Shane - Civ Pro II Outline

Information Gathering / Discovery Timeline for Discovery A. Rule 26(f) conference: “as soon as practical,” but not < 14 days before Rule 16 scheduling conference. a. Lead counsels confer re: the case, no judge. B. Rule 26(f) Report due w/in 10 days after 26(f) conference. C. Rule 26(a)(1): Initial Disclosures due w/in 10 days after 26(f) conference. D. Rule 16(c): Courts sets date for trial. E. Rule 26(d): Discovery permitted to begin after exchange of initial disclosures. F. Rule 26(b): Responses to Discovery Requests can be made (Limits to Discovery) G. Rule 26(a)(2): Disclosure of Expert Testimony and Written Report at least 90 days before trial. H. Rebuttal Expert Testimony w/in 30 days after disclosure by opposing party. I. Deposition of Expert allowed after Disclosure of Exert Report. J. Written discovery cut-off by court generally 60 days pre-trial. K. Oral discovery cut-off by court generally 30 days pre-trial. L. Rule 59(b): Motion for New Trial w/in 10 days after entry of judgment. M. Rule 50(c)(2): JNOV: w/in 10 days of verdict. General Discovery A. Rule 45: Subpoena is way to get documents or info from a non-party. B. Two-Stage Discovery Process: a. Disclosure: Parties come forward with certain basic information [FRCP 26(a)] b. Discovery of Additional Information: Parties may ask each other for additional information. Must disclose “any matter, not privileged, which is relevant” [FRCP 26(b)(1)] C. Form of Disclosures Discovery a. 26(f) – Conference of Parties - Disclosure i. Parties meet w/o the judge to discuss case and w/in 14 - Deposition (oral or written) days after Scheduling Conference disclosures must be - Interrogatories (written) made. - Inspect Documents/Property b. Automatic Disclosure [FRCP 26(a)(1)]: a party must w/o - Admission awaiting a discovery provide to other parties: - Physical/Mental Examination i. People (name and address and telephone number) likely to have discoverable information that the disclosing party may use to support its claims or defense; ii. a copy of all documents that the disclosing party may use to support its claims or defenses, iii. Materials used in the computation of any category of damages claimed by the disclosing party, iv. the documents or other evidentiary material, not privileged or protected from disclosure; v. any insurance agreement c. 26(a)(2): Disclosure of Expert Testimony i. Party shall disclose the identity of any person who may be used at trial to present evidence, 90 days prior to trial. Must include written report prepared and signed by witness, containing; 1. A complete statement of all opinions which may be expressed at trial; and 2. The basis and reasons for the expert’s opinion; and 3. Qualifications of the expert (including publications); and 4. Compensation to be paid for the study or testifying; and 5. A listing of all previous cases in which the expert had testified (either at trial or deposition). D. Form of Discovery a. Depositions, taken from both written and oral questions (primarily, oral questioning)(FRCP 30) i. Non-parties may be subpoenaed (Rule 45) to respond to depositions. ii. Attributes of deposition b. c. d. e. 1. No more than 10 depositions can be taken and you are only able to depose a person 1 time unless you get court permission 2. Can force a witness to take a position and ask follow-up questions. 3. Expensive 4. Under oath iii. Objections 1. Objections during the deposition must be stated concisely and in a non-argumentative and non-suggestive manner. 2. A person may only instruct a deponent not to answer a question if it is necessary to: a. Preserve a privilege; or b. Enforce a court limitation; or c. Present a motion to terminate (as per Rule 30(d)(4)). iv. Sanctions: The court may impose sanctions on deponents that impede or needlessly delay a deposition. v. 30(g): Failure to Attend 1. If a serving party does not attend a deposition, she is responsible for reasonable fees and expenses of the other party and the deponent, if a court so orders. 2. If a witness does not attend because the serving party fails to serve a subpoena, the serving party must pay reasonable expenses/fees for the other party’s attorney showing up, if a court so orders. Interrogatories addressed to a party (written questions sent by one side to the other with expectation of answer) (FRCP 33) i. Non-parties do not need to answer ii. Can have up to 25 questions. iii. Attributes 1. Cheaper 2. Less effective 3. No follow-up questions 4. Sent only to a party not a witness. Requests to inspect documents or property (FRCP 34) i. After 26(a) disclosure ii. No limit to the number of documents iii. Must be asked of a party to the suit. iv. Non-parties may be compelled to produce documents under Rule 45. Requests for admission of facts (FRCP 36) i. Typically, admit matters of fact. 1. Admissions are obtained to eliminate disputed facts in trial, while interrogatories and depositions only constitute evidence from which to argue facts. ii. Failure to admit, without later presenting a defense, can result in sanctions. iii. If no answer is given, a party is considered to admit the allegation. Requests for physical or mental examination (FRCP 35) i. Requirements: 1. Requires that the person to be examined be a party to the action or a person in the custody or under legal control of a guardian. a. Not an employee because not under custody or control of employer. b. More for minors. 2. The mental or physical condition must be “in controversy” a. Pleadings alone can be sufficient to justify examination  P asserts injury and places mental/physical injury in controversy. 3. The party seeking such discovery must show “good cause” for examination. a. Take into account ability to get info from somewhere else. (Up to Judge). ii. In most cases, the fact that the P is claiming substantial injuries will justify an order for an exam. iii. Discovery v. Privacy: Schlagenhauf v. Holder: Greyhound 1. Can apply to P or D, but easier for P b/c they put their problems at issue. Rule 26(b) – SCOPE AND LIMITS of DISCOVERY In general – parties may obtain discovery regarding any matter that is; 1. Not privileged, and 2. Relevant to the claim or defense of any party. Relevant information need not be admissible at the trial, if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. A. Relevance a. A party is entitled to discovery of relevant information that may include evidence admissible at trial and evidence which appears Rx calculated to lead to the discovery of admissible evidence. b. Broadly construed of relevance. i. Rule: Relevant if there is some connection b/n the evidence you are seeking and the lawsuit. Blank v. Sullivan & Cromwell ii. Case: Should D’s be forced to answer Interrogatories re: P’s sexual discrimination case w/ the law firm for not hiring female employees?  Promotion related enough to hiring practices? General info in D’s labor hierarchy may be reflective of firm’s hiring practices. P looking for a pattern in behavior. c. Narrow interpretation of relevance i. Rule: Evidence is not relevant if it doesn’t relate to a matter pertinent to the decision of the case. Steffan v. Cheney: homo in the military. B. Exception to Discovery Rule: Privileges: 26(b)(1) –limit discovery to “any matter not privileged, which is relevant”. a. Privileged info is non-discoverable regardless of relevance. But they are not meant to block the underlying facts. b. Discovery will be limited to the issues framed by the parties’ pleadings. c. Confidential does not equal privileged. d. Attorney-Client privilege (some evidence, although relevant, should be protected) i. Protects communication between lawyers and clients concerning the matters the lawyer is handling for the client. Rationale for the privilege is Common Privileges that effective representation requires full and frank communication. (Upjohn) - Attorney - client 1. (What did you tell your lawyer about how fast - doctor - patient you were driving?) - psychotherapist – patient ii. Does not prevent discovering underlying facts - Trade Secrets 1. (How fast were you driving?) - 5th Am right of self-incrimination 2. Can not protect names of people with information relevant to the case either. The privilege protects documents produced in the course of case preparation, and opinions of counsel, but does not allow counsel to refuse proper discovery requests for factual knowledge about the issues. iii. Work product = actually prepared in anticipation of litigation, so not something prepared as a means of trying to avoid it. The Attorney-client privilege, however, could be used where a client consults with an attorney for legal advice or services, and communicates information in confidence to him, relating to the purpose of the services, the communication is protected under the attorney-client privilege. e. Example: Upjohn case i. Client is corporation: privilege extends beyond the top management of the firm to include employees who fall within the appropriate scope of employment and would have important info for the atty relating to the subject matter of the case. ii. Supreme Court has suggested that communications from employees to corporate counsel will be protected. C. 26(b)(2) - Limitations on Discovery a. Discovery shall be limited if the court determines that i. The discovery sought is: 1. unreasonably cumulative or duplicative; or 2. Obtainable from a more convenient or less expensive. ii. The party seeking discovery had an ample opportunity to obtain the information sought. iii. Such discovery would be unduly burdensome or expensive in comparison to: 1. The needs of the case 2. The amount in controversy 3. The limitations on the parties’ resources 4. The importance of the issues at stake in the litigation 5. The likely benefit of discovery b. The court may act on its own initiative or pursuant to a motion to limit discovery. D. 26(b)(3) - Trial Preparation: Materials – (WORK PRODUCT DOCTRINE) a. Any materials developed in anticipation of litigation is qualifiedly immune from discovery. Contrary to the basic discovery principle of free access to information, but want parties to do their own work. i. Qualified protection: ltd right to obtain trial preparation materials (exceptional circumstances). b. Work product privilege applies to written materials, prepared in anticipation of litigation, by the Party or his representative. They are privileged unless the opponent can show Exceptional Circumstance. c. A party may only obtain the work product of an adversary if it can prove (with facts or circumstances): i. Substantial need of the materials ii. That the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. d. The privilege protects the impressions of attorney, not the underlying facts. The attorney's mental impressions, thoughts, and strategies are absolutely privileged. i. Fact (exceptional circumstance requirement) v. opinion (absolute protection) work product e. First recognized in Hickman v. Taylor, the WPD bars production of certain materials developed in anticipation of litigation. “Work-product” includes material containing: i. Mental Impressions; or ii. Conclusions; or iii. Opinions; or iv. Legal theories. f. The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation, even where exceptional circumstances have been shown. i. A party may obtain any written signed statement, recorded transcript or statement, or verbatim transcription of witnesses if the party can meet the exceptional circumstance requirements. ii. What about info created by one employee for another?  can still be work product iii. What if no lawsuit pending?  was it prepared in anticipation of litigation? g. If the other party denies materials – The party seeking discovery may: i. Move for a court order to obtain the other party’s materials; and ii. Apply for expenses incurred in relation to the motion (under Rule 37(a)(4)) h. Hickman v. Taylor: 5 of 9 crew members died in a tug boat accident. The tug owners retained a law firm, F. F privately interviewed the 4 survivors, took statements from them and interviewed other people that might have info. P filed 39 interrogatories (Rule 33). D’s answered 38 of them. No. 38 asked for all written and oral statements from the members of the crew that F had received. While admitting statements had been taken, F refused to turn them over, calling them privileged. i. Copies of witness interviews: privileged b/c could reflect atty strategy i. Policy defense of work product doctrine: i. attorneys need privacy to be successful ii. If materials could be discovered by opposing attorneys, they would not be written down and a lot of coat tail riding would ensue. Also do not want lawyers to have to take the stand. iii. undermine trust in party’s attorney E. 26(b)(4) Trial Preparation: Experts Opinions (EXPERT TESTIMONY) a. 4 kinds of experts i. Testifying Expert: who will, or might, appear at trial 1. A party may depose any person who has been identified as an expert whose opinion may be presented at trial. Further requires the delivery of any reports to be relied on by the expert. ii. Non-testifying – Consulted (Retained) Expert 1. A party may discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation and who is NOT expected to be called as a witness at trial upon showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means (by hiring expert themselves). a. Example: P allowed its own expert to examine an item at issue while barring the D’s experts until the time is no longer accessible will warrant discovery. 2. Like work product (fact) 3. Thompson v. The Haskell Co.: (sexual harassment led to depression) Facts: P alleges sexual harassment. P seeks a protective order to shield from discovery the documents related to her in possession of her therapist. The therapist was hired 10 days after the alleged incident. P sued 1 year later. This is the type of information that no one else could have b/c of that proximity to the incident. 4. Why not allow disclosure? a. Unfair to allow a party to benefit from the effort and expense incurred by other party preparing the case b. ↓ willingness of experts to testify c. Prejudiced iii. Fact (Actor – ordinary course of duties) Witness/Expert 1. Chiquita Facts: Maritime action in which the shipper, P, sues the carrier International Reefer Services. An expert witness was also a witness of fact because he was on the dock and saw the relevant facts. a. Issue: Can the D compel discovery of the non-testifying expert witness, who is also a factual witness? i. Fact witness – his info would be discoverable  subject to subpoena with no limitations. b. Rule: information does not become exempt from discovery merely b/c it is conveyed to a non-testifying expert. In this case, documents relating to discoverable information should be produced, but documents that include observations and opinions need not be disclosed. i. D had the opportunity to inspect the vessel, but were too lazy to do so. 2. If fact and expert planned to be a testifying witness then treated as a regular witness. But if specially retained and not testifying, then privileged. iv. Employee Expert 1. Regular job is to give advice and specially retained for that purpose then privileged. F. 26(b)(5) – Claims of Privilege or Protection of Trial Preparation Materials a. When a party withholds information otherwise discoverable by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents not produced, without revealing information itself privileged or protected, so as to enable the other parties to assess the applicability of the privilege or protection. Rule 26(c) – PROTECTIVE ORDERS: A. Rule 26(c) allows the court to enter protective orders limiting discovery even if the requested information meets the broad relevance standard in Rule 26(b)(1). B. Rule: Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has made a good faith effort or attempt to resolve the dispute without court action, and for good cause shown, the court may make any order which justice requires to protect a party or person from; a. annoyance, b. embarrassment, c. oppression, or d. undue burden or expense, C. Stalnaker v. Kmart Corp.: protect parties from abusive discovery a. Party seeking protective order has burden of showing good cause for why should be protected. Upon the showing of good cause, the court may make an order which justice requires to protect a party from annoyances, embarrassments, or undue burden. b. D showed good cause to bar discovery as it relates to sexual activities of 4 non-party witnesses in general (questioning of witnesses re: their sex life was unduly oppressive and showed good cause that no reason to question about personal life other than how it relates to graves), but their testimony is relevant w/ regards to any sexual harassment by Graves. 26(g) – Signing of Disclosures/Discovery/Requests/Responses/Objections A. All must be signed by at least on attorney (or the party if not represented) to be valid (recognized by the court). B. The signature is a certification that to the best of his knowledge, information, and belief (formed after reasonable inquiry), they are: a. Consistent with good faith and existing law (including these rules) or a good faith argument to extend, modify, or reverse an existing law. b. Has a Proper Purpose – it is not used for purposes such as harassment, delay, or to increase costs of litigation. c. Is not unreasonable or unduly burdensome or expensive C. Sanctions: a. If rules are violated, appropriate sanctions (such as in Rule 11) will be imposed, either by: i. The court’s own initiative; or ii. Motion by the opposing party. b. Sanctions may include an order to pay the amount of the Rx expenses incurred because of the violation, including reasonable attorney’s fees. Discovery Abuses: Ensuring Compliance and Controlling Abuse A. Types of Discovery Abuses a. Too Little (stonewalling) – one party refuses or resists appropriate requests for discovery b. Too Much – one party seeks more discovery than the case justifies to discourage or hamper the opponent c. Mismatched – two parties have significantly unequal wealth; the richer party, even if it does not abuse discovery, may seem to have an unfair advantage B. Rule 37 –Sanctions & Motion to Compel Failure to Cooperate in Discovery a. 37(a) – Motion to compel discovery i. A motion to compel production may be used when a party has requested discovery and the other party refuses to answer. The scope of discovery is very broad and permits any evidence, not privileged, to be discovered as long as it is relevant to the subject matter of the action and relates to the claims/defenses of the discovering party or any other party in the action. ii. Obligation to make a good faith effort and try to work it out before going to court. 1. If motion is granted: Unless the court finds that the movant did not make a good faith effort to obtain discovery w/out court action, then the party who necessitated the court action must pay Rx expenses, including atty fees. 2. If motion denied: the court may order a protective order and make the movant or their lawyers pay the other party Rx expenses, including atty fees. b. 37(b) – Potential Sanctions for Failure to comply with Order Compelling Discovery. i. taken facts as admitted ii. cannot bring claim forward if you don’t participate on the claim iii. dismiss the action iv. hold you in contempt v. Require the opposing party to pay Rx fees, unless the court finds the disobedience was substantially justified. c. 37(c) – refusal to admit/disclose information i. if you are asked to admit something and you don’t and it is proven at trial, you may have to pay the cost of proving it. ii. if you don’t disclose something, you may be precluded from making those arguments at trial d. 37(d) – when you are supposed to depose someone and they just don’t show up i. There are lots of punishments  Rx expenses, including atty fees. ii. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c). C. Chudasama v. Mazda Motor Corp: Abuse of discretion by court and sanctions a. P overwhelmed D with discovery requests for everything. Discovery took nearly 2 yrs. D objected 10 times, and asked the court to rule on the objections 25 times, but the court refused to respond. D also sought dismissal of the fraud claim and a protective order. The court also didn’t answer on these. D didn’t respond to discovery requests. P asked for an order to compel which the judge granted, giving D 15 days to complete. They tried, but were unable. Default judgment for the P. i. Judge failed to properly supervise discovery and D resorted to self-help to avoid P overreaching. b. Rule: A court abuses its discretion when it imposes severe discovery sanctions on a party whose rights were materially prejudiced by the court’s mismanagement of the case. c. Rule 26(g)(3) – once there is a violation, sanctions must be administered.  “The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances.” i. Court does not condone self-help, but b/c of Trial courts failure to act they were left with no Resolution without Trial A. Ways to Avoid Trial a. Settlement (Negotiation, Mediation, Arbitration)  Non binding b/c right to jury trial b. 12(b)(6) MTD: failure to state a claim for which relief may be granted. Assume everything they say is true, but still no c/a. c. Default Judgment d. Voluntary Dismissal e. Involuntary Dismissal f. Summary Judgment: enter judgment on merits with prejudice w/o trial. B. Default Judgments [FRCP 55] – w/ prejudice 1. When a party against whom a judgment is sought fails to plead or defend the suit, the party will suffer a default judgment. 2. Default serves as admission of liability, so designed to encourage the party to act. 3. P still has to prove that the facts justify relief. 4. Must observe due process in notifying Δ prior to default judgment 5. While courts can enter default judgments, they prefer to see parties engage on merits of dispute 6. Default judgments possible when sum is easily ascertainable or calculable and as long as the D is not an infant or an incompetent person. 7. NO ISSUE PRECLUSION C. Dismissal of Actions [FRCP 41] 1. Voluntary [FRCP 41(a)] – w/o prejudice a. P moves for dismissal prior to D answering complaint or before summary judgment. b. Agreement on dismissal does not bar a later refilling of the suit. 2. Involuntary [FRCP 41(b)] – w/ prejudice. a. Δ moves for dismissal, for failure of  to prosecute or comply with FRCP or a court order. b. Involuntary Dismissal = final adjudication on the merits D. Rule 56 - Summary Judgment Summary judgment shall be rendered if: A. There is no genuine issue of any material fact shown (discretionary); and B. The moving party is entitled to judgment as a matter of law. 1. Adjudicative alternative to trial for cases so one-sided that trial would be pointless. a. MSJ occurs after discovery process complete.  Cannot get past burden of production phase. 2. SJ is not meant to try the facts, but only to determine whether there are genuinely contested issues of material fact. a. Judges role is to determine if there is a factual dispute. 3. ***It is not enough to show that there is a dispute in the evidence on some facts; the dispute must be on an issue that is material to the right to recover. 4. A party making an improper/bad faith MSJ shall; a. Pay the other party’s Rx expenses (including attorney fees) associated with the MSJ. b. Be held in contempt. 5. FRCP 56(e): Requirements a. Requirements for Affidavits (written document in which the affiant swears under penalty of perjury that the statements made are true): i. Must include personal knowledge of facts and admissible evidence. ii. Shall show that the affiant is competent to testify. iii. The court may permit the affidavit to be supplemented by depositions, interrogatories, or other affidavits. b. Responding to a Motion for Summary Judgment: i. The adverse party must set for specific facts showing that there is a genuine issue for trial (cannot rely on pleadings). ii. If the adverse party cannot show that there is a genuine issue, summary judgment shall be entered against her if appropriate (given an opportunity for discovery). 6. Burden – (burden of persuasion parallels what burden would be at trial) a. Moving party (D) may meet its burden of persuasion by: i. Demonstrate to the court that the nonmoving party failed to supply sufficient evidence of a genuine dispute of material fact. Celotex ii. There is no requirement that moving party produce materials negating the opponent's claim. Adickes old view. b. Nonmoving party: i. Show that there are matters of fact that require a trial. Visser ii. Nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment. c. Example: i. Celotex Corp. v. Catrett: P sues Celotex for her husband’s death from exposure to asbestos. D MSJ claiming that P failed to produce evidence that any Celotex product was the PC of the injuries alleged. In response, P responded with 3 documents that all tended to establish that the decedent has been exposed to D’s asbestos products. ii. Visser v. Packer Engineering Associates: Visser sued employer for age discrimination (fired). Various members of the board defected and formed a new company. Visser stayed on. The CEO asked Visser for personal loyalty and he refused. He was fired 9 months before his pension was to vest. 1. P came forward with affidavits that say that he was fired because of his age; they did not have personal knowledge of that issue (nothing admissible; just opinions; no factual basis; they are not experts); this is a case of suspicious timing and the court won’t rule based on that. A Rx jury could not find for him on this. Right to Jury Trial – FLASHCARD!!! A. 7th Amendment – “In suits in CL, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the U.S.” a. “shall be preserved” is a historical view into what was the situation in 1791 B. FRCP 38: The right of trial by jury as declared in the 7 th Am or in federal statutes shall be preserved to the parties. a. Jury  legal claims b. Judge  equitable C. Test: (Chauffer) a. The first step is to look at the statute, to see if it states what rights exist re: jury trial. b. Then there is a 2 part test; c. Historical Test: i. If not statutory in 1791 Compare the action to actions brought in England prior to merger b/n law and equity. Ask if there were any suits at CL which are sufficiently analogous to the present suit, and if so, what court did they go to? 1. May or may not know. The controlling test is look to relief sought. 2. Specific performance and $?  jury determines if breach of K, the judge determines remedy. 3. No such thing as fair representation. 4. Like malpractice actions in law courts. 5. Arbitration award (which was equitable in 1791) D. E. F. G. 6. Trust beneficiary against a trustee (equitable in 1791) 7. Company says more like fiduciary situation  more equitable. But, b/c legal and equity component of single claim they focus on part 2 of test. ii. Examine the remedy sought and determine if legal or equitable in nature. (more important!) 1. Back pay: legal in nature b/c not a form of restitution, but rather pmt of benefits. 2. Injunction or specific performance equity 3. Brennan: seek $ = legal remedy = jury trial. 4. In employment litigation, if the relief sought is limited to reinstatement or promotion, courts have been uniform in concluding the relief is equitable and NOT triable by a jury. What if seeking equitable and legal? (Amoco) Key is that there needs to be common facts to determine each case. If so, then in order to preserve right to jury, then jury hears case… a. The fact that equitable relief is also sought does NOT preclude P’s right to a jury for legal claims. i. Neither joinder of an equitable claim w/ a legal claim nor joinder of a prayer for equitable relief w/ a claim for legal relief can defeat an otherwise valid 7 th right to jury trial. b. Since the factual inquiry is the same, the jury decides legal questions, then judge accepts their findings and decides on equity claim. c. Common question of substantive claim but remedy different  jury tries them first so as not to deprive party of right to jury trial. Then judge accepts jury findings. General: a. Can waive trial by jury by failing to demand it within the appropriate amount of time - any time after the commencement of the action and not later than 10 days after the service of the last pleading. b. Either party can demand a jury trial c. State courts: up to state constitution whether or not right to jury trial. Example: a. Amoco: Amoco wanted to eject Torcomains from an Amoco service station run by the Torcomains and wanted to enjoin them from selling under the Amoco copyright. There are some damages sued for as well as ejectment and injunctive relief. The D’s counterclaim with a bunch of breach of contract claims and suits for profits and damages: i. Amoco sued for; 1. Ejectment (legal) – though it seems equitable 2. permanent injunction (equitable) 3. lost profits - (equitable) 4. money damages (legal) – ii. Amoco attempted to amend complaint to eliminate claims that sought money damages. It did so to eliminate any claims that might be construed as legal so as to foreclose the D’s right to jury trial. iii. D counterclaims for lost profits and atty fees  Jury trial iv. Rule: “equitable main claim cannot preclude a jury trial on a legal counterclaim, at least when the counterclaim is compulsory”. 1. A ruling to the contrary would allow preemptive filing of a complaint by the holder of an equitable claim to deprive the holder of a legal claim the 7 th amendment right to trial by jury. 2. Jury decides merits of decision then judge respects that finding. Jury determines legal relief then judge determines if equitable relief is sought. 7th does NOT: a. Make all cases triable by jury It provides the right to a jury but also defines its scope. b. Apply to state courts: i. There is no federal constitutional requirement that states accord the right of jury trial in any civil case. Trial: Limits of Rational Inference A. Reid v. R.R: Action was brought by P to recover damages for the killing of her cattle by D’s train. The D negligently allowed the fence along the line of the railroad to be broken and in poor repair and become down so that cattle had an easy passage. A gate was also left open along side the railroad (not the fault of the D), and the P does not know whether the cow got out throw the open gate or the broken fence. a. Issue – are there enough facts to sustain this case going to the jury? b. Rule – the burden of persuasion is on the part of the P to prove the D’s liability by a preponderance of the evidence. If the existence of an essential fact is sought to be inferred, points with equal force to two things, one of which renders the D liable and the other not, the P must fail. i. If there are two possibilities that each have exactly a 50-50 chance of being true and the D would not be liable in one case, the P must lose b/c they have not proven a preponderance of the evidence. c. This does not mean that circumstantial evidence is not sufficient to get to the jury, just that in this case there was insufficient evidence. – Burden of production problem!! Weaker evidence Stronger evidence x z y B. Chart Above a. X: point at which the P has produced enough evidence that is sufficiently persuasive that a Rx jury could find that she has proved each element of her claim. If the P’s evidence crosses the X line, then she has satisfied her burden of production and the case must go to the jury. b. Z: point at which evidence is evenly balanced. It is the P’s burden of proof to establish that the preponderance of the evidence favors her version of events. Evidence must fall to the right of the Z line to carry her burden. c. Y: P’s proof is so strong that any Rx jury would conclude that P has proved her case. d. Between the X and Y lines= Jury e. Judge does not resolve factual decisions when ruling on a Directed Verdict motion, but makes a legal judgment that the evidence is so lopsided that there is no meaningful factual dispute for a jury to consider. C. Procedural Controls of Rational Proof: a. Burden of Persuasion i. Defines the extent to which a trier of fact must be convinced of some proposition in order to render a verdict for the party that bears it. ii. Example: Civil cases – “preponderance of evidence”  Trier of fact can find for the party with the burden of persuasion if the trier finds the material fact merely probable. b. Burden of Production i. Requires a party to “produce”, to find and present evidence in the 1st place. ii. A party with the burden of production can lose even before trial if she fails to demonstrate, among the facts uncovered by investigation and discovery, sufficient evidence to allow a rational trier of fact to find in her favor. (see Reid) iii. Satisfying a burden of production means only that a trier might rationally decide the case in one’s favor, not that it must! c. Typically, P has the burden of production to prove a claim and D has the burden of production in asserting affirmative defenses. D. Controlling Juries Before the Verdict – Standards a. Rule 50(a): JMOL (DV): is a rational jury control device by not letting a non-issue get to jury b. Excluding Improper Influence i. Law of evidence: make sure only admissible facts heard ii. Voir Dire: screen jurors to eliminate jurors whose sympathies or inability to understand the evidence might cause them to reach irrational verdicts. c. Instructions and Comments i. Jury instruction: Control what jury does with information by explaining the substantive law that applies in the case and the way juries must make their decisions. FRCP 50: Directed Verdict/JMOL A. A method of taking the decision as a matter of law away from the jury b/c the evidence is so lopsided that “there is not legally sufficient evidentiary basis for a Rx jury to find for that party on that issue.” a. Keep in mind burden of proof and persuasion. i. POTE ii. Insufficiency of evidence b. Rule: Where there is a direct conflict of testimony upon a matter of fact, the question must be left to the jury to determine, w/o regard to the number of witnesses upon either side. iii. Example: Penn. RR v. Chamberlain: 9 witnesses said no crash, 1 witness heard a crash.  it is up to the jury to make inferences, not up to the witness. Court may not make judgments about the credibility of witnesses, even when the case seems strongly one-sided. Therefore, you must check to see if the P met the burden of persuasion requirement (need to produce enough evidence that a Rx jury could argue in your favor). iv. Directed verdict/JMOL - may be made at any time before submission of the case to the jury. i. D must have opportunity to present their case. v. Relationship w/ JNOV – made after the jury returns its verdict. It is a motion to lay the jury verdict aside and enter a judgment in my favor as a matter of law because no reasonable jury could have concluded in this fashion. 1. Rule 50(b) – “JNOV” can only be done if you have first moved for a DV after all evidence has been presented. a. Why?  CL had DV and not JNOV. And want to put judge on notice. Real issue is constitutional roots of one’s 7 th Am. Right to jury trial. B. Comparison to other Rules a. Rule 12 - Motion to dismiss – deals with allegations in pleadings, not facts to be developed b. Rule 56(c) – MSJ – Basically the same standard, no triable issue of facts and no Rx jury could find for D. i. Only difference b/n the 2 is timing. 1. Motions for JMOL may be made at any time before submission of the case to the jury (close of all the evidence or after P’s case). And have to in order to get JNOV- after jury comes back. 2. MSJ is in response to the pleading post discovery. C. Rule 52: Findings by the court a. Requires the court to make findings of fact. Court has to explain their judgment i. “the court shall find the facts specially and state separately its conditions of law” b. Findings of fact will not be reversed unless clearly erroneous. But the conclusions of law found by the court are subject to de novo review. i. **Want to ensure rational judgments on the part of the jury! Controlling Juries After the Verdict Judgment Notwithstanding the Verdict (JNOV): 50(b) A. JNOV – a delayed ruling on the earlier motion for JMOL (directed verdict) B. Grounds/Test (same as for directed verdict) – “There is no legally sufficient evidentiary basis for a Rx jury to find for the party against whom the motion is made” a. Verdict unsupportable because there is no evidence to support jury’s finding for at least one essential element of the claim or defense C. Failure to make a motion for a DV before case is submitted to the jury forfeits the right to move for JNOV after jury returns verdict [FRCP 50(b)]. a. Judge grants DV and then appeals court reverses  requires a new trial. b. Judge denies DV, then grants JNOV after jury found for other party, then appeals court reverses  jury verdict is upheld. D. ***Only the party who actually moved for DV before the verdict at the close of the case can move for JNOV. New Trial A. Rule 59: New Trial a. General i. Judge may order a new trial on his own initiative or on a party’s motion. ii. Grant of a new trial cannot be appealed because it is not a final order. b. 2 Grounds for New Trial i. Flawed procedure/misconduct during trial 1. Bad jury instructions 2. Improper admission of evidence 3. Lawyer makes impermissible argument 4. Juror misbehaved during the trial 5. Newly discovered evidence ii. Flawed verdicts: higher standard 1. The judge may grant a new trial if he believes the verdict goes against the “weight of evidence”. (Lind: liquor store employee) a. The judge cannot displace the verdict simply b/c he disagrees w/ the jury. He cannot substitute his judgment for that of the jury. He may order a new trial in cases in which the evidence is strong enough to rationally support a jury’s verdict, but he believes that verdict is seriously erroneous, a miscarriage of justice. i. Did the verdict shock the conscience? 2. New trial is a check on jury.  When determine it is against the weight of the evidence, parties are required to start over. B. Conditional/Partial New Trials a. New trial limited to damages – Jury accurately assigned liability, but incorrectly assigned damages so judge wants to modify the ruling. Appropriate Damages b. Remittitur and Additur  Highest amount i. Remittitur  Reasonable amount 1. Judge orders new trial unless the P agrees to accept  Lowest reasonable amount reduced damages ii. Additur 1. Judge orders new trial unless the D agrees to award increased damages 2. Unconstitutional invasion of D’s rights, because it adds to a rule the jury did not make C. Basic rule: can only appeal a final judgment. a. If court grants JNOV (overturn jury verdict and final judgment) so can be appealed. (if gets reversed, the jury verdict stands  much more efficient). b. Denied JNOV is a final judgment and it can be appealed. c. Judge denies JNOV but grants new trial, cannot be appealed. d. Judge denies new trial  FINAL JUDGMENT ON THE MERITS can be appealed. e. Grant DV  can be appealed (if judge gets overturned, then need whole new trial). The Limits of the Law’s Control: the Jury as a Black Box A. Judge or lawyer can talk to jurors after trial, but judge cannot change their verdict because he learns they misunderstood something during trial. B. 7th Am. ensures no fact tried by a jury shall be otherwise reexamined in any court of the US other than according to the rules of common law C. Example:Peterson v. Wilson – Judge grants new trial after chatting with jurors. Reversed, b/c judge can’t grant a new trial after learning the jury misunderstood instructions. a. A verdict can be against the “great weight of evidence” and thus justify a new trial, but the judge cannot grant a new trial “simply b/c the court would have come to a different conclusion than the jury did”. Respect for Judgments A. Claim Preclusion/Res Judicata: forbids a party from re-litigating a claim that (1) was asserted in the 1st suit, and (2) should have been raised in a former litigation b/c it relates to 1st suit. Therefore, better raise all possible grounds for relief in the 1 st action, even those that are Rx likely to ensue. a. Element: i. Final Judgment on the merits: w/ prejudice 1. Some J’s hold a judgment is “final” when it becomes final in the trial court. 2. Other J’s wait until the case finishes the appeals process. 3. A judgment need not be right to preclude further litigation, it needs only to be final and on the merits. 4. “on the merits”  assures that preliminary dismissals due to lack of J or venue will not bar suit in another court that has the power to proceed.        On the Merits Full Jury Trial Directed Verdict Summary Judgment Default Judgment Discovery Sanctions Involuntary Dismissal Other Sanctions Not on the Merits     Improper Venue Failure to Join Pre-answer motions Voluntary Dismissal ii. Same parties in both actions 1. Claim preclusion doesn’t have an impact on people not a party to the first lawsuit. 2. If sue in a 2nd lawsuit under a different claim, different c/a, different facts, then doctrine does not apply.  Permissive claims are not precluded. 3. P has obligation to seek all relief against that party. And likewise, the D has the obligation to bring all compulsory counterclaims! 4. Joint Owners  privity and precluded. If not same party, like co-tenants, then not precluded. iii. Same claim or c/a in both the 1st and 2nd suits: Depends on which test the J adopts. 1. Rule: One suit precludes a 2 nd where the c/a are identical. Claims need not have actually been litigated to be barred in a latter action, they need only have been available to the P in the 1st suit. Identical c/a depends on which approach the court applies. a. Traditional Rule - Narrow: C/A are identical where the evidence necessary to sustain a 2nd verdict would sustain the first, where the c/a are based upon a common core of operative facts. i. Looks at narrow set of facts. Even though have different legal theories, as long as same core of operative facts are the same then claim precluded. b. Modern/Restatement Rule: Broad view.  Majority i. C/a are identical if they are part of the same transaction or occurrence. ii. All claims arising from a single transaction must be litigated in a single initial lawsuit or be barred from subsequent litigation. 1. Things to consider are time, space, origin and motivation, would it be more convenient to try as one, and would you expect them to be treated as one? 2. Joint Tort-feasors: The rights of different P’s arising out of a single incident are not considered 1 claim b/c they arise out of 1 T&O. Remember, P’s are the master of their claims. iv. Opportunity to Litigate 1. If have an opportunity to bring claims together and you chose not to then second claim will be barred. 2. But if forced to bring single claim in a specialized court, then not barred. b. Example: “Common core of operative facts” i. Frier v. City of Vandalia: Lose your claim in state court when cars got impounded then take it to federal under a different claim will not suffice. c. Final adjudication on the merits: Consent Judgments and Claim Preclusion i. A consent judgment, a settlement b/n parties that becomes an official court judgment, is thus adjudicated on the merits. And res judicata/claim preclusion treats a judgment on the merits as an absolute bar to re-litigation b/n parties. Therefore, P’s compulsory counterclaim will be precluded if not raised at the proper time. d. Res Judicata is an Affirmative Defense that must be pleaded by the party asserting that the 2 nd action is barred. Then need to file a MSJ after. e. Goals: want lawyers to do their homework!! i. Efficiency: consolidate into 1 suit 1. Doing so prevents the oppression of D’s by multiple cases, which may be easy to file and difficult to defend. 2. Preserve judicial resources by barring rehearing of cases already litigated and decided. ii. Finality 1. Preserves the integrity of judgments and protects those who rely on them. 2. If defenses are not presented in previous action, the subsequent allegation of their existence is of no consequence iii. Consistency 1. Logically defers to former judgments. B. Issue Preclusion: Narrowly focused a. This question deals with the concept of collateral estoppel whereby a party can be precluded from relitigating an issue which has already been litigated and decided in a prior action. For this to occur, there must be the same issue, the same parties and a final judgment which is determined, actually litigated and essential to the judgment. i. Issue preclusion is NOT limited to the same claim, but rather just the issues inherent within the same or different claims. With issue preclusion, the issue is deemed established in the 2 nd case w/o need to proffer evidence on it. ii. Issue preclusion does not occur when an issue could have been raised in the 1 st suit, but was not explicitly raised and decided. b. Policy justifications – i. Application of the doctrine of issue preclusion represents a decision that the needs of judicial finality and efficiency outweigh the possible gains of fairness or accuracy from continued litigation of an issue that previously has been considered by a competent tribunal c. Test – Issue is precluded from being litigated when; i. The same issue of fact or law is ii. actually litigated and determined by iii. a valid and final judgment, and iv. the determination is essential to the judgment. d. The same issue i. Differing standards between criminal (Rx doubt) and civil law means that civil law (preponderance) decisions don’t cross over. (OJ) ii. If civil action comes first, then issue precluded b/c higher standard of proof. iii. Are elements and burden of proof the same? e. “Actually Litigated and Determined (Final Judgment)” i. The issue on which issue preclusion applies must actually have been litigated and determined in the previous case. ii. If a default or consent judgment is entered, there is generally no collateral estoppel as to the fact issues that would had been tried had the case gone forward. iii. General verdict decision by the jury  when a case is submitted to a jury w/ a general verdict form, the jury is simply asked to find for the P or D, so there is no way to know the basis of the jury’s decision. iv. JMOL/DV: constitutes a finding that on the evidence produced by the parties, no Rx jury could find for the party, thus the issue was actually litigated and decided. v. A party who deliberately precludes resolution of factual issues through normal adjudicative procedures may be bound, in subsequent, related proceedings involving the same parties and issues, by a prior judicial determination reached w/out completion of the usual process of adjudication. vi. Illinois Central Gulf Railroad v. Parks - Facts – Jessie and Bertha were injured when a car driven by Jessie in which Bertha was a passenger collided with an Illinois Central Train. Jessie and Bertha sued; Bertha for her injuries and Jessie for Berth’a loss of consortium. Bertha was able to recover, but Jessie did not recover for loss of consortium. Jessie then sued for his own injuries. vii. Burden of proof is on the D. viii. The issue must be actually litigated and determined – if A sues B for negligence and B responds with an affirmative defense of A’s contributory negligence. If B wins and then sues for damages, nothing is precluded b/c we don’t know if A was contributorily negligence in the first case or if it just couldn’t meet its burden that B was negligent. f. A valid and final judgment – (see above – claim preclusion discussion of valid and final judgment) g. An Issue “Essential to the Judgment” – i. It must be clear how the issue was decided by the trier of fact. ii. Issue preclusion will not apply unless the decision on the issue in the prior action was necessary to the court’s judgment. iii. A useful test to ask yourself is if the issue had been decided the opposite way, would the same judgment have been entered? If so, the judgment did not depend on the way the issue was actually resolved. h. Judgments using alternative grounds for a decision make it unclear which ground was essential to the final judgment; i. Restatement (First): 1. When alternative grounds for decision exist, both should be precluded in subsequent litigation. ii. Restatement (Second): 1. When alternative grounds for decision exist, neither should be precluded in subsequent litigation. 2. Effect of Appeal: a. But, if both alternative grounds are appealed in a higher court, the issues become precluded in future litigation. b. If the appellate court only deals w/ one of the appealed alternative grounds, the other is not precluded. iii. *EXAM: Look for alternative judgments i. Sanction Rule 37 to admit evidence i. 9th Circuit court: if admission of fact is a result of sanction then may be precluded from relitigating the issue. Bottom line on preclusion - Issue preclusion does not require the same parties (claim preclusion does) - Claim preclusion can only be used defensively to get claim out of court AND issue preclusion can be used defensively or offensively (but it is harder to use offensively) - Either π or Δ can make issue preclusion arguments, only the Δ can make claim preclusion arguments Part C Expanding the Framework of Litigation: Additional Claims and Parties Joinder: allow parties to litigation to combine claims and add additional parties. - Increases the breadth of a suit. Cluster 1: 1. Joinder of Claims 2. Permissive Joinder of Parties 3. Compulsory Joinder of Parties Cluster 2: 1. Counterclaim 2. 3rd Part Claim 3. Cross Claim Cluster 3 1. Intervention 2. Impleader 3. Class Action Permissive Joinder of Claims: what claims a P may join in 1 action. A. Rule 18(a): A single P can join any and all claims he has against a single D. a. Permissive: you “may” join various claims against one opposing party (even if it does NOT come from the same transaction or occurrence). B. Limitations to Claims Brought if courts decide unwielding a. Rule 42(b): Sever unrelated claims The court may choose for fairness or convenience to sever the claims, always preserving the right of trial by jury as declared by the 7 th amendment or by statute. b. Court must have SMJ over every claim in Federal Court. (1331, 1332, or 1367). i. If it does not come from the same T&O, then you must meet all the jurisdictional requirements for the unrelated claims. 1. T&O claims will meet the supplemental jurisdiction requirement b/c the test is similar. ii. If it is for diversity and not FQJ, each claim must meet absolute diversity and the minimum amount in controversy requirements. iii. Same T&O claims must be brought. (see Res Judicata – court made law!!!) c. Claim and Issue Preclusion (judicial doctrine): need to bring all claims at once. i. While the joinder rules do NOT require joinder (no compulsory joinder of claims) – according to claim preclusion, failure to join (especially when the claim arises out of the common core of operative facts) may prevent bringing that claim in the future. d. If adding a party, is there Personal Jurisdiction over the party? i. Where joinder of multiple D’s is involved, the requirements of PJ must be met with regard to each D individually C. Effect of joinder on jurisdictional issues: a. If A sues B (both are Illinois residents) in federal court through FQJ, can A also bring a state claim against B through joinder? i. Answer: There could be a jurisdictional problem in that case b/c federal courts are courts of limited SMJ. If the state claim meets supplemental jurisdiction (the test being common nucleus of operative facts). Permissive Joinder of Parties: = T&O + CQ A. Rule 20(a): You can join any parties whose claims (P joinder) or potential liabilities (D joinder); a. Arise out of the same transaction or occurrence or series of transaction, and b. there is a question of law or fact that is common b/n the parties. B. Damages can be awarded to some or all the π’s and against some or all the Δ’s – not all or nothing. C. Rule 20(b) – Separate Trials – The court may make such orders as will prevent embarrassment, delay, or put to expense by the inclusion of a party and may order separate trials or make other orders to prevent delay or prejudice. D. Claims against additional parties under permissive joinder will not be barred by res judicata if they are not joined. E. Example: Mosley v. General Motors Corp. – Permissive Joinder by π’s a. Facts – 10 employees suing GM and the Union on charges of discrimination. Race discrimination and sex discrimination claims. i. D’s made a motion to sever the claims. ii. Rule 42(b) gives the court discretion to sever claims if the case is too burdensome. iii. A District Court’s decision to sever claims can only be overruled by an appellate court finding that the DC abused its discretion. Otherwise the order stands. Compulsory Joinder – D in the lawsuit point to parties not in the lawsuit and try to pull them in b/c they need to be in the case. Q: who must be joined? Necessary parties  parties needed for just adjudication.  Must be joined: If a party needed for adjudication will not destroy diversity or venue, she must be joined. A. #1: In order to use Rule 19, compulsory joinder of parties, you first ask if the party is a necessary party under 19(a). To determine this, you must have 1 of the following 3: a. The party’s absence from the case prevents complete relief being given from those already parties; OR b. If the absent party claims an interest relating to the subject of the action and may be prejudiced, his ability to protect his interests may be impaired or impeded, if not joined, OR c. it would leave any of the persons already parties subject to substantial risk of incurring otherwise inconsistent obligations. B. #2: Then you must show adding the necessary party won’t upset: a. PJ: (min. contacts or accident occurred) AND b. SMJ: (FQJ, Diversity, or 1367) AND C. #3: If the party fails to meet PJ or SMJ, then you must ask if the party is indispensable, whether in equity and good conscience the action should proceed or should be dismissed. a. Rule 19(b): Factors to determine if indispensable, look at: i. How prejudicial would a judgment be to the absent party? ii. Are there ways that the prejudice can be lessened or avoided by provisions in the judgment, by shaping relief, or other measures? iii. Would there be an adequate judgment rendered if the party is absent? iv. Would there be an adequate remedy for the P if the action is dismissed for non-joinder. b. If yes  party must be joined; i. If they can’t be joined  then suit must be dismissed. 1. Historically, if the 3P was necessary and indispensable to the action and could not get 3P in, then action was dismissed for want of an indispensable party. 2. Modern courts do not like to dismiss for want of an indispensable party, so are more likely to not declare 3P indispensable. Go to 19(b). c. If no and J ok proceed w/o them. D. Note: a person does not become indispensable to an action simply b/c that person’s rights or obligations will be affected by the result of the action. See Helzberg Diamond Shops. E. Page 32: Joint tortfeasors are not indespensible parties b/c can get complete relief from one. F. Courts have independent power to join parties. G. P’s get to chose who they want to sue. H. Helzberg Diamond Shops v. Shopping Center: Facts – K where D agrees not to let any other retail specialty jewelry store lease in the mall. The mall leased a space to Lord’s to open and operate a full line jewelry store. P sues in MO, where there is sufficient contact to bring in D. D argues that Lord’s is an indispensable party and the case should not be decided without them b/c no PJ of Lord’s in MO. Cts ruling would effect Lords b/c they might have to close shop, but a person does not become indispensable to an action simply b/c that person’s rights or obligations will be affected by the result of the action. a. Cannot bind a nonparty so Lord’s can go ahead and bring a separate lawsuit  not prejudiced. b. Lords was necessary, but not indispensable enough to dismiss case. Counterclaims: Claims by D’s against the P. A. CL: not allowed. B. Rule 13(a): Compulsory Counterclaims (“arise out of the same transaction or occurrence”) a. A counterclaim that arises out of the same T&O that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of 3P’s of whom the court cannot acquire J. i. If compulsory, then meets 1367 b/c same T&O test. ii. Must be asserted and cannot be asserted in subsequent action.  claim preclusion! b. Example: Plant v. Blazer Financial Services: Facts – P gets a loan from D. She sues D for violation of Truth-in-Lending Act for failure to make disclosures required by the Act. D counterclaims with unpaid loan. The claim is filed in federal court b/c it is a violation of federal law. i. State debt counterclaim filed by D is not a federal claim and does not meet diversity requirement. ii. Application – court rules the claim is a compulsive counterclaim in this case. 1. A single aggregate of operate facts, the loan transaction, gave rise to both claims. So 1367 gets the state claim into federal court. c. Purpose: to provide complete relief to the D who has been brought involuntarily to federal court. C. Rule 13(b): Permissive Counterclaim a. Any claim against an opposing party NOT arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim. i. Permissive (unrelated to anchor claim): must meet independent jurisdictional basis D. Same Transaction or Occurrence  Permissive or Compulsory? a. Logical Relation Test: A loose standard which permits a broad realistic interpretation in the interest of avoiding a multiplicity of suits. i. Logical relationship exists when the counterclaim arises from the same common core of operative facts. b. Four part test – if the answer to any of these four questions is yes, the counterclaim is compulsory. i. Are the issues of fact and law raised by the claim and counterclaim largely the same? ii. Would claim preclusion bar a subsequent suit on D’s claim absent the compulsory counterclaim rule? iii. Will substantially the same evidence support or refute P’s claim as well as D’s counterclaim? iv. Is there any logical relation between the claim and the counterclaim? Cross-Claim A. Rule 13(g): one D may cross-claim against another D if there is a claim that arises out of the same T&O. B. Cross-claims are always permissive, but b/c there is original J that arises out of the same T&O, they satisfy the J requirements via 1367. Impleader – adding a new D A. Rule 14(a) – When D may bring in third party – a. At any time after commencement of the action, a D, as a 3P P, may sue a non-party who is or may be liable to the third-party P for all or part of the P’s claim against the third-party. B. Rule 14(b) – When P may bring in third party – a. When a counterclaim is asserted against a P, the P may cause a 3P to be brought in under circumstances which under this rule would entitle a D to do so. C. Key: Not compulsory, but permissive. The party may implead another party only if the liability it asserts is derivative.  Not mandatory b/c otherwise it would cause problems if the 3P was not subject to PJ and P gets to chose where he wants to sue. C. D. E. D. b. Derivative Liability = 3P D has liability to the original D in the same claim, either by joint tort liability or K liability (contribution or indemnity). Look to substantive law, like joint tortfeasors. i. Essentially, the original D is saying, "If I am liable to P, then the 3rd party is derivatively liable and must reimburse me for all or part of anything I must pay P. The rule does not allow the D to suggest new targets for the P, rather D’s can bring in new targets of their own to pass on liability. ii. A 3P D may not be impleaded merely b/c he may be liable to the P. P is in control of lawsuit. iii. Example: Car accident and passenger sues driver and driver can implead insurance company. Contribution: obtain judgment that the 3P is liable to pay the main D part of the damages se is ordered to pay the P. (contribution among joint tortfeasors). Indemnification: D seeks to pass on all liability. Jurisdictional concern a. FQJ: anyone can be brought in b. When Diversity: 19,14, 24,20: D there involuntarily, can be brought in but court’s SJ will not extend to claims by P’s. Need complete diversity! c. Need PJ if D bringing in a 3PD, SJ will allow SMJ. Example: Watergate Condo Assoc Facts – A condo association hired a RE mgmt firm to oversee maintenance of the units. When the owners reported problems with their balconies, the firm hired an engineering firm (D) to draw specifications to repair the balconies. On the basis of those specs, Brisk Waterproofing was hired to do the repairs. When the repairs failed to satisfy the owners, the P’s invoked diversity and sued the engineering company (D) and the RE management firm but not the repair firm. D’s tried to implead the repair firm claiming negligent repairs and sole liability.  not derivative. P chose to sue on different claim. Intervention – party says that it must be a part of a suit and thus must be joined. A. Mirror image of compulsory joinder (see above). B. Anyone not a party is not bound! C. New P’s cannot intervene, b/c they can always just bring their own lawsuit and will not be bound by earlier decision. D. A party might be able to intervene in a lawsuit to which the party has not been named under FRCP 24(a) Intervention. The requirement of FRCP 24(a) are that a. the party have an interest in the litigation, b. that interest might be impaired and c. the party's interest is not being adequately represented. E. Rule 24: 4 part test a. timely – intervener may not lie in wait until the litigation is on the brink of resolution b. interest – intervener must have an interest in the property or transaction subject of the dispute i. What constitutes an interest?  P determines what the focus of the suit is. 1. To require the movant to have a direct interest in the outcome of the lawsuit is too narrow. 2. Rather the interest must be a significantly protectable interest as opposed to generalized interest in a lawsuit. c. at risk – the interest must be in some strong way at risk; so great that a negative ruling could as a practical matter impair or impede the applicant’s ability to protect that interest d. interest not already represented in suit – even if applicant meets all three above requirements, intervention will be denied if, in the lawsuit, the interest is already adequately represented. i. Example: NRDC  It is sufficient to show minimal inadequacy. Menaing, the intervener just needs to show that the representation “may be” inadequate. 1. The court found that the American Mining Council and Kerr-McGee’s interests were adequately represented by United Mining. F. How to Intervene: a. Rule 24(a): Intervention as a Right; i. (1): when a federal statute of the United States confers unconditional right to intervene, or ii. (2): when the intervener can show a substantial interest in the subject matter of the main action and the disposition of the action may impair or impede the intervener’s ability to protect their interest. iii. (3): are the parties adequately represented? b. 24(b): Permissive intervention – court has discretion i. (1): permitted when a statute provides a conditional right to intervene, or ii. (2): when the intervenor’s claim or defense has a common question of law or fact with the main action. G. Jurisdictional concerns: Independent subject-matter J is required for intervention in a diversity case. In other words, such intervention does not fall within the court’s supplemental jurisdiction. H. Mandatory Intervention? a. If a party knows they will be affected by litigation, they are NOT obligated to intervene. i. If not a party then they will not be bound by the decision. b. Existing parties should consider compulsory joinder. c. See Martin v. Wilkes: no duty to intervene Class Action FRCP 23 sets forth the standards for maintaining a class action. Under FRCP 23, a class of parties may join together in one lawsuit in order to promote judicial efficiency. A. First, the court must determine whether the class meets the four threshold requirements of Rule 23(a) to determine if the class should be certified: a. Numerosity i. Established if the class representative can show the class is so numerous that joinder of all P’s would be impractical. b. Commonality i. Requires that there are common question of law or fact to the class (efficiency); ii. Commonality is lacking when the legal claims are such that individual P’s must submit separate proofs to establish liability. iii. But, differences in damages sustained will not defeat certification. iv. An issue w/ commonality is different state laws. 1. If the state laws are all different, there is a good chance the commonality requirement is NOT met. However, often times, state laws are similar. c. Typicality i. The class representative’s claim and injury is typical of the claims or defenses of the class; d. Adequate representation i. The class representatives will fairly and adequately protect the interest of the class and have a stake in the litigation, must be a member of the class. 1. This includes attorney’s competence and ability to maintain suit. ii. Due process requirement: If absent class members are being subjected to litigation that is binding on them in the res judicata sense, then you want them adequately represented. (Hansberry v. Lee) B. If the court determines that the four threshold requirements of Rule 23(a) have been met, it must determine whether the action falls into one of the 23(b) categories; a. (b)(1)(A)and (B) i. (A) Inconsistent Adjudication  Will one party be subject to inconsistent litigations? 1. Provides a way to assure that similarly situated parties are treated alike  antiprejudice device. 2. The prosecution of separate actions by or against individual members of the class would create a risk of: a. Inconsistent adjudications w/ respect to individual class P’s would create inconsistent standards of conduct for the opposing party, or ii. (B) Limited Fund 1. Adjudications w/ respect to individual class P’s would, as a practical matter, be dispositive of the interests of absent class members or substantially impair or impede their ability to protect their interests; 2. Avoid race to the court house – the idea is to get everyone into a class action so we can make sure that no one walks away empty handed. OR b. (b)(2) Injunctive Relief (often civil rights cases) i. Purpose of the class action is to get injunctive relief (e.g. school desegregation, housing, civil rights actions…etc). ii. Monetary is secondary to equitable relief. OR c. (b)(3) Common Question of Law or Fact Predominates over Individual Issues and the Class action is superior to other available method to proceed ($) i. Elements: 1. Common issues predominate!  Efficiency 2. Class action is superior to individual action b/c of efficiency and fairness! a. If individuals were large and could avoid to do it on their own. b. If lots of individuals had already litigated alone. i. Factors to consider include the individual interests at stake (whether they would be better adjudicated individually), the desirability of a single forum, existing litigation of class members, and the difficulties of the judicial management of the class ii. Has to be manageable. iii. 23(b)(3) includes all claims in which P’s are seeking primarily money damages. These actions are divided into two groups; 1. Small claims; OR Many P’s asserting minimal damages a. These are claims that aren’t worth individual P’s bringing so B3 action will make more sense. 2. Mass tort a. Because of the amount of damage, each P would have his own c/a. b. E.g. airplane crash, asbestos. c. Need efficient effect of single adjudication. iv. NOTICE ONLY REQUIRED HERE 23(c)(2) 1. Due process of law requires that all litigants have notice and opportunity to be heard which will be satisfied in (b)(1) and (b)(2) actions merely if there is adequate representation. However, in a (b)(3) actions, notice must be sent to all class members by the best method available, including individual notice to all members who can be identified through Rx effort before certification will be proper (Super Mullane). 2. The notice costs must be paid by the P and the contents of the notice must advise each member that: a. (1) Exclusion rights - right to opt out; (2) Binding effect - if party does not opt out; and (3) Participation rights - make appearance through counsel. v. If seeking $ and injunctive, in order to get out of notice, then need to show damages are incidental! C. Furthermore, the judge has discretion to allow subclasses and has the ability to separate out issues for a class action under 23(c)(4). a. Liability and damages may be different. D. 23(D): judge has authority to make orders to make case manageable. E. Rule 23(f): Appealing denial of certification: a. Denial of certification can be reversed ONLY by showing the lower court abused its discretion. An abuse of discretion is present only if: i. The district court fails to give due consideration to all the relevant factors within the context of a rigorous analysis; AND ii. Relies on impermissible factors. F. Settlement: Any proposed settlement of the class action must be approved by the court. The court will approve the settlement only if it is convinced that the interests of the absent class members have been adequately protected (e.g., that settlement is not being urged by greedy contingent-fee lawyers who will pocket most of the settlement money). a. Need court approval; and b. Notice to all class members. G. Due Process/Claim Preclusion (Hansberry v. Lee) a. Generally, one is not bound by a judgment in personam in a litigation to which he is not a party. However, in a class action, an adequately represented class is bound by a judgment or settlement. The judgment, whether favorable or not, includes ALL class members AND all potential class members unless they requested exclusion. b. A person asserted to be bound by former class litigation has the right to collaterally attack the adequacy of the representation in the class suit. c. Failure of the P in the 2nd action to intervene in the 1st for the purpose of appealing representation is NOT fatal to his argument that the 1st decision should not bind him. H. Binding effect: Judgment in a class action is binding, whether it is for or against the class, on all those whom the court finds to be members of the class. a. Exclusion: In the case of a (b)(3) action, a person may opt out, i.e., exclude himself, from the action, by notifying the court to that effect prior to a date specified in the notice of the action sent to him. b. A person who opts out of the action will not be bound by an adverse judgment, but conversely may not assert issue preclusion to take advantage of a judgment favorable to the class (free-ride). c. Absent class members in (b)(1) and (b)(2) actions do not have the right to opt out and thereafter bring their own suit. I. Should out of state P’s be held to the same MC and FPSJ standards as D’s (PJ requirements from Int’l Shoe) a. P Due process is guarded when there is: i. Adequacy of representation ii. Rx practicable notice and opportunity to be heard  Mullane. iii. Opportunity to opt out. b. Efficiency of class actions outweigh the need to have minimum contacts with each class member. c. Even if it was a B1 or B2 claim, P’s should still be guaranteed due process b/c they will be bound by the decision. J. Conflicts of law: Question of which law should apply a. Do not always apply law where suit was filed. Look to see where accident occurred. Courts do not want forum shopping. (Klaxon) K. Subject Matter Jurisdiction and Federal Class Actions a. Tribe of Ben Hur: for 1332 diversity purposes, look only at name of class representatives. b. Amount in controversy: i. Court less compromising: Snider says no aggregation of claims.  Makes it hard to have a federal class action. ii. Must each member meet AIC? 1. Zahn says each member must meet AIC. 2. Then 1367 was codified and Supreme Court ruled on Abbot Labs and 5 th and 7th Circuit says 1367 overrules Zahn and permits class representatives to satisfy AIC requirement. a. D’s would argue w/ Problems with typicality!!! b. 10th Circuit says Zahn is not overruled and each class member must meet AIC requirement. SUPPLEMENTAL REVIEW  28 USC § 1367 I. 1 P w/ claim > $75k, and 1 P <$75K v. 1 D and “claims are related” a. Supplemental Jurisdiction: 28 USC § 1367 – Aggregate allowed Supplemental Jurisdiction: a. General i. Remember: Every Single Claim must have SMJ ii. SJ: Originated to broaden federal J to cover parts of “cases” that, if brought independently, would not have had SMJ iii. Federal courts can sometimes hear state claims that are related to pending federal claims b. Pendent Jurisdiction (Finley) (airplane hit power lines) i. Pendent Party Jurisdiction: Finley sues US in federal court and sues another party on a related claim. There was no independent basis to sue the other company (power company) in federal court. Court ruled that the district court did not have J over this claim. ii. If federal claim dismissed, state claim should be dismissed for lack of J c. Ancillary Jurisdiction (Kroger) i. Kroger sued a diverse D. D impleaded another non-diverse D. ii. Rule: Kroger not allowed to sue non-diverse D b/c it would be inconsistent w/ the interpretation of 1332, requiring complete diversity b/n parties. 1. Impleaded D is a straw D that the court considered a manipulation of the diversity requirement. d. Supplemental J (1367) i. 1367(a): 2 parts 1. Court must have original J 2. Grants Supplemental J over claims that are so related to claims in the action within such original J that they form part of the same case or controversy under Art. III. So related that they arise out of the came common nucleus of facts. Gibbs ii. 1367(c): Discretionary Power 1. Federal court has discretion to decline Supplemental Jurisdiction if; a. Novel state law issue b. State law claim substantially predominates other claims c. Federal claims have been dismissed d. Any other reasons to decline J iii. 1367(b): Diversity Supplemental J 1. Ct shall not have J on claims against parties joined under circumstances when hearing the claim would be inconsistent with complete diversity §1332. iv. United Mine Workers v. Gibbs 1. P filed a federal claim against a non-diverse party and a state law claim 2. Under the constitution, the court has power to hear entire “cases and controversies”. If a case includes a claim that is jurisdictionally proper under Article III, the court has constitutional power to hear the entire dispute between the parties. So, as long as the P asserts a proper claim based on federal law, the court has power to hear other claims arising out of “common nucleus of operative facts”. II. United Mine Workers v Gibbs –  lost job because of union riots, sued  under fed statute & state conspiracy; Federal jurisdiction OK, because ’s claims arose out of common nucleus of operative facts v. 1367(d): SOL 1. If a supplemental claim is dismissed, any SOL is tolled for 30 days to allow P to re-file in state court without penalty.