOIN A CLAIM

b. res judicata is an affirmative defense - must be raised or it's waived!

5. No collateral attack on the first action.

a. Applies even though the second claim is constitutional, applies even if the judge made a mistake of law in the first action, if the law has changed, etc, etc.

b. P's remedy is to appeal action #1, can't collaterally attack the first action by bringing a second action. "No equitable exception to res judicata.

B. ISSUE PRECLUSION - sometimes cts refer to it as res judicata, often called collateral estoppel

1. not as broad as claim preclusion

a. can apply to some issues, others may still be open

b. more narrow than claim preclusion, MUST'VE ACTUALLY BEEN DECIDED in A-1

(1) Must know how the jury decided that issue in particular. Could be P found contributory neg or no and just didn't get damages, see Illinois Central (Feb 19)

(2) Don't have this problem w/ a judge's decision because of findings of fact and conclusions of law.

c. applies even if judge made a mistake of law--appeal is proper procedure, not collateral attack by a second suit

d. Issue preclusion doesn't apply to if there has been a change in facts or law.

2. based on same policies as claim preclusion

3. same parties - same for claim & issue preclusion

a. An absentee cannot be bound by a judgment UNLESS they were a party of the prior action or in privity w/ party to the prior action.

b. cts very slow to bind an absentee

4. Who can raise issuepreclusion? When can the absentee sue the prior judgment? Can an absentee use issue preclusion?

a. mutuality problem: tradtionally rule was you had to be a party of A-1 or situation of privity.

(1) some state continue to adher to mutuality rule.

(2) trend is ag/ it

(a) started in CA Bernhart

(b) fed ct in Blonder-Tongue and Parklane

b. DEFENSIVE COLLATERAL ESTOPPEL

Blonder-Tongue

A-1: P(patent holder)---->D1 infringer =>D won

A-2: same P ---->D2 infringer

D wanted to assert issue preclusion ag/ P

(1) SC held that D2 could assert issue preclusion

(2) w/in dist ct's discretion to allow

c. OFFENSIVE COLLATERAL ESTOPPEL

Parklane -- different Ps, same D

A-1: SEC --> D for injunction, SEC won

A-2: Stockholder --> D

P in A-2 wants to use issue preclusion to limit D's defense.

(1) offensive collateral estoppel is different

(2) doesn't lead to jud economy

(3) Discretion of Dist Ct--considers if the P2 could've easily joined.

(4) significant silence = the fact that a lot of same evidence will be used is not basis for stopping issue preclusion.

**(5) may not use offensive collateral estopel ag/the US gov

(6) see note 2 for examples

VI. JOINDER

A. Joinder of Claims by a P--Rule 18

1. join any claims one has - very broad, liberal joinder of claims

a. example L v T for rent & another for auto accident; 2 unrelated clms ag/ the T

b. Permissive rule, but c/l res judicata is lurking behind and if some claims aren't brought they may be barred later.

(1) When in doubt you join the claims.

(2) Judge can use rule 42(b) to sever the different issues if the case gets too complicated.

2. js problems: limit on rule 18

Must have independent js grounds for every claim.

ancillary/supplemental js [same case or controversy; fed + state claim] is allowed over a non-federal claim only if the actions are closely related.

3. There is a lot of self-policing in joinder rules, no party wants to add too much to confuse the jury.

B. COUNTERCLAIM - joinder of claims by D, request for affirmative relief. Rule 13

1. 13(b) permissive counterclaim

a. very liberal, allows D to join

b. No limit of #

c. Policy:

(1) P picked the forum and started the fight, thus should be open to counterclaims.

(2) judicial economy

d. uses "may" D doesn't HAVE to bring it, no res judicata bar

e. judge can sever them for trial

f. Counterclaim can exceed original claim, (c)added to change c/l.

**g. If permissive don't get supp js, need ind basis

2. Compulsory counterclaims (a):

a. When it arises out of the same transaction or occurence as the original claim. MUST BE BROUGHT

(1) use "the logical relationship test" to determine if it rises out the same transaction or occurence.

(2) looking to see if it's not going to much of a burden

(3) whole oint is jud economy

(4) Cts generally very flexible in definition, case-by-case analysis.

b. MUST be brought--judicial economy

c. sanction is res judicata and one will be barred

[res judicata doesn't bar a D from bringing a permissive counterclaim because wouldn't be same core of operative facts] -res judicata would waive any forgotten defense

d. It would be too broad and difficult if all counterclaims were compulsory.

e. Even if law claims come only on the counterclaim to an action on equity the law claims will come first and will get a jury trial.

**f. JS - don't need meet js requirements, get supp js. 1367 codifies ancillary js.

3. Can have a counterclaim to a counterclaim.

4. LIMITS to counterclaim rule:

a. If my claim has not yet matured then don't fit under first sentence of compulsory counterclaim rule.

b. 13(a)(1) excludes claims that D has already sued on elsewhere

c. Claim must not require 3rd party whom the ct can't get js over.

C. Permissive Joinder of Parties - Rule 20

1. very liberal, change from c/l

2. allows for joinder of Ps or joinder of Ds

3. requirements:

a. common ? of law or fact common to everyone

b. the same transaction or occurence, or series of

c. Only need one common question, once had P can add additional claims ag/ one of the Ds

--need indep js basis for each of these claims

4. P can assert inconsistent claims ag/ the diffferent Ds.(rule 8)

5. JS:

a. P must have an indep js basis for each D she sues or each P must have an indep js basis for getting to ct.

b. must have js as to each joined D

6. misjoinder--at c/l the ct had to dismiss the entire action, fed rules changed this, rule 21, just throw out the misjoined party. See rule 19 later, some parties are indispensible.

7. 20(b) allows idst ct to separate the trial if it gets too complicated.

D. IMPLEADER--Rule 14

1. used by D to bring new party into the action

2. terminology:

a. original defendant = 3rd party plaintiff

b. impleaded party = 3rd party defendant

3. looking for derivative liability - "claim over"

a. D says I have rt in whole in party to indemnity or contribution

b. If I'm liable, then other partyisliable in whole or in part.

c. Doesn't matter that P doesn't have any direct claim ag/ the 3rd party D.

4. Rationale:

a. jud economy

b. fairness for D

c. concern about inconsisent judgment

5. Can't be used as a Perry Mason defense--he did it, not me. Can be used as a defense, just not able to implead the party.

6. Permissive--D can always wait and sue 3rd party D at later time

7. Protection to 3rd party D:

a. set up the defenses that 3rd party P has

b. bring in other 3rd party defendants

8. Must be brought w/in 10 days of filing of the answer, or cts permission.

9. JS: 3rd party gets ancillary js for the impleader claim

a. a very related matter; matter of the defense asserting a claim, so it's not inequitable.

b. As long as js is good for original claim, impleaded claims get ancillary js. But if original claim is thrown out for lack of js, lose ancillary js--nothing to hang the ancillary js on.

c. If original claim is settled ct has discretion to keep or dismiss.

(1) don't want to discourge settlments

(2) don't want inconsistent judgment

d. 3rd Party P can assert additional claims ag/ 3rd party D (rule 18 allows for joinder of all claims), BUT there must be independent js for 3rd party P's other claims.

e. Any claims P wants to bring directly ag/ a 3rd party D must have independent js. Kroger 1367

-but, a compulsory counterclaim asserted by P ag/ 3rd party D gets ancillary js.

f. A 3rd party D may assert a claim ag/ the original P & have ancillary js.

-because D brought in unwilling. See 1367

10. Ct can sever a particular issue for trial.

E. CROSS-CLAIMS--Rule 13(g)

1. Can only assert a cross-claim ag/ someone who already a party.

-same side of the big V.

<-counter claim-->

P D

---------------> | cross claim between Ds

D2

-can't use cross-claim to bring in a party; impleader proper to bring in a new party.

2. permissive rule

3. Judicial discretion decides if cross-claim was brought ina reasonable time.

4. proper cross-claim (13g)

a. same transaction or occurrence

(1) logical relationship test

(2) don't allow parties to bring totally unrelated claims as cross-claims (they didn't start this fight, etc)

b. MAY be derivative liabilty, doesn't need to be. This is broader than impleader hiwch MUST be derivative.

c. MUST be a claim, not a defense (more than perry mason).

------>C

student |

------>Subway

Cougareat can't bring cross-claim ag/ subway unless say Subway owes something, not I didn't do it.

5. JS

a. ancillary js, no independent basis needed

Allow anc js because it's for someone in a defensive position and arises out of the same transaction or occurrence.

b. 1367(c)(3) easier way to dismiss--may decline to exercise js if all other claims of original js have been dismissed, but may w/ their discretion keep it and decide it.

-but if the original claim fails for lack of js, the ct MUST throw out the cross-claim because it was only brought on ancillary js of original claim.

c. Rule 18-once there is a proper cross-claim can bring any other cross-claims.

(1) But must have the proper one first.

(2) The additional cross-claims must have independent js.

6. Should their be a claim allowed from D2 to D3?

------>D1 ------->D3

P

------>D2

Some cts say it must be an impleader, the cts are split. The difference is time limits of impleader v. reasonable time for cross-claims

7. If too complicated, can separate 42(b).

F. Rule 19 Necessary Party Rule--D claims the absentee must be a party to the suit.

1. 2 stage analysis:

a. Can I give complete relief w/o the absentee?

b. Will the absentee be PRACTICALLY prejudiced w/o being included?

c. Will an existing party be prejudiced w/o the absentee?

2. If the answer is yes to any ONE of the questions, then the dist ct ask if they have pj over the absentee or subject matter problems.

a. If have js, then the absentee SHALL be joined or the suit is dismissed.

b. Where joinder isn't possible because of js problems, then go to (b) analysis. proceed or dismiss?

3. (b)Proceed or Dismiss

a. geared to pragmatic approach to problem of deciding whether to proceed or dismiss when can't get js.

b. 4 factors to be "included" in deciding, there may be other factors. How much prejudice will there be?

(1) Prejudice of absentee and existing parties?

-Is ther some way the D can solve the problem? ie implead the extra party, interpleader. Ct won't feel generous to D's motion to dismiss if they could've solved the problem themselves.

(2) Can ct lessen the prejudice? [by shaping the relief]

(3) Can the ct give an adequate judgment?

(4) P's remedify if dismissed? is there another forum?

-what other forums are open the P. If the P can get all the parties in a state ct, ct much more likely to dismiss.

c. All four the (b)factors are for a more general finding. Policy of whether in "equity or good conscious" dictates our analysis.

d. If dismissed the absentee is termed "Indispensible"

e. If proceed the absentee remains "necessary".

f. Usually the problem is when the absentee would destroy diversity js on which the original claim would be brought.

1367--no supp js over necessary party on a diversity js, there is supp js over necessary parties when the main action is a federal question js. Fear of creating js collusively.

g. perry mason situation, can't force P to sue another party as a defense for D.

4. Join as a plaintiff-- Ex:If an exclusive licensee sues an infringer the infringer will want the patent owner joined as a plaintiff.

5. How do we procedurally raise ? of failure to join a necessary party?

See rule 12(h) this defense isn't waived, but have problem showing prejudice the longer the D waits to join another D. Some cts have held that the cts can raise the issue itself.

G. Rule 24 INTERVENTION--absentee wants in, usually the parties don't want him.

1. Historically when two people have claim on one piece of property.

2. Traditional notions of allowing P to control her suit =ed limited js.

3. Rule 24 greatly expands intervention, both of rt and permissive.

a. why?

(1) prejudice if left out

(2) judicial economy

b. competing concerns

c. P's interest in creating own suit

d. complexity

4. Rule 24 requirements--as a rt

a. statute--very narrow

b. usually private parties here--must have all 3 "and"

(1) some INTERESTin the ongoing suit

(a) a future interest may be sufficient to meet interest requirement

(b) does it need be financial? no, can be environmental, civil rts, etc. cts take a very broad view of interests

(c) Must be a specific concern.

(2) IMPAIRMENT to the intervener

(a) PRACTICAL IMPAIRMENT--there would be no res judicata impairment, but as a practical matter the party is impaired.

(b) Stare Decisis would be basis for arg of impairment of interest.

(3) No ADEQUATE REPRESENTATION of the intervener--gov agency may not protect adequately those parties who are subject to their control.

(a) burden of #3--minimal-need only show that the representation MAY BE inadequate.

(b) Representation--ex. asian parents can intervene if school board not representing private asian students' interest adequately.

5. Permissive intervention: "may"--discretion

a. statute

b. claim or defense involve common question of law or fact

c. fuzzy distinction between permissive and rt

*affects rt of immediate appeal--permissive intervention denial is not appealable until the case is over. Thus ask for intervention as of rt.

6. No one gets an immediate appeal of a grant of intervention.

7. May allow intervention but cts are permitted to limit the role of the intervener. Very important rt of the dist ct to limit the role of the intervener. No immediate appeal of this is allowed.

8. Cts are really not that free w/ intervention, especially state ct.

*The fear of too much intervention is largely overblown. Many things discouraging an intervener; money & time-this is a strong indication of worth of the intervener's interest.

9. JS for rule 24:

a. 19a and rule 24 are really two sides of the same coin.

b. what do if don't have indep js; see 1367

(1) Is the intervener seeking to come in as a P or D?

--D more likey to get ancillary js.

(2) Was original action brought on diversity?

--If yes, don't get ancillary js.

--There might be ancillary js if the original claim brought on fed ? js, either P2 or D2 or in a diversity case and seeking to join as a D.

(3) If brought on diversity the ct is going to ask whether the P is trying to circumvent the diversity requirements. Still very murky.

c. No PJ problems because intervener is consenting by wanting to come in.

10. timing: only guidance is "timely" but if wait too long, harder to make the arg that you meet the requirements and the further along the case is the harder it will be to join.

11. Is there ever a duty to intervene? NO DUTY TO INTERVENE EVEN THOUGH THE PARTY KNEW ABOUT THE LAW SUIT AND HAD OPPORTUNITY TO INTERVENE. Martin v. Wilks

a. Policy: either the burden is on P in A-1 to join or the absentee to intervene. Better to put burden on the Ps to join, brought the suit, and in a better position to know as a practical matter who is going to be prejudiced. As a practical matter not good--would have to go into questions re/ knowledge and opportunity, would create an incredible evidentiary problem, thus put the burden on the Ps. Settlements are good but can't bind an absentee party.

b. Problem is other parties may not be organized, what to do to make sure the parties are represented. [note: possible class action]

c. 1991 Civil Rts Act = Congress overruled Wilks --but deals ONLY W/ employment discrimination. This is an anomoly, caveat because changes the rules for a specific type of case.

VII. INTERPLEADER

A. Someone finds herself in control of some property to which there are adverse claimants.

1. Often happens w/ insurance proceeds, don't know who rightfully gets the money.

2. Device whereby the stakeholder can dump it into court and get out w/o going through several suits.

B. historical: 4 retrictions on use of equitable interpleader; states developed their own interpleader rules--but SC put limit so that judgment only binding over persons which the ct had pj over which lead to more problems

C. Congress passed 1335 & rule 22 - both federal interpleader remedies, complimentary, can use either one. Both allow the stake holder to interplead and don't have the old restrictions.

D. usual case: state farm v. C1; v. C2; v. C3

--But if C1 brought the first suit ag/ SF then State farm can counter claim interpleading C2 & C3.

E. classic interpleader = presupposes a limited liability or assets, & don't know who to pay.

F. Why is interpleader a good idea?

1. helps the stakeholder

2. also the claimants because it gets away from the stampede to the cthouse notion

3. stakeholder must deposit the funds in the cts thus don't worry about enforcing the judgment

4. good for taxpayers because of judicial economy

G. procedure: 2 stage operation

1. stakeholder files application to interplead. Ask the ct to join all the claimants in this suit and enter an injunction that tells the claimants that they may not sue anywhere else. Stakeholder deposits the $ in the ct. Ct issues the injunction. At this point if the stakeholder has no interest they move to dismiss themselves from the litigation-get out.

2. The squabble between the different claimants.

H. Tashire--variation on classic ase, because stakeholder still claimed an interest. Rule 22 & 1335 permit this continued interest. Rationale of depletion of funds.

1. To be a claimant it nee ' be present, MAY claim = claimants.

2. Injunction issued by dist ct was incorrect. Issuing an injunction is standard operation in interpleader. Injunction went too far, becasue went beyond the limited fund.

3. Can't use interpleader to force a mass tort case into one forum. Only applies to limited funds.

I. JS question: what diversity requirements are necessary for interpleader?

1. 1335 - two or more adverse claimants of diverse citizenship--any two claimants, minimal diversity--consistent w/ Constitution, complete diversity is required by 1332, 1335 allows for minimum diversity

a. ****only look at the claimant side to find diversity in 1335

b. if all D were from Pa, not good enough, good = pa & ny

c. in some js if the stakeholder is an interested party and from a diverse state then this will be sufficient(all D pa, stakeholder ny)

d. 500 amount minimum

e. service of process - nationwide

2. rule 22: no diversity requirement, thus go to 1332--complete diversity requirement--now looking across the v. Now if all four the claimants were from the same state then ok, diverse. But the controversy requirment is 50,000.

a. normal service of process

b. venue is where all the claimants reside or where the stakeholder resides.

J. Stage 1 is equitable, thus no rt to a jury trial. Stage 2, for damages jury trial may be a rt.

K. interpleader only applies if the claimants are seeking the same funds

L. cannot have an unknown person as a claimant

M. connection betwen rule 19 & interpleader, can cross-claim and interplead a crossclaimant.

VIII. CLASS-ACTION: where a group of people can sue or be sued in situations where joinder would be impossible or impractible. Very different from our normal 2 party practice.

A. Historical: group litigation, bill of peace

tenants---------->Lord sailors-------->ship owner

1. All had a closely related, identical interest, but impractible or immpossible to join them all.

2. Equity allowed a group to sue by a representative.

3. problem: absentees bound? ct may not even have had pj over them. Only way to be efficient is to bind the absent class-members. But binding them w/o a day in ct.

B. Problem of res judicata - are the absent class members going to be bound, especially by an adverse decision.

1. No-then just a permissible joinder rule,

2. yes-then doing something never done before, binding someone w/o her day in ct.

3. Hansbury-ct held may bind an absentee, particularly an adverse decision.

a. This is an exception to the general rule.

b. However, there is still a due process concern, 2 most important factors--common interest and absentee was adequately represented.

c. Hansbury conflict w/in the class, thus not adequately represented.

d. Absentee class member can ALWAYS challenge the former ruling on the basis of inadequate class representation, if fails she's bound.

C. Rule 23

1. rewritten in 1966, prior = had 3 groups, changes in 66 drastically changed the rule and the classes

2. currently--2 stage procedure:

a. 23(a)--MUST be satisfied in all class actions--connected w/ AND, all MUST be met

(1) Numerousity

why? otherwise joinder would be sufficient, class actions are special, be sure this procedure is necessary. No specified #, rule of thumb is 25, case-by-case decision. Enough that joinder would be impractical

(2) common question of law or fact

(3) typicality--to make sure the interests of the absnetees are represented.

(4) class rep-adequate rep---very often chosen by the lawyer, so to mold to the suit

[pre-amble language = other requirements]

(5) must have a class---must be some identifiable group of people, knocks out amorphous groups which would create representation problems

(6) Class rep must be a member of the class--comes up very often

b. 23(b)--3 possibilities

(1) (b)(1) least used, very specialized, few cases fit; (A) OR (B)

(a) read advisory commitee notes to understand well w/ examples

(b) (A) example tax or bond issue, will be valid for all the citizens

(c) (B) example limited fund

(d) *these cause few problems, historically recognized as correct

(2) OR (b)(2) CIVIL RIGHTS

(a) seeking injunctive or declaratory relief

(b) can also seek damages, as an incidental relief; employment cases are common

(3) OR (b)(3) DAMAGES all want money from the D - price fixing cases, securities cases

(a) questions of law or fact comon to the members of the class PREDOMINATE over any individual questions

(b) class action is SUPERIOR to other methods

(c) List of 4 findings for ct to consider include:**managability (d) will this be an unmanagable elephant?

3. ascertainable class: No need to be able to identify all the members of the class at the beginning; need not know all their names, addresses, this'll come out when they come to collect, they'll have to prove they were a member of the class. Different class actions require different amount of certification.

4. The class action lawyer is the one who runs the show. Opposite interests of the typical 2 party case. Lawyer becomes an entrepeneur and takes the risks of losing the case and eating the costs.

Opposite interests of the typical 2 party case. Lawyer becomes an entrepeneur and takes the risks of losing the case and eating the costs.

5. Vasquez---Ct allows tort of fraud to be allowed on a class action basis; a very personal, individual type of claim is made to fit the class action. This is how the class action procedure can mold the substantive law.

a. Not all cts will be as flexible as the Vasquez in making something fit class action.

b. **common liability ?s, ct will typically not deny class action simply because the damage questions are different. P can also try to make the damages calculations common, using a formula, etc.

6. Superior? Would individual class members prefer to have their own actions. Whether the individual class members want a class action is important because can opt out of a B3 action.

7. procedure: certification (c), as soon as possible the dist ct judge will decide if class action is proper way, certify a class.

a. the certification is a conditional order, very often the judge will modify the order as the case moves along.

b. (2)-notification to the class required, "best notice practicable under the circumstances"

8. Dalkon Shield--ct trying to certify a class ag/ P's desire. Ps can defeat this.

a. Hard to have a class rep when no one wants to be the rep.

b. B1 didn't work because for a limited fund class, not for a mass tort action.

c. B3 get back to the ? of whether this is the best way to proceed, obviously not since the Ps don't want it and will opt out.

d. Can have D classes certified over D's objection, still rare.

9. Predominance of common issues, problem in mass tort where causation is an individual issue, as in Dalkon Shield.

a. Possible on things like airplane accidents, cruise food poisoning.

b. Class actions don't work and individual actions bogging down the cts and leading to varied results. Cts don't know what to do with the problem.

c. B3, are there a lot of individual actions, where are they--these all show that class action not a superior method.

d. P w/ the strong case doesn't want to be in the class action, the small claim does want to be there. This a problem even w/ the mass tort class action--affects how much they can recover.

10. NOTICE

a. Individual notice must be given to the class members. Eisen v. Carlisle & Jacqueline

(1) Ct looks to the language of (c)(3) individual notice to all members who can be identified through reasonable effort.

(2) SC says this is not a discretionary matter, the rule is very clear.

(3) not a constitutional requirement, ct interprets it necessary only for rule 23

(4) This notice requirement only applies to B3 actions and only to B3 actions where the class members are identifiable--ie cab driver case, individual notice not necessary.

(5) Dist ct may order notice in a B1 or B2 action, at her discretion.

(6) reasons for giving notice: doesn't just provide opportunity to opt out. Also gives opportunity to intervene

(a) Argument is that b3 action is the type that don't need notice because $70 is better than none. They're not going to opt out, etc. But b2 actions may be the type (school desegregation) where the interest in intervening is much greater. Many criticize rule 23 for this, saying that this is where the rule got it wrong.

(b) individual notice makes sense if re/ as an enlarged 2 party action, need to protect the absent class member. But if look at it as way to deter illegal acts, you don't arrive at the same conclusion.

(7) Decision came at time of fear of ruinous litigation by increase of class-action. Federals rules are adopted by the SC, today it may be read differently.

(8) This case only applies to cases where you can identify all of the individual class members. Go to the "best notice practicable", usually means publication.

(9) Is the notice even intelligable to the absentees? examples in notes that are rather humorous.

b. Cost of the notice: Ps are to bear the full cost of the notice. Don't want dist ct prejudging the merits. Again this could've gone the other way, ct inevitable getting into merit ?s in certifying the class.

(1) In reality today P class lawyers bear the brunt of the costs.

(2) What about expense of identifying the class members? What if it's in the D's records? Cts have gone both ways. Ct use Eisen to say P bear the costs.

c. States are not bound by Eisen. Can determine burden of cost.

D. Fluid class recovery: determine from the Ds records the total overcharge and then allow future people and collect or lower the price until $ gone, too difficult to give back $1.50. Used extensively in Cal. Some federal cts use it. SC never answered the ? whether this is proper.

E. Statutes of Limitations: American Pipe v. Utah--once the class action is filed the Statute of limitation is tolled until there is a denial of certification, if any denial of such. Once denial is made the limitation starts running again.

-23(d) dist ct may order some publication notice if they are about to deny class certification, thus giving them time to file their own suit.

F. Jurisdiction

1. Subject Matter jurisdiction-SJ is a problem when brought on diversity js:

a. diversity--look only at the citizenship of the named representative

b. amount of controversity--can't aggregate all the claims, can't have just one, EVERY CLASS MEMBER MUST MEET THE AMOUNT IN CONTROVESY. This has sent most class actions into state courts.

2. PJ: (Phillips) over class members as plaintiffs.

SC rejects min contacts requirements of Intl Shoe because it involves pj over Ps, not Ds. The rep, the ct and the D ironically are all protecting the absent class members interest. Ct holds that they were adequately represented because of notice and chance to opt out.

G. Standing & Mootness - what do w/ someone who is a member of a class when brought but lose the standing because of change w/ time [ie Campbell graduates]?

1. If the class is certified before the mootness of the class rep the class is now the party and from then on don't care about the individual reps personal standing. Class lawyer is looking out for the interests. The class can provide the action for controversy.

2. if rep's case is mooted before certification then out.

----exception: not dismissed if this is the sort of dispute that is likely to continue in the future and no one would be able to be a class rep and reach time of certification. Comes up in criminal and abortion cases.

3. The attorney may prefer the class action because extends time ag/ mootness limits

H. Who can terminate the lawyer? the judge will determine if it's in the best interest of the class.

I. SETTLEMENT OF CLASS ACTIONS: 23 (e)

1. No class action may be dismissed to settled w/o ct approval.

2. Notice is also required, in such manner as the ct directs.

a. Has been interpreted to mean that ct has discretion to decide no notice is necessary or allow for publication notice, etc. something other than the individual notice.

b. The only discretionary aspect is how much notice is required.

3. Have these safeguards because the class rep & the class attorney may be seeking own interest, might be selling out the class.

--lose the binding affect of the settlement if they are sold out and can complain there was no adequate representation.

4. applies to ANY KIND of class action--important because in B2 actions the members will likely be very interested in the remedy, B3 may want to object for the damages settled

5. Fairness hearing--Ct listens to the objections that are brought forward.

6. Ct will also consider the attorney fees--ct will often reject contingency fee arrangement for a "load star" which is a result of # of Hours x $/hr. Ct will also consider the difficulty and risk of the case.

7. ct will still go through the analysis if there is a judgment

8. can have a class action settlement approved over the objection of the representative--the class lawyer is representing the whole class, not just the class rep. obviously if there is an objection the ct is going to look more closely at the settlement. Considerations---what was the original demand, examine the merits of the case, how much discovery has been done/timing of the action & settlement

9. B2 action[desegregation case] if there is an objection showing that the representation wasn't adequate, can't assume all black families feel the same way

10. ADEQUATE REPRESENTATION is the key issue