CIVIL PROCEDURE Professor Freer I. DISCOVERY
o Discovery rules serve three basic purposes:
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They permit the preservation of evidence that might otherwise be lost before trial They provide mechanisms for narrowing the issues in dispute between the parties They permit the parties to acquire greater information about their own and the other side’s case. Tools of Disclosure REQUIRED DISCLOSURES: 1. INITIAL DISCLOSURES – RULE 26(A)(1) A party must, without any specific request by the another party, disclose to the other party: A. The name and, if known, the address and telephone number of each individual likely to have discoverable info that the disclosing party may use to support its claims or defenses, unless solely for impeachment; B. A copy of, or a description by category and location of, all documents (i.e., data compilations or tangible things) that are in the possession or control of the disclosing party that he/she may use to support its claims or defenses, unless solely for impeachment; C. A computation of any category of damages claimed by the disclosing party and a copy of the documents or evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; D. A copy of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment E. Things exempt from disclosure under 26(a)(1): Unless a different time is set by stipulation or court order: These disclosures must be made within 14 days after the Rule 26(f) conference; or If any party first served or joined after the Rule 26(f) conference must make these disclosures within 30 days after being served or joined. A party must make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it has an issue with another party’s disclosures. 2. EXPERT TESTIMONY – RULE 26(A)(2) A party must disclose to other parties the identity of any person who may be used at trial as an expert witness o The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions The disclosure must be made at the times and in the sequence directed by the court or at least 90 days before the trial date or the date the case is ready for trial. 3. PRETRIAL DISCLOSURE – RULE 26(A)(3) A party must provide and promptly file with the court the following information regarding the evidence that it may present at trial other than solely for impeachment: o The name, address and number of any witnesses This information must be disclosed at least 30 days before trial o Within 14 days thereafter, unless a different time is specified by the court, a party may serve and promptly file a list of any objections to any other disclosure tools. DEPOSITIONS – Rule 30
To depose a non-party, a party must subpoena him/her. A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in (2). 30(a)(1) Unless the court orders otherwise, the deposition is to be limited to one day of seven hours. A party desiring to take the deposition of any person shall give reasonable notice in writing to every other party to the action, which should include (Rule 30(b)(1)) the time and place of the deposition the name and address of each person to be examined (if name not known, then a general description sufficient to identity the person or the particular class or group to which the person belongs) Sanctions for NOT SHOWING UP ALL – Rule 37(d)(1) Establishment order – 37(b)(2)(A) Can’t put on evidence – 37(b)(2)(B) Strike pleading – 37(b)(2)(C) Pay reasonable expenses (including attorney’s fees) unless failure as substantially justified Not contempt A person may instruct a deponent not answer only when necessary to preserve a privilege or to enforce a limitation directed by the court. If a person being deposed does not answer a question, then the party seeking an answer can make a motion for an order compelling an answer and for appropriate sanctions. Rule 37(a)(2)(B) The motion must include certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery without court action. If the court order is violated, then sanctions may include – 37(b)(2): o Establishment order – 37(b)(2)(A) o Can’t put on evidence – 37(b)(2)(B) o Strike pleading – 37(b)(2)(C) o Contempt – 37(b)(2)(D) o Reasonable expenses, including attorney’s fees INTERROGATORIES – Rule 33 They are useful for getting background information and to get facts out of the way. Normally, they are done before depositions because they tell us who we should depose. Cannot send to a non-party Without leave of court or written stipulation, any party may serve upon ANY OTHER PARTY written interrogatories (questions), NOT EXCEEDING 25 IN NUMBER (including all discrete subparts). They require a written response under oath, which means they can be used as evidence In responding to interrogatories, parties are required to provide facts that are reasonably available to them, even if this requires reviewing files of documents. A party is not required to supply info that they do not already have, thus they do not have to conduct new test A party has 30 days to either respond or object to an interrogatory A party may object to an interrogatory with specificity All grounds for an objection not stated in a timely objection are waived, unless the court excuses for good cause shown. Rule 26(c) allows a party to ask the court for A PROTECTIVE ORDER, which protects the party from whom discovery is sought from annoyance, embarrassment, oppression, or undue burden or expense. EXAMPLES OF PROTECTIVE ORDERS: 1. That disclosure or discovery not be had 2. That disclosure or discovery may be had only on specified terms and condition, including a designation of the time and place
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3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery 4. That certain matters not be inquired into or that the scope of the disclosure or discovery be limited to certain matters 5. That discovery be conducted with no one present except persons designated by the court 6. That a deposition, after being sealed be opened only by order of the court 7. Trade secret or other confidential research, development or commercial information not be revealed or be revealed only in a designated way TOTAL FAILURE TO RESPOND – RULE 37(D)(2) Before sanctions can be sought against another party for failing to answer an interrogatory, the movant must certify that he has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. The Sanctions imposed are: o Establishment order – 37(b)(2)(A) o Can’t put on evidence – 37(b)(2)(B) o Strike pleading – 37(b)(2)(C) o Reasonable attorney fees and expenses PRODUCTION OF DOCUMENTS AND THINGS – Rule 34 Any party may serve on any other party a request to get documents and materials that are in the possession, custody or control of the party upon who the request is served. The party upon whom the request is served must serve a written response within 30 days after service of the request. A party who produces documents for inspection shall produce them as they are in the usual course of business or shall organize and label them to correspond with the categories in the request. 34(b) Use a subpoena duces tecum-for a non-party Sanctions imposed for failure to turnover such documents – Rule 37(d)(3): Establishment order – 37(b)(2)(A) Can’t put on evidence – 37(b)(2)(B) Strike pleading – 37(b)(2)(C) Reasonable attorney’s fees and expenses If there is a partial failure, then the party seeking the materials must make a motion to the court to compel an answer. MEDICAL EXAMINATION – Rule 35 A court order is required to get the other party to get a medical exam The party seeking the examination must show good cause and that mental or physical condition is in controversy The exam must be done by a suitably licensed medical professional If a person being examined requests the results of the exam, he waives his doctorpatient privilege. To get the information from a non-party, depose the non-party and ask him to bring stuff. Sanctions are same for production of documents REQUEST FOR ADMISSION – Rule 36 A party may serve upon any other party a written request for the admission of any matter within the scope of discovery. If a party does not respond WITHIN 30 DAYS AFTER SERVICE OF THE REQUEST, then they are deemed to have admitted whatever was asked. The party may answer that he/she is unable to admit or deny the b/c after a reasonable inquiry the information known or readily obtainable by the party is insufficient to enable him/her to admit or deny. A denial shall fairly meet the substance of the requested admission, and a party may qualify an answer or deny only a part of the matter of which an admission is requested.
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o Scope of Discovery
Can get information that is relevant to a claim or defense or any party Relevant information need not be admissible at trial, but it must be reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(1). Can only obtain information that is not privileged. Privilege protects confidential communications between certain folks (i.e., lawyer-client, doctor-patient, priest-parishioner, spouses). There is no family privilege o Privileged information Are easily waived because they impede the truth-seeking investigation A party must claim a privilege expressly and describe in detail the things not produced. If a privilege is not claimed, then it is waived o Trial Preparation Materials (Work Product) – Rule 26(b)(3) A party may obtain discovery of documents and tangible things otherwise discoverable and prepared in anticipation of litigation or for trial by or for another party only upon showing: of a substantial need of the materials in the preparations of party’s case AND the party is unable w/o undue hardship to obtain the substantial equivalent of materials by other means. The only thing that is absolutely protected Mental impression Conclusions Opinions And legal theories of attorney or other representative o Timing Rule 16 and 26 front load a lot of litigation. This keeps the parties’ feet to the fire. Scheduling Order – Rule 16(b) Gives a blueprint for all pre-trial stuff Can be issued at any time, but must be issued no later than 90 days after the appearance of the defendant and 120 days after the service of the complaint. The court has to sign off on the scheduling order 26(f) Conference the conference must be completed at least 21 days before a scheduling conference is held or a scheduling order is due. within 14 days of 26(f) conference each party must submit a discovery plan, and the initial disclosures are due Pretrial Disclosure Must be made within 30 days prior to trial. The other side has 14 DAYS to raise objections as to the admissibility of the depositions, documents or exhibits. Pretrial Conference and Orders II. Adjudication With and Without a Jury RIGHT TO A JURY o The only reason to have a trial is to resolve disputes of material issues of fact o There are two possible fact finders: (1) the judge and (2) a jury o The Seventh Amendment does not apply to States, it is a right that only applies to federal civil cases ―The rights to a jury trial shall be preserved in suits at common law.‖ o However, almost all States do require a jury trial in civil cases, but they do it through either its constitution or state statute. o A party must demand a jury trial in writing no later than 10 days after the service of the last pleading directed to such an issue If it is not in writing then the right for a jury is waived The party demanding a trial by jury shall specify the issues which the party wishes to be tried by jury; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable.
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o Chauffeurs Local v. Terry
To determine whether there is a right to a jury trial, the court has to figure out whether there would have been a right to a jury trial in 1791 when the Seventh Amendment was ratified. This is because the courts have presumed that ―preserved‖ locks us into the type of trial it would have been in 1791. Common law in 1791 is where we look to determine if there will be jury trial (the common law of England) TWO PART HISTORICAL ANALYSIS: 1. The nature of the action involved AND 2. The remedy sought The court looks for an analogue to an action in 1791 and determines whether that case would go to a court of common law Suits at common law are suits where legal rights are to be ascertained and determined The Court has preserved the right to a jury where legal rights are at stake. To determine if an action involves legal rights, look at both issues involved and remedy sought. The second inquiry (the remedy sought) is the most important in our analysis. When there is a case that involves both claims of law and equity, the party will have jury only on the legal issues, no jury for equity issues. The legal issues will be tried first The courts of law were there to award damages and the courts of equity to give people specific relief. A party cannot get equitable relief unless he/she can prove that legal relief is inadequate An analogue to the fair representation claim can be found even though there was no 1791 case dealing with labor unions The court said that this is a mixed bag; the relationship is like a trust analogy, and a contract claim Fair representation is like the trust analogy (equity) Breach of statute is like a contract claim (law) Usually, when a party is trying to recover money, they are looking for a legal remedy The law can only award damages (compensation for harm done), it cannot give specific relief Equity can award an injunction (an order from the court to do something) To get equity, a party must first show that damages will not make him/her whole Brennan, J.: The historical test should be simplified; the court should only look at the relief sought by the party and whether it can be awarded in equity. The analogy is still there, but the second part of the test is far more important Congress can grant a greater jury trial right by statute
SUMMARY JUDGMENT – RULE 56 o Summary judgment stands for the idea that if there is no triable issue of fact, then there is no right to a jury. o A motion for summary judgment comes up before trial o A MSJ will be granted if there is no genuine dispute on a material issue of fact. Rule 56 The court will look at pleadings, deposition answers to interrogatories, admissions on file and affidavits to determine if there is a genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. o If there is no genuine dispute on a material issue, then the court by definiti on has a right to issue judgment as a matter of law. o A MSJ is a way to avoid trial. o To defeat a MSJ, a party must prove to the judge that there is a triable issue. o The judge will look at all the information presented to determine if there is a dispute on a material issue of fact. o A summary judgment, interlocutory, may be rendered on the issue of liability alone. If there is a dispute, then the judge must deny the MSJ
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o Knapp v. Holiday Inn
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JMOL
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There is only a triable issue if we need to resolve a dispute of fact Rule 56 allows the court to grant a partial summary judgment When partial summary judgment has been granted, the trier of fact takes as given that which there is no dispute The evidence that can be attached to a MSJ: Things that are admissible at trial (looked at w/summary judgment) Must be under oath Primary vehicle will be affidavits (sworn statements under penalty of perjury) Deposition testimony Answers to interrogatories It must be first-hand knowledge There will be a hearing on the MSJ; an oral argument on that motion Pleadings are not evidence b/c it is not under oath and the parties do not sign them However, verified pleadings are considered evidence b/c a party must make it under oath. Pleadings are relevant in MSJ b/c they can obtain admissions
JNOV- RULE 50(A) After the P closes, only the D can make a motion for JMOL The P cannot make a JMOL motion after they have concluded b/c the D has not been heard. The motion for JMOL will be granted if reasonable people could not disagree. After the D closes, both the P and D can move for JMOL. A motion for JMOL must specify the judgment sought and the law and facts on which the moving party is entitled to judgment. If judge does not grant JMOL, there may be more evidence in rebuttal phase. At some point all evidence is closed The judge will charge the jury and they deliberate What the jury says is the verdict NOT the judgment; the court then enters the judgment The last time a motion for JMOL can be made is before submission of case to jury. If the judge does not grant JMOL at the close of all evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.
o A party can move for JMOL after the adverse party has closed
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RENEWED JMOL OR JNOV – RULE 50(B) o Must be made within 10 days after the judgment. o It looks back at all the evidence introduced at trial and applies the same standard as JMOL o In essence, the judge is saying the jury reached a conclusion reasonable people could not have reached (if granted) o A party must have made a motion for JMOL at the close of all the evidence If it was not made, then the party has waived the right the theory behind this is that judges cannot second guess the jury o A motion for renewed JMOL must be in writing o The court CANNOT renew JMOL sua sponte o The question on motion is: ―Is there sufficient evidence to send to jury‖ This raises a question of law and only the judge can answer o A JMOL after verdict and judgment cannot be made if no motion was filed o If JNOV is granted, the court takes away the judgment from the winner and gives to the loser NEW TRIAL – RULE 59 o Must be made within 10 days after the judgment. o Can be done sua sponte. o If granted, a court order for a new trial takes victory from winner, but does not give it to loser o can have partial new trials, which are trials on certain issues only o Theoretically, there is no limit to things you can base a motion for new trial o The main thing the judge is looking for is whether there was a mistake or error that was so extreme that the trial should be started over (i.e., prejudicial misconduct, prejudicial juror
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misconduct, error of law by judge, the verdict in the first is against the substantial weight of the evidence There can be cases whether there is no evidence supporting the verdict, but party did not preserve right to JNOV. A party should move for JNOV and new trial Dadurian v. Underwriters @ Loyd’s of London One factor for determining whether JNOV or new trial is granted is if the moving party had the burden of proof on the issue in dispute When a new trial is granted, the question is on what issues It will either be a total (on all issues) or partial (on only some issues) The court here granted a total new trial b/c it found that the mistake on one issues affected the entire case One reason for granting a new trial is that the verdict ―shocks the conscience‖ In cases where the damages is the issue the judge might decide to give a remititur or new trial The judge can condition a new trial on the P accepting the remititur. Addittur, which awards more money to the P than the jury awarded, is not permitted in federal courts If you make a motion for JNOV and alternatively on new trial, ask the judge to rule on new trial conditionally b/c otherwise if the C/A does not rule in favor of JNOV, then the original verdict stands TWO TYPES OF VERDICTS: 1. General verdict – only asks the jury for a bottom line (liable or not liable) 2. Special verdict – only asks the jury a series of questions, not the bottom line It is common to find a general verdict with interrogatories on certain issues We force the jury to pay attention to a particular issue and come up with a bottom line It is okay in fed ct for a judge to comment on evidence or witnesses, but the judge should always go out of the way to say it is up to the jury to decide the weight of the evidence. Iowa Rule Extrinsic influences – things that can be proved independently, there is a witness to it Intrinsic influences – mental train of thought and other abstract things A juror being on drugs during a trial is not enough to impeach a verdict If there is a prejudice that can be attested to by another, it is extrinsic and enough to impeach a verdict Rule 60(b) set aside the judgment, it is a long shot that gives a better time frame The Erie Doctrine Choice of law problem- which law is to be applied Normally it is a horizontal choice of law problem asking which state’s law do you apply A vertical choice of law problem is whether to apply State or federal law Courts routinely apply the laws of other jurisdictions There are times when a federal court must apply State law Normally, in diversity cases, b/c the federal substantive law is not the reason it is in federal court, the court may apply State law However, when the case is in Federal court b/c it involves some federal question, then the Federal substantive law is the reason the case is in Federal court, and Federal law applies. The Rules of Decision Act (RDA) Seems to say State law unless Federal law governs, in cases where State law governs If there is a federal law on point, then federal law governs under the Supremacy Clause. If there is no fed law on point, then State law governs In Swift v. Tyson, the USSC said the federal court was free to devine the general common law and it was not bound to NY law
III.
o Erie R.R. Co. v. Tompkins
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The USSC interpreted ―laws of several states‖ as statutory law and common law on local interests If it is common law on a general thing, then it is not a law of the state The fed judges arrogantly said they could only devine the general common law, they were the oracles of the general common law It was supposed to achieve uniformity among the States in general common law Swift v. Tyson creates vertical non-uniformity in the States b/c now the law depends on which court you are in, which gives an advantage to out-of-staters. The USSC held that State law must be used unless there is a valid federal directive on point Klaxon Co. v. Stentor Electric Mfg. Co. State law governs choice of law decisions in the federal court Choice of law is substantive-must go w/state law Erie compels the federal court to apply State substantive law Rules Enabling Act Today the federal court applies State common law and fed procedural law (FRCP) Guaranty Trust USSC said in a diversity case State SOL must apply The Court applies a functional analysis, the outcome determination test, whether the case would come out differently in State court The federal courts apply state law whenever application of federal law in its stead will alter the outcome of the case. The federal court must follow state law as to (1) burden of proof (2) conflict of laws (3) contributory negligence. The burden of proof reflects the state's determination of who shall win and who shall lose if evidence is not presented on a particular issue. The choice of law rules determine when the forum will adopt the substantive law of another jurisdiction. Triple Play Cases Ragan – apply State law for SOL purposes (bound-up with) Woods – if a State law bars a party from bringing a suit b/c he failed to comply with a State law, then the federal court in that State cannot allow the suit to be brought in the district court as well. (federal district courts must apply the ―door closing statutes‖ of the State in which they are located). Cohen – Byrd v. Blue Ridge Rural Electric Coop, Inc. This case returns the federal interest to the equation The USSC says the federal court has the right to ignore State law Under Erie, the federal courts must respect the definition of State created rights and obligations by State courts (i.e., the elements of a claim) The Court held that there are: a certain set of rules that are purely substance areas that are so closely related (bound-up with pure substance) that the federal court is required by the Tenth Amendment to apply State law Bound-up with – rules that refine the substance of State law o Choice of law rules refine substance by telling the federal ct which laws to look to (Klaxon) o Burden of proof tells the federal court who has to show what, thus it refines substance o Also, according to Freer, SOL are bound-up with b/c it tells us how long elements live The Court held that a decision of who hears an issue is neither substance nor bound-up with, it is form and mode of enforcement If the State had given reason for its rule, then it might have been bound-up with substance. If the federal court is in form and mode area, then the court is acting under the broader policy of litigant equality.
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Guaranty Trust was form and mode, and in such a situation the federal court will follow State law if it is outcome determinative. In form and mode the federal court is not compelled to follow State law, the State law is merely suggestive, the court will apply State law if it is outcome determinative. What consideration are there: Federal interest – an essential characteristic of the federal system is how it distributes functions between the judge and jury. State interest in applying its rule If something is outcome determinative, then State law should apply unless there is a good countervailing reason (a federal systemic interest).
o Hanna v. Plummer
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The Rules Enabling Act allows the USSC to promulgate the FRCP pursuant to power delegated by the Congress that do not abridge, modify or enlarge substantive rights The FRCP will be valid if it relates in any way It relates as long as it is arguably valid. The discussion of Erie in this case is completely dicta, however, the USSC embraces it as law Outcome-determination analysis was never intended to serve as a talisman. The choices between state and federal law are to be made not by application of any automatic, ―litmus paper‖ criterion, but rather by reference to the policies underlying the Erie rule. Every procedural variation is ―out-come-determinative.‖ Outcome determination test must be referenced to the TWIN AIMS OF ERIE: Avoidance of forum shopping and Avoidance of inequitable administration of the law Every procedural variation, at some point is outcome determinative Instead of looking at the point where it becomes outcome determinative, the court will look at it ex ante (before case was filed) and ask is this the kind of thing that will make a P choose fed ct. (pg. 613) Modified outcome determinative test or Twin Aims of Erie Would a P choose federal court b/c of the difference of the fed rule with State rule? If not, then it is not outcome determinative If the P would choose federal court b/c of the rule it would apply, then we want to apply state law b/c it would give the out-of-state plaintiff an advantage over in-state litigants Hanna does not overrule Guaranty Trust, thus you must look at both. Forum selection clauses are enforced unless they are apart of a contract of adhesion All states do not enforce them b/c some think they oust a state of jurisdiction which is against public policy The USSC said a federal district should either transfer the case or apply the forum selection clause. Thus, in states that do not enforce forum selection clauses, the law is different in both federal and state court. For State law vs. Federal law 1. HANNA PRONG Is there a federal directive on point? A federal directive can be found in o The Constitution o A federal statute o Federal common law o FRCP There is a debate as to whether the FRCP should be read narrowly o If there is some uncertainty about the intended scope of a particular rule, and if the broader construction would interfere with state substantive policies, then it probably should be read narrowly with some sympathy to what the state law tries to accomplish.
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Thus, prudence and comity tells us to be careful about replacing state law Gasperini does seem to indicate that the court should read the federal directive with the state’s interest in mind If there is a federal directive on point, it wins as long as it is valid o The FRCP carries with a strong presumption of validity; it is valid as long as it arguably procedural If something is arguable procedural then it cannot transgress the REA A rule that incidentally violates a substantive right does not violate §(b) of the REA. Burlington pg. 621. The ultimate protection against intrusion of substantive rights is that the USSC promulgates the FRCP o The Supremacy Clause of the Constitution tells us that if there is valid federal directive on point , then apply it b/c it wins as long as it is valid
2. ERIE DOCTRINE Is the state law purely substance (does it define rights and obligations of the parties)? If so, then apply state law Is the state law bound-up with substance (does the state rule serve to define or refine the state’s assessment of when someone is entitled to recover)? If so, hen apply state law Is the state law form and mode (if the state rule is not clearly substantive or "bound up" with a substantive rule--but is "merely a form and mode of enforcing" a state substantive right or immunity)? If so, then: OUTCOME DETERMINATION (If the federal court does not follow the state law will the P win) o Would applying federal law result in a different outcome than would be reached in state court? o Would the case come to a different conclusion b/c the case is held in a different courtroom down the street? Problem with this is that at some point every rule—not matter how obviously procedural—can affect the outcome of litigation MODIFIED OUTCOME DETERMINATION (TWIN AIMS OF ERIE) o Would the application of federal law lead plaintiffs to federal court o Would the application of federal law lead to an inequitable administration of the law BYRD TEST o Unthinking adherence to the outcome determination test would compel application of state law in cases in which the application would serve no purpose. o According to Byrd, absent affirmative countervailing federal interests, the federal court should help the state enforce its policy Thus, apply state law unless there is an affirmative countervailing federal interest o This area does not implicate the constitutional underpinning, rather it ―evinced a broader policy‖ of deference to state law not ―bound up‖ with substantive rights o State law should only be applied if applying it would advance a state policy. Deference to state law serves comity interests as well—by applying state law to avoid having a different outcome in federal and state courts, the federal system also enforces state policies. o But if applying state law would not advance a state policy, there is no reason for the federal court to do so, even if failing to do so would be outcome determinative. o The federal courts can, in essence, be conscripted to help enforce a state policy, but not if doing so will harm the integrity of the federal judicial system.
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o The federal court must apply the state law as decided by the highest court of the state. o The federal court is to look to all available data to make its best guess as to the content of state
law. Where the state law is in flux or the relevant state precedents are old, the federal court may have difficulty accurately predicting state law. If the highest court in the state has not decided a case on point, then the federal district court must decide the case by making its best estimate of what the state court would say Federal common law is limited to those areas in which there is an overwhelming need to have one federal rule, and where Congress could but has not provided that rule. It is found in areas that invoke ―uniquely federal interest and are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted by the courts.
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IV. Preclusion Doctrines When dealing with preclusion, first talk about R/J, and then move to C/E. o There are two preclusion doctrines R/J or claim preclusion Stands for the idea that a claimant may only assert a claim once He has one chance to vindicate all of his rights It is the broader of the two doctrines It tells a party that he/she will never get a day in court for that claim It forces every party to a suit to assert every claim they have against an opposing party the first time. C/E or issue preclusion It focuses on issues; this assures that we do not re-litigate an issue that was decided in case 1. It precludes a litigant from re-litigating an issue that was litigated and determined in the first suit. It is narrower than R/J b/c it takes an issue out of the second case It narrows the scope of litigation and saves time o Both R/J and C/E are applied for efficiency and finality We do not want litigate the same thing more than once o To have a preclusion problem there must be at least two cases. o It is irrelevant when the cases were filed, case 1 is the first to go to judgment o The question is whether the judgment in case 1 precludes us from litigating in case 2. o Always start the analysis with R/J b/c if it applies in case 2, then we will probably dismiss the entire case. o Anytime we allow successive litigation on an issue, we allow for the possibility of inconsistent results, which will weaken the public’s confidence in the judicial process o THREE REQUIREMENTS FOR R/J (EXCEPTIONS TO R/J ON PG. 668) 1. case 1 and case 2 must involve the same claim 2. both cases must be brought with the same claimant against the same defendant The parties must be in the same configuration as in case 1. Also binds those in privity with the parties in case 1 Privity is a shorthand that encompasses the people who have a close enough relationship with the parties in case 1 o Representational litigation (class action suits) o Substantial legal relationship (successory interest in r/p) 3. case 1 must have ended in a valid, final judgment on the merits THE DEFINITION OF A CLAIM: T/O – focuses on the wrongful act of the defendant, if there is a single wrongful act then there is only one claim Primary rights – focuses on the effects the D’s conduct has on the P It focuses on the rights invaded It is less narrow and efficient than the T/O definition of a claim Single Wrongful Act
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In contract cases, the claim consists of all breaches up to the date in which the suit was filed. Also, each contract between parties is a separate claim (even if they are identical contracts) Same parties in the same configuration If case 1 is A v. B and case 2 is B v. A, then if B has never asserted a claim case 2 will not be dismissed for R/J. However, case 2 may be dismissed b/c of the compulsory counterclaim rule, which says that a D must assert any and all transactionally related claims he has against the P in the pending case. This is not R/J, it is rule preclusion Case 1 must have ended in a valid, final judgment on the merits Validity – the court had both personal and subject matter jurisdiction Final judgment – a judgment that wraps up the whole case After entering the order, does the trial judge have anything else to do on the merits of the case Rulings in the case may be subject to law of the case, but not collateral estoppel If case 1 is appealed, o Federal court says there is R/J in effect This makes sense b/c the overwhelming majority of cases on appeal are affirmed o Some state courts say no R/J effect o If on appeal case 1 is reversed, then 60(b) to set aside judgment based on R/J b/c it was based on a judgment that has been reversed. On the merits Deals with the strength of the underlying claim It is almost impossible to win a case without proving the merits of the case A default case is on the merits b/c when D defaults he is basically admitting the merits Virtually any judgment in favor of the claimant is considered on the merits However, if the claimant loses, it does not mean it was on the merits Rule 41(b) – unless the court says otherwise every dismissal will be on the merits unless it is based on o Lack of PJ or SMJ o Improper venue o Or indispensable parties (joinder problems) Rule 41(b) applies only when the judgment is not for the P Exception to R/J, if the claim could not be brought during the first case b/c of a SMJ limitation
o FIVE REQUIREMENTS FOR C/E (EXCEPTIONS TO C/E ON PG. 700)
1. case 1 ended in a valid, final judgment on the merits 2. the same issue must be in both cases and was litigated and determined in case 1 B/c in a default judgment no issue was actually litigated, C/E cannot be asserted if there was a default judgment in case 1. 3. issue must have been essential to the judgment in case 1 4. against whom can you assert C/E C/E can only be asserted against a person who was a party in case 1 5. who can assert C/E mutuality doctrine provides that a party can only assert C/E if he/she was a party in case 1 non-mutual offensive C/E non-mutual defensive C/E Different Approaches to Mutuality 1. narrow exception – if ee is found not negligent in case 1, this allows Eer, in case 2, to assert C/E for that non-negligence Vicarious liability – there is a primary actor and a party that is vicariously liable for what the actor does
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o
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It’s purpose is to prevent the judicial conflict that may come up if vicarious liable guy is sued after primary liable guy is held to be not negligent 2. broad exception – if Eer is found not negligent in case 1, this allows the ee to assert C/E for that finding of non-negligence. 3. non-mutual defensive C/E the party whom it is being asserted against must have had a full fair opportunity it must be used by the D in case 2 and the person against whom it is used had a fair opportunity to litigate the issue creates an incentive to pack all the possible Ds into one case 4. non-mutual offensive C/E creates a ―wait and see‖ mentality for the Ps it allows for the possibility of inconsistent results, which is a bad thing the person against who you are asserting NMO C/E must have had a full and fair opportunity to litigate in the first case o look to geography however, a lot of parties that could use NMO C/E do not b/c they want to show the jury the horrible conduct of the D; they believe that if P-1 wins, then P-2 thru 100 will ride the gravy train to victory If the party asserting C/E was a party in Case 1, then there is no problem PARKLANE FAIRNESS FACTORS for determining the use of preclusion 1. Easy joinder in the first case 2. Foreseeability of litigation 3. incentive to litigate Could D have foreseen that he would be sued again? 4. Inconsistent judgments or results 5. Possibility of procedural differences When case 1 is in state court, then in case 2 the court must apply the R/J and C/E law of the State in case 1 If case 2 is in state court, then Article IV § 1 – FFC compels the state court in case 2 to apply law of the state of case 1 If case 2 is in federal court, then § 1738 The court in case 2 will apply the preclusion laws of the system that decided case 1. When case 1 is in federal court, then neither FFC or § 1738 apply If case 1 was a FQ case, then federal common law applies. If case 1 was a diversity case, then apply federal common law, but usually federal common law will adopt the state law. o
V. Joinder and Supplemental Jurisdiction Always start with the FRCP, asking is there a FRCP that allows you to join the party or assert this claim o Every claim in federal court must have its own independent basis for SMJ. o Three types of SMJ Diversity Jurisdiction– § 1332 Federal Question Jurisdiction– § 1331 Supplemental Jurisdiction– § 1367 Allows a party to bring a claim into federal court even though it does not invoke either diversity or federal question jurisdiction. Supplemental jurisdiction can never get a case into federal court; the case must have originally invoked federal SMJ. It only works to get other (ancillary or pendant) claims into federal court. Advantages of supplemental jurisdiction o Efficiency – it avoids duplicate litigation o Even if efficiency was not enough, if there were no supplemental jurisdiction we would be forcing a P to give up his right to federal court GIBBS TEST FOR GRANTING SUPPLEMENTAL JURISDICTION o A claim (not the SMJ invoking claim) can go to federal court if it is apart of the common nucleus of operative fact with the claim of that invoked federal SMJ
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o
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This means that the second claim is apart of the same case/controversy of the SMJ invoking claim OR Is derived from the same transaction/occurrence o The court will not exercise supplemental jurisdiction if: The federal claim is dismissed before trial, The state issues substantially predominates, OR The claims will confuse the jury o Ancillary jurisdiction applied to claims asserted by anyone other than the P. o Pendant jurisdiction attached to claims joined by P in federal question cases. o Supplemental Jurisdiction Statute – § 1367 (a) – grants supplemental jurisdiction over all other claims that are so related to the SMJ invoking claim that they form part of the same case or controversy under Article III of the Constitution. o it codifies the Gibbs Test and grants supplemental jurisdiction to the extent of Article III of the Constitution (b) – cuts back supplemental jurisdiction in diversity cases (cases that make come into federal court under § 1332) o it kills jurisdictions over claims brought by: P’s against persons made parties under Rule 14, 19, 20, 24 OR Persons proposed to be joined as a P under Rule 19 OR Party seeking to intervene as P under Rule 24 (c) – discretionary factors under which a federal court may refuse to exercise supplemental jurisdiction (d) – says if we dismiss the state claim the SOL is tolled in state court Real Party in Interest (RPI) – Rule 17 Rule 17(a) requires that every claim must be brought in the name of the RPI Subrogation – assignment by operation of law As soon as an insurance company pays the insured for their injury, it has subrogated them and is now the RPI. If someone other than the RPI sues a D, then the D can make a motion to substitute the RPI First the D should make a motion to substitute the RPI, then make a 12(b)(1) motion. Claim Joinder by Plaintiffs – Rule 18(a) Applies only if the party has asserted a qualifying claim Rule 18(a) permits a P to assert every claim he/she has against a D. The claims do not have to be transactionally related. A P does not have to assert the claims in one case, but can if he/she chooses. Permissive Party Joinder by P – Rule 20 When a party is planning a case his decision on who to join is governed by Rule 20. The only way there can be multiple parties is to meet Rule 20 or its state counterpart. As a general rule, Ps want all the Ds in one case On the other hand, Ps do not want to share the stage with other Ps Severance – there was a misjoinder of parties If a case is severed, there are tow completely separate cases It is the penalty for joining too many parties To join Ps under Rule 20, the claims must Arise under the same T/O or series of T/Os AND Arise from a common question of law or fact To join Ds under Rule 20, the claims must Arise under same T/O or series of T/Os AND Arise from a common question of law or fact Rule 20 is a tool available to Ps when they are structuring their case
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o
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It allows a P to structure multi-party cases If there is one P and one D , then Rule 20 is not applicable Anytime there is multiple Ps or Ds, then Rule 20 is applicable A motion to dismiss is NOT a remedy for misjoinder, severance is the remedy. Rule 21. An order for separate trial only comes up within a single case when claims are so different that it would be in the interest of the court, in avoiding confusion, to try some issues separately. With separate trials there is only one judgment CONSOLIDATION Rule 42(a) – for consolidation there must be a common question of fact Consolidation is where we consolidate separate cases Consolidation ONLY works if the cases are in the same district It is half the test for Rule 20. Therefore, even if your case gets severed b/c the claims are not apart of the same T/O ask the court to consolidate the cases b/c it involves a common question of law or fact. The judge can consolidate for any purpose, including trial. Consolidation does not merge the cases, they are still separate and will lead to separate judgments and appeals SEPARATE TRIALS Rule 42(b) Separate trial – ordered when there are a lot of claims and a lot of Ds that are not really related, but they are still the same case If a separate trial is ordered, the case has NOT been severed. CLAIM JOINDER BY DS – RULE 13 Counterclaim – a claim against an opposing party, which is someone who has already asserted a claim against you. Two types of counterclaims Compulsory 13(a) – a claim that arises from the same T/O, it is transactionally related o If a party does not raise a compulsory counterclaim then they are bared from litigating that claim b/c of rule preclusion o A defendant asserts his counterclaim in his answer. Rule 13(a) o If a D files a motion in the first case, then compulsory counterclaim does not apply Permissive 13(b) – if it does not arise from the same T/O o By definition a permissive counterclaim does not arise from the same T/O as the jurisdictional invoking claim, therefore it probably does not meet § 1367. Process for dealing with counterclaims Is there a FRCP that allows the claim to be asserted Is there SMJ o Diversity, o Federal question, OR o Supplemental Jurisdiction Say: it is a compulsory counterclaim b/c the P is an opposing party and the claim, arises from the same T/O as the underlying claim Cross-claim Rule 13(g) – a claim against a co-party A cross-claim must arise from the same T/O It is not compulsory By definition a cross-claim arises from the same T/O as the underlying claim, therefore it probably meets 1367(a). Say: It is a cross-claim b/c they are co-parties and the claim arises from the same T/O as the underlying claim. Joinder of Additional Parties – 13(h) Persons other than those to the original action may be made parties to a counterclaim or cross-claim in accordance with Rule 20 and 19. Same test as Rule 20 and 19. IMPLEADER – RULE 14
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If State law does not allow contribution or indemnity then you cannot implead. There is a RIGHT TO IMPLEAD WITHIN 10 DAYS AFTER SERVING AN ANSWER WITHOUT LEAVE OF
THE COURT
o
If done after 10 days, then you must get leave of the court Every time we override the party structure of the case it is b/c of Efficiency avoidance of harm to the absentee avoidance of harm to the D (to avoid inconsistent litigation and multiple liability) with impleader a defending party can join a TPD The P can be a defending party if the D has a counterclaim against him. The TPD is NOT a co-party. The party impleading the TPD is known as the TPP It must be a claim stating that the TPD is or may be liable for the underlying claim between the P and TPP. Only two possible ways to have an interpleader: Indemnity – deflects the entire liability from TPP to TPD Indemnity is impossible if both parties are negligent Contribution – deflects part of liability from TPP to TPD pro rata The claim for indemnity or contribution does not exist until the D has paid a judgment for more than his share of the damages However, the language of 14(a) ―is or may be liable‖ allows acceleration of the claim for contribution or indemnity This avoids harm to the D b/c if the claims must be in separate cases the TPD is not bound by decision of original case Sentence 5 allows TPD to raise a defense against P that D could have raised against P Up-slopping 14(a) – a claim brought by the P against the TPD that arises from the same T/O as the underlying dispute. Once the P asserts a claim against the TPD, he/she is required to assert all claims he has against the P dealing with the same T/O b/c it is a compulsory counterclaim. Down-slopping 14(a) the TPD asserts any claim against the P that arises from the same T/O as the underlying of P against D. RULE 19 – NECESSARY PARTIES JOINT TORTFEASORS ARE NOT NECESSARY PARTIES This doctrine says that sometimes an absentee should be forced into the case The absentee must have an interest in the case and is so situated that His absence may impede or impair his interest (practical harm) If the absentee is absent we may subject the D to multiple, double or inconsistent obligations If there is a claim against a 19(a) person, then 1367(a) is met b/c by definition that person is so close to the transaction that his interest could be hurt if he were not part of the case. RULE 19 ANALYSIS: Is the absentee necessary? Necessary party is a subset of proper party A necessary part must be joined Two reasons why a party must be joined 19(a)(2)(i) – focuses on avoiding harm to the absentee o Can the absentee be harmed by this case in a practical manner. 19(a)(2)(ii) – focuses on bringing the absentee in to avoid harm to the defendant o without the absentee might the defendant be subject to inconsistent or multiple obligations Is joinder of the absentee feasible? (Check PJ and SMJ) Asks which side would the absentee prefer to go out to lunch with? o As a P? o As a D?
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If joinder is not feasible b/c either no PJ or no SMJ, then either proceed without the absentee or dismiss the pending case (in equity and good conscience) If we decided to dismiss, then the absentee is an indispensable party Factors to be considered include in whether the court should dismiss To what extent a judgment might be prejudicial to the absentee or the Ds o Is it really going to happen; this is not just a qualitative inquiry The extent to which the shaping or relief might avoid or lessen the prejudice to existing parties or the absentee Whether judgment rendered in the person’s absence will be adequate o Use the public’s interest (will it lead to a lot of litigation down the road Whether the P will have an adequate remedy if the case is dismissed for nonjoinder (can the P still get justice) o This is the most important factor o If there is no alternative forum where all interested parties could be joined then we probably should not dismiss INTERVENTION – RULE 24 The absentee brings himself into the case Two kinds of intervention Intervention of right – Rule 24(a) AND Permissive intervention – Rule 24(b)) Permissive intervention – Rule 24(b) The applicant has to show that his claim or defense has a question in common of either law or fact This is the same test for consolidation It is always in discretion of the court Intervention of right – Rule 24(a) It protects the absentee from harm Non-statutory – 24(a)(2) Sounds like 19(a)(2)(i) o Applicant claims an interest in the case and is so situated that judgment could impair or impeded interest AND his interest is no already represented in the case. To invoke 24(a)(2) you must show that The absentee has an interest in the claim AND If the absentee is not brought in his interest will be impaired or impeded AND The absentee’s interest is not already adequately represented The absentee has no friends in the case b/c both the P and the D are asserting claim over the same thing the absentee is asserting a claim to If a party has a right to intervene, but eschews that opportunity the party is not bound by the judgment b/c it was neither a party or in privity with a party in the case Rule 19(c) requires, in the initial suit, parties to tell the court about any potential Rule 19 parties The P is suppose to inform the court of all Rule 19 absentees If there is an absentee that has eschewed the right to intervene, the he/she may have given up the right to NMO C/E b/c the absentee could have joined easily to the original case A party must ask permission to intervene There must be SMJ over the claim A claim against a party by intervention of right meets 1367(a) b/c by definition that party is so interested that his interest will be harmed if not a party (this falls within the common nucleus of operative fact). INTERPLEADER – RULE 22 AND THE STATUTES (§§ 2361, 1355, 1397) The model in efficiency, the problem with interpleader is that it is limited to the ownership of a tangible thing There is always two sets of players The stakeholder The claimants
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PJ Venue AIC Diversity
The stakeholder interpleads the claimants into a single case and b/c they are all parties, they are all bound as a matter of R/J or C/E. Policies for interpleader Efficiency It could subject the stakeholder to inconsistent obligations Interpleader does not work in a mass tort b/c it does not seek ownership of a finite thing Two steps to interpleader 1. The stakeholder initiates it All the court is concerned with is whether this is interpleader o If it is, then the stakeholder will deposit the res with the court o There is no jury for this stage 2. The claimants litigate on who owns the res The stakeholder can be involved in the second stage of interpleader o If the stakeholder claims to own the res, then he is an interested stakeholder o If the case meets the Seventh Amendment test, then there is a jury for this stage. Two types of interpleader True interpleader – has a disinterested stakeholder In the nature of interpleader – has an interested stakeholder Two ways to do interpleader in federal court RULE INTERPLEADER – RULE 22 Rule 4 – PJ only if State ct would have PJ (long arm statute) §1391 – venue any district where all D’s reside or substantial part of claim 75, 000 § 1332 – Complete diversity STATUTORY INTERPLEADER Nationwide S/P § 2361
§ 1397 – Any district where one D resides 500 § 1335(a)(1) – at least two claimants must be of diverse citizenship If you are going to interplead under Rule 22 then you must abide by PJ, SMJ and venue It is basically a diversity case, therefore everything required for a diversity case is needed A FRCP cannot affect jurisdiction For Rule interpleader look at stakeholder and he must be of diverse citizenship from all other claimants Strawbridge was an interpretation of the statutory grant of diversity SMJ not the constitutional grant Under 1391, if the claimants reside in different states, then there is probably no forum for the case in Rule interpleader Under 1397, venue is proper is where any D/claimant resides The disadvantage of statutory interpleader is that the stakeholder must deposit the res. 1335 However, often the court will require the stakeholder to deposit the res under Rule 22 as well The court hearing the interpleader case stops the state ct action of the claimant, this brings up a federalism problem b/c the fed ct is telling the state what it can hear The anti-injunction act says that a federal court cannot enjoin proceedings in state court except for Case in which Congress has allowed the federal court to enjoin a state proceeding 2361 enjoins the parties of the statutory interpleader case from bringing case in any other forum we enforce the injunction through contempt equity is into behavioral medication RULE 22 does not contain n a provision granting injunction against parties Courts will still grant the injunction b/c of another exception to the anti -injunction act
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o
Necessary to aid its jurisdiction Interpleader can be instituted defensively b/c the stakeholder will be issuing a compulsory counterclaim under 13(a) AND 13(h) allows the D to join additional parties to a counterclaim if those additional parties meet Rule 19 or 20 All other claimants are Rule 19 parties b/c in there absence the stakeholder could be subject to inconsistent or multiple obligations. Also, instead of joining other parties, the stakeholder could claim that they are indispensable parties and cannot be joined b/c of no PJ or SMJ and make a 12(b)(7) motion to dismiss. Defensive invocation of interpleader works with both Rule and Statutory interpleader Four equitable limitations on interpleader The same debt (abolished by Rule and Statutory Interpleader) The claims had to share a common origin (abolished by Rule and Statutory Interpleader) The stakeholder could not have an interest (abolished) Stakeholder has no independent liability to any one claimant Not expressly done away with in either Rule or Statutory interpleader Most courts might not allow it, but you can still make the argument b/c the drafters of the Rule and Statute expressly excluded the other three, they must have wanted to keep this one. Class Action – Rule 23 It is litigation brought in representation of a class The person bringing the suit is the representative (or name representative); he brings claim for the class We will assume that it is a plaintiff class Technically speaking only the rep is a party to the suit Rule 23 does not make the members of the class parties The representative will litigate the case We will bind the class members to the judgment; this is where the efficiency comes in. Even though the members of the class are not parties, they are bound b/c they are in privity with the rep The rep is an adequate rep for the cause and adequate to bind you The representative does not bind you if you disagree with the rep on the core issue of the case b/c it is called a class action and by definition the class agrees with the core issues of the case. Hansberry. Rule 23 The purpose of Rule 23 is to make sure that there is a class before going to trial If a class is certified under Rule 23, there will not be a Hansberry problem. The burden is on the party seeking class certification, The class must convince the judge that Rule 23 has been satisfied It is crucial for the Ps attorney not to overreach b/c the size of the class must be something that the court can manage. The class must be defined in the complaint The definition put in the complaint is not necessarily what the definition of the class be at certification. Whatever the judge certifies is the class Rule 23(a) & (b) are the most important parts of Rule 23 b/c they are required for class certification The party seeking class certification has the burden to show that 23(a) & (b) are met. REQUIREMENTS OF RULE 23(A) One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) Numerosity – the class must be too numerous for practical joinder (2) Commonality – there are questions of law or fact common to the class (3) Typicality – The claims or defensives are typical of the claims of the class The representative must feel the pain of all other members
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(4) Adequacy of Representation – the representative party will fairly or adequately represent the class This is DP issue Some disagreement is okay, but NOT on core issues (5) There is a manageable class – must show the judge that there is a class and that it is a manageable group. To have a typical claim and be an adequate representative, the rep must have dealt with the same D(s) as all other members of the class. REQUIREMENTS FOR RULE 23(B) o 23(b) has four types of class actions: (1) has two types of class actions called prejudiced class actions – 23(b)(1) (a) we want to have a class action to avoid prejudice o we are worried about the same thing as 19(a)(2)(ii) o we are worried about the harm to the D suffering inconsistent or varying obligations ask if they all sued individually do we run the risk of inconsistent obligations leading to incompatible standards of conduct here we have so many absentees that we cannot bring them in. multiple obligations does not equal multiple claims for damages, there is nothing inconsistent with a D paying one P and not the other b/c by paying one P you are not violating a right of another. (b) We are worried about the prejudice to the absentee o This is the test as 19(a)(2)(i) o We are worried that if the absentee is not brought into the case, his interest may be impaired or impeded in a practical way o If all As sue individually do we runt the risk of impairing or impeding those individuals rights to protect their interest. o Constructive bankruptcy theory – if all Ps sue individually then the pot may be empty if they were not the first to sue o To have 23(b)(1)(B) Parties must demonstrate the insufficiency of available funds b/c class members have no right to opt out, the distribution must be equitable the corporation must really feel some pain, it must be a constructive bankruptcy of the D. (2) seeking equitable relief (injunction or declaratory judgment) – 23(b)(2) don’t have to show prejudice or harm must show o that the party opposing the class has acted or refused to act on grounds o that makes appropriate injunctive relief o the damages available under (b)(2) are those that flow naturally from what would lead to equitable relief prime example is employment discrimination case b/c damages are easily calculated and flow naturally from the discrimination If a party is seeking b(2) and is asking primarily for damages, it will no be certified. (3) Damages class action – 23(b)(3) Must show two things
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Question of law or fact common to members of class predominate as to the other members AND o The class action is superior method to handle the dispute You must show that if we have a group litigation it would wrap up the litigation Factors o Interest of members to individually control case o Desirability of concentrating claims to a particular forum Other options o Joinder rules – too numerous for practical joinder o Consolidation – all cases must be brought in the same district Bifurcate the case between liability and damages o It may be useful to have a mass class action litigation on liability and if the class wins then we have individual litigation on damages This is a controversial form of class action b/c the only thing that is tying the members together is a factual relationship; there is no legal relationship There is a right to opt out of a b(3) class b/c the court is nervous about tying the members together notice of the pending class action is required under b(3) 23(g) requires the court to appoint class counsel in appointing class counsel, the court should consider the work the counsel has done with the case and the experience he/she has with class actions 23(c)(1)(A) – the court must at an early practicable time determine whether to certify the action as a class action class certification orders are always modifiable 23(c)(2)(A) – the court may give notice to 23(b)(1) and (2) 23(c)(2)(B) – the court must give best notice practicable under circumstances, including individual notice to all members who can be identified through reasonable efforts. The representative pays for notice to all other members of the class o If the class wins, then he gets his money back This is notice of the pendancy of the class This is more stringent than the constitutional standard Notice must include o The nature of the action o The definition of the class certified o That a class member may enter an appearance through counsel if the member so desires o That the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and the binding effect of a class judgment on class members under Rule 23(c)(3) 23(e) – the court must approve the settlement for a class action litigation b/c somebody must b there to protect the interest of the class members. If it is a putative class, then we do not need the court’s approval The court must give notice of seetlement to every member of class o This applies to all types of classes The court invites class members to respond to potential settlement; it is called a fairness hearing o It is not a democracy, the decision is still up to the judge 23(f) – appeals of class actions the decision to certify a class is not a final judgment, which means it is not an appeal by right 23(f) gives the C/A discretion to review the decision to certify a class action o
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an application must be taken to the C/A w/in 10 days after the decision on certification case in district court continues unless either the district court or the C/A orders a stay. I NVOKING SMJ WITH A CLASS ACTION Federal Question Jurisdiction – if the class is bringing suit based on a federal claim Diversity Jurisdiction – the citizenship of the class is that of the rep o Only the rep is a party, the other members of the class are not parties, but they are bound b/c they are adequately represented and are in privity with the rep. o Every member of the class must meet the amount in controversy requirement You cannot aggregate the class members claims to get over the amount in controversy Supplemental Jurisdiction – on its face, § 1367 overrules Zahn b/c as long as the reps claim meets § 1332, then all the members of the class can get in under supplemental jurisdiction
o Appeals
Every decision by a trial judge is either a final or interlocutory decision You can only appeal final judgments There is no constitutional right of appeal Thus, anytime we have a right to an appeal, it is a statutory right of appeal § 1291 The C/A shall have appellate review of final decisions of the district court This is called the final judgment rule, which means you cannot get an appeal until the trial court has granted a final judgment Ask: after the judge enters the order does he have anything else to do other than mop up cost and attorney’s fees You have to appeal from the date the final judgment was entered This reflects a clear policy decision of not wanting peace mill appeals You file notice of appeal in the trial court When you go to the C/A you can only raise issues which you objected to on the record when it happened Exceptions that allow for the appeal of interlocutory orders: Collateral order rule – allows for interlocutory review in certain circumstance The issue must not have anything to do with who wins (it is a collateral issue) It has to be so important that we should not delay AND It must be an issue that cannot be reviewed effectively if we wait for final judgment Based in rule or statute Rule 23(f) allows C/A discretion to review certification order for class action suits 1292(a)(1) – grants interlocutory review as a right to certain orders 1292(a)(2) – allows you to appeal if it is an order involving a controlling question of law as to which there is a substantial ground for difference of opinion o the district court must certify o the C/A has to agree to hear the case Rule 54(b) o Allows a federal judge to treat certain orders as final o There must be a final judgment when one or more claim for relief is present in the action o The court may direct a final judgment to one or more but fewer than all claimants only upon an express determination that there is no just reason for delay Mandamus o A federal court can issue all writs necessary o It is an extraordinary writ b/c it issues from the C/A to the district judge commanding the trial court to do something In re cases are mandamus proceedings
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The judge is the respondent in a mandamus proceeding It is not a free ranging appeal It is to be issued only when the court below has screwed up so badly that it exceeded its jurisdiction In recent years, C/A have become more aggressive in issuing mandamus orders about class certification Must file notice of appeal in district court w/in 30 days after entry of the final judgment Supersedes bond – suspends the operation of the judgment pending appeal It is the amount of judgment plus a percentage to represent interest Scope of Review On matters of law the C/A gives no deference; it applies the law de novo On questions of fact the C/A defers; it reverses only if the trial court’s determination is clearly erroneous The C/A is especially nervous about overturning a jury trial verdict
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