I.
Basic Joinder of Claims and Parties - The uniting of claims or parties in a lawsuit – this is done to (1) determine the scope of litigation (whom to sue, which claims to assert), and (2) to ensure that all claims arising from the same transaction or occurrence are litigated and resolves at once (efficiency). A. FRCP 20(a) – Multiple Plaintiffs and Defendants – Authorizes P’s to sue together if: 1. the right to recover must be joint, several, or in the alternative they assert claims arising out of the same transaction a. logically related b. similar evidence c. prejudice vs. efficiency 2. their claims against the D or Ds will involve a common question of law or fact (However, this is at the discretion of the P) General Point - This allows P to sue multiple Ds in a single action if same criteria are met 3. Apache County vs. Superior Court – County in Arizona tries to recoup hospital losses from other jurisdictions, court holds that claims do not arise out of the same occurrence – failed same evidence test – (294 separate Ds) – Attempt to join the same Ds 4. Alexander vs. Fulton County – White Cops sue for racism – Court holds that since all Ps claims stem from the same allegation – subject to the same systemic pattern of racism – the suit can go forward even though there may be 19 Ps. – Joining the same Ps 5. “Pattern or practice” can also be defined as the same transaction (Mosley vs. GM) B. FRCP 13(a) and (b) – Compulsory and Permissive Counterclaims C. This rule is strictly for efficiency’s sake – try to litigate all the items arising out of transaction at once D. Compulsory - If a defending party’s counterclaim arises from the same transaction or occurrence as the claim against him, it is compulsory, he must assert it or lose it – P and D are in car accident, everything must be claimed by P in regards to accident 1. Exceptions: a. Just adjudication requires presence of additional parties whom the court cannot get personal jurisdiction b. Claims by D in which the suit against D is in rem or res judicata c. Permissive – usually involves different events from the main transaction, but D may raise it against party 1. Claim could have nothing to do with the principal action that occurred 2. Simmons vs. Simmons – Divorcing couple – should tort claim be included in divorce proceedings – causes of action stem from different transactions – Why? (1) efficiency test (2) Does not arise out of the same transaction – would be different w/o kids. 3. FRCP 13(g) – Cross-Claims – A claim asserted by one party against a co-party – on the same side as D vs. D. These claims are (1) Not compulsory (2) Can fall within supplemental Jurisdiction. The claim must meet two requirements: a. It must have arisen out of the same transaction or occurrence that is subject of the original action b. Party must ask for actual relief c. Rainbow Management Group vs. Atlantis Subs – Boat and sub collide – Passenger sues both P and D, D files a cross claim, but P never responds. P then files suit against D for action arising from prior transaction – Court rules that P can’t do this. P is required to file a compulsory counterclaim after a cross-claim was made against him, if the action arises out of the same occurrence and is substantial E. FRCP 14 (a) – Impleader – A D who believes that a third person is liable to him for all or part of the P’s claim against the D may implead such a person as a third party D. Does not create a right of indemnity or contribution, you must show that it exists in the substantive law through a: a. Statute b. Contract c. Joint Tortfeasors d. To implead the Third Party Defendant (TPD) D’s claim must:
i. Arises out of the same cause of action brought by the P ii. Works well with claims made against TTP for indemnity, subrogation, ie contracts Lopez De Robinson vs. US – Court holds that these parties are not joint tortfeasors, cause of action by P did not apply to TPD – Impleader is denied. However, Impleader is discretionary – depending upon the judge F. FRCP 18a – Joinder of Claims 1. Once a party has made a claim another party he may then make any other claim against that a. They are never required b. They maybe independent of the original claim c. Supplemental jurisdiction does not apply i. subject matter jurisdiction must be individually satisfied for each claim 2. McCoy v. Like – inheritance case were nieces and nephew wanted to join all claims against uncle who was thought to have coerced his sister-in-law into writing him into her will. Court holds once a person is made a party joinder of claims against that party is unfettered. G. Claim Preclusions aka Res Judicata 1. Merger a. When your claim is merged with the judgment that has been passed on it b. If the two claims are closely enough related, then you only plead one and the other merges into it. They would then be barred from being tried separately. 2. Bar a. If P loses his action, his claim is then extinguished and he is then barred from suing again on that cause of action. H. Collateral Estoppel 1. If I sue Gifford for Armani damage and then I find out that I have body damage from it, can I sue him for that later as well? NO! Because STO! 2. Issue preclusion bars same facts (STO) and claim preclusion bars actions. II. Federal Subject Matter Jurisdiction – Court has jurisdiction over the content of the claim A. Article III of the Constitution renders the lower federal courts to be ones with limited jurisdiction. B. Two types of federal court subject matter jurisdiction: a. Federal Question Jurisdiction §1331 i. Provides the fed courts with subject matter jurisdiction when a federal question is involved 1. A question arising out of the constitution, the law, or the treaties of the USA ii. U.S.C. §1331 and U.S. Constitution Article III, §2, clause 1 iii. If the complaint raises as the basis for the cause of action a constitutional right/law, then it is a well pleaded complaint. (making it fall under fed. Juris.) 1. it is not a well pleaded complaint if it simply anticipates a defense that might raise a constitutional right/law iv. Two requirements 1. well pleaded complaint AND 2. P’s cause of action must be either a. Created by federal law i. many federal statutes expressly provide that both federal and state causes of action ii. many regulatory statutes however do not provide for private causes of action OR b. Its resolution must turn on a substantial question of law i. Determined by whether Congress evidenced an intent to provide a federal forum 1. That is whether it created a private right of action a. Look at legislative history
3. Nicodemus v. Union Pacific Corporation - Because there is no private cause of action they have to sue under state law. Also this is state property law - congress did not ever intend for federal court to hear it. Declaratory judgment also not possible here because realigning the parties does not give you a FQ, so no SMJ v. State and Federal claims have to very inextricably intertwined for FQ jurisdiction vi. Pre-emption 1. Conflict Preemption – The federal law reigns supreme over state law when they conflict a. Field Preemption – federal law preempts the only the state statue that is in conflict 2. Area Preemption – federal law prevents the state from legislating in an area a. nuclear preemption example 3. Complete Preemption – certain federal statutes that are so important that they completely preempts state law a. so much so that they can be removed even if they the complaint mentions nothing of it b. this is true in even in the face of the well pleaded complaint 4. Beneficial National Bank v. Anderson – In this case there is complete preemption so it can be removed. National Bank Act provides for exclusive cause of actions for all usury claims. So no such thing as a state-law claim of usury against a national bank b. Diversity jurisdiction §1332 i. U.S.C. §1332 1. Citizens of two different states may have their cases heard in fed court AND 2. The amount of controversy exceeds $75,000 ii. Diversity of citizenship 1. Diversity and amount in controversy are determined at the time the suit is filed. 2. the legal representative of an infant, incompetent, and the estate of a decedent is treated as having the same citizenship as the represented party. 3. Complete diversity a. No P has the same citizenship as any D b. Can have same citizenship on the same i.e. same 3 MD Ps v. 3 PA Ds c. Domicile (Lundquist) i. Individuals 1. Domicile is normally defined as presence and an intent to remain there. 2. Intent to remain there for the time being ii. Corporations 1. Typically a citizen of two states a. the state of incorporation AND b. the state in which it has its principle place of business 2. Nerve center test should be used only when no state contains a substantial predominance of the corporation’s business activities. a. Principle place should be where the executive and administrative functions are performed 3. The Operations test is used when a state contains the substantial predominance of a corporations business activities. a. Principle place of operation is where the corporation conducts the most activity that is visible and impacts the public. b. Relevant Factors include i. Location of employees
ii. iii. iv. v. vi.
Location of tangible property Location production of activities Where income is earned Where purchases are made Where sales take place
4. Amount in Controversy i. Should exceed $75,000 ii. Both compensatory and punitive damages are counted iii. Interest counts if it imposed by agreement, but not if it is imposed by law iv. If seeking injunctive or non-monetary relief, amount is determined by attempting to approximate the monetary value of the relief being sought v. Determined by what’s stated in P’s complain 1. You cannot aggregate different plaintiffs’ claims. 2. Compulsory counterclaims, in almost all jurisdictions, do not count iii. Exceptions 1. Federal courts will not exercise diversity jurisdiction over: a. Probate of will b. Family law / domestic relation cases i. divorce, alimony, and child custody c. where underlying state law is unclear and where there are important state interests at stake. iv. Alienage Jurisdiction 1. Exists where there is a suit between citizens of state, on one side, and citizens of foreign states, on the other. 2. A suit solely between citizens of two foreign countries does not fall within this. a. a permanent resident is a citizen of the state where she permanently resides c. Supplemental Jurisdiction §1367 i. Parties that may not otherwise have jurisdiction can be joined because they are closely enough related to the original claim ii. Requirements 1. federal question or diversity (complete diversity and $75,000) 2. “common nucleus of operative facts arising out of the same transaction or occurrence” according to Gibbs 3. If under diversity, have to be allowed joinder iii. Federal Question 1. Assuming substantiality of the federal issues, if federal claim closely enough related to the state claim, then court will hear both together 2. If the state claim constitutes the real body of a case, to which federal claim is only an appendage, the state claim may fairly be dismissed. 3. United Mine Workers v. Gibbs – Gibbs brought a federal and state claim that were closely related. Court used the “common nucleus of operative facts” test and said that the claims were closely enough related that federal court could hear the case if they wanted. iv. Diversity of Citizenship 1. supplemental jurisdiction is allowed when the core claim is based on diversity; however, unlike federal question there are exceptions 2. It is allowed when: a. Generally additional claims asserted by Defendants fall within the court’s supplemental jurisdiction b. Rule 13 (a) compulsory counterclaims c. Rule 13 (h) joinder of additional parties to compulsory counterclaims d. Rule 13 (g) cross claims
e. Rule 14 impleader of 3rd party Ds, for claims by and against 3rd part Ps, and claims by 3rd party Ds, but NOT claims by the original P against 3rd party Ds. 3. It is NOT allowed when: a. Generally additional claims asserted by Plaintiffs do NOT fall within the court’s supplemental jurisdiction b. Rule 14 (a) claims against 3rd party Ds by the P. c. Rule 19 Compulsory joinder d. Rule 20 permissive joinder e. Rule 24 Intervention 4. Amount in Controversy has to be satisfied by only one claim a. Exxon Mobil – only one claim needs to exceed $75,000 v. Supplemental jurisdiction need not be exercised in every case in which it is found d. Removal §1441 i. A suit brought in state court which federal courts can assert original jurisdiction can be removed by the D to federal court 1. In P selects federal court, there nothing D can do to transfer the case to state court ii. In diversity cases the action may be removed only if no defendant is a citizen of the state ion which the action is pending iii. Have to have either 1. Federal Question OR 2. Diversity of Citizenship a. Diversity and amount in controversy rules are applicable iv. Only a D can remove, not a P v. Look only at P’s complaint 1. the cases is decided on the P’s pleadings vi. Removal of Multiple Claims 1. If Diversity jurisdiction based claim, then no removal where this is coupled with a claim that does not have federal jurisdiction 2. Federal Question a. If have a FQ claim, and have another “separate and independent” claim for which there is no original jurisdiction, D may remove the whole case. vii. Removal is automatic once the notice is filed with the federal court viii. Caterpillar court said that Caterpillar failed to make a well-pleaded complaint. P brought their case in regard to a breach of contract – a state law claim. D tried to assert a Federal question defense. They cannot do this and remove the case. e. Challenging Subject Matter Jurisdiction – Federal Rule 12 (h) i. Subject matter jurisdiction can be raised at any point ii. Can be raised by either parties or the court itself iii. If case is litigated and subject matter jurisdiction is found improper, cannot re-litigate. C. In addition there exist other jurisdictions a. Bankruptcy Jurisdiction b. Admiralty Jurisdiction III. Personal Jurisdiction – Court has jurisdiction over the people or the property (if it is in question). Need a relationship between D, the forum state, and the litigation A. Background a. Based on old English law that gave the crown power over someone’s body B. Factors to be decide when “traditional notions of fairplay and substantial justice” are not violated aka reasonable to have PJ – Gator a. The extent of purposeful interjection b. The burden on the D to defend the suit in the chosen forum c. The extent of conflict with the sovereignty of the D’s state d. The forum state’s interest in the dispute
e. The most efficient forum for judicial resolution of the dispute f. The importance of the chosen forum to the P’s interest in convenient and efficient relief g. The existence of an alternative forum C. Three types of jurisdiction a. In Personam Jurisdiction i. Gives court power over the D personally 1. all the other person’s assets may be seized to satisfy the judgment, and the judgment can be sued upon in other states as well ii. Transient Jurisdiction aka Tag jurisdiction 1. jurisdiction based on physical presence alone constitutes due process because a. it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” i. Minimum contacts is a substitute for physical presence b. By visiting the forum State, a transient D actually avails himself of significant benefits provided by the State c. Exceptions to being served: i. You cannot lure the person you are trying to serve into the state by fraud. That is not good process. ii. The other exception is the evidentiary privilege. If you are a party, witness, or attorney in a legal proceeding, you cannot be served during the immunity period. b. In Rem Jurisdiction i. Jurisdiction over a thing 1. gives the court power over a piece of property or about a status ii. Simply owning property in a state does not give that state jurisdiction over 1. Proof that the D can satisfy a minimum contacts analysis may be sufficient c. Quasi in Rem Jurisdiction i. The action is begun by seizing property owned by (attachment), or a debt owed to (garnishment) the D, within the forum state. 1. the thing seized is a pretext for the court to decide the case without having jurisdiction over the D’s persons 2. A judgment affects only the property seized, and the judgment cannot be sued upon in any other court. ii. Requirements 1. Proper service of process within the state – Pennoyer v. Neff a. can serve the D’s agent in the state b. can serve the D while he is in the state iii. Minimum contacts rule applied to quasi in rem jurisdiction as well for suits brought against out of state residents that own some type of property within that state. 1. Shaffer v. Heitner – Shareholder tried to bring suit in DE against executives of a DE company. Court ruled that the shareholders need to have minimum contacts with DE beyond owning the shares themselves. Used International Shoe D. Specific Jurisdiction a. P’s claim arises out of or relates to a nonresident defendant’s activities with a state i. Whether he D purposefully availed itself of the privileges of condcucting acitvitie sin the forum State ii. Whether the P’s claim arises out of the D’s forum-related activities iii. Whether the exercise of PJ over the D would be constitutionally reasonable b. Minimum Contacts Requirement i. If jurisdiction is in personam or quasi in rem, 1. the quality and nature of the activity in relation to the fair and orderly administration of the law which it was the purpose of the due process clause to insure. International Shoe Co. v. Washington
a. Actions purposely avail D of the benefits of the state or are purposely directed at the state. International Shoe Co. v. Washington b. Claim has to arise out of that specific activity 2. Exceptions offends “traditional notions of fairplay and substantial justice.” International Shoe Co. v. Washington c. Stream of Commerce i. Reasonable anticipation test – World-Wide Volkswagen v. Woodson 1. D’s conduct and connection with the forum state is such that D should reasonably anticipate being into court there a. Not the mere likelihood that a product will find its way into the forum State b. The forum State does not exceed its powers under the Due Process Clause if it asserts pj over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. i. Applies to manufacturers and distributors, not consumer, because otherwise consumers would become agents for PJ c. Keeton v. Hustler Magazine – Distribution sale can be sufficient to satisfy minimum contacts ii. Effects Test – Calder v. Jones 1. D must have committed an intentional tort 2. P must show that it felt the brunt (or effects ) from D’s tortious behavior in the forum state 3. D “expressly aimed” its tortious at the forum iii. Substantial Connection Test – Asahi Metal Industry v. Superior Court - plurality 1. placement of a product into the stream of commerce without more, is not an act of the D purposefully directed toward the forum State a. D’s awareness that the stream of commerce may or will sweep the product does not make D’s act of placing it purposefully directed towards the forum State b. Factors considered to determine the level of purposeful availment (concurring judges) i. The volume of sales ii. The value iii. Hazardous character of the components d. Long Arm Statutes i. Two types 1. “laundry list” long-arm statute a. List the types of particular activities by the D which the legislature has decided justified subjecting the non-resident D to jurisdiction there. b. Do both steps of analysis 2. “due process” long-arm statute a. Exercise jurisdiction to the extent permitted by due process b. Only do step 2 of the analysis ii. Analysis 1. claim arises from D’s conduct that fits the language of the state’s “long-arm” statute 2. Exercising jurisdiction would not offend the Due Process Clause of the 14th Amendment. e. Internet jurisdiction i. A State may, consistent with due process, exercise PJ when that person – Young v. New Haven Advocate 1. directs electronic activity into the State 2. with the manifested intent of engaging in business or other interactions within that State, and
a. placing info on the internet is not enough to be subject to PJ in each state where it is accessed b. something more than posting and accessibility is needed to “indicate that the D purposefully directed their activity I n a substantial way to the forum state.” i. Overall content of the website has to be directed to a particular state ii. Not just that they can, but that they do engage in sustained business in a continuous and systematic way. iii. Knowingly conducting business with forum state residents fulfills purposeful availment – Toys R Us v. Step Two 1. contact cannot be of a fortuitous, random, or attenuated nature 3. that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts. ii. Another approach is the sliding scale one – Zippo v. Zippy 1. active website a. Actually transacts business of a systematic and continual nature 2. passive website a. merely informational in nature 3. the likelihood that PJ can be constitutionally exercised is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet iii. Non-Internet contacts of business can be used to determine purposeful availment f. courts can grant limited jurisdiction for discovery to determine if parties would have either specific PJ or jurisdiction under Rule 4(k)(2) (the federal long-arm statute) – Toys R Us v. Step Two E. General Jurisdiction a. Because the D has so many contacts with the forum state that it is fair to subject that D to suit in the forum state on every possible claim b. Substantial or Continuous and Systematic Contacts Test i. Systematic and Continuous contact 1. Internet jurisdiction – Gator.com v. L.L. Bean, Inc. a. deliberate presence in the forum state including physical facilities, back accounts, agents, registration, or incorporation b. whether the company has engaged in active solicitation toward and participation in the state’s market, i.e. the economic reality of the D’s activities in the state ii. Not offend traditional notions of fair play and substantial justice iii. Cause of action does not have to do anything with the forum state. iv. Unilateral activity of another party or a third person is not an appropriate consideration when determining systematic and continuous contacts. Helicopteros v. Hall 1. ex. Withdrawing money out of a back account in the forum state F. Ways to acquire jurisdiction a. Domicile in forum state, gives state power to decide all claims against D b. D consents to be sued in the courts of the state i. Presence in the forum ii. Domicile in the state iii. Forum selection clause – Burger King v. Rudzewicz 1. Alone this clause does not confer jurisdiction. Need: a. Minimum contacts b. have to have some kind of purposeful availment i. This would be seen if D initiates the contact c. Reasonable foreseeability of possible litigation there i. Future relationship to be established with contracting party dealing with the forum state 1. ex. Rudzewicz signing the 20 year interdependent relationship. His actions allowed forum close to be in line with due process. iv. Appoint a local agent to accept service of process
v. Implied consent thru long arm statutes vi. D’s waiver of service of process operates as consent to jurisdiction G. Burden of proof a. D who is raising the issue of lack of pj b. P then has to show that the D has the requisite contacts with the forum state that put he D on notice about the foreseeability of being sued c. D has to show that the contacts are constitutionally unreasonable H. Service of Process – Notice a D receives about the filing of a lawsuit so that party being served acquires the relevant documents. a. There are two types of service i. Actual 1. Notice given directly to or actually received by a party ii. Constructive 1. Notice presumed by law to have been acquired by a person from the facts and circumstances that he had a duty to take notice of and thus imputed to that personal 2. Examples a. Mailed but not received or notified b. Published in a newspaper c. Placed in official records b. Service must satisfy two standards i. Constitutional 1. Test – Mullane v. Central Hanover Bank & Trust Co. a. Reasonably certain to inform those affected within a reasonable time to make their apperance OR b. that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. i. If address known then in person or mail. In person more preferable ii. If address unknown, then publication ii. Rule (Procedural) – Rule 4 1. D must receive a copy of a summons and a copy of the complaint a. D does not have to possess the papers for effective service 2. Summons’ Requirements a. Be issued by the clerk of court, bearing the court’s seal and the clerk’s signature b. Idetntify the district court, name the parties, and list the name and address of the plaintiff or the plaintiff’s attorney c. Be directed to the specific D d. State the time within which the D must appear and defend the lawsuit e. Caution about the consequences of the D’s failure to appear 3. Rule 4d imposes a duty on D to avoid unnecessary costs of formal service of process – Larsen v. Mayo Medical Center a. Does not require D to agree to P’s demands of waiver b. The waiver form must be signed by D and P has to file with the court 4. Rule 4e – Cox v. Quigley a. Service can be made by serving him personally or by leaving copes at the individual’s dwelling house of usual place of abode i. Not the same as domicile ii. Any place that would provide some assurance that timely notice of the lawsuit will reach a D who has not been served personally iii. Circumstance where D is so transient and/or homeless so that he has no dwelling house or usual place of abode, personal service may be P’s only option, no matter how difficult iv. Permits service on an agent authorized by law
5. Rule 4h says that when serving a corporation, service has to be addressed to an officer or representative assigned to take service of process for that corporation – Larsen v. Mayo Medical Center 6. Rule 4m gives P 120 days after filing the complaint to serve the D. a. If not court can dismiss the action without prejudice as to the D or direct that service be effected within a specific time b. Period may be extended fro good cause 7. Objections to service a. Motion can be made to dismiss service under Federal Rule 12(b)(4)-(5) b. if a default judgment was entered against the D and the D had not heard of the law suit, motion to vacate judgment I. VENUE – §1391 i. Venue refers to the place where a given action is to be brought. ii. Two options 1. District where any D resides provided that all the Ds reside in the same state 2. If all DO NOT reside in the same state, then D’s residence is inapplicable iii. Venue is proper in a district in which a “substantial part” of the activities took place, and there may be several districts that qualify as a situs of “substantial activities” 1. look not to a single triggering event prompting the action, but to the entire sequence of events underlying the claim – a. Uffner v. La Reunion Francaine, SA – District of Puerto Rice has jurisdiction over ship that sink in Puerto Rican waters even though ship was housed and insured in St. Thomas iv. If tangible property is the subject of the claim, proper venue lies in which a substantial part of the property lies. v. If case is removed under §1441 it is immaterial that the federal court to which the action is removed would not have been in a district of proper vrnue if the action had been brought there originally. b. Transferring the Lawsuit - §1404 i. Allows transfer of a case on a D’s motions to either another federal court or to another federal division in the same district ii. Transfer allowed only when the court would have 1. been proper venue by any provision of §1391 2. had proper subject matter jurisdiction 3. been a place where the D is subject to Personal Jurisdiction iii. Even if the above are met, three standards have to be to considered and balanced 1. the convenience of the parties a. D has to show that the original forum is inconvenient and P would not be substantially inconvenienced by the new one 2. the convenience of the witnesses a. convenience of key witness as opposed to convenience of all witnesses 3. the interest of justice a. the avoidance of multiple lawsuits from a single transaction b. if it enables the P to gain PJ over an additional defendant who was not subject to process in the original forum c. where an earlier trial date is easier to obtain because of a less crowded docket d. party’s inability to obtain a fair trial iv. Meteoro Amusement Corp. v. Six Flags – Transfer granted to OK because convenience to witnesses, evidence and D outweighed convenience to P v. Test 1. been a proper venue 2. had proper subject matter jurisdiction 3. been a place where the D is subject to PJ
vi. D’s consent does not permit transfer to a forum where the lawsuit could not originally have been brought c. §1406(a) i. allows for transfer or dismissal when venue in current forum is improper ii. Criteria for granting 1. The interest of justice 2. Whether the law suit could have been brought in the transferee court d. Forum Non Conveniens i. A common law doctrine that allows a court to dismiss a claim so that it can be brought in a more appropriate forum in another court system (another district). 1. from one state to another state 2. from a federal or state court to a foreign court ii. FNC requires weighing private interest factors (affecting the convenience of litigants) and public interest factors (affecting the convenience of the forum). 1. What are the private interests? a. convenience of the witnesses b. where is the proof c. can you get to it 2. What are the public interests? a. local administrative difficulties b. burden on jury iii. the possibility of a change in substantive law should not be given conclusive or even substantial weight in the FNC inquiry 1. Piper Aircraft Co. v. Reyno – Said that even if law in transferee state is less favorable to P not a reason. But after weighing all the above factors found that FNC valid and transferred case to Scotland iv. Court cannot rule on Forum Non Conveniens unless it has PJ. v. Much each to transfer on §1404 than to dismiss on FNC grounds. e. When a case is transferred, the transferee court (the new court) applies the same law as would have been applied in the transferor court (old court). J. Procedural Challenges to Jurisdiction a. If you think there is a PJ problem: i. you can file a motion to dismiss under Rule 12(b) to dismiss the case. OR ii. you can file an answer and that is called a response to pleading and in it raise the PJ problem. b. Rule 12(b)(2) – lack of personal jurisdiction c. Rule 12(b)(3) – lack of venue III. Pleading A. Process by which the litigants advise each other and the court of the claims and defenses they intend to present at trial. B. Specifications by FRCP a. Pleading in writing b. Dictate a certain basic form c. Limit the parties’ ability to amend their pleadings C. History a. They were not assigned to one spot, they traveled throughout England and by this traveling they brought a “common law” throughout England. Eventually these judges were organized into three courts: i. Exchequer 1. Originated dealing with King’s money matters 2. Tax courts 3. They met in Westminster hall and the table they met on was checkered ii. Common Pleas (C.P.)
1. Dealt with civil complaints iii. King’s Bench (K.B.) 1. Dealt with criminal case where the crown had an interest b. Eventually the three courts were intermingled. The judges moved from one to the other. c. There were other courts in England. For examples, i. Manor courts 1. low justice could be administered. 2. Only King’s court could administer high justice (execution). ii. Admiralty courts 1. dealt with ships and piracy iii. Religious courts. 1. Only these could grant a divorce iv. Court of Equity. 1. This one had a long battle with the three courts (exchequer, common pleas, kings bench). When resolved got rights to civil actions. Only had jurisdiction only when the common law court was inadequate to do something. For example cannot get specific performance from those courts, so could go to the equity one for this. d. Writs i. Built around a system of writs. ii. You had to plead facts that fit within the exact ones of the writ. Pleading became EXTREMELY technical. e. Barrister v. Solicitors i. lawyer who is able to practice in the high courts in England. They are trained differently and are the elite of the bar. From the barristers you get judges, the attorney generals etc. ii. The solicitors are actually more highly trained and do most of the legal work. f. FRCP passed in 1938 i. Federal Rules are continuously being revised – not just civil procedure – bankruptcy, admiralty, etc. ii. When FRCP recommends a rule, Supreme Coutt had go adopt it formally. 1. will receive submissions and public commentary on this matter iii. Congress has the authority – 90 days – to strike it down. If Congress does not act, then the rule becomes law. D. Code Pleading a. E. Rule 8 – Notice Pleading a. Put the party on notice b. Rule 8 (a) – Pleading sets forth a claim for relief 1. Original claim 2. Counter-claim 3. Cross-claim 4. Third party claim ii. Must contain a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, 1. subject matter jurisdiction a. only one that is required 2. personal jurisdiction iii. a short and plain statement of the claim showing that the pleader is entitled to relief, and 1. put the other side on notice as to why he is being sued a. purpose is to advise the other party of the event being sued upon – Daniels v. USS-Agri Chemicals i. even if you put the wrong law they have still been put on notice. This would be the same as a technical mistake
2. disclose the legal claim(s) and some clue as to the events that gave rise to that claim a. it is sufficient to tell the D what the suit is about and the general reasons for the suit – Swierkiewicz v. Sorema, N.A. i. technical forms of pleading or motions are not required ii. do not need to prove a prima facie case in the pleading 3. Have to plead all the elements of every cause of actions – Roe v. Aware Woman Center for Choice a. Do not have to state legal theory b. Should over plead because you only get one amendment as a matter of right iv. a demand for judgment for the relief that the pleader seeks. [Prayer for Relief] 1. Relief in the alternative or of several different types may be demanded. 2. Monetary damages must be specific 3. Subrogation a. Gifford hits me, my insurance pays for my damages, the insurance company then has a subrogated right to sue Gifford. 4. If the party seeks punitive damages, the prayer usually lists the figure for compensatory and punitive damages separately v. Federal 84 says that pleading and motions that comply with the Federal Forms automatically meet the pleading standard c. Rule 8(b) – Responses to Pleading i. Types of Responses 1. Admission 2. Denials a. General denial i. Defendant denies each and every allegation of the complaint ii. Not used very often because: 1. rare when D can deny even jurisdiction and parties’ identities and addresses 2. all P has to show is one defect and P can move to strike under Rule 12(f) 3. issues relating to a party’s capacity or the performance or occurrence of a condition precedent require specific denials b. Specific Denial i. Defendant denies all the allegations in Paragraph 3 c. Qualified Denials i. D denies all the allegation in Paragraph 5, except those relating to identity and residential address d. Denial based upon information and belief i. D lacks 1st-hand or personal knowledge about the validity of one or more of the allegations in the complaint, but has sufficient information to form a belief about the truth or falsity of the allegations may assert a denial upon “information and belief.” e. Negative pregnant i. D did not negligently drive his automobile causing injury to the P. ii. Denies only an immaterial part of the complaint and leaves admitted the key allegations by the P 3. Failure to deny – King Vision Pay Per View v. Dimitri’s Restaurant a. Constitutes as an admission b. Allegations of damages are not admitted because of a failure to deny c. Only applies to allegations in those pleadings to which responsive pleading is required 4. Denial based on lack of knowledge or information to form a belief
a. For lack of knowledge or info sufficient to form a belief, D can neither affirm nor deny the P’s domicile d. Rule 8 (c) – Affirmative Defenses i. Information contained in an affirmative defense does not necessarily negate any allegations in the complaint, but it avoids those allegations by adding new information. ii. Does the defense fall with the enumerated defenses 1. The Enumerated Defense a. Arbitration b. Assumption of the risk c. Award and Satisfaction d. Contributory negligence e. Discharge and bankruptcy f. Duress g. Estoppel h. Failure of consideration i. Illegality j. Injury by fellow servant k. Laches l. License m. Payment n. Release o. Res judicata p. Statute of fraud q. Statute of limitations r. Waiver s. Any other matter constituting an avoidance or affirmative defense 2. if not, then test is if it could fall within the Rule 8(c) catchall for “any other” defense Red Deer v. Cherokee County, Iowa a. The test is whether the “defense shares the common characteristics of a bar to the right to recovery even if the general complaint were more or less admitted to.” i. Three factors: If burden of proof is on D 1. D has knowledge of it more than P because it is an affirmative defense 2. Whether it was part of the claim if proven or if it avoids P’s claims 3. Whether P was put on sufficient notice F. Rule 9 a. Rule 9(b) – Plead with heightened specificity / particularity for – Alternative System Concepts, Inc. v. Synopsis, Inc. i. Fraud 1. knowingly making a false statement with the intent that someone will rely on the false statement and does rely ii. misrepresentation iii. malice 1. To plead malice only need to say D pled with malice. 2. But need to say who said what and how iv. Pleading has to be specific with who, what, where, and when of the allegedly false or fraudulent representation b. Rule 9(g) – Special damages have to be pled with specificity i. General damages 1. damages directly resulting from D’s conduct. ii. Special damages
1. ones that are arising from the circumstances. 2. reason for specificity is to make sure that the D is aware of what damages are being pleaded that do not generally occur from the accident 3. if you do not include them in your pleading, then you cannot introduce evidence of that injury at trial, although courts may allow the P to amend iii. You are not limited in recovery to your pleading. G. Rule 7 a. Rule 7(a) stipulates that there shall be i. Complaint ii. answer iii. Answer is ordered by court or if counterclaim 1. without a court a order, the only reply authorized is a reply to the counterclaim 2. Ordinarily some unusual reason must be urged a. Complain and answer do not cover some new matter – Reyes v. Sazan b. Availability or expense of discovery procedures OR c. The possibility of summary judgment justify a reply 3. Replies can be ordered from either side b. Rule 7(b) i. All other requests to the court are made by motion H. Rule 10 a. Sets out a certain basic form that all pleadings must follow b. Form of a Pleading i. A caption setting out 1. the name of the court, 2. the title of the action, a. the name of the P and of the D 3. the nature of the pleading (i.e. complaint, answer, or reply) 4. the file number ii. Complaint sets out P’s claims and asks the court to grant recovery 1. The paragraphs have to be numbered 2. Each paragraph has to be limited as far as practicable to a statement of a single set of circumstances a. Different claims have to be separated in different counts i. Technically two claims must be phrased as two county only when they arise from different underlying transactions or occurrences 3. Rule 17 requires he complaint t name the person who will actually benefit from any judgment for the P iii. The P demands a jury trial [Rule 38(b)] I. Rule 11 a. Every motion, pleading has to be signed by an attorney. b. Pleadings do not have to be done under oath c. Reasonable under the circumstances d. Need a non-frivolous argument e. Rule 11(b)(4) talks about your response. i. Your denial has to be based on a reasonable belief that the evidence you get in discovery will support your denial. f. There is a safe harbor period. i. Safe harbor means if you do things as are laid on in the law, then you cannot be in trouble. ii. a motion for sanctions is not to be filed until at least 21 days after the motion is served on the offending party g. Duty of Candor i. Litigants are subject to sanctions for advocating a position after is not longer tenable
1. the attorney can no longer advocate the fact as part of the claim or defense once he realizes it lack of merit – Ruszala v. Walt Disney World Co. ii. it applies only to assertion in papers filed with the court iii. a person who signs, filed, submits, or advocates a document has a non-delegable duty the court h. Sanctions i. Should be no more severe than reasonably necessary to deter repetition of the conduct by the offending attorney or party or comparable conduct by similarly situated persons ii. Are proper when: 1. party files a pleading that has no reasonable factual basis 2. when the party files a pleading that is based on legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law – Christian v. Mattel, Inc. 3. when the party files a pleading in bad faith for an improper purpose iii. Test is reasonableness under the circumstances 1. whether the party’s claims are objectively frivolous 2. whether person who signed the pleadings should have been aware that they were frivolous – Christian v. Mattel, Inc. a. should have conducted a reasonable and competent inquiry J. Rule 12 a. Rule 12 ( b) Motions that can be made on the pleadings 1. Lack of subject matter jurisdiction 2. Lack of personal jurisdiction 3. Improper venue 4. Insufficiency of process 5. Insufficiency of service process 6. Failure to state claim upon which relief can be granted 7. Failure to join a part under Rule 19 b. Rule12(b)(6) motion i. failure to state a claim on which relief can be granted. 1. saying there is no conceivable legal theory under which P can recover on the pled facts. 2. For purposes of the motions the facts as pled have to taken as true. 3. Two forms a. The pleading being challenged may be missing some key language b. The pleading may contain ample facts, but those facts do not state a claim recognized at law 4. Using 12(b)(6) as a motion for Summary Judgment a. If D attaches affidavits of other proof missing facts to the 12(b)(6) motion, the motion, will be converted into a Rule 56 motion for summary judgment i. Claim Preclusion 5. Can be raised at anytime a. Rule 12(h)(2) allows the defense of failure to state a claim to be raised at any point in the case, including at the trial itself b. Once pleadings are finished failure to state a claim can be raised under Rule 12(c) as a motion for judgment on the pleadings c. Rule 12(d) i. Preliminary hearings shall be heard on enumerated 12(b) motions before trial d. Rule 12(e) i. Allows a party to move for a more definite statement if the pleading is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” ii. If granted, P has ten days to amend the complaint to make it more clear e. Rule 12(f) – Motion to strike i. Two basic purpose 1. allows a party to strike specific claims or allegations
a. strike portions of D’s answer 2. allows striking for “redundant, immaterial, impertinent, or scandalous matter.” a. Defaming statements ii. These are very rare f. Rule 12(g) i. requires many Rule 12(b) defenses to be raised in certain pre-answer motions, but makes an exception for those defenses listed in Rule 12(h)(2) g. Rule 12(h) i. Rule 12(h)(1) 1. Following defenses are waived if they are not raised in a. a motion b. a response to a complaint or c. an amended response: 2. These defenses are: a. Lack of PJ b. Improper venue c. Insufficiency of process d. Insufficiency of service of process ii. Rule 12(h)(2) 1. The following defenses can be made a. in any pleading b. by motion for judgment on the pleading c. at the trail on the merits 2. These defenses are a. Failure to state a claim b. failure to join a necessary party c. Failure to state a legal defense to a claim iii. Rule 12(h)(3) 1. Whenever it appears that there is not Subject Matter Jurisdiction, the action can be dismissed K. Rule 15 a. A party may amend once before a response has been filed. A response would be an answer or a counter claim. b. Enables a party to assert new information that was overlooked or unknown to the pleader at the time the complaint or answer was filed i. Rule 15(a) 1. A pleading may be amended once without leave of court ast any time before a responsive pleading is served 2. Afterwards or if another amendment is needed permission must be granted by the court a. Usually is granted if moving party does not act in bad faith or repeated failure or is in the interest of justice – Beeck v. Aquaslide ‘N’ Dive Corp. ii. Rule 15(b) 1. When issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respect as if they had been raised in the pleadings 2. Test a. the test for allowing an amendment to conform leadings to issues impliedly tried is whether the opposing party would be prejudiced by the implied amendment i. Otness v. United States – Court denied amendment to add wilfull and wanton to the negligence claim because they said D had not been put on sufficient notice and would have to go back and completely alter their defense iii. Rule 15(c) – Relation Back
1. provides for the “relation back” of amended complaints that add or change parties if certain condition are met, in which case the amended complaint is treated, for statute of limitation purposes, as if it had been filed at the time of the original complaint. 2. Conditions / test for relation back a. Rule 15(c)(1) – The relation back is permitted by SOL b. Rule 15(c)(2) – The claim or defense asserted in the amended pleading arose out of the STO as raised in the original pleading c. Rule 15(c)(3) – Changing the name of the party is satisfied when: i. Claim arises out of the conduct, transaction, or occurrence, set forth or attempted to be set forth in the original pleading ii. The newly named party must have received notice of the institution of the action within 120 days of the filing of the complaint that the party will not be prejudiced in maintaining a defense on the merits 1. Singletary v. Pennsylvania Dept. of Corrections iii. The newly named party must have known or should have known (within the 120 day period) that “but for a mistake” made by the P concerning the newly named party’s identity, “the action would have been brought against” the newly named party in the 1st place 1. Examples of relation back amendments that would work as long as they arise from the STO a. Expand or modify the facts alleged in an earlier pleading b. Cure a defective statement of jurisdiction c. Reassert a claim that was deficiently stated and dismissed under Rule 12(b)(6), OR d. Change the legal theory based on the factual transaction iv. Rule 15(d) – Supplemental Pleadings 1. Can only be made when the court grants a motion asking for supplemental pleadings 2. A supplemental pleading must be filed for transactions, occurrences, or events arising AFTER the date of the filing of the complaint. a. Amendments are for things that happen before 3. May include a. New facts b. New claims c. New defenses d. New parties 4. Factor to be considered in granting these are a. Undue delay b. Trial inconvenience c. Prejudice to the parties 5. They can be brought at any time the action is before the trial court L. Rules and considerations for courts to use in determining which law applies a. Choice of Law – The set of rules that dictate how a court selects which state’s law will govern a particular case i. Lex loci – law of the place of the wrong 1. Contracts a. Where the action forming the contract is made 2. delicti – fancy latin word for Torts a. where the last act necessary to perform the tort was made 3. sitae a. where the property is located ii. Interest analysis 1. Requires the court to look at the various interests and policies involved in the transaction
a. Doctrine that was created by Prof. Bernard Currie. b. The law in about 40 states 2. Factors to be considered a. Predictability of results b. Maintenance of interstate and international order c. Simplification of the judicial task d. Advancement of the forum’s governmental interests e. Application of the better rule of law 3. Which law is providing good social justice iii. Paul v. National Life - Justice Neely does not apply the guess statute rule in this case because he says that public policy in WV does not support the guest statute. Public policy (interest analysis) is used as an exception to lex loci by judges. b. Erie doctrine i. Erie applies to 1. diversity cases 2. when a federal court hears the non-federal part to a supplemental jurisdiction case 3. sometime in FQ cases ii. Is the case diversity? 1. Yes, then is there a federal statute on point? a. Yes, can it be followed simultaneously with the state policy? i. Yes, follow both ii. No, follow the federal statute as long as it is valid under REA 1. valid means it is arguably procedural 2. The Federal Rules Enabling Act gives the federal courts the authority to adopt federal rules of procedure b. No, then does the federal policy (aka common law aka judge-made law) directly conflict with the state rule? i. No, follow the federal policy ii. Yes, is it clearly substantive or procedural? 1. Yes a. If substantive, apply state law b. If procedural, apply federal law 2. No, then weigh the following factors a. Twin Aims of Erie i. Would applying the federal law result in forum shopping? ii. Would applying the federal law result in inequitable administration of the law? iii. Semtek International v. Lockheed Martin Corp – Scalia here applies the twin aims of Erie and says there is no need for federal uniformity instead what we need is uniformity to prevent forum shopping and so the real holding in the case is that this is a civil application of how we would read 41(b) VI. Advanced Joinder A. Intervention – Rule 24 a. Absentee comes in on the case on her own volition b. Can chose to come in either as P or D c. Two types 1. Rule 24(a) – Intervention of Right i. upon timely application a. does not lead to prejudice ii. shall be permitted a. shall means must iii. when a statute of the US confers an unconditional right to intervene
iv. or when an applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated a. something in which you have an interest b. it has to be a legally protected right v. that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, vi. unless the applicant’s interest is adequately represented by existing parties vii. So the test is: a. Timely i. Considerations: 1. The stage of the proceeding at which intervenor files the motion 2. Whether the other parties would be prejudiced by the late intervention 3. Any reasons justifying the delay ii. Only issue where the judge has any discretion b. Statute or Interest c. Impede or Impair d. Adequately represented 2. Rule 24(b) – Permissive Intervention i. Trial court has discretion in granting this when either of the following: a. When a statute grants conditional intervention OR b. Requirements i. Timely application 1. The stage of the proceeding at which intervenor files the motion 2. Whether the other parties would be prejudiced by the late intervention 3. Any reasons justifying the delay ii. Law or fact in common with the main action iii. Does not unduly delay or prejudice the original parties 3. Rule 24(c) – gives the procedure d. Chiles vs. Thornburgh - Court rules that the Homeowners failed the test, while the detainees passed. Court ruled that the homeowners were well represented by Dade County, but the prisoners were not represented by any group. e. Need to still have SMJ B. Necessary Parties – Rule 19 a. Should the party have been joined 1. Person whose joinder will not deprive the court of jurisdiction shall be joined if: i. Not complete relief ii. Interest related to subject of action and disposition of the action in the person’s absence may: a. Impair interest in a practical manner b. Inconsistent or multiple obligations b. Can party be joined 1. Determination by the Court whenever Joinder is Not Feasible i. If a party is deemed necessary but the joinder is impossible because of jurisdictional problems, the court has to decide whether the party is indispensable ii. If the party is indispensable then the action must be dismissed a. The 4 factors used to determine indispensability are as follows: i. The extent of prejudice to the absentee, or to those that are already parties ii. Possibility of framing the judgment so as to mitigate such prejudice iii. the adequacy of a remedy that can be granted in the party’s absence
iv. Whether the plaintiff will have an adequate remedy if the action is dismissed c. Dawavendewa vs. Salt River Project Agricultural Improvement and Power District - There will be prejudice to the Nation if they are not joined – immunity could be infringed upon; Judgment cannot be rendered to mitigate the harm, because if P is allowed partial injunctive relief other will follow – problem will not be mitigated; Adequacy of remedy will not be sufficient C. Interpleader a. A primary aim of interpleader is to protect the stakeholder from inconsistent judgments. b. Have a stakeholder and he holds property and she wants to force all potential claimants into one case 1. X & Y both claim a bank account at Bank. Y demands the money from Bank. If Bank had to litigate against Y, and then possibly defend a second suit brought by X, Bank might have to pay the amount of the account twice. By using the interpleader doctrine, Bank can force X & Y to litigate between themselves as to the ownership of the account, with Bank paying only the winner. c. Want to avoid extra litigation over the same stake or disputed item d. There are two kinds 1. Rule Interpleader – FRCP 22 i. To determine diversity a. stakeholder must be diverse from every single claimant b. must exceed $75,000 ii. Personal Jurisdiction a. All claimants must have minimum contacts with the state, and b. Regular service of process rules iii. Venues based on residence a. Where ALL defendants reside 2. Statutory Interpleader – 28 U.S.C. §1335 i. To determine diversity a. One claimant must be diverse from one other claimant b. Must exceed $500 ii. Personal Jurisdiction a. Nationwide service of process (§2361), not bound by state limits (Rule 4(k)(1)(c)) iii. Venue based on residence a. where any claimant resides 3. They do the same thing but different standard for invoking them e. Star Insurance vs. Cedar Valley - P is trying to invoke interpleader for the 35 claimants against a $10,000 surety bond. P cannot pass rule interpleader, but it can pass statutory interpleader. Once the interpleader is invoked it must pass the three tests of the court 1. Does P have possession of the contest property and it must be at least $500 2. P deposit the monies with the court 3. two or more adverse claimants of diverse citizenship claim or may claim an interest in the disputed property. f. Indianapolis Colts v. Baltimore – no interpleader because CIB and Baltimore were not claimants to the same stake g. First Interstate Bank v. Hoyts and Sons Ranch – Interpleader was proper because money wad directly in dispute and there was possibility of a second law suit h. American Family Mutual Insurance v. Roche – There was no interpleader because no adversity between diverse parties. American Mutual and Grimm not adverse because American owned the fund so cannot make a claim against something they own. Grimm and Roche not adverse because Roche is not claiming anything. The different Grimm family members were adverse (each competing for portions of a fund that is not large enough to satisfy them all) but they all were from IL, so no diversity. D. Class Action – Rule 23
a. Preclusive affect of the settlement extends to every member of the class b. Rule 23(a) 1. Four requirements: i. only if the class is so numerous that joinder of all members is impracticable (Numerosity) a. to have 10,000 joinders would be very difficult b. it is a procedural device to make it easier to handle large amount of people ii. questions of law or fact common to the class (Commonality) iii. claims or defenses of the representative parties are typical of the claims or defenses of the class (Typicality) a. so that you do not run into the Hansberry problem of divergent interests iv. the representative parties will fairly and adequately protect the interests of the class a. Requirements i. have to have adequate lawyer AND ii. The person paying the lawyer has to have interests that are not too divergent from your own. b. if requesting different damages within the class then not adequate representation c. Hansberry v. Lee – the interest of the person’s in the original litigation were quite different from the Hansberry’s. c. Rule 23(b) 1. The types of classes that there are: i. Requires necessary parties – Rule 23(b)(1) a. Notice is required if the names and locations of Ps are known, but not otherwise ii. Injunction class – Rule 23(b)(2) a. If the class for example if all homeowners downstream from a polluting mill and they want an injunction, they will all benefit from the injunction. SO there is not need for individual suits b. Public Good c. Notice is required if the names and locations of Ps are known, but not otherwise iii. Predominance and Superiority – Rule 23(b)(3) a. Two Requirements i. If there is one issue that really stands out and all members of the class are affected by that issue (Predominance) ii. If it is better to litigate it all this way or if we should litigate them all individually (Superiority) 1. consider individual lawsuits as well as joinder under Rule 20 b. Notice is required even if names and locations of Ps are not known i. Constructive OR ii. Actual c. Ps can chose to opt out of the resolution of the suit; they will not be bound by the court’s decision if they do so d. Szabo v. Bridgeport Machines, Inc. – Classic Rule 23(b)(3) suit. Predominance because misrepresentation in brochures is the common thread. Superiority because too many litigants so better to have class action. Adequate representation because everyone received the same brochure and same incentive is needed to make case work properly for everyone. i. d. Notice of pendency 1. Do the class members get notice that they are part of a class 2. For (b)(3) class members, have to give individual notice i. That is the only one
ii. Not required for (b)(2) or (b)(1) 3. Most important thing we tell them is that they can opt out of a Rule 23(b)(3) class action. i. Cannot opt out of (b)(2) or (b)(1) e. settlement or dismissal of a certified class must be approved by the court – Rule 23(e) f. have to have SMJ 1. what do you look at to see if diversity is invoked i. for citizenship you look only at the rep and not the class members ii. the class invokes diversity if the rep’s claim exceeds $75,000 regardless of the class members claims – Exxon Mobile v. Allapattah iii. Class Action Fairness Act – §1332(d)(2) a. class action is ok in federal court if any class member is diverse from any D and the total amount in controversy exceeds $5 million VII. Discovery A. Six Main types a. Automatic disclosure – Rule 26(a) i. Following a discovery meeting under Rule 26(f), the parties must make broad initial disclosures under rule 26(a)(1) 1. Rule 26 (a)(1) – Have to disclose with request any information that the opposing party may use to support its claim a. names of witnesses b. copies of documents, data compilations, and tangible things that are in the possession, custody, or control of the party c. damage computations of any category of damage claimed by the disclosing party, including non-privileged documents supporting the computation and the nature and extent of injuries d. all insurance policies that may provide coverage for all or part of a later judgment in the case ii. 90 days before trial, the parties must disclose information about expert testimony, pursuant to Rule 26(a)(2). 1. Rule 26(a)(2) – written report must be signed by the expert and include: a. All of the expert’s opinion as well as the grounds for the opinions b. Any information considered by the expert in reaching those opinions c. Any exhibits which supports the opinions d. Expert’s qualifications and publications iii. 30 days before trial, the parties must make specific pretrial disclosures, under Rule 26(a)(3) 1. Rule 26(a)(3) – Every party must make a written disclosure of a. The identity of each witness who may testify b. Deposition testimony c. Exhibits hat may be offered at trial b. Depositions c. Interrogatories d. Request to inspect document or property e. Request for admission of facts f. Request physical or mental examination B. Rule 26(b) a. Discovery is appropriate when it is reasonably calculated to lead to the discovery of admissible evidence b. Facts are discoverable if i. Relevant to the subject matter of the litigation, AND ii. Not privileged, AND iii. If not themselves admissible, then reasonably calculated to lead to admissible evidence, unless the court determined that the discovery sought was:
1. unreasonably cumulative, duplicative, obtainable from another source more convenient, less burdensome or less expensive; OR 2. the party seeking the discovery had had sufficient opportunity by discovery in pending action to obtain it; OR 3. the court determined that the requested discovery should not be allowed, following a cost-benefit analysis that balanced a. the burden or expense associated with the requested discovery b. the likely benefit to the requesting party of the challenged discovery c. taking into account the following factors: i. the needs of the case ii. the amount in controversy iii. the parties resources iv. the importance of the issues at stake in the litigation; and v. the importance of the proposed discovery in resolving the issues c. If D claim that they cannot produce requested information because of burden, they must justify this claim with specific details that can be evaluated by the Ps and if necessary the court d. If claiming privilege, then maintain a privilege log that expressly states the basis of her claim and described in detail the nature of the information of the document withheld so that the opposing party can evaluate the claim e. Thompson v. Department of Housing and Urban Devel. – Court allowed for piecemeal version of discovery because initial discover requests were too broad C. Rule 26(c) – Protective order a. Intended to protect parties and witnesses during discovery from having to disclose information under the requested circumstances b. May be sought because either i. The information sought falls outside the rules; OR ii. Though the information can be discovered under the rules, some aspect id the discovery of that information is troubling to the responding party D. Discovery Devices a. Depositions – Rule 30 i. A party may take any person’s deposition as per Rule 30(a) ii. Number of depositions is limited to 10, subject to expansion by the court iii. Rule 30(d) provides for a time limit of one day of seven hours for each deposition, which can be extended by court order iv. The court’s permission is necessary to repeat a person’s deposition or to take any deposition before the court conducts a discovery conference. v. Objection raised at deposition by lawyer is preserved at trial vi. Rule 30(b)(6) – Alexander v. FBI 1. P has to ask with reasonably particularity 2. D has the burden to designate a deponent with knowledge to fulfill P’s request 3. D and his deponent have duty to educate themselves about the subject of the deposition. 4. D can designate more than one deponent if necessary b. Interrogatories – Rule 33 i. A set of written questions ii. Limited to 25 questions including sub-interrogatories iii. Rule 33(b) – Can be objected, but objection has to be stated with specificity iv. Rule 33(c) – have to answer even if the answer involves “an opinion or contention that relates to fact or the application of law to fact” v. Rule 33(d) – To answer an interrogatory, “a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived” vi. Types of Interrogatories 1. Factual request a. Did you do this?
2. Factual opinion or conclusion a. Did person X appear to be laughing? 3. Application of law to fact a. What acts of negligence were committed by D? 4. Legal opinion or conclusion (an objectionable interrogatory because it constitutes opinion work product) a. What is the constitutional, statutory, common law, or intergalactic basis for your claim? vii. O’Connor v. Boeing North American, Inc. – Need to ask specific question if you want to get useful answers c. Rule 34 – Request for Production of Documents i. Rule 34(a)(1) 1. allows a party to ask another party “to produce and permit the party making the request … to inspect and copy, and designated document, .. or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and whish are in the possession, custody or control of the party upon whom the request is served.” a. When data is electronic, respondent has to supply a print-out b. If the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs i. Rule 26(c) protects respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party pay costs ii. Playboy Enterprises v. Welles – Playboy allowed to copy Welles’ hard drive for e-mails, in return had to bear costs ii. Rule 34(a)(2) 1. Allows requesting party to enter other party’s property for gathering data (inspection, photography, survey the land, etc.) within the scope of Rule 26(b) d. Rule 36 – Request for Admissions i. Each party can require other parties to admit relevant facts and/or authenticate documents that are not in controversy ii. Rule 36(a) states that a request for admission may seek “statements or opinions fact or the application of law to fact.” iii. The responding party has an obligation to investigate the requests and in good faith partially or fully admit, partially or fully deny, state the reasons for the inability to admit or deny, or object to each requested admission, within 30 days of receiving the requests 1. Rule 36 requires only that the party state that he has taken the steps of reasonable inquiry to obtain the info 2. Asea v. Southern Pac. Transp. – respondent failed to answer with particularity stuff they could not admit or deny iv. Rule 36(b) states that an admission is conclusively established unless the trial court permits the admission’s withdrawal or amendment. e. Rule 35 – Physical and Mental Examinations i. Rule 35(a) 1. Requires a court order before a party must submit to a physical or mental examination 2. Before a court will order the examination, the moving party must show that a. there is “good cause” for the testing AND b. party’s physical or mental condition is “in controversy” i. Ali v. Wang Laboratories – good cause exists for examinations because P’s claim goes beyond emotional distress (mental) and P claims he will need surgery to correct problem (physical) ii. Rule 35(b)
1. provides that by request of the party examined, the moving party must provide a detailed written report by the examiner 2. In return, the examined party must provide reports of other examinations for the same condition, regardless of when they were conducted f. Discovery Sanctions – Lee v. Walters i. Rule 37(a)(4) – Motion to Compel Discovery 1. court may award expenses, if a. court grants motion to compel b. OR c. Opposing party provided requested discovery after the motion to compel is filed 2. an award for expenses is mandated unless a. the motion to compel was filed without first making a good faith effort to obtain the disclosure of discovery without court action” OR i. they first attempted to resolve the issues without judicial intervention b. “the non disclosure, response, or objection was substantially justified” OR c. “other circumstances make an award of expenses unjust” ii. Rule 37(b) 1. targets a party’s failure to obey an order to provide or permit discovery 2. allows the court to make such orders “as are just” and in lieu or in addition, requires the offending party “to pay the reasonable expenses caused by the failure” unless “it was substantially justified” or “other circumstances make an award of expenses unjust.” 3. Prerequisite is existence of an “order” a. Order need not be in writing b. Party does not even have to move for the order c. Requires only that it is issued and disobeyed i. Party fails to deliver docs it had promised by a certain date 4. Types of Sanctions a. That facts are established for those claims that had been requested to comply b. Refusing to allow disobedient party to support designated claims or defense c. Striking out pleadings or parts thereof d. Treating party’s action as a contempt of court e. Fines for attorney and expert fees for failure to show up for an examination iii. Rule 37(d) 1. authorizes court to impose sanctions against a party who fails a. to attend a duly noticed deposition OR i. sanctions mandatory unless failure was “substantially justified or that other circumstances make an aware of expenses unjust b. to serve answers or objections to interrogatories properly submitted under FRCP 33 OR c. to serve a written response to a request for inspection properly submitted under FRCP 34 d. iv. Rule 26(g) – Mandatory sanctions for conducting discovery irresponsibly 1. applies to every discovery request, response, or objection 2. for this rule to apply the discovery document has to have a signature v. Lee vs. Walters – US Attorney repeatedly missed depositions scheduled with opposing party; this is not the first time this has happened; court sanctions action. VIII. Alternative Dispute Resolution A. Mediation a. have a mediator come in and listen to the sides b. mandatory in MD for certain custody battles c. are fairly effective B. Arbitration
a. in any contract involving any sum of money almost all rational want their dispute settled by arbitration instead of litigation (arbitration is binding) b. it is cheaper and faster than litigation c. it is final… cannot be appealed d. if you have a technical problem it is better to have three people with degrees in it than have a judge who doesn’t know what you are talking about IX. Jury Trial A. Right to a jury trial a. The jury resolves disputes of facts, the judge instructs the jury on the law. a. 7th amendment only deals with civil cases in federal courts b. It preserves the right to a jury trial i. Meaning it preserves it as of 1791 because that is when the 7th amendment was ratified ii. It preserves the right to a jury trial in actions at law, but not at equity iii. Big difference between law and equity is what remedy is available 1. at law a. principle remedy at law is damages i.e. money to compensate for harm 2. Equity a. came up with injunction, b. specific performance c. accounting of profits from D’s wrongful use of P’s property d. Restitution (often used in cases of unjust enrichment) i. Backpay against employer e. Reformation of a contract or conveyancing instrument such as a deed f. Rescission of a contract because of fraud, mistake, or other defect in formation\ g. Constructive trust, under which D is ordered to hold property for P’s benefit iv. Test – City of Monterey v. Del Monte Dunes at Monterey 1. Determine whether in 1791 the statutory action would be under law or equity a. What is the closest claim? b. Is it equity or law? 2. Determine if the remedies would be under law or equity a. This part is more important b. A declaratory judgment suit can be either legal or equitable depending on the underlying issues in the suit – Marseilles Hydro Power v. Marseilles Land and Water Company i. Beacon Theaters Test – anytime legal and equitable claims 1. Split the claims into legal and equitable ones 2. Jury will first decide all the legal claims, 3. Judge will use relevant facts found by jury to decide the equitable ones 3. See if the question is fact bound in nature a. if fact bound, goes to the jury v. If a case has equity and law issues, the – Dairy Queen 1. determine the right to a jury trial issue by issue a. so it is not all or nothing 2. if an issue of fact (legal issue) underlies both law and equity you get a jury on that issue a. look at the nature of the issue to be tried rather than the nature of the overall action b. Ross v. Bernhard – right to jury even though historically stockholders derivative were equitable because the claim here was legal c. If you cannot prove your case without discovery it would be like Ross. i. Just because you are using a procedural equitable device to get your claim into court it does not mean that it cannot be heard by jury. 3. generally we try the jury issue first and then the equity issue with the court
c. Reexamination Clause i. Allows a judge to overturn a verdict, but only to the extent that he could do so at common law ii. There are 4 ways a judge can overturn a jury: 1. Failure to state a claim 2. Summary judgment 3. Directed verdict – no evidence 4. New Trial motion could be granted 5. New Trial motion has to be filed before all evidence has been filed d. 28 U.S.C §1861 – Floyd v. Garrison i. Jury pools be chosen at random from a fair cross section of the community ii. To establish a violation of the fair cross section, must prove 1. [blacks] are a distinctive group in the community 2. the representation of [blacks] in jury pools is not “fair reasonable in relation to the number of [blacks] in the community; AND 3. “this under representation is due to systematic exclusion of [blacks] in the jury-selection process e. Voir Dire i. Rule 47 – Selection of Jurors 1. Two types of Challenges a. Each side has unlimited strikes of potential jurors for cause i. Good cause include 1. a juror who fails to meet one or more statutory qualifications for jury duty 2. a juror who is biased between the parties or to the substance of the dispute ii. Judge has the duty to determine whether the juror is capable of suspending that belief for the duration of the trial – Thompson v. Altheimer & Gray b. Each side also gets peremptory strikes i. must be used in a race and gender neutral way ii. Each side is only allowed 3 iii. Requirements for allegations of discriminatory peremptory challenges: aka Batson Challenges 1. opponent of strike must show striking party exercised challenge because of a discriminatory reason 2. striking party must articulate a gender-neutral reason for the challenge 3. court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination 4. Burden of Proof a. If P is making the challenge, then he has the burden of production to make the prima facie showing. b. After he does this, the burden shifts to D to offer neutral justification c. Judge must make finding as to whether there was discrimination or not d. If D makes an overwhelming showing, then burden shifts back to the P to rebute e. If P cannot rebute, then she loses as a matter of law 5. Batson Challenges rarely succeed mainly because the trial has already taken place iv. exclusion of all members of a specific minority group does not, on its own, establish that the peremptory strikes were discriminatory
ii. Rule 48 – Number of Jurors 1. no fewer than 6 and no more than 12 jurors needed f. Rule 51 – Jury Instructions, Objections; Preserving a Claim of Error i. Rule 51(a) Jury Instructions 1. The P or D’s a. Must Submit Instructions at the close of evidence or an earlier reasonable time i. Instructions should cover every important issue on the case ii. File and furnish to all parties 2. The Court a. Must inform parties of its proposed instructions, before instructing the jury b. Must give the parties an opportunity to object on the record and out of the jury’s hearing to the proposed instructions ii. Objections - Rule 51(c) 1. Must be raised if parties wish to appeal jury instructions a. Stating distinctly the matter objected to and the grounds of the objection – Jarvis v. Ford Motor 2. Must be timely a. Objection comes before final jury arguments if party already knows about the instructions b. Objection is immediate, if party is belatedly informed of instructions iii. Plain Error 1. A party can assign plain error, striking the instruction if: a. Court has ruled that instruction was invalid but gave it to jury anyway g. Rule 49 – Jury Verdicts – Lavoie v. Pacific Press & Shear i. Three types 1. General Verdicts a. In a single statement reflects the jury’s conclusion about which party wins the case b. “We find in favor of the D” 2. Special Verdict – Rule 49(a) a. “Special written finding on each issue of fact” b. Jury answers primarily factual questions for the benefit of the trail court which then applies the law to those answers 3. General Verdict with interrogatories – Rule 49(b) a. The jury after being fully instructed answers the interrogatories, renders a general verdict and the trial court enter judgment on the jury’s verdict b. a verdict sheet that asks specific questions. i. Need to do this when you get to comparative faults. c. Problems with this kind of verdict i. inconsistencies either within the interrogatories and or the verdict 1. if inconsistencies judgment shall not be entered a. return to the jury for further consideration of its answers and verdicts OR b. order a new trial ii. judge is supposed to not dismiss the jury until the inconsistencies are reconciled d. Losing verdict would want this 4. a special verdict is used where the jury finds only issues of facts and the court applies the law, as opposed to a general verdict with interrogatories, which is used to give close attention to certain factual matters X. DISPOSITIVE AND POST TRIAL MOTIONS A. Dismissals a. Voluntary Dismissals – Rule 41(a) – Marques v. Federal Reserve Bank of Chicago
i. P can voluntarily dismiss a claim prior to adjudication ii. Two methods by which P has an “absolute right” to dismiss a claim without having to obtain the consent of the trial court 1. prior to service of an answer or a motion for summary judgment, a P by her own unilateral act can dismiss her claim merely by filing a notice (not a motion, which invites response by the opposing party) that informs the court and all other parties that she is dismissing her claim 2. has no time restriction a. Under Rule 41(a)(ii) a case may be dismissed at any time by a signed agreement of all the parties iii. Two Dismissal Rule 1. When the P tries to file the same claim that he has voluntarily dismissed twice before he will be barred from raising such a claim L iv. Rule 41(a)(2) – Hinfin Realty Corp. v. Pittston Co. 1. If party cannot dismiss unilaterally or with the consent of the opposing party, a P must file a motion to obtain the court’s consent to dismiss 2. A court can dismiss only if it is not going to prejudice the opposing party 3. P cannot dismiss a case if there is a counterclaim, unless the counterclaim can remain pending for independent adjudication by the court a. if they still have subject matter jurisdiction – so need FQ or diversity b. Involuntary Dismissals – Rule 41(b) i. Allows to dismiss a claim against the wishes of the P and with prejudice to the P bringing the claim again 1. P cannot bring the claim again ii. Reasons for it 1. P’s failure to prosecute 2. P’s failure to comply with an order or other rules a. Aura Lamp vs. International Trading Corporation – P failed to meet a court order repeatedly, case was dismissed w/prejudice B. Summary Judgment Rule 56 a. If one party can show that there is “no genuine issue of material fact” in the lawsuit, and that she is “entitled to judgment of a matter of law”, she can win the case without going to trial b. Once you bring in evidence, then you cannot file as a rule 12 motion. Have to file for summary judgment under Rule 56 i. if file Rule 12(b)(6) with affidavits, then gets converted to a summary judgment motion c. Moving party can show lack of a genuine issue by a number of means i. Discovery – Depositions and Interrogatories ii. Attaching Affidavits 1. Moving party does not have to submit their own affidavit. a. This is a blessing to the moving party because it would put an undue burden especially if there was no such discovery request. 2. Standard for summary judgment is that there is no genuine issue of material fact. A material fact is one without which you cannot win the case. This issue has to be demonstrated by admissible testimony d. If D’s reason for summary judgment is that there is no evidence they have to explain why there is no evidence – Celotex Corp. v. Catrett i. Show the records and say if there is not evidence or if evidence that is there is insufficient explain why that is so. D is under a duty to establish the lack of evidence. e. Burden of persuasion i. if the moving party will bear the burden of persuasion at trail, that party must support its motion with credible evidence that would entitle is to a directed verdict if not controverted at trial
ii. if the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56 burden of production in two ways 1. the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim 2. the moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim a. A restatement of what was in the non-moving party’s original pleadings will not work, they have to show new evidence f. all matters in the motion will be construed most favorably to the party opposing the motion g. Presumption v. Inference – Jorgensen v. Epic/Sony Records i. Presumption switches the burden of proof 1. Court will presume D copied the music if P can show that D has access to the work and that D’s work was substantially similar to P’s. IF D can show access and substantial similarity, the burden switches to D to prove that they had NOT copied the music ii. if court agrees to allow an inference, only means that the issue goes to the jury 1. there is no change in the burden 2. D was asking court to infer access based on the fact that he had sent copies of his work to some of the Ds h. Partial summary judgments are not considered final and so have to wait until the rest of case is resolved to collect and/or appeal C. Judgment as a Matter of Law – Rule 50 a. If “there is no legally sufficient evidentiary basis for a reasonable jury to find for” the opposite side b. Grant be granted either i. before the case is submitted to the jury – Rule 50(a) – directed verdict kind ii. after the jury returns with a verdict – Rule 50(b) – judgment not withstanding 1. have to move for directed verdict to be able to move for jnov c. The court has to examine the evidence and determine whether a reasonable jury could find against the D – This is an objective test d. Kinserlow v. CMI Corp, Bid-Well Div – Court says that there is no way a reasonable juror could find for the P because no reasonable juror could infer that Bid-Well could have built the bridge. There is no evidence to support this. There is a material fact that is missing – whether Gamaco or Bid-Well build this type of bridge between 1977 and 1984 D. New Trial – Rule 59(a) – Piesco v. Koch a. Can be granted on two grounds i. Procedural errors at trail tainted the jury’s decision-making process ii. If the judge believes that the jury made a mistake in its verdict, she can grant a new trial 1. seriously erroneous standard – jury’s verdict is against the weight of the evidence a. where the resolution of the issues depended on the assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial b. Remittiturs – court reduces the award, in exchange for the court’s denial of a motion of a new trial c. Additur – court cannot increase the award E. Relief from Judgment – Rule 60 a. Rule 60(a) – clerical mistakes i. slip of the pen ii. they can be corrected at any time b. Rule 60(b) – Mistake, Excusable neglect, inadvertence, etc. i. There are 6 factors 1. Mistake 2. Newly discovered evidenced 3. Fraud 4. Void judgment 5. Satisfied or discharged judgment or one reversed
6. Or any other reason ii. 1-3 must be made within one year of the judgment 1. Others can be made after one year iii. The court normally do not grant relief but will for a default judgment. 1. D has to show a. good cause for the default i. no prejudice to opposing party 1. Prejudice might be if the witness has died, or the documents had burnt 9/11 if it happened within the 6 weeks b. The time period was not ridiculously long c. need a meritorious defense to P’s claim i. a defense which raises a serious question regarding the propriety of the default judgment and which is supported by a developed legal and factual basis iv. Rule 60(b)(2) – newly discovered evidence 1. has to be such which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) 2. relief is an extraordinary remedy granted only in exceptional circumstances 3. requires proof of the following 5 prerequisites a. the evidence was discovered following trial b. due diligence on the part of the movant to discover the new evidence is shown or may be inferred c. the evidence is not merely cumulative or impeaching d. the evidence is material; AND e. the evidence is such that a new trial would probably produce a new result 4. if any of these prerequisites is not satisfied, the Rule 60(b)(2) motion for a new trial must fail v. Rule 60(b)(3) – Fraud 1. Intrinsic Fraud a. something that occurs in the trial i. witness perjury ii. bribing a witness so that she stays away 2. Extrinsic Fraud a. something that occurs outside the trial itself i. the judge or the attorneys involved are corrupt ii. driving a witness to stay away so they would not be able to testify iii. there might be reasons for this 1. if the witness was going to perjure himself 2. easier to get relief from intrinsic fraud than extrinsic fraud vi. Rule 60(b)(4) – Void Judgment 1. A void judgment is one that does not have any effect. If the court lacked jurisdiction (SMJ or PJ) or there is a default judgment and the court lacked subject matter. 2. If a judgment is void and has to be opened 5 years later, it can be done. There is no one-year statute of limitations on it. a. Reopening a void judgment may cause extreme prejudice to persons who are not parties in the judgment. 3. Things that get decided cannot be reopened despite courts lacking subject matter jurisdiction vii. Rule 60 (b)(5) Modification of an order 1. allows a court to maintain jurisdiction and amend the judgment accordingly. viii. Rule 60(b)(6) – The catch-all 1. Allows for the court to overturn judgment for extraordinary reasons XI. Effects of a Judgment
A. Money Judgments a. Three methods of collection i. Execution 1. a state official – typically a sheriff – seizes certain property of a D and sells it at a judicial sale 2. Proceeds of the sale are first to creditors with mortgages, security interests, or other priority claims and then to the judgment victor in satisfaction of the judgment ii. Garnishment 1. property being seized is intangible 2. Examples: wages and bank accounts iii. Judgment in lien 1. gives victor an interest analogous to mortgage in that property 2. if the D tries to convey or mortgage that real property to someone else, the victor can demand that his claim be satisfied 3. like in execution other creditors and priority claims are paid first b. Rule 62(a) generally requires a judgment victor to wait ten days until she attempts to enforce her judgment B. Preclusion a. Claim Preclusion – Res Judicata – cannot relitigate the same claims i. A party is barred from presenting claims or defenses that were or should have been litigated by that party in an earlier case ii. The preclusion does not apply unless there is a decision on the merits – judge is finished dealing with the claim, other than ordinary entry of final judgment 1. on the merits if it is based on the substance of P’s claim and any defenses, rather than on a procedural ground 2. Decision on jurisdiction and statute of limitations does not count as merits. 3. Rule 12b6 motions and summary judgments are ones on merits iii. Two approaches to deciding if causes of actions are the same 1. Evidence test a. If the evidence needed to sustain the second suit would have sustained the first, or if the same facts were essential to maintain both action. 2. Transactional Approach a. Considers whether both suits arise from the same transaction, incident, or factual situation i. The assertion of different kinds or theories of relief still constitutes a single cause of action, if a single group of operative facts give rise to the assertion of relief b. Federal approach is same transactional approach i. Use this is case in federal court 3. Rodger v. St. Mary’s Hospital - Court said it was not precluded. 1. They said the loss of evidence went to different facts. 2. In the first case he was trying to prove a med mal case. But the X-Rays were lost AFTER she died. So not the same transaction iv. Counter claims are not precluded, unless 1. they were compulsory to the claim in the first trial OR a. apply only if P wins the first case b. If forum has compulsory counterclaim rule like Federal Rule 13, then that rule takes precedence 2. successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action v. Cross Claims are not precluded vi. Defense is not a claim and therefore not precluded 1. may be barred by issue preclusion vii. Three exceptions to Claim Preclusion
1. parties or court specifically allow for a 2nd law suit 2. case dismissed based on procedural reason like lack of jurisdiction 3. If first action is in rem rather than in personam, counterclaims by the D are never compulsory b. Issue Preclusion – Collateral Estoppel – cannot re-litigate the same issues i. Prevents the re-litigation not of entire claims, but instead of particular issues that were actually decided by the court in a prior case ii. Four Elements 1. the two cases must involve the same issue a. issue precluded even if the subsequent action is based on an entirely different claim b. issue precluded even if the first adjudication is conducted in federal court and the second in state court c. Williams v. City of Jacksonville Police Dept – Case 1 was removed to federal court and federal court severed the state claims. In the state case there was no claim preclusion in the end. There was no final judgment on the merits on the state law claims. If federal constitutional claims had been brought, there would have been claim preclusion. The court said there was issue preclusion though on negligence, false arrest. Therefore, once again the city and the officers win d. Burden of Proof i. a party who has lost on an issue in Case One will not be barred from relitigating that issue of the burden of persuasion is lower in Case Two, or if the burden has switched from that party to the other side 2. that issue must have been actually litigated in Case One a. default judgment and involuntary dismissal for failure to prosecute will never have issue preclusion effect, even though both may have claim preclusion effect b. a dismissal based on lack of SMJ or a summary judgment based on the statute of limitations does have issue preclusion effect, but only on the narrow issue of whether the 1st court had SMJ or whether Case Two was filed in a timely manner in the chosen forum c. Unlike claim preclusion, issue preclusion applies the same way regardless of the status of the parties as P, D, or 3rd party D in Case One and Two d. In the absence of a written opinion, the parties may introduce extrinsic evidence as to what issues were actually litigated in Case One 3. the court in that case must actually decide that question a. If case decided by judge or by special verdict, know what factfinder found and therefore if issue is precluded i. However difficult with general verdicts 4. the ruling in that question must have been necessary to the judgment rendered by the court in Case One a. Alternative basis for a holding i. We hold that a D was negligent and in the alternative we hold that the D harmed the P. In this case do not know what is dicta and what is holding. Therefore, neither is precluded. ii. But in practice courts do the opposite and say either is precluded b. Stemler v. Florence – issue was decided in dicta and so no preclusion c. Stare Decisis v. Preclusion i. Three differences 1. Stare decisis applies even if the parties are completely different 2. State decisis applies to questions of law a. Issue and Claim preclusion apply instead to the application of law to fact 3. the degree to which the 1st judgment binds the second court
a. In Stare decisis court may refuse to follow any decision except that of a higher court i. Applies to the second court even if the court disagrees with the result of the analysis in the earlier cases b. In stare decisis a court is especially likely to ignore precedent rendered by courts in other states i. Applies even if the first decision is rendered by a trial court – and even if that court is situated in another state d. Who is bound by an adverse judgment? i. One is not bound by a judgment in person in a litigation which he is not designated as a party or to which he has not been made a party by service of process 1. Notice is required when it is foreseeable that it might affect on other and when you know (have some idea) who these otherS are ii. Exception: if they are in Privity 1. When Privity Applies – Functional Approach a. A non-party who has succeeded to a party’s interest in property is bound by any prior judgment against the party b. An non party who controlled the original suit will be bound by the resulting judgment c. Federal courts will bind a non-party whose interests were represented adequately by a party in the original suit d. Where there is a “substantial identity” between the party and the non-party where the non party had “significant interest and participated in the prior action and where the interests are “so closely aligned as to be virtually representative” e. Where there is an express or implied legal relationship i. Insurance Company and Insured ii. Bailor and bailee iii. Landlord and Tenant iii. Richards v. Jefferson County – Court held that preclusion did not apply to 3rd party because 1. no notice was given, 2. interests not the same (in fact adverse) and 3. not in privity e. Offensive v. Defensive Collateral Estoppel i. Defensive Collateral Estoppel 1. when a D seeks to present a P from asserting a claim the P has previously litigated and lost against another D 2. has Preclusive effect a. strong incentive to join all possible Ds in the first action if possible b. done for efficiency sake ii. Offensive Collateral Estoppel 1. when the P seeks to foreclose the D from litigating an issue the D has previously litigated unsuccessfully in an action with another party 2. does NOT generally have preclusive effect, but at judge’s discretion a. preclusion would be unfair to a D b. Parklane Hosiery v. Shore – court rules that prior SEC case does not preclude D’s use of raising the same issue in current case c. Two people eating at a diner both get food poisoning. Diner 1 wins a suit against the restaurant. Diner 2 then also files suit. Not precluded because different things could have happened to diner 2’s burger and not reasonable to mandate diner 1 to join with diner 2 C. Applying Preclusion Across State Lines a. Full Faith and Credit clause (Article 4 of the constitution) i. Deals with the relationship between the states ii. Since 1819 this has been a very strong mandate
iii. Framers said 1. A judgment from VA has to be recognized as a judgment without any further ado if it were to be recognized in MD 2. Also extends to public acts a. This is almost obsolete 3. Full faith and credit to judicial proceedings – MD has to enforce the VA judgment iv. At a minimum enforcing another state’s judgment means that the second forum must give the forum one judgment at least as much effect as would the first forum. 1. So whatever the F1 claim preclusion rules are, they become part of the judgment. v. It is an open question if F2 can give more full faith and credit to the F1 judgment. Reynolds thinks not so, F2 has to give exactly the same full faith and credit as the F1 judgment vi. There is also an issue as to remedies. F1 would give very broad injunctive relief, F2 is not bound to give really unusual remedies vii. Have to give Full Faith and Credit to a foreign judgment unless the judgment is 1. void for lack of PJ or SMJ OR 2. it was obtained by fraud viii. Sentinel Acceptance v. Hodson Auto Sales & Leasing – D tries to reopen a case when the P brings a FFC claim against D; trial court thinks it can do this because of surprise, but the MO supreme court states that the courts must give FFC unless lack of PJ, SMJ, or fraud ix. Uniform Enforcement of Foreign Judgment Acts 1. If I have a MD judgment and want to get it enforces in DE, then I can go to the DE court and get it registered in DE. Then it becomes a DE judgment and then I can go to the sheriff and day seize the D’s house, etc. 2. Any court flying an American flag outside must give FF & C to judgment rendered by another court flying an American flag outside. 3. Comity – Anything involving foreign states has to be done by federal government. MD can recognize a French judgment but it does not have to. x. “Last in time rule” – The last judgment on the matter receives full faith and credit Even if previous decisions are inconsistent xi. Rooker Feldman doctrine 1. You cannot appeal at the federal court a state court judgment. a. If a case starts out in state court, it stays in state court. Cannot ask a federal court to review a state court judgment xii. Durfee vs. Duke – General Rule: a judgment is entitled to FFC – even as questions as to jurisdiction – when the 2nd court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment 1. Once the matter has been fully litigated and judicially determined, it cannot be retried in another state in litigation between the same parties D. Judicial Estoppel a. Where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position former taken by him i. Generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase b. Factors to consider for judicial estoppel i. A party’s later position must be “clearly inconsistent” with its earlier position ii. Whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the 1st or the 2nd court was misled” iii. Would the party gain an unfair advantage or impose an unfair detriment on the opposing party if not estopped?
XII. Appeals A. Only a party who loses at trial has the right to appeal a. Two exceptions i. issue would be precluded from further litigation ii. party can show it was aggrieved by some aspect of the trial court’s judgment or decree b. In Re DES Litigation – Trial Court judgment only dismissed complaint and so no ruling on PJ. Therefore, nothing for Appellate court to review B. Have to have a final decision for appeal – 28 USC §1291 a. Final Decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment i. Judgment must dispose of all claims in the case ii. Not final judgments 1. partial summary judgment iii. Rule 54(b) – Interlocutory Appeals 1. When case has multiple Claims or Parties a. Have to have different claims aka have to have substantially different facts and theories i. Two legal theories sufficiently distinct that they call for proof of substantially different facts may be separate claims ii. Different burdens of proof imply different claims even for purposes of preclusion iii. NAACP vs. American Family Mutual Insurance - The district court judge expressly stated that there was final judgment on the case and it should go up 2. court MAY (so has discretion)find judgment on fewer than all claims 3. but only upon an express determination a. without an express determination that there is no just reason to delay entry of the judgment, a ruling cannot be appealed even if it clearly involves a claim for relief that is separate from the remaining claims 4. that there is no just reason for delay in entering judgment AND 5. upon an express direction for the entry of judgment b. summary judgment for D on all of P’s claims if cross claims or counterclaims remain pending c. Exceptions to Final judgment rule i. Interlocutory Appeals ii. Writs iii. Collateral Order Doctrine d. Interlocutory Appeal – an appeal of a decision that does not qualify as “final” under §1291 or the related state provisions i. §1292(a) – Interlocutory Appeals 1. provides for immediate appeals of certain interlocutory orders 2. §1292(a)(1) – allows immediate appeal on orders involving injunction a. Applies to both permanent injunctions and preliminary injunctions b. A grant or denial of a temporary restraining order (TRO) is not appealable i. TRO is a ruling that one party obtains in an emergency that is so pressing that there is no time to serve notice to the other parties 1. moving party must show that the situation is so urgent that irreparable harm could occur during the time it would take to notify the other side and schedule a hearing 3. §1292(b) a. Four Part Test i. Controlling 1. if resolution of that issue is very likely to affect the outcome of one or more claims in the case
ii. Question of Law 1. This part is problematic 2. Issues that are NOT questions of law a. A ruling that is based in whole or in part on an evaluation of evidence b. A challenge to the trial judge’s exercise of discretion 3. court finding a contract clause requiring arbitration was unconscionable was a question of law iii. Substantial Ground for Difference of Opinion 1. if the law on a given issue is well settled, appeal under §1292(b) is unavailable 2. this means that §1292(b) cannot be used when the trial judge makes a blatant and easily corrected mistake on the governing law iv. Materially Advance Termination 1. whether it will be efficient to have the immediate appeal. 2. United States v. Bear Marine Services – Parties wanted ruling on whether negligence claim has to be brought under IMTT because it is precluded by FWPCA. After this court granted preliminary appeal, another court decided another case which held that the FWPCA did not preclude a negligence claim. So judge said that they could still bring a negligence claim and the FWPCA did not preclude the claim. So this court sent case back to the district court because no material advancement b. The court of appeals in its discretion may permit the appeal to be heard e. Writs i. Writ of Mandamus 1. Ordering a government official to do something ii. Writ of Prohibition 1. Ordering a government official NOT to do something iii. These are extraordinary. 1. Must show the judge abdicated her normal duties iv. Because it is a new action and not an appeal, a mandamus or prohibition case falls outside the restrictions of the final judgment rule of §1291 1. Useful to challenge a wide array of interlocutory rulings f. Collateral Order Doctrine i. Relaxed the strict standard of finality by permitting the court to entertain the appeals from certain orders that would not otherwise be appealable final decisions ii. Three prong test 1. conclusiveness prong a. conclusively determine the disputed question 2. importance/separateness prong a. resolve an important issue completely separate from the merits of the action 3. unreviewability prong a. be effectively unreviewable on appeal from a final judgment b. order such that a review postponed will, in effect, be a review denied c. failure to review immediately may well cause significant harm i. one type of unreviewable cases will be where the harm caused is the trial itself 1. ex: if D claims that he is immune from suit under the 11th amendment or some other doctrine; if allow claim to go to trial then undermining immunity
iii. In Re Diet Drug – Fails conclusiveness (the district court has not issued a final order on the attorney’s fees)and Unreviewability (award of fees may be reviewed after final judgment) iv. Applies only to important issues v. C. Scope of Appellate Review a. Issue has to be raised at trail to be appealable b. Exceptions i. SMJ can be raised at appeal even if not raised at trial court ii. winning party from below can ask for review on any theory; to affirm judgment c. Contemporaneous objection rule i. To preserve the to a appeal based on a supposed error that occurred at trial, the aggrieved party must object to the error in a timely fashion 1. a timely objection is one raised in time to prevent significant harm ii. the judge has to know of the objection iii. the objection has to be contemporaneous to what it is that is being objected to d. Standard of review i. A question of fact is subject to review under the clearly erroneous standard 1. assuming that the trial court’s findings are correct unless it is clearly demonstrated otherwise ii. A question of law is subject to a de novo standard. 1. allows the appellate court to reverse merely if it disagrees with the trial court iii. A question left to the discretion of the trial judge is subject to the abuse of discretion standard 1. overturn only if the trial judge’s decision was an “abuse of discretion” D. Certiorari a. Different than appeals because entirely discretionary b. Three ways to get to the Supreme Court i. writ of mandamus ii. appeal 1. apportionment decisions 2. under voting right acts of 1953 iii. by way of certiorari 1. A cert can come from: a. lower federal court – §1254 i. no final judgment requirement b. lower state court judgment – §1257 i. need a final judgment ii. can only review questions of federal law, not state law 1. when a state court decision fairly appears to rest primarily on federal law or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from t he face of the opinion, accept that the state court decided the case the way it did because it believed that federal law required it to do so – Michigan v. Long a. Court says when they want to tell the world that their decision rests on an adequate and independent state ground, expressly say so iii. collateral order doctrine is the only exception that applies