civl procedure

Outline Civil Procedure I. An intro to the procedural system A. Where can the case be brought B. Getting the case started Case Brief: Decker v. Circus Circus Hotel (1999) Style (name of case): Decker v. Circus Circus Hotel, U.S. District Court, District of NJ, 1999 Cause of action: The following is a cause of action by PL Decker to have a case tried in NJ, while DF Circus Circus, is moving for either total dismissal, or for a change of venue as per Fed. Rules 12(b)(2) and 12(b)(3). Procedural History: This is the first court this was heard in. DF filed motion to dismiss on grounds of lack of personal jurisdiction and for improper venue. Facts: Robert and Janice Decker (PL's) are from NJ and went to NV to make it big. They chose to stay at DF's hotel, but no mention of how or why (which would be key). While on the trip, Mrs. Decker was harmed by the Gambling Monster, a machine made in Iowa. PL's chose to file originally in Superior Ct. of NJ, Law Div. Yet the case was removed by DF to the named court above. DF's cause of action is in lieu of responding to PL's charge of negligence. Issue(s): Under Federal law of Civ. Pro, do residents in NJ have reasonable grounds to file complaint in Federal Court in NJ? Court's Rationale/Reasoning: The court reasoned that (1) a general internet advertisement was not sufficient enough to tie DF to NJ; any resident of any state could be a potential PL. (2)National magazines fall basically in the same category. (3) Former guests being mailed materials have nothing to do with PL, (4) the gaming application license in NJ is irrelevant, and (5) a separate suit for breach of K in NJ is similarly irrelevant. Rule: A complaint must have ample connection to DF in both general and specific jurisdiction in order to be considered for the court it was filed in. Holding: Court decides to move the case to NV as per Fed. Rule 28 U.S.C. 1406(a). 1. The complaint Topic Notes: Complaint: PL's description of the dispute Lewis v. U.S. Slicing Machine Co. (1970) Case Brief: Style (name of case): Lewis v. U.S. Slicing Machine Co. (1970), U.S. District Ct., Western District of PA Cause of action: The following is a diversity action for negligence, breach of implied warranties or merchantability and fitness. Procedural History: Matter before the court is a motion to dismiss the charge under Fed. Rule 12, alleging the complaint does not comply or has not been drawn consistent with rule 8(a)(2) Facts: Minor PL allegedly hurt himself while cleaning a meat slicer. Issue(s): Assuming all facts are true, does the complaint set forth a cause of action? Court's Rationale/Reasoning: The court finds this is simply a "notice pleading." Thus, any other information DF wishes to gather could and should be done during the discovery process. Any other means of trying to disprove a case should come after PL gets a chance to prove its allegations. Rule: The function of a complaint under the Fed. Rules of Civ. Pro is to afford fair notice to the adversary of the nature and basis of the claim asserted and a general indication of the type of litigation involved. Holding: Yes. The allegations in the cause of action are not so indefinite so as to deny DF notice of the nature of the claim against it. 2. The answer - pre-answer motions Topic Notes: Rules 8(b) and 8(c) refer to this process where DF must respond to allegation(s) in the complaint. 3 types of answers: 1. Deny/admit what PL said (rule 8b & d) 2. DF may allege an affirmative defense, or additional reasons that, even if the original complaint were true, there would still be no way to recover. 3. DF may have counterclaims against the PL. C. Obtaining Information About the Case Topic Notes: Private investigation interviewing witnesses expert interviews internet research · Pre-trial discovery: the ability of one party to a lawsuit to compel both parties and nonparty witnesses to provide information about the case, whether or not (rules 26-37) Major discovery devices are as follows: depositions: oral questions by a lawyer & answers by the witness (trial w/o the judge) rule 30, 45 interrogatories: written questions to a party answered in writing - rule 33 documents and inspection of land: requests to produce documents, permit inspection or testing of products & land - rule 34, 45 physical and mental examinations: available only as against a party, and only with court permission - rule 35 · Coleman v. American Red Cross (1994) Case Brief: Style (name of case): Coleman v. American Red Cross, U.S. Ct./Appeals, 6th Circuit (1994) Cause of action: The following is a cause of action for reversal of a motion to deny discovery on PL's part in its suit against DF, who was allegedly negligent in its causing the alleged infection of PL with HIV, and subsequently AIDS via blood transfusion. Procedural History: Colemans filed negligence action vs. DF. During discovery, Colemans requested donor's name and address, DF refused to provide, but district court originally ordered DF to provide such information. When they gave donor card copies to PL, one had a social security number on it, and when PL's attempted to use it, DF moved it be prevented from doing so. Court ordered PL to return any names/addresses they found from this search. Colemans appealed, arguing DC was wrong not to let them sue the donor. This court agreed. When remanded back to DC again, DF filed 41b motion to dismiss, which was granted, and then PL appealed the dismissal. Facts: PL got HIV then AIDS from an unknown donor through the alleged negligence of DF. PL files discovery motion to obtain the name of the donor to see if they had HIV, so they could connect their negligence claim, but were denied. Issue(s): Under federal rules of Civ. Pro, was there an abuse of discretion by the lower court in refusing to deny PL's discovery motion? Which standard should be used for discovery: admissibility or relevance? Court's Rationale/Reasoning: Any kind of evidence, hearsay or not, is permitted in this discovery process, b/c above all else it will help the court decide the truth in this case (discovery of admissible evidence). Rule: A court is not permitted to preclude the discovery of arguably important/relevant information solely b/c if the information were introduced at trial, it would be "speculative at best. Also see rules 37b and 41b. Holding: The court rules it was an abuse of discretion to deny PL motion for reversal of precluded information from discovery, as there was at least relevant information, but does not find any abuse in its discretion in refusing to grant the original request (was too burdensome and expensive). Dissenting: Ryan believes the court should have never analyzed the case based on rules 41b and 37b only, for they do not address the sanctions the PL's attorney should have received for blatantly violating the court order not to divulge the name of the donor who dies. D. Pretrial procedures Topic Notes: Four stages of the litigation process: pleading, discovery, pretrial and trial Pretrial conferences: rule 16; discuss length of trial, issues contended and not contended, numbers of witnesses & evidence Final pretrial order supercedes the pleadings and govern the course of the trial Pryor v. Seyfarth, Shaw, Fairweather and Geraldson (2000) Case Brief: Style (name of case): Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, U.S. Ct./Appeals, 7th Circuit(2000) Cause of action: The following is a cause of action for appeal from dismissal of suit, on motion for summary judgment for sexual harassment, and for retaliation for complaining about it. Procedural History: Lower court dismissed both the harassment and retaliation suits vs. DF. Facts: PL moves for both complaints to be reinstated on the basis of five separate incidents which she says were harassment. PL adds that just three months after the complaint was filed, she was fired for something which would normally not result in a firing. She contends DF fired her out of retaliation. DF insists there was no harassment or firing linked to the initial complaint instituted by PL. Issue(s): Under federal rules of civil procedure, is there enough information based on five separate incidents to restore a claim for sexual harassment when the lower court dismissed the charge? Under federal rules of civil procedure, is there enough sufficient evidence to reinstate the retaliation charge when it was also dismissed by the lower court? How much proof does one need to reestablish a charge on the appellate level? Court's Rationale/Reasoning: The charge on the first count is unfounded, even though they do indeed teeter in the realm of vile, however, the second charge does have some merit. The evidence presented shows at least the possibility there could be some instances of DF trying to wait out a certain period before firing PL after her initial complaint. Rule: The evidence in question for any charge must be enough on its face in order for a charge to stand and be Holding: No. The five incidents did not mount up to a charge of harassment. Yes. The evidence in question does link at least the possibility of retaliation by DF to PL. E. The trial Kurn (1946) Case Brief: Style (name of case): Lavender v. Kurn, U.S. Supreme Court (1946) Cause of action: The following is a cause of action for reestablish verdict for petitioner in trial court. Procedural History: Trial circuit court jury found in favor of plaintiff, suing for estate of decedent, award in the amount of $30K. Reversed on appeal in Supreme Court of Missouri, holding there was not enough evidence for the jury to come back with enough of an educated verdict. [see rule 50(a)(1)] Facts: Decedent found dead on train tracks. He was a switch operator for train company, and both sides presented evidence on either side: one contended he was killed as a result of a mail hook protruding from one of the mail cars, while the other side countered with the argument he was murdered, as his wallet was found several feet away from him with no money in it. Decedent's wife claims he never carried a lot of money on him ever, and that since his watch and jewelry were found on his person at the time he was found, murder for money would be silly because his more valuable items were left on him. Defense countered with some math, finding it would be very improbable for decedent to have died by a "negligent act" such as a mail hook, however petitioner claims the math makes sense if decedent was stumbling around before he was killed. Issue(s): All contentions being equal, was there enough evidence to sustain the jury's verdict in favor of the decendent's? Should the verdict be allowed to stand on its face or should it be contended on the theory the jury did not have enough evidence to make an educated decision? Court's Rationale/Reasoning: All the court needs is sufficient evidence to make a decision one way or the other. There is no question there is evidence on either side which points to either death by murder or by an accident possibly resulting from alleged negligence. However, it is the jury's call on this, provided there is enough evidence to get to the jury. Since there was never any other previous motion brought in lower court to this effect, and the court sitting here also feels there is no evidence which puts into question the ability of the jury to make at least some decision, the verdict of the lower court stands. Rule: Juries may pontificate with whatever evidence is presented at trial in order to make an educated verdict. So long as there is sufficient evidence to begin with to go on to trial, the evidence stands on its face as that as what the jury has by which to deliberate upon. The jury's job is to surmise based on the facts presented, not to surmise on the validity of the facts. Holding: Yes. There was sufficient evidence of negligence on the part of the Frisco trustee and for the lower court to submit the case to the jury, and appellate courts should abide by such a decision. F. Repose (claim and issue preclusion) Topic Notes: Social interest in ending the fight in court, as well as the importance for strength and stability in the judicial system. Claim preclusion/res judicata: parties should have only one opportunity to try a claim and all defenses to that claim Pavon v. Swift Transportation Co., Inc. (1999) Case Brief: Style (name of case): Pavon v. Swift Transportation Co., Inc., U.S. Ct./Appeals, 9th Circuit (1999) Cause of action: The following is a cause of action for reversal of verdict in favor of PL. Procedural History: PL settled out of court originally for lost wages, but sued again Disctrict Court (summary judgment motion by DF denied there). PL then went on to sue in Federal District Ct. pursuant to title VII of the Civil Rights Act (to correct unlawful employment practices on the basis of race), where he won an additional $250K in non-economic damages, as well as $300K in punitive damages. DF's motion for new trial denied, and they appeal. Facts: PL is a Honduran-American citizen who was constantly berated and teased about his hispanic descent by a co-worker, despite several attempts to go to his boss and supervisors. When he was switched out to a menial job for his experience and expertise, PL was terminated, following a reminder MLK, Jr. was assassinated for his wanting to stop racial sentiments and slurs. Issue(s): Under Federal Rules of Civil Procedure, may a fired employee who has already settled his lost wages claim out of court, be permitted to seek punitive and non-economic damages over the same action which incited the law suits to begin with? Court's Rationale/Reasoning: Based on the rule the court followed, there was plenty of time, space, motivation and convenience involved in the second suit. The first suit, in a State court, was to recover lost wages. This decision comes down from a court which heard a complaint for non-economic and punitive damages as a result of, but not because of, the firing. The suit could stand on its own in short for the damages. Rule: The following criteria are relevant to the transaction inquiry: time, space, origin of the harm, subjective or objective motivation, convenience and similar acts. Holding: Yes. The court found nothing similar, other than the acts which precluded the firing by DF of PL, and as such, there is no cause to preclude PL from seeking damages other than from lost wages. II. Adjudicative Power - Personal Jurisdiction Topic Notes: Must determine: (1) what limits, if any, are imposed on a court's jurisdiction? (2) what is the source or origin of these limitations? (3) what interests or policies are these limits intended to promote? (4) are these interests or policies served by the purported source of the limitation? A. The historical foundation Pennoyer v. Neff (1877) Case Brief: Style (name of case): Pennoyer v. Neff, U.S. Supreme Ct. (1877) Cause of action: The following is a cause of action for recovery of a tract of $15K tract of land which is in the state of Oregon. Procedural History: DF sought relief from a decision in the Circuit Court of the U.S., District of Oregon, which held that a judgment granting ownership of a certain property was invalid. Found for Neff, Pennoyer issues writ of error, which the Court affirmed. Facts: Pennoyer is a non-resident of Oregon, but was granted the land through a government act. Apparently, he "lost" the property upon a sheriff's deed after a judgment against PL in one of the circuit courts. PL was neither served or did he appear in court when he lost his land. Land later sold to Neff, the DF, from the sheriff's deed. PL claims there was no due process, meaning he should know if he had to appear in court and face the first charge before having the land taken away from him. DF claims the land is rightfully his, he paid for it, and should keep it. Issue(s): Under Federal Law, was the lack of notice to PL by Oregon, resulting in the removal of title from his land tract there, reasonable when he was neither served by the state which took the title away from him, nor appeared in court when the land was taken away from him? Court's Rationale/Reasoning: Every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory, but there should have been consideration in this case for a non-resident who owned land there. Furthermore, the land in question was taken away not because of something which was done to the land by PL, but b/c of some money matter, which has nothing to do with the land. Additionally, just b/c the state of Oregon compelled PL to appear before the court, does not mean there was a greater obligation to appear there. There is no way of knowing he was being sued there if he was not duly served with a complaint -- where he lived, not where the court sat. So, the land would have to have something to do with the case for it to be brought forth in the first place, and proper notice would need to be served to the land owner so they could effectively respond. Rule: The validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. To give proceedings any validity, there must be a tribunal competent by its constitution...to pass upon the subject-matter of the suit...[and]...he must be brought within its jurisdiction by service of process within the sstate, or his voluntary appearance. Holding: No. Under the 14th Amendment, every American is allowed due process of law regarding any suit served upon them. In this case, due process means PL should have been (a) served the original complaint, so (b) he would have an opportunity to appear in court and defend the charge, so (c) as to not lose the land. B. The Modern Approach Case Brief: International Shoe Co. v. State of Washington (1945) Style (name of case): International Shoe Co. v. State of Washington, U.S. Supreme Court (1945) Cause of action: The following is a cause of action on grounds the 14th Amendment prohibits abuse of due process against parties as conducted in the statute, as a result of a denial of DF's motion to dismiss earlier lawsuit against them. Procedural History: Motion to dismiss was heard and denied, and action on decision to enact statute was affirmed by state commissioner, as well as WA Superior Court and Supreme Courts. Facts: PL is a company based in St. Louis, MO and is engaged with clients all over the country. Salespeople travel in the state of Washington and deal with clients, help put together deals at the behest of the corporation, but the corporation holds no offices in the state, save the instances where they rent out showrooms in hotels. The state has a collection statute for its unemployment fund, in which business of the state contribute. PL refused to contribute on the grounds they are not a business entity of the state. DF contends if they bring their business into the state, they should have to pay into the fund. PL was served in state of WA via a salesperson working in the state at the time, and also served with notice of suit through the mails to their home offices. Issue(s): Under federal rules of civil procedure, is a company with no business residence in the state required to pay into a state unemployment fund when they had no other ties except for business dealings within the state? Is appropriate notice through a sales agent and through the mails appropriate notice to serve a complaint in such a matter? Court's Rationale/Reasoning: Holding that the systematic and continuous activities carried on in-state by appellant's salesmen made it reasonable and just to permit appellee to enforce the tax by suit against appellant in the forum, the court affirmed. The court held that in order to subject appellant to a judgment in personam, due process required only that the appellant have certain minimum contacts with the forum state such that the maintenance of the suit did not offend traditional notions of fair play and substantial justice. The court also held that a corporation was deemed to have a "presence" in a state for jurisdictional purposes where its in-state activities had been continuous and systematic and gave rise to the liability sued on. The court held that the activity of appellant's salesmen was not only substantial, but also gave rise to the obligation to contribute to the unemployment compensation fund. (minimum contacts) Rule: The term "presence" is used to determine a business/person's activities, in addition to potentially their residence and/or activity within the jurisdiction in question. Holding: Yes. The court found the conduct of PL was enough to warrant both paying the fund, as well as serving the notice. Additionally, serving notice through the mails was deemed appropriate and sufficient in this matter. in personam jurisdiction: : the jurisdiction granted a court over persons before it that allows the court to issue a binding judgment : "personal jurisdiction" in this entry personal jurisdiction: the jurisdiction granted a court over the parties before it that allows it to issue a binding judgment 1. Consent and Forum Selection Clauses Topic Notes: Int'l. Shoe: changed from implying jurisdiction based on actions of DF related with the state; now the rationale is based solely on those affiliating circumstances as to determine whether or not to exercise jurisdiction. Consent to jurisdiction can be express, such as when DF waives its objection to the court's exercise of jurisdiction or does an affirmative act that signals its agreement to the subject itself to jurisdiction, such as making a general appearance. Consent can also be express in advance of litigation Enforceability of forum selection clauses has been examined by the Court twice: (1) Bremen v. Zapata Off-Shore Co. (1972): American shipping company tried to sue its German tower whom it contracted with in Tampa, FL, when the K had a clause mentioning all legal action would take place in London. Court rule for DF. Court ruled the clause valid in order to prevent wasted time & money, and to help promote certainty and a fair venue for DF [court added unless one party were subject to undue influence, or had no experience in this sort of dealing, violated public policy.] (2) Carnival Cruise Lines v. Shute (1991): Court asked to enforce an exclusivity clause in standard cruise ticket purchased by married couple from WA. Wife slips while out to sea, she wants to sue in WA, while forum clause stipulated Florida. Court ruled for PL. Court removed the arm's length negotiation portion from the test, but said there was no fraud or malevolent act by PL in choosing the forum, and it was to their benefit for the sole purpose that by limiting jurisdiction to one state (FL, b/c most of the boats left or docked there, and it was where the main offices were located), PL would not have to travel everywhere to litigate, and those potentially excessive costs would not be passed on to customers. 2. The emergence of long arm statutes and general v. specific dichotomy Topic Notes: The emergence of long arm statutes and the general/specific jurisdiction dichotomy States began codifying International Shoe's decision to benefit their own states, as legislatures began passing long arm statutes, which extend the power of the state government into certain matters beyond its borders. As Int'l. Shoe showed us, jurisdiction could be predicated on a wide variety of relationships between a nonresident DF who could not be physically be served within the forum and the forum state, these long arm statutes took on a number of forms. --> some relied on broad categories (transacting business within the state, committing a tortious action within the state, laundry lists of specific activities); a few states (RI, CA, LA) went so far as to say "any basis not consistent with the Constitution of the U.S. So courts had two issues to take on involving long arm statutes: (1) did the state long arm statute apply to the facts of the case? (2) if the statute could be applied, was the exercise of personal jurisdiction under those circumstances consistent with the requirements of constitutional due process? #1 came up in Woodring v. Hall (1968), when a former mother-in-law of DF sued him for not paying money loaned to him while in KS going to graduate school; original trial court granted motion for dismissal on grounds of lack of personal jurisdiction, but the Supreme Court reversed the dismissal and affirmed the debt, as the state's long arm statute requiring "business transactions" applied to any kind of business (loans, manufacturing, etc.); added traditional notions of fair play in business, etc. In McGee v. Int'l. Life Ins. (1957), the Court ruled a CA citizen who was beneficiary of insurance money, but was denied this money by a TX insurance company, was entitled to serve notice from CA to TX by mail, and when the insurance company refused to appear and a default notice was ruled against them, the Court found there was enough of a connection for a CA court to enforce this claim in TX jurisdiction. Since the insured decedent was from TX, contracted in TX and specified his beneficiaries in TX (even the ones not living in TX), the Court concluded the connection existed for specific jurisdiction by CA court to enforce, and there was no violation of due process Hanson v. Denckla (1958) originated the term of art "minimum contacts": "The unilateral activity of those who claim some relationship with a nonresident DF cannot satisfy the requirement of contact w/the forum State. The application of that rule will vary with the quality and nature of DF's activity, but it is essential in each case that there be some act by which the DF purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." World-Wide Volkswagen Co. v. Woodson (1980) Case Brief: Style (name of case): World-Wide Volkwagen Co. (& Audi) v. Woodson, U.S. Supreme Court (1980) Cause of action: The following is a cause of action for repeal of a rejection for a writ of prohibition against the D.C. judge for Creek County, OK by respondents who face the possibility of being brought into a product-liability suit by petitioner (PL). Procedural History: Products liability action in District Court for Creek County, Oklahoma. Respondents entered special appearance, claiming OK's restrictions on them would be against the limitations set forth in the constitution's 14th amendment, which was rejected. Petitioners then sought writ of prohibition in OK Supreme Court, trying to stop the D.C. judge from exercising personal jurisdiction over them, which was also denied. Court found the long arm statute allowed the D.C. judge to exercise such power. Appealed, given certiorari and reversed in Supreme Court. Facts: Family bought Audi from petitioner in Massena, NY. The next year they travel to Arizona to relocate and get into an accident in OK, resulting in the car catching on fire and burning Mrs. Robinson and her two kids. Issue(s): Whether, under the due process clause of the 14th amendment, an OK court may exercise in personal jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products-liability action, when the DF's only connection w/OK is the fact that an automobile sold in NY to NY residents became involved in an accident in OK? Court's Rationale/Reasoning: The purpose of the rule below is to protect potential defendants fro prosecution in a distant or inconvenient forum, and so states do not overreach their legal boundaries in taking cases into their courts which have no business of being there. The standard is one of reasonableness/fairness., and must not offend "the traditional notions of fair play and substantial justice." The suit must be reasonable so as to "require the corporation to defend the particular suit which is brought there." There are several factors which the Court looked to as to why the D.C. would want to take this case: (1) PL's interest in obtaining convenient and equitable relief; (2) efficiency to resolve the controversy within the interstate judicial system; and (3) the shared interest of the several states in furthering fundamental substantive social policies. In that respect, petitioners do not fit into any of the requirements set forth in past case law which would rope them into personal jurisdiction from an OK court. They don't conduct any business there: no sales, no services, no use of OK law in any case, and no selling of cars in OK. All the respondents have is the accident's location. The court tosses aside the foreseeability argument, as it was not intended to be read that way in the due process clause. No party should be brought to court in a particular on the basis a product could be foreseeably be brought into that particular jurisdiction. It is the conduct of the defendant in conjunction with what happened to the complainant and the location therein which should be considered. Rule: A state court may exercise personal jurisdiction over a nonresident defendant as long as there exist "minimum contacts" between the DF and the forum state. Holding: No. Respondents never proved the petitioners were, in any way, interrelated within the workings of the state which they sought personal jurisdiction in, save for the car accident which caused the damages for which they seek a remedy. Dissent: (Brennan) The respondents indeed have contacts as they have illustrated: the accident, the jurisdiction where they were injured and hospitalized, and where they may to their best abilities bring this suit to court. The majority in this decision read the law from Int'l. Shoe too narrowly, dismissing the possibility the reason the Supreme Court of OK ruled in favor of the plaintiff was that their state would be the best state and the most convenient financially and physically to bring suit. Brennan feels there wouldn't be all that much of a [heavy and disproportionate] burden for the DF to argue this suit in OK, or anywhere else for that matter. (Marshall, Blackmun) The basis for bringing the DF/petitioner to suit in this case should not be just the fact there was an accident in OK. Instead, the Court's majority should have looked to the actual intent of the DF here, which would show their actual intent was to have their products driven and sold across the country. It is not contended the foreseeability of knowing when and where a particular car would be on the road, but the fact that a car would be on the road is the dissenters' argument. special appearance: an appearance by a party in court for the sole purpose of challenging the court's assertion of personal jurisdiction over the party writ of prohibition: An order issued by a higher court commanding a lower court to cease from proceeding in some matter not within its jurisdiction. Asahi Metal Industry Co. v. Superior Ct. of CA (1987) Case Brief: Style (name of case): Asahi Metal Industry Co., Ltd., v. Superior Court of CA, U.S. Supreme Court (1987) Cause of action: The following is a cause of action for a motion to quash service of summons by Cheng Shin over Asahi. Procedural History: Following settlement of original products liability lawsuit against petitioner and Cheng against Zurcher, cross complaint by Cheng alleging they should be indemnified remained. Asahi moved to quash the summons, by reason CA's long arm statute was not long enough to comport with executing personal jurisdiction based solely on the fact there was a foreseeable possibility some of its valve stems for tires would be sold in the U.S. Superior Court of CA denied motion to quash summons. Court of Appeal of CA issued a peremptory writ of mandate commanding the Superior Court to quash service of summons. The Supreme Court of CA reversed and discharged the writ. The Court granted certiorari and reversed (allowing motion to quash). Facts: Original complainant Zurcher was injured when a tire on a bike which had tires made by Cheng Shin blew out due to alleged product liability involving the tire tube, sealing and valve, causing him to crash into a tractor. Zurcher settled before trial, but the cross complaint filed by Cheng against petitioner for indemnification still remained. Shin alleged approximately 20% of its business was in CA. They allege with that amount of business, and considering the amount of tire valves it bought from Asahi, that they would be responsible for any malfunctions in the states as well, and should be sued where the accident occurred. Cheng bought its tire valve assemblies from Asahi in Taiwan after Asahi makes the assemblies in Japan. Issue(s): Whether the mere awareness on the part of a foreign DF that components it manufactured, sold, and delivered outside the U.S. would reach the forum State in the stream of commercial commerce constitutes "minimum contacts" between the DF and the forum State such that the exercise of jurisdiction "does not offend 'the traditional notions of fair play and substantial justice?'" Court's Rationale/Reasoning: The first test is obviously to see whether the defendant purposefully established minimum contacts in the forum state. The standard is one of reasonableness: burden on DF, interests of the forum State, and PL's interest in obtaining relief. This is a case which does not demonstrate any of those things in the forum State being petitioned for by Cheng and supported by the respondent court. Asahi, does not business in the U.S,, owns no offices, agents or employees in CA, or property either. The potential burden on Asahi is also potentially severe: not only coming all he way to CA from Japan, but also engaging in an entirely new type of judicial proceeding. Once the minimum contacts situation is handled, all that was left was the indemnification claim. The sale of parts in Asia from Asashi to Cheng demonstrates no ability to indemnify oneself in the U.S., and thus the CA court which wishes to "unquash" the summons has no real cause to do so. Rule: A state court may exercise personal jurisdiction over a nonresident defendant as long as there exist "minimum contacts" between the DF and the forum state. Holding: No. The limits of reasonableness and the burden on the petitioner in this case both fail the minimum contacts rule, and thus the motion to quash is reinstated. (reversed and remanded) Concurrence: A plaintiff should not have to additionally prove the stream of commerce existed; it should be easily assumed that one exists ("regular and anticipated flow of products from manufacturer to distributor to wholesaler"). Also, it is not necessary to prove by some test minimum contacts. Otherwise the existence of tubes in the tires would be enough to show minimum contacts. 3. FL's long arm statute Venetian Salami Co. v. Parthenais (1989) Case Brief: Style (name of case): Venetian Salami Co. v. Parthenais, 554 So.2d 499 (1989) Cause of action: The following is a cause of action for collection of debts. Parthenais asserts personal jurisdiction via FL's long arm statute over Venetian by way of its debt being in Alachua County, FL. Procedural History: Venetian moved to quash service of process for lack of jurisdiction over DF. Affadavits filed supporting their positions. Trial court dismissed for lack of PJ. 1st DCA reversed the order of dismissal. They said PJ may be obtained by meeting parameters of the long arm statute. Appealed and subsequently reversed in this case. Facts: Parthenais attempted to collect a debt from Venetian, and is trying to use the long arm of the FL statute to enforce his right to do so in a FL court. Venetian asserts there is no jurisdiction b/c a debt alone without any personal contacts is not enough to satisfy the statute. Issue(s): Under FL rules of civil procedure, does an outstanding debt in another state suffice the FL long arm statute requirement for PJ when the debtor has had no other minimum contacts other than the debt alone. Court's Rationale/Reasoning: There is no constitutional requirement for meeting personal jurisdiction; it is on a case-by-case basis. In Burger King v. Rudewicz, the court held there was no intermediate step in regulatory process, it was not realistic to hold a MI resident bound to a FL court for breach of K. There was too mechanical a test applied in this case, and not purposeful for personal jurisdiction. Breach of K would pass muster in this state. There is a 2-prong test applied to situations such as these to see in long arm of FL statute applies: (1) Are there enough facts to bring this case under the long arm of the statute (2) Is there personal jurisdiction via minimum contacts rule applied in World Wide Volkswagon and previously in Int'l Shoe. Only if K's breach and the actions which resulted in the breach were in the state in which the long arm applies does there exist a situation where the first part of the test applies. Additionally, as per the rule in Shoe, the "minimum contacts w/in the forum state such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice." Since after even finding that statute does apply, there must be affadavits submitted to properly ascertain the facts of the case. The BOP is on PL to prove the facts exist. Since there is no proof either way, the case is remanded for an evidentiary hearing on the issue of jurisdiction. Rule: (1) Are there enough facts to bring this case under the long arm of the statute (2) Is there personal jurisdiction via minimum contacts rule applied in World Wide Volkswagon and previously in Int'l Shoe. Holding: No. Aside from the debt, Venetian asserts it had no contacts within the state of FL, and since Parthenais disputes this same claim, the case is remanded for further discussion to ascertain the evidence. Doe v. Thompson (1993) Case Brief: Style (name of case): Doe v. Thompson, 620 So. 2d 1004 (1993) Cause of action: The following is a cause of action for personal jurisdiction in FL so as to bring a cause of action for gross negligence. Procedural History: N/A. Facts: Doe was sexually assaulted while working alone on 3/17/87. She alleges the store was made unsafe so as to prevent this matter. Issue(s): Under FL rules of Civil Procedure, does the alleged negligent store design of a counter which results in an alleged sexual assault bring rise to personal jurisdiction in a FL court when the president of the company is not a resident and does nto maintain minimum contacts within the state of FL? Court's Rationale/Reasoning: The linchpin here is the personal act which is part of the suit. PL here alleged the president of the company should be held responsible for the acts of the company. Previous case law says to the contrary. BOP on PL to show this jurisdiction applies through the FL long arm statute. The court defined the word "personally." which means in person; without the intervention of another." This means the DF here must have an inperson stake in the event which brought forth the cause of action. In this case, the store may be held accountable, but the president maintains no minimum contacts. Even the president's affadavit statement, "the buck stops here," is not sufficient standing alone to refute the affadavit. Doe alleges Thompson was acting under the scope of his employment when the alleged event occurred, but the court said it would be unfair to bring a company official under direct and total responsibility for the negligence of a company. Rule: (1) Are there enough facts to bring this case under the long arm of the statute (2) Is there personal jurisdiction via minimum contacts rule applied in World Wide Volkswagon and previously in Int'l Shoe. Holding: No. Although there are enough facts to bring this case under the long arm of the statute, the cause of action via the minimum contacts rule does not apply to the president of the company, but to the company itself. Wendt v. Horowitz (2002) Case Brief: Style (name of case): Wendt v. Horowitz, 822 So.2d 1252 (2002) Cause of action: The following is a third party cause of action for indemnification as the result of a lawsuit for securities fraud. Procedural History: After letters were submitted after a hearing on Horowitz's motion to dismiss for lack of PJ, which was dismissed. 5th DCA held the PJ was improper under the long arm statute, as no tortious action was committed in FL, that only the negligent response would pertain to this argument, and that response took place in MI, not FL. However, the 5th DCA never ruled on part 2 of the test. Facts: Trinh used a pyramid scheme in which he had others go out and get high interest prom notes to finance his produce business. Trinh retained Horowitz as his attorney, who is based out of MI. Horowitz advised everyone that these were not securities (even though in essence they were). Those three were investigated under the Office of the Comptroller, who was told the same thing Horowitz told the suitors for investors. Soon enough, investors sued Wendt, who in turn sued Horowitz, who was allegedly given the wrong information on the phone and in letters from MI. Issue(s): Under FL laws of civil procedure, do making telephonic, electronic, or written communications into this State can constitute a "tortious act" within FL to subject a nonresident DF to personal jurisdiction under its long arm statute? Court's Rationale/Reasoning: The court decides to conduct a de novo review of a trial court's ruling on a motion to dismiss for lack of PJ. There is a 2-step inquiry (see rule). A court can exercise PJ whenever a foreign company commits a tortious act on FL soil. Then the court applies the rule from Int'l Shoe. Horowitz does not deny he sent letters to FL in response to the FL Division of Securities or that he drafted loan documents for use in FL, but neither one of these acts is tortious in nature. The court looks to Venetian Salami. Physical presence is not necessarily required to satisfy the constitutionality mandated requirement of minimum contacts. Technology has changed the way we communicate and it no longer requires presence under the technical meaning of the word. So, can the communication be tortious? 4th DCA said a phone call to a FL citizen could be considered tortious, and the 2nd DCA ruled a tape recorded conversation constituted a tortious act b/c that is where the recorded conversation occurred, and where it was uttered, and thus the PL was subject to PJ in FL. But the 2nd DCA also ruled sending collection letters and placing phone calls from out of state was not sufficient PJ under the long arm statute. 5th DCA requires actual physical presence for tort to be committed. But this court disagrees. No presence for tortious act required. Also, committing a tortious act in FL under the long arm statute can occur through the nonresident DF's telephonic, electronic or written communications into FL. BUT, the cause of action must arise from the communications. This is the question that the court remands. Rule: (1) Are there enough facts to bring this case under the long arm of the statute (2) Is there personal jurisdiction via minimum contacts rule applied in World Wide Volkswagon and previously in Int'l Shoe. Holding: Yes. There are (1) enough facts to bring this case under the long arm statute, however (2) the answer is also not sufficient, as the court is still forced to remand the question as to whether the allegations of the complaint state a proper cause of action in the trial court. C. Power over property Topic Notes: Jurisdiction based on the presence of property within the forum: must look at objective and anchor of proceeding when courts exercise in rem or quasi in rem jurisdiction, the "anchor" for both forums of personal jurisdiction is the presence of property within the forum state In pure in rem proceedings, such as eminent domain or admiralty proceedings, the court is said to adjudicate the claims of the entire world to the property (real or personal) that serves as the anchor for obtaining jurisdiction. This means the court's adjudication is binding on everyone in the world, irrespective of whether they had actual notice of the action. Quasi in rem jurisdiction, comes in two forms:one where the court seeks to adjudicate the competing claims of a discrete, limited number of claimants to the property that is the anchor for the jurisdiction. The other combines elements of both in personam and in rem proceedings., where the court may seek to adjudicate a personal claim against a DF that is totally unrelated to the property whose presence within the forum serves as the anchor for jurisdiction. The jurisdiction is observed over the property b/c the court can't hold it over the person. Of course the first thing the court must do is establish the situs (site of object, for jurisdictional pruposes), but what if the object in question is a debt, a will, a ship, a bank account or shares in stock? In Harris v. Balk (1905), the Court ruled a writ of garnishment against Harris for part of a debt Balk owed to an Epstein. Harris didn't contest his debt to Balk and paid Epstein. Harris sued Balk, but Harris won on the claim his debt to Balk was satisfied by his payment to Epstein. The Court held NC was bound to enforce the MD judgment, and ruled the debt was discharged. The debt was in MD jurisdiction, although the person (Balk) was not. Shaffer v. Heitner (1977) Case Brief: Style (name of case): Shaffer v. Heitner, U.S. Supreme Court (1977) Cause of action: The following is a cause of action for reversal of an order for sequestration of property belonging to appellants, as the result of DE's long arm statute which allows a court of that State to take jurisdiction of a lawsuit by sequestrating any property of DF that happens to be located in DE. Procedural History: Court of Chancery rejected DF's arguments. DE Supreme Court affirmed. The Court reversed. Facts: Heitner, nonresident of DE, has one share in Greyhound, a DE corporation with its principal place of business in Phoenix, AZ. Heitner filed a shareholder's derivative suit (claim brought by shareholder on the corporation's behalf that the corporation failed to assert) in County Court for the Chancery for New Castle, DE which it named Greyhound and 28 other officers as DF's. The activities involved for which this suit took place was Oregon. At the same time, Heitner filed a motion for an order of sequestration of DE property of the individual DF's pursuant to DE long arm statute. Motion accompanied by supporting affidavit of counsel which stated that the individual DF's were nonresidents of DE. Affidavit identified the property to be sequestered as "common stock of DF Greyhound." Sequestration order signed same day it was filed. 82K shares seized belonging to 19 DF's and options belonging to 2 other DF's. Stocks seized were not in DE, but since the company was in DE, court ruled seizure OK. Issue(s): Whether the standard of fairness and substantial justice set for in Int'l. Shoe should be held to govern actions in rem as well as in personam? Court's Rationale/Reasoning: Rule of International Shoe: The term "presence" is used to determine a business/person's activities, in addition to potentially their residence and/or activity within the jurisdiction in question. This means the seizure notice must have something to do with the actions of DF's. Here, they didn't. The seizure was a result of a long arm statute. The original suit was a result of non-DE residents being involved in what the PL's in the original suit thought was a non-performance of their executory position which resulted in an antitrust suit and additional fines from criminal action. The court found the property could be seized if it was to get appellants back into jurisdiction, but here, one action had nothing to do with the other, thus the sequestration is denied. Rule: All assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny (re: minimum contacts). Holding: Yes. There is a standard of reasonableness where the forum must assert the state interest it finds so compelling. If DF's acts do not have anything to do with the reason the property is being seized, then there is no cause for the in rem jurisdiction. Concurrence/Dissenting: The issue of minimum contacts was never pleaded by appellee, made the subject of discovery or ruled upon by DE courts. But if it was, the issue would come into play in order to right some of the wrongs committed by the appellants, namely wrongdoings by fiduciaries, even if they were done outside the state. It would also apply as states have traditionally expanded the crimes features citizens of their state. And, DE, since it made the statute, should provide a forum for the issues to be tried. If the appellants tried to bring themselves under the rules of the state, they should be bound by them in a judicial proceeding. D. Transient Jurisdiction - back to the future Burnham v. Superior Cout of Calif. (1990) Case Brief: Style (name of case): Burnham v. Superior Court of California (1990) Cause of action: The following is a cause of action for motion to dismiss a filing for divorce by appellant's wife, which was denied by Superior Court. Procedural History: DF made special appearance in light of the service of process in CA. State courts rejected his claim of lack of personal jurisdiction, as he was personally served process while present in the forum state. Facts: Burnham married his now ex-wife in 1976 in West VA. In 1977, they moved to NJ, where their 2 kids were born. In 1987, Burnhams separated, wife to CA, while husband stayed in NJ. While on a business trip to CA, ex-husband visited ex-wife and took oldest son with him to SF. Upon returning, he was served process by wife. Issue(s): Whether dues process requires a similar connection between the litigation and the defendant's contact with the state in cases where the DF is physically present in the State at the time process is served upon him? Court's Rationale/Reasoning: The only argument the Court even bothers to go into depth and refute is there should be no litigation on the charge because there was no activity in the state. The two are not related here, as there was minimum contact here, as well as the fact Burnham was in the state at the time of process. Rule: State court's assertion of personal jurisdiction satisfies the due process clause if it does not violate traditional notions of fair play and substantial justice. This notion of fair play and substantial justice also applies to litigation and DF's contacts with the State when he is present there at the time of service. Holding: Yes. The husband was in the state when he was served, which is all that personal jurisdiction requires. E. A New Jurisdictional Frontier - Cyberspace Topic Notes: Once information is placed on the internet, does that "stream of commerce" have any logical ending point or does it extend to every point in the globe? How should a court assess whether these entrepreneurs have purposefully availed themselves of the benefits and protections of forum law or have purposefully directed their activities towards the forum state? Cybersell, Inc. v. Cybersell, Inc. (1997) Case Brief: Once information is placed on the internet, does that "stream of commerce" have any logical ending point or does it extend to every point in the globe? How should a court assess whether these entrepreneurs have purposefully availed themselves of the benefits and protections of forum law or have purposefully directed their activities towards the forum state? Style (name of case): Cybersell, Inc. (AZ) v. Cybersell, Inc. (FL), U.S. Ct. of Appeals, 9th Circ. (1997) Cause of action: The following is a cause of action for trademark infringement by PL, who alleges FL has personal jurisdiction by its simply having a website which can be accessed by everyone. Procedural History: District Court granted FL's motion to dismiss for lack of personal jurisdiction. Reversed in Court. Facts: In summer of 1995, when AZ had no name on its home page and PTO grant to the same effect, FL stepped in and applied and were approved. AZ creator found out and called FL, who decided to change it rather than worry about it, which it did to WebHorizons, followed by WebSolvers in December 1995. As of 1/4/96, there was a new logo on the WebSolvers page, except "welcome to Cybersell!" just like the AZ site. AZ filed trademark infringement complaint thereafter. Issue(s): Under federal rules of civil procedure (AZ as well), does a FL company with an internet website which can be reached anywhere in the world have cause to be brought into an AZ court when the AZ argument is that FL has personal jurisdiction by its being on the web for all to use? Court's Rationale/Reasoning: Flat out, the court said it would not "comport with traditional notions of fair play and substantial justice (borrowing from Int'l Shoe) for AZ to exercise personal jurisdiction over an allegedly infringing FL web site advertiser who has no contacts with AZ other than maintaining a home page that is accessible. Court looked to the first part of its test, and case law to that effect showed that a party is actually using the web to access customers in one part of the country, or one state, or one anything, the law of personal jurisdiction applies. The court also found no other court has ever ruled in favor of personal jurisdiction solely on the basis of a web link. Consequently, the court found AZ's claim against FL fails on its face b/c of the first prong. FL has no malicious intent towards AZ, and is not using anything to contact AZ customers. There are no sales contracts on the part of FL in AZ, made no sales in AZ, received no phone calls from AZ, earned no income from AZ, and sent no messages over the Internet to AZ (received one from AZ). Thus, Cybersell FL has not purposefully availed itself of the privilege of conducting activities, thereby invoking the protections of AZ law. This also is not a Calder case situation, b/c FL is not defaming AZ in any way here, and the effects test in Calder would not apply to a business in one part of the country, whereas a person would be significantly more damaged, and besides, there was no malice on the part of FL towards AZ. Rule: (1) the nonresident DF must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits of and protections; (2) the claim must be one which arises or arrives out of the DF's forum-related activities; and (3) exercise of jurisdiction must be reasonable. (rule from Zippo) "The likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that entity conducts over the Internet." Holding: No. FL's contacts are insufficient to establish "purposeful availment." AZ's claim fails on the first part of the 3-prong test for specific jurisdiction (nonresident DF must do some act or consummate some transaction withe the forum or perform some act by which they purposefully avail themselves of the privilege of conducting activities in the forum, thereby invoking the benefits and protections..." F. Personal Jurisdiction of the Fed. Courts Topic Notes: Fed. approach is basically the same one as in the state courts. 1. Statutory Delegation of Authority Topic Notes: Sometimes, fed. statutes providing the substantive rights that give rise to a cause of action contain in them a jurisdictional provision, nationwide PJ at that. But for the most part, substantive fed. statutes are silent as to the enforcing court's PJ. Fed Courts in certain situations have subject matter jurisdiction (SMJ) over some state cases and can hear them. So when such a fed. statute arises, or when a state law debate comes into Fed. Dist. Ct., the court must look elsewhere for the standard governing its PJ. Rule 4(k)(1): unless a fed. statute or rule provides otherwise, a fed. trial court's statutory grant of PJ shall consist of the state jurisdictional statute of the state in which the fed. court is located --> 2 exceptions: joinder of additional parties needed for just adjudication under rule 19, or 3rd part DF's impleaded (rule 14); courts get PJ over any DF's joined by rules 14 or 19 within a radius of 100 miles from that trial court. Rule 4(k)(2): with claims rising under fed. law, DF's get nationwide jurisdiction would not be subject to jurisdiction in any individual state. (foreign DF's who had no sufficient contacts to be constitutionally subject to jurisdiction in that state. 2. Constitutional Limitations Topic Notes: Where a fed. trial court exercises jurisdiction pursuant to a state's long arm statute in which the court sits, the constitutionality of that statute is measured under the parameters of the 14th amendment, since the delegation of jurisdiction flows from a state statute But when federal jurisdiction provisions exist, the 5th amendment kicks in as the measurement stick, which means the minimum contacts inquiry is based on the extent of DF's aggregate contacts with the U.S. As a whole, rather than on the basis on contacts with any one particular state or federal judicial district ESAB Group, Inc. v. Centricut, Inc. (1997) Case Brief: Style (name of case): ESAB Group, Inc. v. Centricut, Inc., U.S. Dist. Ct. of Appeals, 4th Circuit (1997) Cause of action: The following is a cause of action for ruling based on personal jurisdiction within the range of a long-arm statute, and a federal RICO Act under which a claim in the trial court is based as well. State cause is based on conspiracy, economic interference, breach of K among others. Procedural History: DF filed several motions, including one to dismiss on a rule 12(b) lack of minimal contacts PJ, which was dismissed by District Court. They held based on the Calder case, and granted leave to DF to file interlocutory appeal, as did the 4th Circuit. Facts: Six count charge against DF on the state side, and one count on Fed side under RICO statute. PL and DF are competitors somewhat in the field of developing welding and cutting machinery. DF conducts its business essentially in NH, with no offices, business contacts or sales reps in SC, where the claim is based. They do have 26 clients residing in SC, which accounts for one percent of their total customers and even less than one percent of their gross annual sales. Once, DF purchased $10K-$20K worth of parts from an SC supplier. They claim they never targeted any advertising in SC, having only once published an ad in a national trade journal. Issue(s): Under federal rules of Civil Procedure, may the district court in SC obtain PJ over NH DF's when the cause of action is pursuant to a complaint alleging a civil RICO claim and related state claims? Court's Rationale/Reasoning: Exercise of PJ under fed circumstances goes under the provisions of the 5th amendment, but the federal court must have a constitutionally sufficient relationship between DF and the forum, and authorization for service of a summons on the person. The court inquires (1) whether the state long-arm statute authorizes the exercise of jurisdiction over the DF, and (2) if it does, then the court determines whether the state court's exercise of such jurisdiction is consistent with due process of 14th amendment (cause/action through state and not fed court here). Court determined no authorization, but they decided to merge the state claim with the constitutional claim. The merge produced same result, as there was no intent found on DF's part to target SC. As for the constitutional claim (RICO Act under the 5th amendment), the court first applied the Int'l Shoe test, and the claim passed. The court then decided to borrow from SMJ, where fed courts can hear claims involving both state and federal questions, as long as both claims derive from the same argument. It concluded the District Court has authority over DF's to decide both the federal and state claims alleged against DF. Since there is PJ, DF's can defend the case, and there is nothing with violates the traditional notions of fair play and substantial justice which would injure DF in doing so. Rule: Rule 4(k)(1): unless a fed. statute or rule provides otherwise, a fed. trial court's statutory grant of PJ shall consist of the state jurisdictional statute of the state in which the fed. court is located. Where a fed. trial court exercises jurisdiction pursuant to a state's long arm statute in which the court sits, the constitutionality of that statute is measured under the parameters of the 14th amendment, since the delegation of jurisdiction flows from a state statute. District Courts have discretion to hear pendent state claims where there is a substantial federal claim arising out of a common nucleus of operative fact. Court must weigh judicial factors such as judicial economy, fairness to litigants and convenience. Holding: Yes. Under pendent jurisdiction, the court is granted jurisdiction for the whole cause of action under federal RICO statute as the federal question is not far related from the state question. No. DF's were not properly served under SC's long-arm statute, since DF manifested no behavior intentionally targeted at or focused on the forum state, and thus no PJ or SMJ. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------interlocutory appeal: any appeal made or done before entry of a final judgment. PENDENT JURISDICTION - District courts have discretion to hear pendent state claims where there is a substantial federal claim arising out of a common nucleus of operative fact. 28 U.S.C. S 1367(a); United Mine Workers v. Gibbs, 383 U.S. 715 (1966). This is a "doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns and values." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). The court must weigh "considerations of judicial economy, convenience and fairness to the litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims." Gibbs, 383 U.S. at 726. However, "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law." Id. If "state issues substantially predominate, . . . the state claims may be dismissed without prejudice and left for resolution to state tribunals." G. Service of Process - Exercising power and providing notice 1. Introduction Topic Notes: Affording DF's notice of pending litigation is the 2nd function of service of process. There are both state and federal guidelines, which do not only detail the manner of service, but the location, the contents and the identity of the recipient. States can require more than the bare minimum when it comes to service of process. Process consists of two documents: summons and a complaint; summons gives notice there is an action against that party; and a complaint sets forth the request for relief from the other party. 2. Service of process under the Fed. Rules of Civ. Pro. Topic Notes: Rules Enabling Act: provided the Court the power to make known a set of unified rules governing the conduct of civil litigation in fed courts (FEDERAL RULES OF CIVIL PROCEDURE) The rules include how service is accomplished, who is served, where service can or must take place, and the time period within which service must occur (rule 4 applies to fed actions) Rule 4(e) incorporates state standards, by affording PL's the option of effecting service pursuant to (1) federal standards of rule 4, or (2) the state where service is made; it governs service upon individuals located within the U.S., and it permits service to be accomplished several ways. Rule 4(k) provides that service, or the filing of a waiver, establishes jurisdiction only if DF is constitutionally subject to PJ under either the forum's state long-arm statute, a fed statute, or under the case of rules 14 or 19 (100 mile radius rule) Rule 4(k)(2): service establishes jurisdiction in claims arising under fed law vs. DF's who do not reside within the U.S., and who would not meet the requirements of any state's long-arm statute, but who have sufficient contacts within the nation as a whole to satisfy constitutional due process requirements. Rule 4(f): provides service requirements for DF's located outside the U.S. Rule 4(c): anyone 18 or older or a court appointed person or U.S. Marshall can serve Rule 12(b)(4): insufficiency of process under rules 4(a) and (b) or methods governed under 4(c)-(j). [content of process] Rule 12(b)(5): insufficiency of service process when left with a person not of age. Remedies: court can order a quash of service of process, or to dismiss the complaint without prejudice to PL's reinstitution of the action, and as long as Statute of Limitations has not run out on complaint, that party may file an amended complaint. 3. The Constitutional Dimension Topic Notes: The impact of due process on the "notice" function of service of process. Mulllane v. Cent. Hanover Bank and Trust Co. (1950) Case Brief: Style (name of case): Mullane v. Cent. Hanover Bank & Trust Co., U.S. Supreme Court (1950) Cause of action: The following is a judicial proceeding to determine if the use of notification by publication is not appropriate notice for claim in a trust fund as per the due process clause of the 14th amendment. Procedural History: Upon filing petition for the settlement of accounts, appellant was appointed special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund; and appellee Vaughan was appointed to represent those similarly interested in the principal. Appellant made a special appearance, objecting that notice and the statutory provisions for notice to beneficiaries were inadequate to afford due process under the 14th amendment, and thus the court was w/o jurisdiction to render a final and binding decree. Objections overruled, the surrogate (judge) holding that the notice required and given was sufficient. A final decree accepting the accounts has been entered, affirmed by the Appellate Division of the Supreme Court and by the Court of Appeals. Facts: 1/1946: DF bank established a common trust fund and it petitioned the Surrogate's Court for settlement of its 1st account as common trustee. 113 trusts participated in the common trust fun, with a gross capital of $3 million. Only notice given beneficiaries was publication in a local paper in strict compliance with NY Banking Law, which says the notice should be in a publication for not less than once in each week for 4 consecutive weeks in a paper designated by the court. No other notice was required. At the time of the first investment in the common fund was made on behalf of each participating estate, however, the trust company, pursuant to another NY law (100-c(9)), had notified by mail each person whose name and address was then known to it and was "entitled to share in the income therefrom (or) who would be entitled to share in the principal if the event upon which such estate, trust or fund will become distributable should have occurred at the time of sending such notice." PL: notice too limited, not enough to satisfy due process requirement; DF: notice fine under NY law, and thus 14th. Issue(s): Under law of civil procedure, does notice by publication for a shared trust, which complies with the minimum standard under NY Banking law, comport with the due process clause under 14th amendment, which requires freedom of life, liberty and property, when some people might not even know there are privy to the trust? Court's Rationale/Reasoning: Notice in this situation should be taken under a reasonableness standard, in which the reasonableness not only of potential people involved in the shared fund could be involved, but also those interests of the trustee and bank. If the law in this situation directed the bank to go farther in its notification purposes, it would step into the realm of impossibility. This is a situation where the peculiarities and practicalities of the case dictate a situation where notice must meet just the minimum standard. It is true the newspaper may not be the best way to give notice, as lots of cases have come to the courts b/c of just such a reason, and it is true there are situations where notification by publication may not be enough, but this situation, where whereabouts of certain people might not be ascertained without very diligent methods, the minimum standard must prevail. Rule: At minimum, the due process clause requires that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Holding: Yes. The NY standard is enough in this case where notification by any other means would be too time-taking and expensive to undertake. 4. Recent U.S. Supreme Ct. Cases Topic Notes: Four categories for new trials: (1) when there has been an error of law during the course of the trial (in admission/exclusion of evidence, incorrect jury charge); new trial granted only when the judge finds that the mistake prejudiced the substantial rights of the parties. (2) even more discretionary type of rulings (permitting/not permitting a witness to testify out of order, granting/refusing continuance, improper conduct of witness); same reason for granting new trial as #1. (3) speaks directly to the evidence considered by the jury in making its findings & permits a judge to grant a new trial if the verdict is against the weight of the evidence -or as it is sometimes formulated: against the "great" or "clear" weight of the evidence. Next case is a (3) type of case (4) jury misconduct Dusenberry v. United States (2002) Case Brief: Style (name of case): Dusenberry v. United States, U.S. Supreme Court (2002) Cause of action: The following is a cause of action for relief from dispossession of items which were seized during a forfeiture proceeding which appellant claims was the result of lack of notice. Procedural History: District Court entered an order allowing discovery & subsequently presided over a telephone deposition of James Lawson, an Inmate Systems Officer at FCI Milan (PL's prison). After his testimony, ruling for U.S., and case went to Court of Appeals held the government seizure was comparable to that of Mullane v. Central Hanover, and the Court granted cert. Facts: Dusenberry was sent to prison on a narcotics offense, and had some money seized which the feds thought were part of his prior dealings. Several years later, FBI sought and obtained forfeiture of that cash. 5 years later, PL wants his money back, claiming he was never given notice of the forfeiture proceedings and he had no notice to contest the feds' actions. Issue(s): Under federal rules of civil procedure, does the government's attempt to notify petitioner meet 5th amendment standards of Due Process when the government sent letters to appellant without checking to make sure he was receiving them? Court's Rationale/Reasoning: Again, this becomes a federal question b/c of the federal party which is a DF, and since this is the case, the Court will follow the due process clause of the 5th amendment. Since the decision in Mullane, the Court has relucted to stray away from it, as they see a rule which grants the minimum notice requirement in situations where it may be burdensome in some manner to be sure a certain type of notice be delivered. The government here carried its burden of showing how the mail was delivered. Although, PL claims he was deprived of his right to due process b/c the government failed to make arrangements with the Board of Prisons to make sure he had notice, the Court compared the situation to that of someone in the armed forces; their mails do not go checked every time a letter is sent (comparing it to "Saving Private Ryan"). Even if the BOP's current procedures for receiving the mails is brought into question, it does not change the rule in Mullane being applied here. Rule: Rule from Mullane: At minimum, the due process clause requires that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Holding: Yes. Borrowing from the rule in Mullane, mere notice in this case suffices the 5th amendment requirement, as the government is not responsible for the actions of how the mails get delivered. Dissenting: (Ginsburg, along with Stevens, Souter, Breyer) This decision "diminishes the safeguard of notice, affording an opportunity to be heard, before one is deprived of property." The procedure of sending notice through the mails in the hopes it will reach the appellant is in their minds "lax." It is, after all, the government which controls inmates' rights and location. Under the Bureau of Prisons, or the Federal Correctional Institution, as to any set of safeguards routinely employed. Besides all that, this case differs from Mullane as there is only one person to worry about here, which is not overly costly, time taking or burdensome in any other manner. The mail argument the government offers is baseless as well, showing nothing that the reasonableness or reliability of the mailroom to cell delivery at FCI was in question. "There is little doubt that Hollywood will confuse the rescuers of Private Ryan with a BOP Unit Team member delivering certified mail to inmates in his charge who has been instructed..." to wait around to make sure everything is okay. III. Adjudicative Power - Subject Matter Jurisdiction Topic Notes: subject matter jurisdiction: the jurisdiction of a court over the subject, type, or cause of action of a case that allows the court to issue a binding judgment (Example: housing court lacks subject matter jurisdiction to adjudicate fraudulent conveyance actions) Note: Diversity jurisdiction, federal question jurisdiction, and jurisdiction over admiralty and bankruptcy cases are examples of the federal courts' subject matter jurisdiction. Subject matter jurisdiction is generally established by statute. A. Federal Questions Topic Notes: "Federal question" cases originally covered in Article III of the Constitution are now in the 28 U.S.C. at section 1331. 28 U.S.C. § 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Franchise Tax Bd. of CA v. Contruction Laborers Vac. Trust (1983) Case Brief: Style (name of case): Franchise Tax Board of the State of CA v. Construction Laborers Vaca. Trust, U.S. Supreme Ct. (1983) Cause of action: The following is a cause of action for declaratory judgment for back taxes under the theory that the back taxes came from workers who had funds in a trust, they were subject to SMJ within the state of CA via statute. CLVT alleges their back taxes are protected by the federal Employment Retirement Income Security Act of 1974, which preempted the State's power to attach funds held in trust for beneficiaries under this vacation plan. Second cause of action is under CA's Declaratory Judgment Act. Procedural History: Agency brought the action in state court for declaratory judgment that CVLT and its trustees were obligated to honor its demand for payment. Pursuant to federal statute that allows, with exceptions, permits cases that could have been filed in fed. court by PL to be removed from state to federal ct., CVLT removed the case to fed. Dist. Ct., PL filed motion to remand the case to state court, upon the federal question. Trial court denied the motion, and then on the merits, ruled in favor of the state agency. On appeal, 9th circuit reversed the ruling. Cert granted on issue at hand, and vacate judgment of Court of Appeals and case remanded back to Superior Court of CA. Facts: CLVT was created by a collective bargaining agreement between employer associations and local unions in So. CA as a mechanism for funding annual paid vacations for the union members. Three of these members did not pay back personal income taxes, so the state went after the fund. Issue(s): Under federal rules of civil procedure, does the Employment Retirement Income Security Act of 1974 permits state tax authorities to collect unpaid state income taxes by levying on funds held in trust for taxpayers under an ERISA-covered vacation benefit plan? Court's Rationale/Reasoning: The Court cites reasons which are most historic than logical in its holding. Primarily of note is the "well-pleaded complaint rule," which states that a DF may not remove a case to federal court unless the cause of action establishes that the case "arises under" federal law. Further, the court deems "jurisdiction" to mean the kinds of issues which give right of entrance to federal courts (Skelly Oil case). The Court determines that CLVT cannot bring its first cause into federal court for the reason it simply is not arguing a cause of action which is a federal question. If CLVT were bringing suit for declaratory judgment to enforce its rights, it could survive as a federal question under the premise already stated. However, here the argument is simply to remove the case from state court on a federal question which has nothing to do (ERISA v. CA back taxes) with a state action. ERISA suits are limited to parties whom Congress was necessary to further the statute's purposes. This claim for declaratory judgment is removed from the spirit of the gist of the Act. CLVT says their action arises under ERISA policy, however CA Tax Board is neither a participant, beneficiary or fiduciary of a plan covered by ERISA who may seek relief. Rule: 28 U.S.C. § 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. DF may not remove a case to fed. ct. unless cause of action establishes that the case "arises under" federal law. Holding: No. The lower federal courts had no jurisdiction to decide the declaratory judgment issue before the Court, or when the case is removed, when a federal question is presented by a complaint for a state declaratory judgment. A suit by state tax authorities both to enforce its levies against funds held in trust pursuant to an ERISA-covered employee benefit plan, and to declare the validity of the levies notwithstanding ERISA, is neither a creature of ERISA itself nor a suit of which the federal courts will take jurisdiction b/c it turns on a question of federal law. 1. Notes after Franchise Tax Bd. Topic Notes: In Cort v. Ash (1975), the Court found 4 factors to consider whether the right of action should be implied from a federal statute: (1) whether the PL is a member of the protected class; (2) whether there is evidence of Congressional intention to create a remedy either explicitly or impliedly; (3) whether implying a remedy would be in accord with the underlying objectives of the statutory scheme; (4) whether the cause of action is traditionally regulated to state law so that implication of a federal remedy would infringe on an area that is ordinarily left to State regulation (ex: a federal employee may assert an action for damages implied from her right to equal protection under the laws guaranteed by the Due Process Clause of the 5th amendment) where the claim is not "created" by federal law, a claim may still be deemed to arise under federal law if vindication of the state law-created right depends upon a resolution of a substantial question of federal law (2 aspects): (1) a reference to the gravity of the federal interest affected by or associated with the claim, and (2) some assessment of its plausibility on the merits B. Diversity of Citizenship and Alienage Topic Notes: Art. III, § 2: federal courts may also hear cases if: (a) they are citizens of 2 different states within the Union (b) a State and a citizen of another State (c) two separate states (d) any State or a citizen of any State and any foreign sovereign or a citizen of any foreign sovereign (also found at 28 U.S.C. § 1332) This avoids home-field advantage possibility of going to a state court, and also that a neutral federal judge, who is independent of constituents he has to cater to, will make a fairer decision. [incidentally, 28 U.S.C. § 1359 prohibits any civil action made by any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such a court Coury v. Prot (1996) Case Brief: Style (name of case): Coury v. Prot, U.S. Court of Appeals, 5th Circuit (1996) Cause of action: The following is a cause of action for breach of K, which results in a cause of action to have the case removed back and forth from federal to state court. Procedural History: Appellant dual citizen challenged the judgment of the United States District Court for the Southern District of Texas, which entered a jury verdict in favor of appellee US citizen in appellee's action to recover damages for breach of K. Appellant claimed lack of jurisdiction under the alien provision because he was a dual citizen of the US and France and was domiciled in France and that his property was exempt from turnover and forced sale under the state constitutional and statutory homestead exemptions. The court affirmed the judgment in favor of appellee US citizen in his action against appellant dual citizen and that ordered a turnover of appellant's property in satisfaction of the award but remanded for an adjudication of prejudgment interest claim. Facts: See Procedural history. Issue(s): Under federal rules of civil procedure, may a person assert alienability and diversity of citizenship when filing a claim in order to exempt himself from Homestead statutes? Court's Rationale/Reasoning: Diversity has to exist at the time of the filing. Citizenship is based on where domiciled and where a party is a citizen (determined by a myriad of factors). There was no clear error by District Court in deciding Prot was domiciled in TX at the time of the suit, which made diversity and subject matter jurisdiction exist. Prot established domicile in TX in 1987, moved to France in 1991, but evidence failed to show change in domicile; he formed an intention to change it but never did. Since Prot's domicile was TX at the time the suit was filed and removed, while Coury's domicile was CA, there was diversity of citizenship. Prot's removal was improper b/c DF may not remove a state action to a federal court if a DF is a citizen of the state in which the action is filed. Court waived this by failing to seek remand within 30 days of the errant filing. Nonetheless, there was diversity. Rule: To be a citizen of a state within the meaning of the diversity provision, a natural person must be both (1) a citizen of the United States, and (2) a domiciliary of that state. Federal common law, not the law of any state, determines whether a person is a citizen of a particular state for purposes of diversity jurisdiction. Holding: Yes, but not in this case, as DF never changed his domicile, and thus was still a citizen of TX and there was subject matter jurisdiction over this cause of action. 1. Recent U.S. cases Case Brief: Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc. (2002) Style (name of case): Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., U.S. Supreme Court (2002) Cause of action: The following is a cause of action for dispute over patent claim. Procedural History: Trial court ruled in favor of petitioner on its complaint and held it was unnecessary to decide the counterclaim on the merits. Facts: N/A. Issue(s): Under federal rules rules of civil procedure, does a federal court have appellate jurisdiction over a case in which the complaint does not allege a claim arising under federal patent law, but the answer contains a patent-law counterclaim? Does a counterclaim arising under federal patent law give rise to removal to a federal court? Court's Rationale/Reasoning: Prior cases have only went on the basis of whether federal defenses could establish "arising under" jurisdiction, but those cases were under the premise of whether the complaint itself was based on a properly pleaded complaint. This is new ground, as the Court deals with the answer to a complaint. Nonetheless, a counterclaim is not an appropriate means of trying to remove venue in a particular case. The PL is the master of the complaint, and this would seriously shift the power in such a historically entrenched rule of procedure. Additionally, the potential for expanding the amount of cases with removability. Also, this would confuse the "well-pleaded complaint doctrine." Respondent argues that by allowing a counterclaim under federal patent law to give rise to federal jurisdiction, the legislative goal of enforcing patent law would be furthered. Irregardless, the Court says it is not their responsibility. Rule: U.S.C. § 1338(a): "...whether a case "arises under" patent law "must be determined from what necessarily appears in PL's statement of his own claim in the bill or declaration." Holding: No. A PL's well-plead complaint (as it pertains to patent law) must "establish either that federal patent law creates the cause of action or that the PL's right to relief necessarily depends on resolution of a substantial question of federal patent law." Here the respondent improperly argued a counterclaim to serve as its basis for a district court's "arising under" jurisdiction. Concurring: Since patent law has its own federal rules, the counterclaim should be able to stand as a counterclaim in which "rising under" jurisdiction would allow the case to be removed to federal court. The Court here, touches on District Court jurisdiction, which is left untouched by Congress. C. Supplemental Jurisdiction Topic Notes: supplemental jurisdiction: jurisdiction granted federal courts over claims that could not be heard in a federal court on their own but that are so closely related to claims over which the court has original jurisdiction that they form part of the same case pendent jurisdiction: supplemental jurisdiction that allows a federal court to adjudicate state law claims which form part of a case that was brought to it under its federal question jurisdiction ancillary jurisdiction: jurisdiction giving a court the power to adjudicate claims (as counterclaims and cross-claims) because they arise from a cause of action over which the court has original jurisdiction specif : supplemental jurisdiction acquired by a federal court allowing it to adjudicate claims that are based on state law but that form part of a case brought to the court under its diversity jurisdiction (Note: Ancillary jurisdiction allows a single court to decide an entire case instead of dividing the claims among several courts and proceedings, and allows a federal court to decide a claim that would otherwise be properly brought to a state court.) United Mine Workers of America v. Gibbs (1966) Case Brief: Style (name of case): United Mine Workers of America v. Gibbs, U.S. Supreme Court (1966) Cause of action: Gibbs sued in Federal Court against just the UMW, and not either local union or its members. The suit was for a secondary boycott claim under a section of the federal Labor Management Relations Act and a state law cause of action claiming malicious interference with his employment contractual relations and seeking punitive damages that were unavailable under federal law. Procedural History: Jury found in favor of Gibbs, awarding him compensatory and punitive damages; trial court set aside jury verdict as to the federal claim on the ground the challenged conduct did not constitute a secondary boycott as a matter of law, but sustained the award on the state claim. 6th Circuit affirmed both rulings. Facts: Gibbs was employed to be a mine superintendent in a new location for a wholly owned subsidiary mine company. Miners, who were represented by a local union of the United Mine Workers, roughed up Gibbs when they learned about his using other laborers from a rival union. Gibbs sued for damages as the result of missing work from his injuries. Issue(s): Under civil procedure, does a mine worker have the right to attach a state claim for damages, which is the only place he could find monetary relief, along with a federal suit against a national mine company in Federal District Court, when his damages were the result of a physical altercation with local mine workers represented by the same national mine union? Court's Rationale/Reasoning: Pendent jurisdiction is a doctrine of discretion, not of PL's right. The bases are judicial economy, convenience and fairness to litigants. If federal claims are dismissed, the state claims are out as well. The same thing goes if the state portion of the complaint is thrown out. Some cases exist where a state claim can be dismissed w/o prejudice and tried in a state court. Sometimes the issues are so strongly tied together they must be tried in a federal court. The district court did not exceed its discretion in proceeding to judgment on the state claim. Although section 303 limited recovery to compensatory damages based on secondary pressures, and state law allowed both compensatory and punitive damages, and allowed such damages as to both secondary and primary activity, the state and federal claims arose from the same nucleus of operative fact and reflected alternative remedies. Rule: Requirements for pendent jurisdiction: whenever there is a claim arising under the Constitution, the laws of the United States, and Treaties made, or which shall be made, under their authority (Article III, section 2), and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case." The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. The state and federal claims must derive from a common nucleus of operative fact. But if, considered w/o regard to their federal or state character, a PL's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole. Holding: Yes, however the district court was well within its discretion when it threw out the federal charge. There may have been confusion in not keeping both charges together and not throwing the state charge out as well, but the Court finds no error in the lower court. Russ v. State Farm Mutual Automobile Ins. Co. (1997) Case Brief: Style (name of case): Russ v. State Farm Mutual Automobile Ins. Co., U.S. District Court, East District of PA (1997) Cause of action: The following is a cause of action for fraud, breach of good faith covenant and fair dealing, breach of fiduciary duty, and misrepresentation. All claims arose under state law; DF's removed the case. Procedural History: PL's moved the class action case be remanded to the Philly County Court of Common Pleas, pursuant to 28 U.S.C. §1447. Motion to remand granted by the District Court. Facts: PL's filed the above class action claim for being victimized by fraudulent sales practices by 3 insurance companies. The claim values less than $50K, which is the governing jurisdictional amount for diversity actions in 1997, but there is diversity of citizenship. PL's claim the lack of money claimed in damages should result in a federal remand back to a PA state court; DF wants case tried out of state and into Federal Court for cause of diversity of citizenship. Issue(s): Under federal rules of civil procedure, when 3 parties with diversity of citizenship attempt to bring a class action cause of action into Federal Court, and two of those three parties' damages are below the $50K threshold required to be tried in Federal court, may the cause of action stand on its diversity of citizenship merits alone? Court's Rationale/Reasoning: On motion to remand, burden on DF's to establish federal court jurisdiction on the basis of diversity of citizenship. The court decided to take a look at previous decisions (stare decisis) and legislative intent. Court history never decided this issue, but had previously decided against a PL whose aggregation of claims vs. a single DF takes care of the situation where PL has multiple state law claims against an diverse DF, none of which satisfied the amount of money in Gibbs. But even if Article III did permit the claim to float as is, the court decided to look and see if there was any intent in its legislative history which might shed more light on Congress's power. Legislative history shows that missing from the category of diversity claims which are excerpted from supplemental jurisdiction are diversity claims under rule 23, i.e., diversity actions. SO, if 28 U.S.C. § 1367 were to be taken on its face, federal courts would be swamped with cases. The language of the House Judiciary committee adds that 1367 is not intended to affect the jurisdiction requirements of 1332 in diversity-only actions, as those requirements were interpreted by previous case law (Finley v. U.S.). The judiciary will not throw vaguely worded terminology back in the face of Congress just to spite its face, as all branches are working together. Rule: (28 U.S.C. § 1367(a)) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (see rest of 28 U.S.C. § 1367). Holding: No. If it is determined that Article III permits the exercise of jurisdiction over a claim that didn't fall within the designated categories of original jurisdiction, a court must also inquire as to whether Congress has exercised its constitutionally delegated authority to create such jurisdiction. Here, the case was not so on the legislative side. D. Removal Topic Notes: Congress has provided DF's in civil actions with a mechanism, called removal, to trump PL's choice of a state court when DF prefers to have the case heard by a federal judge. If a case falls within the federal courts' jurisdiction, i.e., one that PL originally could have filed in federal court, can be removed there by DF's. However, a DF cannot remove a case from federal to state court, or from a court of one state to another state. See U.S.C. §1441, procedural requirements in §§ 1446-1447 Fullin v. Martin (1999) Case Brief: Style (name of case): Fullin v. Martin, U.S. District Court, Eastern District of Wisconsin (1999) Cause of action: The following is a cause of action for 6 counts (against doctor, office manager and accountant) ranging from breach of fiduciary duty to fraud and malpractice. DF counterclaims breach of K, defamation, and interference with prospective K. No diversity between citizens. PL's filed a later complaint was filed under the Employee's Retirement Income Security Act(ERISA), filed against DF (only doctor) in his continuing capacity as KCA's (Kenosha Cardiology Associates) trustee of the company's pension and 401(k) plans. Martin alleges DF's have nothing to do with the ERISA claim. Procedural History: Case removed from trial court to federal court on the ERISA count, relying on U.S.C. §1441(c) for his suit, which states an entire action may be removed when "separate and independent" federal claim is joined with claims not otherwise removable. DF's did not object to this removal, as per §1441(a) & (b). DF's file summary judgment motions, which spoke only to the state claims, alleging they were not part of the ERISA claim. Court concludes, after proclaiming only subject matter jurisdiction over the ERISA, and that it could only issue summary judgment on the one claim, while remanding the state claims back to state court. Facts: Cardiologists who were once partners are now suing one another in this classic litigious suit in the Eastern District of WI. Issue(s): Under federal rules of civil procedure, can the removal of a case to federal court on the basis of a separate claim result in that separate claim continuing to be tried on the federal level, while the original causes of action prior to the separate claim are remanded back down to the state level? Under federal rules of civil procedure, can the state counterclaims remain in federal court? Court's Rationale/Reasoning: Under pendent jurisdiction rule from Gibbs, a state claim may be hear by a federal court if the state claim is sufficiently related to the federal claim, i.e., if the claims arose from a common nucleus of operative fact and are claims a PL would be expected to assert in a single proceeding. But 1441(c) exceeds that limit, as it allows the removal of claims which are sufficiently unrelated to each other, which makes the statute unconstitutional. Thus, Martin's reliance on this provision for removal purposes is ineffective to bring those claims within the jurisdiction of federal court. So, the narrower question is whether the federal claim is indeed separate in nature from the federal claim, and the court determined it is, for three reasons. First, the federal claim is just against the former partner; second, the remedies in the suit are different in nature from those in the state claim, the federal claim being a declaration as opposed to damages per se; and last, the factual allegations for the two claims are separate: the state claim for fraudulent use of credit cards for business expenses, while the federal question exists for the breach of fiduciary duty under a federal statute. However, the court decides the state claims against Martin cannot also remain in the federal court, as only compulsory claims fall within the court's supplemental jurisdiction. Permissive counterclaims require their own jurisdictional basis. A compulsory counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction (rule 13(a)). The test is whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit. Here the counterclaims bear no legal connection to the ERISA claim, just as the other state claims bear little if any connection to the ERISA claim. Rule: 28 U.S.C. §1441(c): Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. If state claims are sufficiently related to the ERISA claim for purposes of supplemental jurisdiction under Gibbs and §1367, then they are not separate and independent claims for purposes of §1441(c). If the state law claims are separate and independent from a federal claim as required by §1441(c), then they are not sufficiently related for purposes of pendent jurisdiction. Holding: Here, yes, as the two complaints are separate in nature: state claim was against 3 parties, the federal question was against just the doctor in his capacity as trustee. The federal complaint also seeks different remedy, and is based on two separate incidents. No. The counterclaims also arise out of a different sets of facts, which comprise a different claim and thus a different counterclaim. IV. Non-constitutional limits on Exercise of Adjudicative Power Topic Notes: Venue requirements must be met (separate and apart from the subject matter and personal jurisdiction requirements) in every civil action. Forum selection comes after establishing personal jurisdiction, and it is at that time that DF has its obligation to object (if governing venue rules do not comply with what PL chose as forum), with failure to object considered a waiver. State statutory schemes for venue rely on: (1) residence of PL's; (2) residence/business location of DF's; (3) location of the events giving rise to the cause of action; (4) situs (location as to law) of the object of the claim A. Venue Topic Notes: 28 §1391 applies to all federally filed civil actions "except as otherwise provided by law." Prior to enactment of federal venus statute, courts at common law characterized causes of action as either: (1) transitory or (2) local. Local actions were designed to affect title to real property. Everything else fit into transitory category. §1391 has always been construed to apply only to transitory actions. Venue rules are codified at §1392, but it does not address suits for title of property that extends the boundaries of one state. PKWare v. Meade (2000) Case Brief: Style (name of case): PKWare v. Meade, U.S. District Court, Eastern District of WI (2000) Cause of action: The following is a cause of action for nine separate federal and state claims against both DF and his corporation; DF's moved to dismiss for lack of personal jurisdiction and improper venue, or in the alternative to transfer venue to Southern District of OH. Procedural History: Trial court found WI's long arm statute incorporated due process standards and that the cause of action arose out of both DF's continuous and systematic business contacts with the forum state; statutory and constitutional requirements for exercising personal jurisdiction over each DF were satisfied. In this court, Meade's motion to dismiss is granted. Facts: Meade is an OH resident who translates and sells software. PL is the company to which DF had some business dealings with. 9/92: PL and DF entered into business K. In 1993, DF incorporated his business and changed the name to ASI. PL alleges DF purported to assign his rights and duties under the agreement to ASI. DF and PL negotiated a royalty agreement. The agreement by both parties were stipulated to be governed by WI law. Issue(s): Under federal law of civil procedure, may PL's causes of action for various state and federal claims be brought to federal court when the DF and his corporation reside in OH an do business there? Under federal law of civil procedure, may patent infringement claims be brought in the state in which other state and federal charges were taken? Court's Rationale/Reasoning: BOP of showing that venue is proper is on PL. For venue to lie it must be proper as to both DF's and as to all claims. The court, in applying the rule, looked to the actions of the DF, as the determination is a federal issue whose answer depends on federal law. After applying the substantial part test of 1391(b) to the facts, they agreed that (1) PL's state law and trademark claims were relevant to the suit, as were (2) the federal copyright claims, (3) patent infringement claim, and (4) claim against ASI to all be fine under the law (claim vs. ASI depended upon where it might be subject to PJ when the action was commenced). However, the court was not pleased with PL's claims against Meade. Venue for Meade is only proper be/c it does not apply to the "resides" clause of 1400(b) [patent and copyright law claims], and wouldn't lie under 1400(b) unless DF committed the acts in question there, and had a regular and established place of business. PL's request for pendent venue is denied, for the court is reluctant to address patent claims within pendent venue. Rule: Doctrine of pendent venue: venue may be proper in more than one district as long as a "substantial" part of the key events or omissions occurred in the district. (28 U.S.C. §1391(b)(2)). Generally, pendent venue will be applied if a court may also exercise supplemental jurisdiction. However, patent claims are state specific. Holding: Yes. As long as there is a substantial part of key events or omissions which occurred in the district in question, pendent venue jurisdiction does apply. No. Patent infringement claims are state specific, and thus may not be attached to any other state claims for reasons of convenience. B. Transfer of Venue Topic Notes: Sec. 1404. - Change of venue (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer. (c) A district court may order any civil action to be tried at any place within the division in which it is pending. (d) As used in this section, the term ''district court'' includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term ''district'' includes the territorial jurisdiction of each such court PKWare v. Meade (2000) Case Brief: Style (name of case): PKWare v. Meade, U.S. District Court, Eastern District of WI (2000) [part II] Cause of action: The following is a cause of action for change of venue by DF in previous case in this series. Procedural History: District Ct. denied motion to change venue for ASI, but held true its throwing out charge vs. Meade. Facts: (see previous case) PL doesn't dispute the action might have been brought in the Southern District of OH. Issue(s): Under federal rules of civil procedure, may the district court grant an alternative motion to transfer when all state claims were held to be well within reach of suit in the same court, and when the one complaint against co-DF Court's Rationale/Reasoning: In order to justify a transfer, DF's must show that So. District is clearly a more convenient forum, and they should do this by evaluating public (judicial economy, expeditious administration of justice) and private interest (PL's choice of forum, situs of operative events, convenience of parties based on their residences) factors. PL's choice of forum is given weight, and since DF's lived there. Material events took place in both judicial districts.Breach of K claims are split between districts, but the intellectual property infringement claim cannot be ascertained as to which district it occurred in (internet sales). PL said it had 300 witnesses who could testify, but DF gave no indication it would not have anyone testifying either. Convenience, another issue, is not one, as the distance DF would have to travel is not great. Similarly, issue of public interest considerations sways again in favor of the district who put so much time into a case as to see it now. Also, an OH court may have a more difficult time applying WI law then the WI court itself. Rule: 28 U.S.C. §1404: (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer. (more subsections do follow) Holding: No. DF's motion to dismiss for lack of PJ and lack of venue are denied, except that DF Meade's motion to dismiss PL's claim of patent infringement is granted. C. Forum Non Conveniens Topic Notes: PL non conveniens: old common law doctrine which responded to those limited instances where the PL's chosen forum was extraordinarily inconvenient to either the DF or the chosen forum, and another court, within or without the forum country, was available. But now with section 1404, the response is simply to transfer the case to a more convenient district court.. Thus, forum non conveniens in federal actions is limited to those situations in which the available alternative to the PL's choice of a highly inconvenient forum is a foreign (i.e., non-U.S.) court. There is no statute for this, so it enjoy a wider currency in actions filed in state courts. Piper Aircraft Company v. Reyno (1981) Case Brief: Style (name of case): Piper Aircraft Company v. Reyno, U.S. Supreme Court (1981) Cause of action: The following is a cause of action for negligence, which turned into a cause of action regarding forum non conveniens as it pertains to citizens of two nations. Procedural History: After a CA probate court appointed DF the administratrix for the families of the five decedents of a plane crash, she filed separate wrongful-death claims against PL's Piper and Hartzell (plane manufacturers) in Superior Court of CA for negligence and strict liability. Survivors of the 5 dead passengers filed a separate action in the UK against Air Navigation, McDonald (operator), and the pilot's estate. Suit in CA was made for reasons of more lenient laws regarding capacity to sue, damages and liability were better in the U.S., as Scottish law has no strict liability in tort, and wrongful-death claims are only good for "loss of support and society." On petitioners' motion, suit removed to U.S. District Court for the Central District of CA, where Piper moved for transfer to U.S. District Court for the Middle District of PA pursuant to 1404(a). Hartzell moved to dismiss for lack of PJ or to transfer. DC transferred case to Middle District. After transferred, Hartzell & Piper moved to dismiss on ground of forum non conveniens. D.C. Granted these motions, relying on balancing test from Gulf Coast Oil Corp. v. Gilbert & Koster v. Lumbermans (private interest factors vs. public interest factors). D.C. held the trial would be much easier to hold in Scotland, as the plane, navigation and parties were all in Scotland, as opposed to respondent's contention the plane, testing, design, and manufacture were all in the states. Court of Appeals rejected this test, holding the latter factors above were more important and reversed. Supreme Court reversed Court of Appeals (affirming in effect the D.C.). Facts: Plane crash involving American-made and designed plane in Scotland, which killed five people. DF is the administratrix. Issue(s): Under federal rules of civil procedure, do DF plane manufacturer and plane designer have the right to have their cases tried in a Scotland court when the accident happened there under a cause of action regarding forum non conveniens? Under federal rules of civil procedure, do PL's have the right to have a case removed to U.S. District Court for the same forum non conveniens when the plane was manufactured and designed in the states? Court's Rationale/Reasoning: The private interest factors involved here are more suited for trying in Scotland. The accident occurred there, as well as the ability to interview critical witnesses and experts would be better served by trying in Scotland. By simply going by the Court of Appeals argument that b/c damages and rules were better in the States in unfounded, as such an idea is: (a) not the true purpose of forum non conveniens, as retaining flexibility within the judicial system is; (b) it would make non conveniens virtually useless, b/c anyone could use the rule; (c) dismissals would be rarely proper, unless (d) a taxing analysis were done discussing the possible outcomes, remedies and decisions which would result from each possible venue; and finally (e) the caseload in the States would increase dramatically, as parties would always go after the deep pockets, and would backlog the system with more cases and more taxing analyses This is not to say if a result would be so disproportionate that the case could not go back to the States, but the rule is a rule of flexibility, not simply convenience. Scotland's remedy is okay in comparison. There was no abuse of discretion here. Scotland doesn't have overwhelming connections, but they are better served over there. Witnesses could be called more conveniently over there to settle technical issues. Pilot's estate and McDonald navigation are crucial to PL's suit, and trying them over in the States would in essence be taking two trips to do the same thing in one suit. Piper's BOP would be to show someone else created the accident by looking for indemnity, and it could be better served in one system. Public interest right is also on the mark as far as the D.C. goes, and the American interest is insignificant in comparison to those in Scotland overall. Rule: Balancing test for forum non-conveniens: public interest factors for trying court in disputed forum versus private interest in the same concern. Holding: Yes. The balancing test applied by the District Court was more in favor of how the forum non conveniens should be applied; based on the accident occurring in Scotland, the passengers being from Scotland, and the laws which governed the action are from Scotland, the case should be tried in the UK. No. Trying the case in the U.S. would require much more judicial legwork than simply holding court in Scotland. The laws may be different there, but the remedy is not substantially different, and D.C.'s test for application of the rule is the better use of the rule. V. Choosing and Ascertaining the Applicable Law Topic Notes: "Vertical choice of law" involves a state court deciding whether or not to apply federal law when a state case comes up with a federal question; or when a federal court has the decision of whether to apply state law in its jurisdiction (this is what this chapter is all about) "Horizontal choice of law question occurs under the latter situation above, and the question there is "which state's law?" Erie Doctrine created a framework for allocating judicial power between the federal and state governments, and is a crucial component of the Court's federalism jurisprudence. A. Choice of Law --The Erie Doctrine Topic Notes: Erie doctrine: a doctrine that a federal court exercising diversity jurisdiction over a case for which no federal law is relevant must apply the law of the state in which it is sitting Erie R.R. Co. v. Tompkins (1938) Case Brief: Style (name of case): Erie Railroad Co. v. Tompkins, U.S. Supreme Court (1938) Cause of action: The following is a cause of action for negligence, which turns into a cause of action for federal jurisdiction in a federal court. Procedural History: Circuit Court of Appeals ruled that the question of liability is one of general law; and on that ground declined to decide the issue of state law. Reversed at Supreme Court.. Facts: PL/respondent, an OH resident, was struck by DF's train in PA. PL decides to sue in federal court for Southern NY, as the corporation is a resident there. Issue(s): Under federal rules of civil procedure, does an injured PL who is a citizen of PA and injured in NY, have a right to enjoy the application of federal law to its cause of action in a diversity claim? Court's Rationale/Reasoning: The original rule was based on the doctrine of Swift v. Tyson, which held state laws were trumped by federal law where there is a diversity claim, which created an independent judgment in federal courts. The lines were blurred regarding which court's rules would prevail in these instances, and unwritten "general laws" varied according to whether their enforcement was on a federal or state level. That is, until recent historical research revealed the true meaning of the rule, which is that "the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in a diversity of citizenship cases would apply as their rules of decision the law of the state, unwritten as well as written. Rule: Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. Holding: No. The court should have federal jurisdiction over a federal question. This case involves state law, and the state should somewhat trump the old acts of Congress Dissenting: (Justice Butler) The Court shouldn't take this case, as it does not deal with a non-constitutional issue. The parties should have drawn up their complaint to section34. Concurring: (reed, in part) Agrees with the decision and the reasoning of the majority. However, in light of the Court's stare decisis rule, the court did the right thing overturning Swift and subsequently the Act. Guaranty Trust Co. of New York v. York (1945) Case Brief: Style (name of case): Guaranty Trust Co. of NY v. NY, U.S. Supreme Court (1945) Cause of action: The following is a cause of action for breach of trust, and the appeal is in regards to an application of fedal or state law in the District Court. Procedural History: Guaranty moved to summary judgment, which was granted in the trial court. On appeal, Circuit Court of Appeals held a federal district court is not required to apply the State Statute of limitations like it would have to in a state court even though the exclusive basis of federal jurisdiction is diversity of citizenship. The Court reversed and remanded. Facts: Non-accepting noteholders are suing the trust company DF/petitioner for breach of trust in that it failed to protect the interests of the noteholders in assenting to the exchange offer and failed to disclose its self-interest when sponsoring the offer. Issue(s): Under federal rules of civil procedure, should no recovery be allowed in a State court b/c the action is barred by the statute of limitations, a federal court can have the suit removed to it b/c there is diversity of citizenship? Court's Rationale/Reasoning: This Court adheres to the policy set forth in Erie: mere diversity of jurisdiction, when it arises out of a state claim, is merely a diversity jurisdiction case, and is subject to the laws of the state in which the action occurred, irregardless of the fact the parties are in federal court. As to consequences that so intimately affect recovery or non-recovery a federal court in a diversity case should follow State law. The fact the statute of limitations barred the recovery is not the issue, and the federal court should not meddle one way or the other in the recovery process. Rule: In all cases where a federal court is exercising jurisdiction solely b/c of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court. Holding: Yes. The statute of limitations applies to this case, as the action took place in NY; it wound up in a federal court simply b/c of diversity of citizenship, which should not be the linchpin for deciding which law to use in a federal court. Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (1958) Case Brief: Style (name of case): Byrd v. Blue Ridge Rural Electric Cooperative, Inc., U.S. Supreme Court (1958) Cause of action: The following is a cause of action for negligence, which is being debated in the Supreme Court as to whether the case should be tried in State or Federal court. Procedural History: Case brought in District Court for Western District of SC, based on diversity of citizenship (PL from NC; DF is a SC corporation). Appealed to Court of Appeals, where court did not remand the case for a new trial on the question of whether the DF was PL's statutory employer. Supreme Court reversed and remanded for a jury trial in Federal District Court. Facts: PL injured as statutory employer of DF while in the process of putting up power lines. Issue(s): The inquiry here is whether the federal policy favoring jury decisions of disputed fact questions should yield to the state rule in the interest of furthering the objective that the litigation should not come out one way in the federal court and another way in the state court? Court's Rationale/Reasoning: First off the Court, in trying to see if the state rule does bar a jury trial, interprets the statute. Their findings conclude the statute is merely a form of judicial review in regards to questions of affirmative defenses and not a bar on jury trials all together. Second, the Court, after explaining the rule in Erie, decides whether the trial system would differ on the federal level as opposed to the state level. They go on to say if the outcome were the only consideration, a strong case might appear for saying that the federal court should follow state practice. But the trial system is the argument here. The seventh Amendment is at work here, and in the event a particular set of circumstances leads to a federal trial, the right to a jury is not to be denied. Third, the Court finds there would be no difference in either court if a trial by jury were held. There is also no rule barring federal jury trials based on state law, and again the seventh Amendment is the guiding force in establishing a right to trial by jury. Rule: In the absence of other considerations -- to states rules even of form and mode where the state rules may bear substantially on the question whether the litigation would come out one way in the federal court and another way in the state court if the if the federal court failed to apply a particular local rule. Holding: No. As long as the state and federal results cannot be either ascertained to favor one party over another, a federal trial may proceed with the cause of action grounded in state rules. There is no law to the contrary. Hanna v. Plumer (1965) Case Brief: Style (name of case): Hanna v. Plumer, U.S. Supreme Court (1965) Cause of action: The following is a diversity citizenship action of negligence against the decedent's estate, dealing with damages as the result of injuries sustained in a car accident. Procedural History: Complaint by petitioner, an OH resident, filed in District Court for the District of MA, claiming damages in excess of $10k from an accident in SC, allegedly caused by the negligence of one Louise Plumer Osgood, a MA citizen deceased at the time of the filing of the complaint. Respondent is also a MA citizen and is executor for Osgood estate. Process served by petitioner according to rule 4(d)(1) of federal rules of civil procedure, while the respondent's answer was submitted back as per MA General Law section 9. District Court granted respondent's motion for summary judgment citing Guaranty Trust v. York in that state law was the defining substantive and procedural rule. Court of Appeals affirmed. The Court, after granting certiorari, reversed. Facts: Service of process in an negligence was compliant with federal rule 4(d)(1), and the answer came back according to Massachusetts procedure. Issue(s): Under civil procedure, which jurisdiction holds power over the other in manner of service of process when the action is based upon diversity of citizenship between the parties when the petitioner filed complied with Federal Rule 4(d)(1), and respondent filed the answer according to Massachusetts General Law? Court's Rationale/Reasoning: Rule 4 fits into the Rules Enabling Act. Rule 4(d)(1) would prevail were there no state statute, as the Erie Doctrine is applied to substantive law, or so previous courts might have thought. What Erie does is not a check on Federal rules of Civil Procedure; it only applied when a case would be decided markedly different when applying the federal rule. If the court were to adopt the respondent's contention, this would mean adhering to state law, substantive or procedural, in any diversity action in a federal court. The Erie rule is rooted in part in a realization that it would be unfair for the character of result of a litigation materially to differ b/c the suit had been brought in a federal court. It is doubtful that even if there were no Federal Rule making it clear that in-hand service is not required in diversity action, the Erie rule would've obligated the District Court to follow the MA procedure. Service of process here is not outcome determinative. The York "substantial variations" test cannot be read without reference to Erie. Although the choice of procedural rule will have a marked outcome on the litigation, the difference is negligible in choosing a forum. Erie Doctrine does not constitute the test of validity/applicability of Federal law. Only time when Erie was involved in Federal Rules is when one of those rules lacked the scope, and that under Erie, a state law could gap fill in a matter of speaking. There are different questions for different situations not all encompassing. Erie also never dealt with a state rule at odds with a federal rule, and specifically dealt with which substantive law to use; here the rules at odds are procedural. The line is not distinct in the previous category, but when a federal rule would not interfere with the legal process in a civil diversity action, there is no reason to change the procedure involved. The substantive law is a matter for the courts to decide at that time. Rule: Prescribing the manner in which a DF is to be notified that a suit is to be instituted against him, it relates to the "practice and procedure" of the federal district courts. Holding: The adoption of federal rule 4(d)(1), designed to control service of process in diversity actions, neither exceeded the congressional mandate embodied in the Rules Enabling Act nor transgressed constitutional bounds, and that the rule is therefore the standard against which the District Court should have measured the adequacy of the service. Concurring: (Justice Harlan) Go right to the substantial/procedural debate immediately, as the lines were drawn pretty clear in this matter. "The Court's 'arguably procedural, ergo constitutional' test moves too fast and far in the other direction." ***NOTEWORTHY*** Hanna decision extends to cases involving the application of federal procedural statutes over state law, with the statute only having to be broad enough to cover the point in dispute. Federal courts, though, have been reluctant to decide whether federal or state law should govern the enforcement of forum selection clauses in diversity cases. B. Federal Law in State Courts - The Reverse-Erie Problem Topic Notes: What should happen when PL files a federal statutory claim in state court? Article VI, §2 of the constitution, the supremacy clause, requires state courts to apply and abide by federal law, however there are a few exceptions: (1) Dice v. Akron, Canton and Youngstown R. Co. (1951): Court upheld a trial court ruling in the case of a state fireman who was injured and originally denied his rights by the rules of the state company which denied state claims, and instead the federal rule was used in state court to actually get into court. (substantive) (2) Felder v. Casey (1988): Court held that a state statute requiring individuals with damage claims against state or local governments to provide notice of their intent to sue, including a description of the nature and amount of the claim, within 120 days prior to filing the action in state court did not apply to federal civil rights action brought under 42 USC §1983, b/c when federal statute claims are pursued in state court, "the federal right cannot be defeated by the forms of local practice." (3) Johnson v. Fankell: Court rules that a state rule of appellate procedure that prohibited interlocutory appeals from denials of summary judgment on defense claims of qualified immunity did not have to yield to a federal statutory provision that permitted interlocutory appeals in these circumstances in federal court. In essence, where a state procedural rule neither burdens nor frustrates the attainment of the federal statute's policies and objectives, and is not outcome determinative, PL who choose to enforce their federal claim in state court takes the state courts as they find them, and is subject to the same rules of procedure that would apply to actions arising under state law. Erie and the Federal General Common Law: a postscript Under the Rules of Decision Act, state law must provide the rule of decision unless the matter is otherwise governed by the federal constitution, treaties, or statutes. Federal judges, though are permitted to fill the gaps with common law rules which were upheld by the Court. Hinderleider v. La Plata River & Cherry Creek Ditch Co. (1938) was a water dispute between CO and NM; Justice Brandeis said when the dispute is the water of an interstate stream between 2 states, the question is of federal common law upon neither the statutes nor the decisions of either state can be conclusive. Federal common law has also been involved in decisions involving commercial activities of the U.S. Government, federal employment, federal labor contracts. The Court goes by a balancing test to determine which federal common law to use. (1) uniformity in the nature and character of the federal program (2) is there little need for a natural body of law (3) would application of state law frustrate specific objectives of the federal programs (4) consider the extent to which the application of a federal rule would disrupt commercial relationships predicated on state law (uniformity and protection of federal interests against the dislocation of settled expectations generated by the replacement of state law with newly created federal doctrines) so a state statute can apply to a whole set of federal claims in a state if the Court deems it so, or to contract principles in labor negotiations, This occurs even when there is an implied right which is in the constitution, but not for a specific class of people for which the provision applies (for example: the right to search and seizure; people affected by this can file a federal claim now via federal statute, and those claimants can ask for damages, as they were seen by the Court were historically regarded as a remedy for an invasion in personal interests in liberty) Court's 4-factor test to determine when it will recognize the existence of an "implied" action: (1) PL is a member of the statute's protected class (2) there is evidence of Congressional intent either to preclude or create such a remedy (3) implying such a remedy would be consistent with the statutory objectives (4) there would be a federalism problem in inferring a remedy under federal law b/c this cause of action is traditionally a matter of state concern relegated to state law. C. Ascertaining the Content of State Law Topic Notes: Once a federal court exercising diversity jurisdiction determines both (a)that state law provides the rule of decision over an issue; and (b) which state's law it will apply, the court must next determine the content of that law. Federal judges must put themselves in the shoes of a state judge and determine how they might ascertain the law, and then they must go ahead and apply the law. These involve interpretive questions, as to how the federal court foretell or predict the content of state law as to an issue: (1) that is one of first impression; (2) that was addressed by the state's highest court so long as=go that its continued viability is questionable; or (3) that the state's judiciary has only addressed at the trial or intermediate appellate levels? Furthermore, once that trial judge has determined the content of unsettled law, to what extent should her decision be reviewable by the federal court of appeals? Court has determined that the best State law, the most persuasive case law, comes from the State's highest court involved in the law at hand; thus, appellate decisions and lower state courts should be only persuasive, unless their law is the only controlling point on the case-at-bar. However, 2 independent mechanisms exist where a state court can refer to for help: Certification: of an interlocutory decision (in the process of an action) by a trial court allows an appellate court to review the decision and to answer a controlling question of law. Certification is often used in state courts as well as federal courts and, where available, allows a federal court to refer a question of state law to the state's highest court. Certification is also used to refer to a judge's order that allows a suit to be maintained as a class action. Abstention: involves the willing suspension of a court's otherwise acknowledged authority to adjudicate a case. Federal court would either dismiss or stay pending the filing of an action in state court. The case must first go to the state's highest tribunal before the federal court will answer the question of law, or even the U.S. Supreme Court, for example, when courts do not want to answer a question of constitutional significance for the first time, or where state law in question is part of an extensively regulated are of law that would be seriously impaired by a federal court's erroneous interpretation of state law After this occurs, cases must go to the next court of appeals (Circuit Court) Salve Regina College v. Russell (1991) Case Brief: Style (name of case): Salve Regina College v. Russell, U.S. Supreme Court (1991) Cause of action: The following is a cause of action for reviewability of a district court's determination of law, arising out of a contract dispute. Procedural History: Original court U.S. District Court for District of RI, with several charges, including nonperformance by the college of its implied agreement to educate respondent. Subject matter jurisdiction in the District Court was based on diversity of citizenship. Parties agree that the law of RI applies to all substantive aspects of the action. District Court denied college's motion for directed verdict on breach of K claim as there was still a factual issue regarding substantial performance by PL in her overall contractual relationship at the school. At close of trial, DF again moved for directed verdict, arguing under RI law, the doctrine of substantial performance did not apply in the general academic context. District Court denied petitioner's motion, and the judge decided to use law from the Supreme Court of RI for application of the doctrine to the facts. Jury returned verdict for Russell, which was appealed by both parties, and upheld in U.S. Court of Appeals for the 1st Circuit, holding that the doctrine of substantial-performance does apply in the college-student context, and that the district court's application of RI Supreme Court case law was not reversible error. Court grants certiorari and reverses. Facts: Contract dispute between a school and one of its students over a weight loss contract instituted by a nursing school on one of its students. Student failed parameters of the weight loss contract and was asked to leave the school, which she did. Issue(s): Under civil procedure, can a federal court of appeals review a district court's determination of state law under a standard less probing than that applied to a determination of federal law? Court's Rationale/Reasoning: Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration. District court trials are faster paced, while appellate courts have a little more breathing room, and time to deliberate over matters, and the record is all nice and neat for the judges to review. They must pour over the record, however, to make sure their analysis was the one which should be applied in a particular case. Such lack of analysis by the appellate court falls below one standard set forth in the Erie doctrine, which is the avoidance of inequitable administration of the laws, which, if the appellate courts do not review the record but just the decision, can happen. Respondent Russell argues the appellate courts are deciding de novo; just b/c it is the decision doesn't mean there is an inequitable administration of law. Respondent also argues that district judges are better arbiters of unsettled state law b/c they have exposure to the judicial system of the State in which they sit. Both contentions are rejected. Rule: As a general matter, the courts of appeals are vested with plenary (absolute/complete) authority over final decisions of district courts. Federal appellate rule 52(a): a trial court's findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Holding: No. A court of Appeals should review de novo a district court's determination of state law. Appellate courts must independently review a lower court's determinations. De novo: over again: as if for the first time: as a: allowing independent appellate determination of issues (as of fact or law) Example: a de novo review b: allowing complete retrial upon new evidence Note: A de novo review is an in-depth review. Decisions of federal administrative agencies are generally subject to de novo review in the U.S. District Courts, and some lower state court decisions are subject to de novo review at the next level. VI. Judicial Remedies Topic Notes: This chapter discusses whether or not and how PL's claim is one which permits relief. Thus, the PL must state a valid claim, which can depend on the distinction between law and equity. A. Monetary Relief 1. Compensatory damages Topic Notes: Main goal is to compensate PL for the harm suffered b/c of DF's actions (to restore the injured party, as nearly as possible, to the position he would have been in had it not been for the wrong of the other party) Memphis Community School District v. Stachura (1986) Case Brief: Style (name of case): Memphis Community School District v. Stachura, U.S. Supreme Court (1986) Cause of action: The following is a tort action for damages as the result of an unfounded suspension by the school board. Procedural History: Sued in district court for those damages, and the judge instructed the jury that if they find for Stachura, that they should determine damages by calculating not only in- and out-of-pocket costs related to his suspension, but in addition, there should be a determinable amount based on what the jurors thought a 1st amendment violation would be worth. Jury found both compensatory damages and punitive damages for respondent, and the case was appealed all the way up to the Court, which reversed and remanded. Facts: When a teacher was suspended for allegedly showing sexually explicit photos of his wife when she pregnant to his students, which was overly exaggerated. Despite his eventual reinstatement, respondent sued petitioner for damages resulting from his time off from work, and for losses sustained in violating his 1st amendment rights. Issue(s): Under rules of civil procedure, may a judge instruct a jury, in their deliberation regarding a tort claim, that damages are to be not only decided on issues of out-of-pocket losses, but as a result of the significance of the constitutional amendment which was violated? Court's Rationale/Reasoning: The purpose of compensatory damages is to restore the plaintiff for expenses related to the cause of action, not to make a guess on what other damages there might have been. There are situations where a jury must decide on an alternative amount in presumed damages cases. The instructions at issue in this case did not serve in the purpose of substituting ordinary compensation, but instead called the jury to measure damages based on a subjective evaluation of the importance of particular constitutional values. Since such damages are wholly divorced from any compensatory purpose, they cannot be justified as presumed damages. Moreover, no rough substitute for compensatory damages was required in this case, since the jury was fully authorized to compensate the respondent for both monetary and nonmonetary harms caused by petitioners' conduct. Rule: §1983 provides compensatory damages "for actual harm ordinarily (that) ordinarily suffice to deter constitutional violations." Holding: No. Damages based on the abstract "value" or "importance" of constitutional rights are not a permissible element of compensatory damages in such cases. Concurring (Marshall, with Brennan, Blackmun, and Stevens): Sometimes there can be a constitutional violation so great that compensatory damages may needed (like in Carey, involving a due process violation, but it has to be a clear-cut right that is violated for the rule to kick in). The instructions were inappropriate b/c the jury could not adequately focus on PL's actual damages. However, such a stance on damages as a whole would compromise the values held in Carey (tayloring the damages according to the interests protected by the right). 2. Punitive damages Topic Notes: Designed to punish DF. They are an example of a quasi-criminal remedy intruding into civil litigation, but punitive damages have traditionally been awarded successful to the PL rather than the state. In re - the Exxon Valdez (2001) Case Brief: Style (name of case): In re: the Exxon Valdez, U.S. Court of Appeals for the Ninth Circuit (2001) Cause of action: The following is an appeal of a $5 billion punitive damages award arising out of the Exxon Valdez oil spill. Procedural History: Hundreds of actions ensued from the accident, and the district court certified the case into 4 class actions: three for compensatory damages (commercial fishing, natives, and landowners), as well as one "mandatory" punitive class action in which all PL's were involved in it. Compensatory awards went to the three classes in the hundreds of millions of dollars. The jury award for punitive damages for $5 billion was the largest in American history at the time, and was appealed. On appeal, award vacated and remanded so that the district court can set a lower amount in light of the BMW and Cooper Industries standards. Facts: 11 million gallons of crude oil were negligently spilled into AK's Prince William Sound . Captain Hazelwood, who directed the ship on its fateful voyage, went to bed 2 minutes before a critical turn, which violated protocol of having 2 officers on deck at all times. Hazelwood left the ship's control (b/c he was drunk) to an exhausted 3rd mate, and left the ship on autopilot, which made the ship go faster. Cost to clean things up: and estimated $3 billion. Issue(s): Under federal law of civil procedure, should punitive damages be barred as a matter of law b/c as a matter of policy they are inappropriate in the order that appellants and cross appellants raise them? Court's Rationale/Reasoning: On the first prong of the test, the court determined that since Exxon immediately cleaned its mess up, and settled with all the appropriate parties, that there was no malice on their part. Negligence, but no malice or evil intent on their parts. The jury was even instructed to limit the award on only non-environmental costs (the court said they didn't kill anyone?). Thus, the award was too excessive in light of their immediate behavior after the accident. On the second prong, the ratio of the award was found to be disproportionate as were those in BMW and in Cooper Industries. After calculating a formula which measured harm likely over punitive damages, the court somehow figured that there was a 17.42:1 ratio in favor of the punitive damages. In light of the fact that Exxon settled with all parties, and cleaned up the accident on its own dime, and settlements with private parties, the totals there added up to over $3.4 billion. The court found another $5 billion dollars, which is what the estimated earnings of the corporation each year are, would be a bit too much. The third prong was measured by the criminal code for fines in this case, which was $500K for felonies, or for a misdemeanor resulting in a death, or $200K for a class A misdemeanor not resulting in a death. The court said if the latter were used as a base for determining whether the fine was too excessive, the punitive damages in this case would be 25,000 times the potential legislative judgment, which is far too much in comparison. Additionally, they argue the district court already settled what they thought was an appropriate claim for damages for $125 million with the U.S. Government in a penal action by the U.S. Attorney General. The evidence is hard to overlook, the court says. Rule: Three prong test from BMW and Cooper Industries for determining if a punitive damages award is excessive: (1) reprehensibility of DF's conduct (2) the ratio of the award to the harm inflicted on PL (3) and the difference between the award and the civil or criminal penalties in comparable cases. Holding: Yes they can be, if they fail the three guidepost test established in BMW and in Cooper Industries, which it did here on all three counts. Since the test did not come until after Exxon was originally decided, the award is vacated and remanded to recalculate. State Farm Auto Ins. v. Inez Preece Campbell (2003) Case Brief: Style (name of case): State Farm Auto Ins. v. Inez Preece Campbell, U.S. Supreme Ct. (2003) Cause of action: The following is a cause of action for reversal of allegedly excessive punitive damages award. Procedural History: Trial court originally found respondent liable for accident which triggered this suit. State Farm initially refused to cover excess liability. Preceding appeal, respondent got into an agreement in which other members of initial accident would not sue respondent, but would make a portion of bad faith/fraud action vs. State Farm. On appeal of wrongful death suit and tort action denied by UT Supreme Court. Bad faith complaint ensued thereafter. Trial court granted State Farm's motion for summary judgment b/c State Farm paid excess following the summary judgment, but the ruling was reversed on appeal. On remand, State Farm moved in limine to exclude evidence of alleged evidence in unrelated cases out of UT, but trial court denied the motion. Bifurcated trial decided (1) State Farm's decision not to initially settle was unreasonable, and (2) State Farm's fraud and intentional infliction of emotional distress resulted in a $2.6M compensatory and $145 million punitive damages award (and $1M in compensatory). Reduced to $25M and $1M. Held: P, P & R policy reprehensible. Previous to second stage, the Court ruled on BMW v. Gore. The Court reversed and remanded. Facts: Following a deadly car accident, State Farm insurance withheld coverage in excess liability. Respondent seeks relief for emotional distress as a result. Issue(s): Under federal rules of civil procedure regarding remedies, may one party be awarded $145 million in punitive damages as a reflection of DF's reprehensibility, when under the premise that the punitive award is a statistical reflection on DF's reprehensible conduct in such matters and also when there is a large compensatory award? Court's Rationale/Reasoning: Guidepost #1: reprehensibility must be considered under the circumstances that: the harm caused was physical not economic, the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others, the target of the conduct was financially vulnerable, conduct involved repeated actions or was an isolated incident, and the harm was the result of intentional malice, trickery, deceit, or mere accident. One cause doesn't suffice guidepost. No doubt petitioner was reprehensible in some respects, but respondent used nationwide evidence in order to show reprehensibility in state, which is not the purpose of the guidepost and is unconstitutional. Evidentiary scope needed to focus more on the injury to the Campbells, as individual States have no legitimate concern in imposing punitive damages to punish DF for unlawful acts committed outside of the State's jurisdiction, especially when some of the conduct is actually lawful in other states. The out-of-state evidence must provide some kind of nexus (connection) to the evidence presented in-state. Here, there was no such thing. Thus, an award resulting in punishment for overall conduct and not the specific conduct in-state is outside the realm of the first guidepost. Furthermore, there is a time scope regarding the evidence presented, in which a 20-year period for acts of fraud and other bad faith elements cannot stand as a basis for punitive damages for one victim. Guidepost #2: Court has held there are no specific parameters for figuring a ratio of the award to the harm inflicted, but they are leaning more to singledigit ratios these days. But the overall ratio is based upon circumstances of DF's conduct and harm to PL. It must be reasonable and proportionate to the amount of harm inflicted on PL and to the general damages recovered. The compensatory award was fine, and compensatory damages do include some measure of punitive damages as well. Again, the damages based on out-ofstate actions do not, according to the majority, relate to PL. Wealth of DF cannot alos justify an exorbitant punitive award, just to "teach someone a lesson." Guidepost #3: Most relevant civil/criminal action here is a $10K fine for fraud. Rule: Three prong test from BMW and Cooper Industries for determining if a punitive damages award is excessive: (1) reprehensibility of DF's conduct (2) the ratio of the award to the harm inflicted on PL (3) and the difference between the award and the civil or criminal penalties in comparable cases. Holding: No. An application of the Gore v. BMW guideposts to this case, especially in light of the substantial compensatory damages awarded (a portion of which contain a punitive element), likely would justify a punitive damages award at or near the amount of compensatory damages. Dissenting: (Scalia) The Due Process Clause provides no substantive protections against excessive or unreasonable awards of punitive damages. No stare decisis effect should be applied. (Thomas): Constitution does not constrain the size of punitive damages. (Ginsburg): Early on, there were none or little federal checks on punitive damages and provided no formula or standard ratio which would suffice, then the Court in Gore (1996) struck down an excessive punitive award, and has no seen fit to continue doing so, but they cite their jurisprudence as established -- 6 years vs. the 200 previous is not established. This is a foray into States' rights, which is not what the 14th amendment was intended to do. The Court need not meddle with this award; there was proof which was both very probative and very closely related to the case-at-bar. The Court seeks a nexus to link the in-state evidence with the national evidence; this is provided by showing the national evidence to merely display the wrongdoing was not just an isolated act, but one which involved several parties and was on a very elaborate scale. Thus, the nexus shows the relation is one part to a grander scheme of bad faith and fraud and the corporate bottom line. supersedeas (Medieval Latin, you should desist (word used in the writ)): 1: a common-law writ commanding a stay of legal proceedings that is issued under various conditions and esp. to stay an officer from proceeding under another writ 2: an order suspending the proceedings of an inferior court and esp. the enforcement of a judgment until reviewed on appeal supersedeas bond : a bond given by an appellant in order to obtain a stay of the judgment awarded at trial and for the purpose of ensuring that if the appellant loses the appeal the appellee will be paid the judgment plus any damages incident to the delay caused by the appeal recidivist: an habitual criminal in limine: of, relating to, or being a motion, petition, or order regarding the admissibility of evidence whose exclusion is sought esp. on the ground that it is prejudicial 3. Enforcing monetary judgments Topic Notes: Once a litigant obtains a money judgment in court, the losing party may still want to file one of many post-trial motions that could have an effect of undoing the judgment, or of course, they may wish to appeal. Federal rule 62(d): A judgment could be executed before any of the post-trial motions are heard, but under federal rules there is an automatic 10-day waiting stay of execution of a judgment (the same amount of time for filing post-trial motions), and the trial court has the discretion to stay a judgment's execution until the resolution of any post-trial motions that are filed. (fed rule 62(b)) When an appeal is taken, the appellant may defeat the immediate enforcement of the judgment by posting a "supersedeas bond." Eventually though, judgments do become final, and if the judgment creditor will have to enforce against the judgment debtor.. Under federal rule 69(a), money judgment vs. private parties is usually enforced by a "writ of execution" obtained from the court. Rule also states execution and related matters shall be taken "in accordance with the practice and procedure of the state in which the district court is held," unless a federal statute directly addresses the particular kind of judgment. Some remedies include seizing of land, garnishment of wages (but not more than 1/4 of employee's salary as per USC §1673(a)) Discovery proceedings can also be charged against the losing party in some circumstances (USC §1963); once the judgment creditor has gotten a settlement vs. DF from another state, judgment creditor must go to the other state's court to have the debt recognized in its jurisdiction as per the Full Faith and Credit Act, 28 USC §1738 Also, in judgments against foreign DF's in U.S., the judgment creditor may have to go and get the money abroad if judgment debtor has insufficient funds here. Foreign courts are bound by whatever treaties the parties have between them, in addition to "comity," or a general respect for the acts of foreign sovereigns (looser standard than Full Faith & Credit) B. Provisional remedies 1. Pre-judgment seizure Topic Notes: This could occur if a party who is thinking about suing another party thinks that by the time the trial is done and award is actually handed down, that there might not be any money for that person. Federal rule 64 provides that pre-judgment mechanisms for securing payment of judgment in a federal court are the same ones that would be available in a state court in the state in which the federal court sits. "the remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated." Post-judgment enforcement procedures as well as prejudgment mechanisms are largely governed by state practice in federal court. 14th Amendment sets limits as to how far a state can go to intervene prior to judgment. Connecticut v. Doehr (1991) Case Brief: Style (name of case): Connecticut v. Doehr, U.S. Supreme Court (1991) Cause of action: The following is a cause of action for damages as the result of an assault and battery. Procedural History: Doehr filed suit in a federal district court, claiming the statute violated the Due Process Clause of the 14th Amendment. District Court upheld the constitutionality of CT statute and granted summary judgment to DiGiovanni. Upon appeal to the 2nd Circuit, a split panel reversed. Facts: At the time of the original suit, DiGiovanni submitted to the court an application for $75K prejudgment attachment on Doehr's home, which was authorized by CT statute. The statute in question requires a motion by PL if there exist "probable cause to sustain the validity of the PL's claims" and that the property over which attachment is being sought be real property, There was no requirement that PL post a bond for the payment of damages arising from the attachment if the PL should lose, or to pay off successful wrongful attachment lawsuit brought later by DF. DiGiovanni brought up the probable cause issue in his affadavit, which was agreed by the court, which issued a prejudgment attachment order. Following this order, DiGiovanni was ordered to then give notice to DF Doehr advising him the right to (1) object to the attachment order for lack of p/c; (2) request the order be modified, vacated, dismissed, or that a bond be substituted in lieu of the lien; or (3) object to a portion of the property claimed to be exempt from the prejudgment order. Issue(s): Under federal rules of civil procedure, is a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a bond, satisfactory according to the Due Process Clause of the 14th Amendment? Court's Rationale/Reasoning: Previous case law in the Court shows they have not favored pre-judgment attachment hearings when there is not exigent circumstances where the PL might feel there is a good chance they might lose any possible monetary awards from DF's taking them away or using them all up. The Court also feels pre-attachment hearings are violative of due process when there is no notice prior to the actual filing of the attachment, for DF has no remedy to object to the suspension of his property rights. (1) Property interests are significant. Liens on them affect the value of property and ability to sell them, as well as tainting credit rating. Even temporary or partial impairments are sufficient to merit due process protection. (2) Probable cause is very subjective means of determining whether or not to file an attachment to the suit. The interest is solely with the PL, and only PL gets to tell their side of the story, further hindering due process. (3) The government's interest in protecting the rights of PL cannot be any more weighty then those rights themselves, and here they are di minimus. (4) Common law only favors pre-attachment in exigent circumstances, and here CT's statute does nothing of the sort to elaborate on that issue, nor does the case-at-bar have a scintilla of information relating to the possibility that there is an exigent circumstance involved. Rule: Three part test established in Mathews, and extended in this case, to determine when prejudgment remedy decisions to determine what process is due when the government itself seeks to effect a deprivation on its own initiative: (1) the private interest that will be affected by the official action (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of addition or substitute safeguards (3) principal attention to the interest of the party seeking the prejudgment remedy (pulled from this case) Holding: No. The prejudgment order exceeded the parameters of the test. "by failing to provide a pre-attachment hearing without at least requiring a showing of some exigent circumstance, clearly falls short of the demands of due process." attachment lien: a lien acquired on property by a creditor upon levy of an attachment de minimus: suggests that the law is not interested in trivial matters; also means something which is beneath judicial notice 2. Interim injunctive relief Topic Notes: replevin: : an action originating in common law and now largely codified by which a plaintiff having a right in personal property claimed to be wrongfully taken or detained by the defendant seeks to recover possession of the property and sometimes to obtain damages for the wrongful detention also : a procedure allowing the PL as a provisional remedy to take possession of the property prior to judgment on the action attachment: the seizing of money or property prior to getting a judgment in court, in contemplation that the plaintiff will win at trial (usually in simple cases of money owed) and will require the money or property to cover (satisfy) the judgment. The Supreme Court has ruled that an attachment may be made only after a hearing before a judge in which both sides can argue the danger that the party being sued (defendant) is likely to leave the area or otherwise avoid probable payment. A temporary attachment may be allowed by court order without both parties being present based on a declaration of the party wanting the attachment that there is clear proof that the defendant is going to flee. The court must also require a bond to cover damages to the defendant if the attachment proves not to have been necessary. Before the hearing requirement, pre-judgment attachments were common in which automobiles and bank accounts were held by the sheriff merely upon the plaintiff seeking the attachment getting a writ of attachment, posting a bond. Injunctive relief might not come until after a lengthy trial; would compel DF under under the applicable law to do something or refrain from doing something. There are two kinds: (1) preliminary injunction (comes earlier in litigation, but can only be issued after notice to the opposing party and after a full adversarial hearing); is an injunction pending the resolution of the merits of the litigation; motion for this argues the party seeking this relief should enjoy its benefits throughout the trial. (2) temporary restraining order or TRO(may be issued ex parte, or without notice to or presence to the other side; may also be issued immediately, often with the filing of the complaint); is an injunction pending the determination of a preliminary injunction (where party can't even wait for the time it would take to have a hearing on a request for a preliminary injunction TRO requires a showing by affidavit that "immediate and irreparable injury loss or damage will result to the applicant before the adverse party can be heard in opposition. TRO's are usually dissolved after 10 days, and the grant or denial of a TRO is not immediately appealable Ty, Inc. v. The Jones Group, Inc. (2001) Case Brief: Style (name of case): Ty, Inc. v. The Jones Group, Inc., U.S. Ct. of Appeals, 7th Circuit (2001) Cause of action: The following is a cause of action for reversal of the grant of a preliminary injunction. Procedural History: Magistrate granted preliminary injunction. Affirmed in this court. Facts: Ty began its production and marketing of its "beanie baby" products in 1993. DF began their manufacturing in 1998. PL makes stuffed animals; DF makes stuffed racecars. 7/17/97: PL sent DF a cease and desist letter (infringe on trademark rights); DF went forward with production; PL sued, alleging trademark infringement, unfair competition, dilution in violation of fed. and state laws. 11/17/97: PL requested a prelim. injunction against DF, prohibiting DF from selling toys under name Beanie Racers pending suit. 6/5/2000: motion granted, and denied again 7/7, entered the injunction and $500K bond. Issue(s): Under federal rules of civil procedure, would a preliminary injunction and subsequent bond result in sufficient damage so that it is inequitable to DF? Court's Rationale/Reasoning: (1) likelihood of success on merits: PL only needs to show there is a better than negligible chance of confusion of the two trademarks, and that it has a protectible trademark. Court said better than negligible tm there could be confusion. Several factors in determining whether there could be confusion, and they differ in importance per case. Determined: 50-50 chance of success on #1. (2) balancing of the harms: DF argues it could put them in a bad way, as a result from either taking its product off the market and waiting for a decision (then one way or the other getting it back on the market in a new form), or by putting it out of business all together where in contrast PL waited 8 months to move for injunction (they might not be in such bad economic shape). But DF never produced an affirmative defense to that effect. Additionally, DF knew of PL's trademarks prior to adopting its own, which makes all its previous arguments less convincing. Thus, DF voluntary assumed the risk of such harm. Both products use the word "beanie" in its name, further corroborating DF knew of the risk when it began manufacturing of its product. Jones was forewarned with the cease and desist letter, and DF still went ahead nonetheless. Rule: Sliding scale analysis: a party seeking to obtain a preliminary injunction must demonstrate: (1) its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists (3) it will suffer irreparable harm if the injunction is not granted If court is satisfied the 3 conditions have been met, then it must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing the harm against the irreparable harm the moving party will suffer if relief is denied. Finally, court must consider the public interest (non-parties) in denying or granting the injunction. Holding: No. There was no abuse of discretion by the magistrate when he granted the injunction. injunction bond: a bond required to be given by the applicant for an injunction to cover costs and damages incurred by a party found to have been wrongfully enjoined --> If the court conditions entry of a preliminary injunction on the posting of a bond, the party who moved for the injunction (almost always the plaintiff) must post the bond, whose purpose is to indemnify the other party against losses caused by the injunction if it is later determined to have been entered improperly. C. Injunctions and declaratory relief 1. Permanent injunctive relief Topic Notes: Whereas damages are a substitute for the harm arising from DF's acts, an injunction decrees a specific act (not to be confused with specific performance). This is more extraordinary of an award than damages, which could prove adequate. A permanent injunction will be issued to avoid irreparable harm. BOP on PL is to show this case is not normal (like a damages case). 2. Enforcement of injunctions Topic Notes: Standard mechanism for enforcing compliance with a court's order of injunctive relief (whether of permanent or interim variety) is the sanction of contempt. Criminal contempt is a penalty, designed to punish the party who has disobeyed the court's order. Civil contempt is designed to aid the party who is the beneficiary of the court's order of injunctive relief, and is designed to bring Df into further compliance with the court's order (ongoing fines, indefinite confinement in jail). Rule 69(a): mandates an automatic 10-day stay of execution of a final judgment ordering injunctive relief, and rule 69(b) gives district courts discretion to stay execution pending resolution of post-trial motions Injunctive orders can be suspended or modified pending appeal in the discretion of the district judge, with or w/o the posting of bond as security. 3. Declaratory judgments Topic Notes: Suits for damages or injunctions are suits which seek to force the DF to do something: pay money or act in a certain way. A suit for a declaratory judgment seeks only to have the court declare the respective rights of the parties who present their dispute to the court, and nothing more. A declaratory judgment is not enforceable in the sense that money judgments or injunctions can be, simply b/c no one will have been ordered to do anything. But, a declaratory judgment can be the basis of a later injunction based on the findings made therein. D. Fee shifting, costs, and settlement incentives Topic Notes: Under the "American rule," parties to civil litigation ordinarily must absorb the expense of hiring their own attorney, win or lose. This particular cost of civil litigation is therefore generally noncompensable at least if the litigation is brought in good faith. American rule developed under a private law setting (familiar categories of common law). Public law litigation (for constitutional amendments or statutory norms), however, do not carry a high dollar award value, and often suit is for injunctive relief, which produces no money at all. Government enforcement of such statutes may be hit or miss. Courts were not happy with governments being able to exclusively enforce such provisions, so a number of lower courts had concluded that PL's who were successful in enforcing such statutes had acted as "private attorneys general" and thus should be compensated for their counsel costs, and thus fee shifting began. However, as a result of the Court knocking this provision out under federal common law, Congress passed some specific subject-matter fee-shifting statutes to provide financial incentive to parties and lawyers to enforce rights under various federal laws and the Constitution. City of Riverside v. Rivera (1986) Case Brief: Style (name of case): City of Riverside v. Rivera, U.S. Supreme Ct. (1986) Cause of action: The following is a cause of action for reversal of damages shifted to DF's as the result of violation of various federal civil rights statutes. Procedural History: Respondents sued the police officers who broke up the party, the city and its chief of police under 42 USC §§1981, 1983, 1985(3) and 1986, seeking damages and injunctive relief. 23 officers of the 30 moved for summary judgment; 17 motions were granted. Remaining DF's found 37 individual verdicts, 11 civil rights violations and other violations. Respondents awarded $33.5K in compensatory & punitive damages. But respondents were not done: they requested compensation under §1988 for attorney's fees, which all totaled almost $290K. District Court found hours and rates reasonable ($125/hr lawyers; clerks $25/hr), awarding respondents the monies requested. Appellate Court affirmed. Cert granted, and this Court affirms. Facts: Peaceful party broken up by cops with brut force, resulting in arrests as well. Petitioners argue damages were not reasonable within the meaning of §1988, b/c it was disproportionate to the amount of damages recovered by respondents. Issue(s): Under federal law of civil procedure, is an award of attorney's fees under 42 USC §1988 per se unreasonable within the meaning of the statute if it exceeds the amount of damages recovered by PL in the underlying civil rights action? Court's Rationale/Reasoning: Loadstar (hours reasonably expended multiplied by reasonably hourly rate) is the number which the damages are called as per §1988, and they can be raised or reduced, depending upon how well the facts measure up to the analysis. But the loadstar shouldn't be reduced b/c a lawyer failed to prevail on every contention raised in suit. The size of damages was lower in this case b/c (1) PL's were reluctant to play up their harm, and (2) there was a fear of punishing officers with high-dollar amounts in equivalent fines. The case presented complex issues of law and fact. The respondents achieved a high level of success in this case that makes the total number of hours spent by counsel a proper basis for making the fee award. Petitioner: damages should be contingent fee-based and should be proportional to actual damages award to respondents. Court: this is not a private torts suit, this is a civil rights suit which is for all people, which generally results in the actual number be lower, so the attorney's fees, although significantly greater than the actual, is the result of the lack of damages pursued, not the other way around. There are important social beliefs not reflected in the award, where respondent's counsel acted as "private attorney generals," which is how Congress perceived the statute. It also never perceived the awards to reflect the social justices they serve to create, and thus the damages were not intended to be proportional. If the fees were struck from the award, it would undermine legislative intent. This would make it difficult for less financially stable people to take their causes of action to court. This is why the enforcement of civil rights is not on a privatesector based system of awards. Rule: 42 USC §1988, Civil Rights Attorney's Fees Awards Act of 1976, authorizing district courts to award reasonable attorney's fees to prevailing parties in specified civil rights litigation. House and Senate define "reasonable" as 12 factors (part II footnote). Holding: No. Under the analysis in Hensley, the lower court properly applied the test, and the award is both adequate and fair. Dissenting: (Rehnquist, Chief Justice, White and O'Connor): The award should be set according to traditional billing practices and determining what reasonable hours are under the federal statute (which the majority never decided it was). The case, if brought as a tort cause of action, would probably merit anywhere from $10K to $75K in damages; would attorneys put in that much time to research and deliberate that case? (they fail to see tort and civil rights are different) Concurring: (Thomas) The award is bad on its face, but the Court should not strike down the award. Marek v. Chesny (1985) Case Brief: Style (name of case): Marek v. Chesny, U.S. Supreme Ct. (1985) Cause of action: The following is a cause of action for recovery of all attorney's fees, both before and after settlement offer. Procedural History: Trial court (District Court) held for petitioners that costs in this case only covered those before the settlement offer. Court of Appeals reversed. Cert granted and reversed. Facts: After wrongful death suit filed, petitioners tried to settle for $100K, respondents refused. Trial court awarded damages to respondent for $60K total, thereafter respondent added on another $172K-plus for attorney's fees, which petitioners claimed under FRCP 69 that all fees shifted to PL after trial subsequent to a judgment not exceeded by the ultimate recovery at trial. Issue(s): Under federal rules of civil procedure, are attorney's fees incurred by a PL subsequent to an offer of settlement under F.R.C.P. 68, which must be paid by DF under U.S.C. 42 §1988, when the PL recovers a judgment less than the offer? Sub-issues: (1) Was the offer proper? (2) Are the costs, as used in FRCP 68 , includes attorney's fees awardable under USC 42 §1988? Court's Rationale/Reasoning: Purpose of rule 68 is to encourage settlement and avoid litigation. As to 1st sub-issue, if DF's are not allowed to make settlement offers which are not all encompassing of what they think would be owed for the entire cause of action, including attorney's fees, then offers would be few and far between. But the offer is all encompassing, and PL's should know (a) if the offer is reasonable, and (b) if the offer plus costs is going to make them whole again. As to the second sub-issue, when the authors of FRCP 68 drafted the rule, they were unclear as to the word "costs." The Court determines it to mean all costs properly awardable under the relevant substantive statute or other authority. Here, the suit was under 42 §1983, and is subject to those fee shifting requirements under 42 §1988, however the Court feels there will be no undermining legislative intent by, in this case, counting those costs only before the reasonable settlement offer. In fact, the Court feels that under 42 §1988, the same underlying meaning still applied: to prevent the burdening of our judicial system with litigation. Bottom line: if the offer is reasonable, it does not undermine the intent of either 42 §1988 or 1983. This is a two-sided sword: parties could also receive compensation that far surpasses anything they thought they might get in litigation. Settlements could serve the interests of PL's in this context, as opposed to DF's. Now, FRCP 68 will let both litigants think about how hard they wish to pursue litigation. Rule: Rule 68 provides: if a timely pretrial offer of a settlement is not accepted "and the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Holding: No. The underlying meaning of the statute was to limit litigation and to promote settlements. DF's should not be penalized for offering a fair amount in litigation, and PL's should think hard before they decide to enter into litigation. Dissenting: (Brennan) This is just another attempt to vary a definition of a term, but it is counter to 100 other federal statutes to the same effect. The Framers of the rules could not possibly have meant this kind of fee shifting to be applicable. Similarly, it is contrary to those provisions set forth in section 5 of the 14th amendment. In Roadway Express, the term costs meant what was in §1920, which was taxable costs. Not costs depending on the case. At least 11 other statutes explicitly mention costs as part of the fee shifting that accompanies a civil rights statute. There is no case law which described costs as the majority does. The words in FRCP are to be given consistent meaning, which is not the case here. This kind of reading is contrary to the "either they're in or they're out" meaning previously given to costs related to fee shifting in civil rights cases. Now there will be too much judicial construction. Over 100 attorney's fees statutes to be touched by this decision, as now the meaning is inconsistent. Congressional intent was based on a reasonableness standard, so for attorney's fees not to be included in the costs, there would have to be an unreasonable denial of a fair settlement. There has never been considered as to respondent's denial of the settlement offer was not discussed by this Court. Now low ball offers could be pandered off as an excuse not to include legal costs if the party receives an award, or before PL's can even thoroughly determine if an award is fair. This takes away their rights as civil rights litigants, which is the incentive of litigating under these statutes. E. FL Supplement on Offers of Judgment Topic Notes: (see handout) Eagleman v. Eagleman (1996) Case Brief: Style (name of case): Eagleman v. Eagleman, 4th DCA of FL (1996) Cause of action: The following is a cause of action for inclusion of attorney's fees as the result of a deadlocked jury which resulted in no awarding of damages at trial to appellee. Procedural History: Trial court declared mistrial. On appeal of fees, this court rejects appellant's claim. Facts: Appellant stepped on appellee's foot, causing him to miss time in his medical practice. Appellant wife/DF at trial offered $100 settlement offer, which was rejected. Issue(s): Under FRCP, does an offer for settlement of $100 qualify under the good faith requirement so that appellant may be awarded for all attorney's fees involved in trying the case? Court's Rationale/Reasoning: The trial record states that the offer made was not based on any reasonable foundation, but was made so that she could lay the groundwork for a large fee award. The offer bore no similarity to the actual amount of damages requested by PL at trial, and instead was based on the fact she thought there would be no way she would be forced to pay any damages out of trial. At trial, judge found her testimony to be inconsistent as to undermine her credibility to a jury. Rule: In cases where liability is reasonably and realistically disputed, the offer of judgment need not equate with the total amount of damages. The offer should bear a reasonable relationship both to the amount of damages and a realistic assessment of liability. Holding: No. Appellant's fee was not considered a good faith offer under the rule for several reasons, and thus is not applicable to hold appellee liable for any attorney's fees during the course of trial. Fox v. McCaw Cellular Comm. of FL, Inc. (1998) Case Brief: Style (name of case): Fox v. McCaw Cellular Communications of Florida, Inc., 4th DCA of FL (1998) Cause of action: The following is a cause of action for damages as the result of tortious interference, defamation, a for group boycott under FL antitrust law. Procedural History: Trial judge found $100 nominal damages fee to be in good faith. This court affirms. Facts: PL employed by FL Cellular. When AT&T Wireless terminated the dealership with FL Cellular, his employer sold its store to another AT&T dealer and that he was fired within one week. He was hired by another AT&T dealer but was fired within three days as well. PL alleges they combined to prevent him from getting a job with any AT&T dealer. PL argues there was no way DF could have possibly figured out how much his damages were going to be, and this was just a bad faith attempt to assure a damages recovery on their part. Issue(s): Under FL rules of civil procedure, is a $100 offer to settle all claims by PL reasonable as per FLCP when PL did not file answers and instead filed amended claims in each motion for summary judgment by DF? Court's Rationale/Reasoning: PL's reliance on Eagleman is flawed. The premise there was that all nominal offers are prima facie in bad faith, but this court says this was not in bad faith, as there was true assessment on the part of DF. Eagleman also held that the assessment by DF in each case should be reasonable based on evaluation of potential liability and damages. Good faith assessment is on a case-by-case basis. The determination of good faith is determined by the surrounding facts and circumstances of the case, and should be considered by the trial judge, as was done in Eagleman. So, on this question, court certifies the following question for the FL Supreme Court: Here, the determination is there was no bad faith. "Is a mere purpose to shift fees by making a nominal offer of settlement, regardless of the objective indications at the time of making the offer or after the final disposition of the case, alone indicative of bad faith under FL statutory law? Rule: If DF has a reasonable basis at the time the offer is made to conclude that their exposure was nominal, then there is a good faith offer of a nominal settlement. Holding: Yes. DF's had reasonable time to calculate their exposure in this matter, and therefore should not be held accountable for their nominal offer to PL. Concurring: An offeror has several circumstances to look at when they make their pitch (judge, venue, claim, evidence, merits of PL's claim) which do not necessarily mean a person making a nominal offer is not in good faith. The term "good faith," since it originated out of contract law, might have been misconstrued by the legislature to mean as such when determining whether nominal damage offers fell into this category. Or it could mean honesty. What was the legislature's intent? Damages claims resulting in no liability or if the judgment obtained by PL is less than 25% is what this judge comes up with. So if the claim is for modest damages or none at all, DF should be able to offer a modest amount. So there is, like the appellant wife in Eagleman, a means to set up a fees award, however unlike the appellant in Eagleman, if the nominal offer is in good faith. Also, this judge has concerns over how easy defendants can state an offer for nominal damages, whereas claimants do not get this same benefit of the doubt in their rejections. Concurring: The legislatures may not have intended that parties could make nominal offers of settlement solely for the purpose of shifting fees. The purpose of the statute was to discourage preliminary stages of the litigation by encouraging realistic views of the claims made. But again there is a double standard as the previous judge says. This judge also thinks it might be better to eliminate nominal damages all together. The whole intent thing bothers him, as an attorney may just concoct a story for the judge why they make an offer, as opposed to really checking it out. Standard for making an offer should be whether the offeror would reasonably think the offeree would accept it. of Hwy. Safety and Motor Vehicles v. Weinstein, 3rd DCA of FL (1999) Case Brief: Style (name of case): Dept. of Hwy. Safety and Motor Vehicles v. Weinstein, 3rd DCA of FL (1999) Cause of action: The following is a cause of action for attorney's fees. Procedural History: Trial court denied attorney's fees to DF, saying the offer was not made in good faith according to the statute. This court reverses and remands. Facts: FHP applied for attorney's fees under FL statute b/c the offer on its part was made in good faith. Issue(s): Under FRCP, is a $1000 nominal damage offer allowable to receive attorney's fees when the DF was the offeror at trial? Court's Rationale/Reasoning: Although the offer was essentially nominal, the record demonstrates conclusively that, at the time it was made with reasonable belief they were nominally exposed. Also, the fact the officer was not guilty of what he was originally charged with in the original cause of action should have sent a warning flag to PL/appellee not to sue, or if he did, there would likely be nominal nuisance-type damages. Thus, there was a reasonable foundation and a reasonable explanation for offering what they did at trial. Rule: Good faith is determined by the subjective motivations and beliefs of the pertinent actor. SO long as the offeror has a basis in known or reasonably believed fact to conclude that the offer is justifiable, the "good faith" requirement has been satisfied. Holding: Yes. Provided the offer was made in good faith, the shifting of fees from appellant to appellee is reasonable under the statute, but here the amount awarded should be lower considering the plight of PL/appellee. McMaham v. Toto (2002) Case Brief: Style (name of case): McMahan v. Toto, U.S. Federal Circuit, 11th District (2001) Cause of action: The following is a diversity cause of action by one limited partner against another limited partner for tortious interference with contractual relations. Procedural History: DF made an offer of judgment under FL law for $100, which PL rejected. Trial court found under FL's Choice of Law rule that NY substantive law governed this case and granted summary judgment to DF's. This court first reversed the damages award, then reversed itself upon a decision from an actual FL court. Facts: DF's sought and were awarded attorney's fees under FL section 768 and PL's appealed. Issue(s): Under FRCP, when the substantive law of another state is used to render a verdict in FL state court, do the rules on offers of judgment still apply to the litigants? Court's Rationale/Reasoning: If the case was procedural, the court would apply the federal law; if substantive, then court would apply the law of the forum state. These two steps are independent of each other. All statutes allowing for recovery of attorney's fees are substantive for Erie purposes. Rule: In an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney's fees or giving a right hereto, which reflects a substantial policy of the state, should be followed. Absent a decision from the state supreme court on an issue of state law, we (district court) are bound to follow decisions of the state's intermediate appellate courts unless there is some persuasive indication that the highest court of the state would decide the issue differently. Holding: Yes. Florida's offer of judgment statute is applicable to cases that are tried in the State of FL even though the substantive law that governs the case is that of another state. FL supreme court would not feel differently. VII. Pleading Topic Notes: Pleading is the first opportunity each side has to state as to certain issues (with the risk that any change might have to be explained and/or subject to court approval); they are likely to be read by the judge and may provide her first "impression" of the case; and they offer both sides the opportunity for procedural maneuvering and tactical advantage. A. An introductory note on substantive law Topic Notes: We are trying to show that PL's had a right to recover on one or more substantive (body of law, statute, constitutional, common) law principles, which all have elements. PL's plead, and DF's must defend against, a claim under the substantive law. B. A brief history of pleading 1. Common Law Topic Notes: Some old common law forms of action: trespass, trespass on the case (or the case), trover, covenant, debt, special assumpsit, general assumpsit, replevin (this is not all the actions, just some main ones) PL's started with a declaration, which was set out in the writ and incorporated jurisdictional allegations, as well as factual basis for the form in action which served as the basis for the writ DF's had a choice: demur or plead Demurrer presented the legal question of whether PL's declaration set out a valid claim within the form of action used. 2 types of Pleas: (1) dilatory pleases raised various matters relating to the jurisdiction of the court, and matters relating to joinder of the parties or claims. This plea did not go to the merits of the action. (2) Pleas in bar went to the merits of the case; could be one of either a traverse, which essentially denied the operative facts; or a plea in confession and avoidance which admitted the operative facts (confession), but set forth some other theories as to why the PL still could not recover relief (avoidance). Traverses usually created an issue for a jury to decide. If DF pleaded a confession and avoidance, then PL could answer that plea with a demur (raising the question as to whether the defense was adequate), or plead in replication (which could contain a traverse or a plea of confession and avoidance. If DF demurred, then there was an issue for the court to decide. Then came the Field code, which was adopted by NY; instituted a civil set of rules of procedure. No more special forms of pleading, only on the facts, but this got too rigid and evolved into the FRCP. 2. Equity Topic Notes: Developed as an alternative for faith-based, morally-based causes of action. Eventually this court went to work side-by-side by common law court of law. C. Pleading under the Federal Rules Topic Notes: Courts are reluctant to dismiss cases at the pleading stage. Focus on the following: (1) what allegations must be in a pleading? (2) must the PL plead a legal theory and all the factual elements necessary to establish that legal theory? (3) how much detail is required? (4) how does one identify the difference between a pleading problem which PL can correct and a substantive law problem which cannot be corrected? (5) if there are situations where more detail or information is needed/required, why is it required, and how much is enough? 1. The basic rules Topic Notes: Basic rules: rules 8, 9, 10 under FRCP tell PL's what must be in the complaint Rule 8(a)(2): "short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(e)(1): each averment shall be "simple, concise and direct" and that no "technical forms of pleading are required." Rule 8(f): "all pleadings shall be constructed so as to do substantial justice." Rule 10(b): adds that averments "shall be made in numbered paragraphs, the contents of which shall be limited as far as practicable to a statement of a single set of circumstances." The Dartmouth Review v. Dartmouth College (1989) Case Brief: Style (name of case): The Dartmouth Review v. Dartmouth College, U.S. Ct. of Appeals, 1st Circuit (1989) Cause of action: The following is a cause of action for reversal of a Committee of Standards hearing in which appellants were found guilty, and subsequently suspended on all charges of harassment and disorderly conduct. They allege racial discrimination. Procedural History: University hearing found appellants guilty on all charges and suspended them for different amounts of time. Suspensions upheld on appeal to dean. District Court, on appeal, ruled the complaint was insufficient to state an actionable claim and dismissed the cause of action. This court affirms. Facts: Appellants wrote some allegedly defamatory material in a school paper, and when they went to that professor for a response, the professor got violently angry at them. Professor filed charges vs. students (above) and students cross claimed (professor found not guilty). Allegations surfaced of alleged bigotry and racism within the student review faction, and the university president refused to see the students, as did the dean, who chaired the committee of standards. COS hearing took place and students were found guilty. Students feel they never had an opportunity to tell their side of the story, whereas the black student union had the ear of both the president and dean. They allege bias at their hearing. Issue(s): Under FRCP, do allegations of bias at a university hearing provide the basis for a claim in federal district court when the claim is dismissed for lack of cause in the lower court? Court's Rationale/Reasoning: Standard of review is not in doubt: it is plenary and strict, even in civil rights cases. This action is governed by rule 12(b)(6), which are motions to dismiss for failure to state a claim upon which relief can be granted. The lower court was proper in its assessment of the facts. On the whole, there is nothing more than bald accusations and rhetoric which are not supported by facts. AP's needed to show or raise a plausible inference that they were subjected to discrimination. Their theory is based on the fact the professor is black and they are white. Color of skin has nothing to do with racism, as there is racism between people in a particular race as well as those of different ones. There was none here on the University's part; the school even held an anti-paper rally with black students which they helped organize. The same leap of faith is taken with the argument that some COS members were biased: unfounded speculation. AP's also allege the Professor was handled, as a black man, much easier than students who protested apartheid some years back who were subject to, as they say, racial discrimination. Again, rule 12(b)(6) comes into play. The professor was not treated equal to the students b/c as university employee would not be treated as equal to a student. As for the apartheid protests, they were an isolated incident of people of several races, and under rule 12(b)(6), no matter how far the court would try to stretch it, has anything to do with the case-at-bar. As to the 1981 claim, it is outside the scope of this case. No specific factors call any mistreatment to Students as a result of their race at any time. If this were to be anything, it could be under a state law claim, where the law has remedies to match this kind of problem, whether it be a tort, breach of K claim, defamation, slander, malicious interference, or any of the like. Finally, AP's had one last chance to save themselves: by amending their plead once as a matter of course at any time before a responsive pleading is served, as per rule 15(a). AP's ask that the court do so now, but it is too late, as no motion was filed post-judgment asking the district court to leave to amend, during the appeal's pendency, no effort was made to secure a remand for the purpose of seeking permission to amend, and the case now has been fully briefed and argued.. Rule: Courts accept all well-plead factual averments as true, and draw all reasonable inferences therefrom in appellants' favor. However, the courts do not favor reliance on bald assertions, unsupportable conclusions, and epithets. Only when a complaint upon review presents no set of facts justifying recovery that a court may affirm a dismissal. When, in the ordinary case, the pleader has stood upon his pleading and appealed from a judgment of dismissal, amendment will not ordinarily be permitted...if the order of dismissal is affirmed." Holding: No. There is a minimal standard for notice pleading, but there must be factual allegations which support the claim. A claim which is based on allegations and bald assertions is not effective enough to stand on its own in pleading a cause of action. responsive pleading: a pleading that directly responds to another pleading (as by denying in an answer allegations in a complaint) Langadinos v. American Airlines, Inc. (2000) Case Brief: Style (name of case): Langadinos v. American Airlines, Inc., U.S. Ct. of Appeals, 1st Circuit (2000) Cause of action: The following is a cause of action for both common law tort and for violation of the Warsaw Convention, where he was assaulted by an intoxicated passenger on an airline flight. Procedural History: PL filed in district court, and then amended his complaint before DF responded. DF filed motion to dismiss for failure to state a cause of action under FRCP 12(b)(6). District court granted the motion. This court vacates and remands. Facts: PL grabbed in testicles by DF passenger on a flight. Attendant promise to have the guy arrested once they got to Paris, but he was not. This action ensued. Issue(s): Under FRCP 12(b)(6), did PL properly amend his complaint so that his cause of action so that there was at least a chance he could recover on count two, or his violation of the Warsaw Convention theory? Court's Rationale/Reasoning: Convention states that airlines are liable for damages caused while passenger is on an international flight/ The Court defined liability under the Convention "arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger." (usual, normal, expected manner is not cause of action). Passenger-on-passenger torts are covered under this theory. Thus, the claim survives under the above standards. Passenger appeared drunk at the time he assaulted PL, American was aware of his drunkenness, and American continued to serve passenger. But this is not the end of the BOP for PL. He has to establish all the elements of a tort claim (causation, damages). This was mere duty and breach of duty. Seeing as there are more facts to determine here, the case needs to be remanded to discovery to provide those facts. American points though to PL's assertion that passenger was over-served, which as a generality should not be able to be credited in reviewing the allegation to dismiss. American rightfully claims this allegation is critical, for without the claim, he can't even prove causation down the line. However, the amended complaint includes just such proof to thwart DF's complaint to the complaint. In fact, PL did aver that passenger was continuously served drinks after the airline noticed how erratic his behavior was; this is not a general statement, but clear, cogent facts which describe what happened. The rule does not call for an exact recounting of all details related to the event(s) in question, just a "short an plain statement of the claim to give fair notice of the claim and the grounds for the claim. Fraud claims need to be more detailed. Discriminatory intent is not fraud or any of the other more detailed categories of recounting in a claim. Rule: See FRCP 12(b)(6). Holding: Yes. PL's amended complaint accounted the events in a short plain statement of what happened to give the DF fair notice of both the claim and the grounds for it. There was no generalization in the allegations on this standard. (Dicta: Count one dismissed b/c if recovery is not allowed under the Convention, then it is not allowed at all.) 2. Recent U.S. Supreme Court cases Case Brief: Swierkiewicz v. Sorema N.A. (2002) Style (name of case): Swierkiewicz v. Sorema N.A., U.S. Supreme Ct. (2002) Cause of action: The following is a cause of action for wrongful termination on account of his race in violation of title VII. Procedural History: Trial court held PL did not alleged facts constituting a prima facie case of discrimination and Ct. of Appeals, 2nd Circuit affirmed. Certiorari granted, and reversed and remanded. Applying Circuit Court precedent, the Court of Appeals required PL to petitioner to plead a prima facie case of discrimination in order to survive respondent's motion to dismiss. Facts: PL suffered alleged racial discrimination by DF employer. Issue(s): Under FRCP 12(b)(6), was PL's alleged employment discrimination cause of action held under the right standard of review when the Court of Appeals used the McDonnell Douglas standard? Court's Rationale/Reasoning: This is a case which should turn merely on the facts supporting an allegation of employment discrimination. Here, the lower court used the McDonnell Douglas standard, which is the standard used for evidence, not for pleading. All PL had to do here was establish at the very least a possibility that DF was guilty of the charge in the plea. No one should have to plead more facts than they might even use at trial to survive a motion to dismiss. There is also a conflict with FRCP 8(a), which states the simplified pleas standard is true for all civil rights cases. All PL had to do under 8(a) was give respondent fair notice of the basis for the claim. The fact that the claim may not survive at trial is another story, and not for this Court to decide. Rule: Requirements for establishing a prima facie case for employment discrimination, need not prove more facts than necessary to pass muster under FRCP 12(b)(6). Holding: Yes. This case was held under the wrong standard in the lower court, one of evidentiary instead of merely surviving a motion to dismiss by DF. 3. Fraud Topic Notes: FRCP 9(b) requires that all averments of fraud or mistake that "the circumstances constituting the fraud or mistake shall be stated with particularity." Higher standard than rule 8 and Conley. In re Advanta Corp. Securities Litigation (1999) Case Brief: Style (name of case): In Re Advanta Corp. Securities Litigation, U.S. Ct. of Appeals, 3rd Circuit (1999) Cause of action: The following is a class action cause of action for false and misleading statements (fraud). Procedural History: District Court granted dismissal for failure to adhere to the guidelines of FRCP 9(b) and of the Private Securities Reform Act of 1995. (the D.C. also, after dismissing the 3 claims, gave PL's 30 days to amend their complaints which they failed to do, instead deciding to stand on their old complaint. Judge denied PL's request.) This court affirms. Facts: The allegations of false and misleading statements base come from a $20M loss the company announced 3/17/97. PL's claim company failed to disclose its change in practice of raising initial interest rates on new credit card holders to a specific amount. Two statements (Point and Alter) allegedly contradict one another as to the raised rate. Three others pointed the company in a "positive portrayal", which, in combination with the other two, resulted in the detrimental reliance of PL stockholders to purchase Advanta stock or not to sell the stock they had. Issue(s): Under FRCP 9(b), did PL's properly plead their cause of action of false and misleading statements by alleging the statements were enough to specifically give rise to the possibility DF could be found liable? Court's Rationale/Reasoning: Scienter for Reform Act for pleading requirements: must have a strong inference DF acted as to the charge by showing motive and an opportunity to do so or facts consisting of circumstantial evidence of either reckless or conscious behavior. DF's argue the Reform Act establishes a pleading standard which is more stringent than the above 2nd Circuit standard, that being specifying each statement along with the reasons they are misleading, and full particularity of all facts relating to an accusation. The court believes in regards to the scienter aspect, the Reform Act resembles the pleading standard set forth by the 2nd Circuit, as it is "echoed by FRCP 9(b)." However, the pleading requirement under the Reform Act is a raised standard, and the one that applies. The Point statement is not held under the standard of safe-harbor, as it was a forward looking statement, which is okay unless there is an intent to defraud or mislead. The accusation under this protection is too broad to call under scope, so it does not pass muster under this test. PL's argue the Alter statement, which allegedly contradicts Point's statement, prove the allegations b/c Point, as company spokesperson, likely had actual knowledge of the lower raised rates, or even if she didn't know the company did and approved her statements by silence. However, the standard for review of the pleading is not reached, as there are no specific facts to support an inference that Point or any other employee of DF had knowledge of her statement's falsity. The only thing that's true is the statement itself. As for the positive portrayal statements, under the Act, liability does not attach when statements are contradictory of one another. There must be factual proof to support these allegations, identifying the statements were knowingly made, or at the very least, a "should have known" standard. The reckless standard also is raised here to a level which is of "extreme departure from the standards of ordinary care...presents a danger of misleading buyers or sellers that is known to DF (or they should have known)." None of the allegations do any such thing; at the most they represent an aggressive business policy. As to the last allegation, the court held there was no strong inference of scienter (knowledge) required by the Reform Act. Rule: When fraud allegations do not specifically point to proof of such an allegation, then the scienter is not proven. When the scienter is not proven, there is no pleading which can be accepted by a court of law. See FRCP 9(b) Holding: No. The Point statement was protected by the safe-harbor provision, and the remaining claims in count I failed to comply with the pleading requirements of the Reform Act, and the last 2 claims are derivative of the first. Thus the claims were properly dismissed. 4. Rule 11 Topic Notes: Attempts to deal with the conduct of parties and attorneys in litigation. Includes proper role of a lawyer, how far litigation can go before it is qualified as overzealous advocacy, whether the lawyer has duties to the court separate from client representation, the rationale and effectiveness of sanctions, and whether it is possible to make close calls on these issues in the heat of litigation. FRCP 11(b)(1) deals with the purpose of the pleading; FRCP 11(b)(2) deals with legal contentions; FRCP 11(b)(3) & (4) deal with factual allegations. Seawright v. Charter Furniture Rental, Inc. (1999) Case Brief: Style (name of case): Seawright v. Charter Furniture Rental, Inc., U.S. District Ct. for the Northern District of TX (1999) Cause of action: The following is a cause of action for violation of the ADA, and subsequent sanctions against counsel. Procedural History: Court originally granted DF summary judgment finding DF knew none of these facts. Court also shifted attorney's fees to PL as a result of an ADA provision that the claims were frivolous, and then turned to DF's motion for sanctions against PL's counsel. DF's motion granted to pay reasonable attorney's fees, counsel was publicly reprimanded. Facts: PL, employee for DF, was in a homosexual relationship with Hull, who developed AIDS. PL was Hull's primary care giver. PL received complaints about his work (during Hull's illness). PL was fired by DF. PL alleges he person associated with a person with a disability and thus protected by all rights under the ADA. This depends on: (1) whether Charter knew of PL's relationship w/Hull, and (2) that Hull had AIDS. Issue(s): Under FRCP 11, are reasonable attorney's fees and sanctions available to a DF whose opposing counsel failed to perform a proper pre-filing investigation as required by the rule and then continued to pursue a "frivolous lawsuit?" Court's Rationale/Reasoning: This court concludes that after knowing the claims were frivolous, unreasonable and the like, she proceeded to bring the suit in bad faith. Specifically, PL knew when he brought suit that he lied to DF about his relationship with Hull, about Hull's having HIV, about Hull's cause of death and date of death. There was also no personal knowledge DF or any employees knew of the situation. Summary judgment even said DF dealt in good faith, while PL did not. DF's is a small business and lawyers' fees are very expensive to them. DF asserts had PL's counsel filed a proper pre-filing investigation under FRCP 11(b), she would have seen the case as frivolous and without evidentiary support after she would have had reasonable time to research the claims, or even would have realized the frivolousness after a discovery planning meeting as per FRCP 26(f). Sanctions should be carefully chosen to foster the appropriate purpose of the rule, depending upon the parties, the violation, and the nature of the case. There are 4 factors: (1) announcing the sanctionable conduct --> there was a violation of FRCP 11(b)(3) by asserting allegations & factual contentions that had no evidentiary support. (2) relating the sanctionable conduct to a monetary amount --> every amount of money spent prosecuting this case was a waste of money (3) review whether the costs were reasonable as opposed to selfimposed, mitigable, or the result of delay in seeking court intervention --> fees are reasonable after review of the records (4) considering whether the sanction imposed is the least severe sanction adequate to achieve the purpose of FRCP 11 --> PL counsel should be required to "fix what she broke." Since PL's counsel had not been sanctioned before, they let her get away with a published reprimand coupled with a strong admonishment and warning not to engage in this in the future, as this is as nice as a court is likely to get. Rule: See FRCP 11(b). See FRCP 26(f). See FRCP 11(c)(2). A court may not impose FRCP 11 sanctions "merely for the eventual failure of factual and legal arguments after a trial; sanctions are to be applied only where, at the time of filing, such arguments were unwarranted. Holding: Yes. There was lack of good faith in bringing the lawsuit on part of PL the litigant; counsel should have realized this and should have were she to have D. Florida Pleading Supplement Case Brief: Horowitz v. Laske (4th DCA 2003) Style (name of case): Horowitz (law firm for pyramid scheme guy) v. Laske (investor), 4th DCA Florida (2003) Cause of action: The following is a cause of action for evaluating the pleas before the court after remand from a higher court ordered the causes of action stated in the complaint and elaborated upon in a pre-trial brief. (Wendt originally wanted indemnity from Horowitz) Procedural History: This case comes back on remand from the FL Supreme Court to answer the question presented. On remand the briefs were to also identify the tort involved and to state what ultimate facts pleaded in the complaint satisfied those elements, as per FL RCP 1.110(b)(2). Count 7: contribution; count 8: indemnification; count 9: wrongful act doctrine. Facts: (previous history) Trinh used a pyramid scheme in which he had others go out and get high interest prom notes to finance his produce business. Trinh retained Horowitz as his attorney, who is based out of MI. Horowitz advised everyone that these were not securities (even though in essence they were). Those three were investigated under the Office of the Comptroller, who was told the same thing Horowitz told the suitors for investors. Soon enough, investors sued Wendt, who in turn sued Horowitz, who was allegedly given the wrong information on the phone and in letters from MI. Issue(s): Under FL rule of civil procedure, were the threshold determinations for Wendt's 3rd-party complaint against Horowitz satisfied in stating a cause of action, and if so, did the cause of action arise out of communications Horowitz made into Florida? Court's Rationale/Reasoning: To state a cause of action for legal malpractice, PL must show (1) attorney's employment, (2) attorney's neglect of a reasonable duty; and (3) the attorney's negligence resulted in and was the proximate cause of loss to the client. This liability is restricted to those parties who they have privity of contract with. Wendt's allegation he was one of those people is a conclusory statement which does not prove a properly pleaded complaint. The fact a person is aware of an agent doesn't make that person owed a duty to Wendt. There was also no facts pleaded regarding the attorney's neglect of a reasonable duty. Wendt never proved he was privy to the advice Horowitz gave Trinh or to the statements Horowitz made to state regulators. As for the right to contribution, it is a statutory remedy meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury. To state a claim for contribution, the claimant must allege a common liability to the injured party. There are no ultimate facts which would show that Horowitz is liable to the investors. As to count 9, there must be a special relationship between the parties that gives rise to the technical liability of the would-be indemnitee. But Wendt failed to allege ultimate facts showing a special relationship between him and Horowitz that would make Wendt technically liable for wrong acts on the part of Horowitz. Horowitz also alleges the wrongful act doctrine, which is acknowledged as not an independent action. When DF has committed a wrong toward PL and the wrongful act has caused PL to litigate with third persons, the wrongful act doctrine permits PL to recover as an additional element of damages, their third party litigation expenses. Since this is a claim for special damages under malpractice, and no malpractice cause of action was pleaded, count 9 is not properly plead. Rule: FL RCP 1.11o(b)(2): "Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim must state a cause of action and shall contain: (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief." The privity requirement has been relaxed where it was the apparent intent of the client to benefit a third party. Holding: No. Appellee Wendt (and Laske) failed to meet the requirements for establishing a tort cause of action of malpractice, and b/c there is no cause of action established, there is no personal jurisdiction. E. The Defendant's response Topic Notes: A lawsuit can continue despite makes made in the pleading (except subject matter jurisdiction) if DF waives those mistakes in its either a "motion" as per FRCP 12 & 7(c) (no demurrers, please or exceptions for insufficiency of a pleading shall not be used), or the DF may file an "answer," as per FRCP 7(a), 8(b), 8(c) and 8(d). Motion: requests the court to do something in regard to the complaint (dismiss it, or require PL to do it over in a different way) Answer: written response which states the DF's version of what happened. It does not ask the court to do anything; case moves forward There are 7 categories of responses (FRCP 12(b) answers): (1) this lawsuit doesn't belong in this court (improperly brought for lack of SMJ, PJ, improper venue, improper service of process) (2) PL has no right to recover for what they alleged (rule 12(b)(6) for failure to state a proper claim) (3) what PL says isn't true or a "denial" (judge evaluates the truthfulness of other party) (4) PL hasn't told the whole story (FRCP 8(c) lists those affirmative defenses) (5) there's a missing party (a necessary person to the suit who should be joined, w/o which the motion should be dismissed as per FRCP 12(b) and FRCP 19 (6) a response is not a response (FRCP 12(e) permits DF to seek more definitive statement if it is confusing, too long or detailed) (7) claims against PL (DF may have grievances v. PL it wants settled as well; FRCP 13 deals with counterclaims which arise out of the same transaction or occurrence as outlined in PL's claim, as well as permissive counterclaims) 1. Rule 12 practice Topic Notes: FRCP 12(b) does not generally involve: (1) factual issues, or if they do, the facts are not likely to be disputed or to be relatively straightforward (2) they are preemptive in the sense that is sustained, the PL loses (even if her case on the merits happens to be strong) (3) FRCP 12(b)(1)-(5) all relate as to whether the case belongs in the court where it was filed & provide good reasons for resolving these matters before the case gets going FRCP 12(g) and 12(h) serve three objectives: (1) permit rule 12(b) matters to be raised by a pre-answer motion (2) to permit only one pre-answer motion (3) to require certain defenses to be raised early in the case or be lost 2. The Answer Topic Notes: If DF has made a pre-answer motion that was denied, or if it did not make one at all, they must file an answer, which contains: (a) admissions and denials of allegations (3 choices: admit, deny or don't know) (b) affirmative defenses as per FRCP 8(c), and then a general test ("any other matter constituting an avoidance or affirmative defense") these affirmative defenses must be set forth specifically in a pleading (c) counterclaims LaFont v. Decker-Angel (1999) Case Brief: Style (name of case): LaFont v. Decker-Angel, U.S. Court of Appeals, 10th Circuit (1999) Cause of action: The following is PL's appeal on trial court's motion to dismiss his claims against DF for fraud, conversion, and constructive trust in relation to a $250K check. Procedural History: PL appeals on order from DF's motion to dismiss which was granted in the trial court. On appeal, this court affirms trial court. DF's counterclaims were denied at trial as well, but were not appealed. At trial court, DF did not assert any affirmative defenses by way of answer or pretrial order, but initially raised her assertion of a gift during opening arguments at trial. Over PL's objection they let the evidence in which proved her right. Facts: PL sued DF for above causes of action. In his complaint and at trial, PL said he gave the check to his ex-wife for payment of financial obligation toward a joint purchase of property, but instead of preserving those funds, she converted them. DF says he gave her the money in compensation for her services as PL's companion, adviser and lover, and for moving to be with him in UT. DF denied all allegations of fraud and conversion. Issue(s): Under FRCP 8(c), did the district court make an error in ruling, over PL's objection, that DF's evidence and testimony that the check was a gift was not waived? Court's Rationale/Reasoning:Court goes to UT law to determine if PL's giving of a gift does or does not fall under the precepts of FRCP 8(c)'s "any other matters" affirmative defenses category, as if it did, then DF should have raised them pre-trial. If not, then she is good to go. UT law says an 8(c) defense must be something which raises a matter outside of PL's prima facie case. But the raising of the fact that DF's check was not a gift is not outside of that range, it just controverts PL's claim by saying she came about the check lawfully. Rule: FRCP 8(c) requires a party pleading to a preceding pleading to set for affirmatively all matters which the pleading party intends to use as an avoidance or affirmative defense. Failure to plead, move FRCP 12(b), or try by consent of both parties an affirmative defense or avoidance waives that defense and bars evidence on the point as a matter of law. Holding: No. DF's averment that the check was a gift was not an avoidance or affirmative defense, but was introduced instead for the purpose of disproving PL's claims. Gomez v. Toledo (1980) Case Brief: Style (name of case): Gomez v. Toledo, U.S. Supreme Court (1980) Cause of action: The following is a cause of action for federal civil rights violation, 42 USC §1983. Procedural History: District Court found no p/c as to his discharge, and Superior Court affirmed. PL now becomes petitioner, filing § 1983 charges in seeking review on his discharge, which resulted in reinstatement with backpay. Petitioner now brings suit for damages on § 1983 charge for due process violation and other torts. Respondent denied such allegations and moved for FRCP 12(b) dismissal, and District Court granted motion (thought respondent was entitled to qualified immunity). U.S. Court of Appeals, 1st Circuit affirmed. This Court reverses and remands. Facts: PL agent of Puerto Rico police was transferred to police academy and given no investigative authority after alleging two agents in his department supplied false evidence. Investigation ordered while suspended. PL forced to defend himself for the allegations, and after hits testimony to such facts, DF discharged him without a hearing and filed criminal charges. Issue(s): Under FRCP 8(c), upon the bringing of a 42 USC § 1983 claim against a public official whose position might entitle him to immunity, must a PL allege that the official has acted in bad faith in order to state a claim for relief? Alternatively, does DF have to plead the claim of good faith as an affirmative defense to such a claim? Court's Rationale/Reasoning: Public officer immunity is in only the limited cases in which an officer acts under a statute in good faith that they believed was valid, but turned out not to be valid, or for acts which were objectively believed to be lawful. But there is nothing in §1983 which suggests PL must state bad faith in the statute in order to make a claim. The only 2 situations where any specificity is required in the claim is that (1) PL must allege that some person has deprived him of a federal right, and (2) PL must allege that the person who deprived him of that right acted under color of state of territorial law. PL made both allegations, by alleging a due process problem which was enacted under color of Puerto Rico law. The Court went on to say that qualified immunity is not related to the existence of PL's cause of action; it is merely as an affirmative defense, which DF has the burden of pleading. Thus, DF must state good faith as an affirmative defense in order to use it at trial. DF would have to also raise the facts to which the affirmative defense would give rise. PL has no idea what was going through DF's mind here, and thus is why DF must properly plead his affirmative defense with specific facts. Rule: §1983 provides a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under the color of any statute, ordinance, regulation, custom, or usage, of any state of territory." The purpose of the statute is to vindicate these constitutional guarantees, thus the statute should be construed positively. Holding: No. Nothing in §1983 says PL's must allege bad faith in a complaint, merely the deprivation of rights under color of state or territorial law. Thus 12(b)(6) does not apply. Yes. Under FRCP 8(c), all affirmative defenses must be raised pre-trial. Since good faith would be "an avoidance or affirmative defense" it must be plead or it is waived. 3. Counterclaims Topic Notes: Party sued may have an affirmative claim of their own against the party who has sued them. Counterclaims are governed by FRCP 13. In Gomez, the defense of qualified immunity was one such counterclaim. In LaFont, DF was sued for fraud and conversion, and DF brought counterclaim for nonpayment of a prom note. Counterclaims do not rise or fall based on PL's claim. Third party DF's could also bring counterclaims for things like indemnity and contribution claims against DF's who impleaded them into the suit. F. Reprise--Civil Rights cases vs. government officials Topic Notes: Civil rights cases: term used to apply to actions by PL for damages and/or injunctive relief on account of a violation of rights by government or a government official. The come in two forms: (1) an action claiming a direct violation of a constitutional right, or (2) an action claming a violation of a statute which incorporates a constitutional right or provides additional rights Kyle v. Morton High School Case Brief: Style (name of case): Kyle v. Morton High School, U.S. Court of Appeals, 7th Circuit (1998) Cause of action: The following is a civil rights cause of action, for deprivation of rights pursuant to § 1983, § 1985(3) (1st and 14th amendment claims), and for wrongful termination (due process) and intentional infliction of emotional distress. Procedural History: DF school district, school and school board filed motion 12(b)(6) for dismissal, which was granted. B/c of the 12(b)(6) motion, the court refused to take up SMJ on PL's part as well. After an independent review, this court affirms. Facts: PL probationary teacher informed by board members without notice of any process being taken to such effect, and contends he was not given any due process rights, and was fired for what a board member said were "political and advocacy reasons." He also alleges a conspiracy theory in general and various civil rights and torts violations which stem from the firing and lack of a chance to be heard by the board before such action was taken. Issue(s): Under FRCP 12(b)(6), did PL properly state any claims for which he is entitled to take his suit to trial court when he filed for being fired for the wrong reasons as well as for a violation of various civil rights and tort violations? Court's Rationale/Reasoning: Scope of review is de novo: to consider the wellpleaded factual allegations in the complaint to be true. Court makes permissible inferences in PL's favor. This is the same standard applied to all cases, civil rights or non-civil rights. Count one: the due process claim. PL claims he was entitled written notice, and a chance to be heard after being fired, referring to the Open Meetings Act. But PL had no due process claim b/c he had no property interest in his job, thus it is irrelevant to state a due process claim. There are no facts stated in his complaint which state that under IL law, a probationary teacher can be fired for misconduct, so it is true about no property interest. Additionally, there was no analysis to the claim. The "political and advocacy reasons" 1st and 14th amendments claim. All there is in the complaint is the quoted statement, but no actions in the complaint support or reasonably connect it to anything. All PL had to do was show (1) the speech in which PL did was speech which was 1st amendment protected, and (2) DF's retaliated against him b/c of the speech. No acts or statements, other than the allegation, are submitted as support for the claim. Again, PL needed to not be so conclusory and should have given some notice as to the basis for the claim, not just the claim itself, for the pleading to be successful in getting past a 12(b)(6) motion. If there are no specifics alleged, how can DF be expected to go back and investigate the claims? DF's could've filed a 12(e) motion to obtain a more definite statement as to why he alleges the accusations set forth, but it is not their job, nor the court's job to order such a motion. In essence, PL had the who, when, and to some degree the what, but never even cam close to establishing a how and why, and therefore his claim fails for 12(b)(6) reasons. Rule: It is not enough to allege mere retaliation due to an improper motive; there must be an allegation of protected conduct. Holding: No. Kyle's complaint fails to give fair notice to the court and the opposing party of the operational facts of his complaint. Simply reciting a rumor fails to identify any activity on his part for which he would have cause to bring suit for wrongful termination, even in the most general terms. Concurring/Dissenting: Count II is not followed b/c judge feels the court took a heightened standard to the civil rights count, as there was an allegation which showed a violation of constitutionally-protected conduct. DF's don't even argue that there was a failure to allege a claim on the civil rights count, they just file a motion as well. They cite no case law to their contention. DF's claim FRCP 11 entitles them to facts to give them notice of the claim, again, without argument. The Court has said in the past that FRCP 11 neither modifies the notice pleading approach of federal rules, nor requires counsel to prove the case in advance of discovery. Rule 8 does not require PL to plead all the facts the majority requires either. This judge also alleges they got some of the scope of their review wrong on the second, count, as all they should have been required to do was make a reasonable inference, which this judge feels, could have been made. In addition, the court's adoption of a fact pleading requirement prevents some meritorious claims for slipping underneath the radar at the pleading stage. The court has never in the past denied a first amendment claim for failure to state facts, as this would intimate that the public employee was speaking on a matter of public concern, if the complaint involved such matters. G. Amendments 1. The basics--Rule 15a Beeck v. Aquaslide 'n' Dive Corp. (1977) Case Brief: Style (name of case): Beeck v. Aquaslid 'N' Dive Corp., U.S. Court of Appeals, 8th Circuit (1977) Cause of action: The following is a cause of action for Procedural History: District court granted leave to amend, and granted it after resistance from PL. DF then moved for separate trial on dispute of facts resulting from amendment, which was granted. Trial jury found for DF. DF moved for summary judgment based on the resolution of the disputed fact from the first trial, and the motion for summary judgment was granted. On appeal, this court affirms. Facts: PL injured in water slide accident. After insurance companies for the PL, the company which installed the slide, and the slide company itself confirmed the slide was the DF's. After the statute of limitations ran out, DF's president was asked to conduct a deposition, but before that was asked to look at the accident site, and determined the slide was not, as previously determined by three other parties, the property of DF. PL contends the motion to amend unfairly damaged their chances at trial, and that the trial court abused its discretion in granting such motion. DF alleges there was no prejudice to the motion being granted, as it was a fair application of justice as FRCP 15(a) grants in such a situation. Issue(s): Under FRCP 15(a) was there (1) an appropriate leave to amend an answer by DF after the IA statute of limitations had run out, and (2) a proper granting of a separate trial to determine the facts as to the dispute resulting from the amendment? Court's Rationale/Reasoning: The scope of review here is for abuse of discretion, so they look at the law used and its subsequent application to the facts at hand, or to the procedure at hand. The record of the District Court notes sound discretion in its application of the law. D.C. looked for any bad faith or similar behavior (delay, prejudice) on the part of DF. PL's never conceded at any time that the slide was not made by DF, and at the time the motion to amend was presented, the court had to decide if the DF would be allowed to argue an essential matter of fact at trial, b/c if it got to dispute the PL's allegation the slide was DF's, then there would be another issue of fact at trial, but for the amendment would effectively be waived as a matter of statute of limitations and the motion being denied. So this was important stuff. The court found no elements of bad faith, only the fact that DF's president relied on three qualified statements from experts in the field of liability, and only after a thorough examination of the site itself, two years later, by the president of the company, that the dispute even came up. The court decided that by granting the leave to amend, that the trial court would not prejudice the PL, but merely give it another issue of fact for which to convince the jury. Thus, no discretion. As to the second trial, the court again looked to abuse of discretion, and found none. The use of a trial saved lots of time and money so as to settle a substantial matter of fact before trial, which would likely then be easier to undertake. The damages in this case were for $2.225M, which could set back DF's in a big way, so a trial to settle a matter of fact was important to the application of substantial justice. PL's can still sue the other slide maker, and now they could even have expert opinion to that fact (question: would they get around the statute of limitations on a technicality of a good faith mistake as to the owner of the product which caused injury?) Rule: Supreme Court's determination of the meaning of FRCP 15(a): "In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to sure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, etc.--the leave sought should, as the rules require, be freely given, at the discretion of the District Court. . . ." Holding: Yes and yes. The trial court acted with no abuse of discretion in its application of the facts at hand to the rule for amendments. The fact that a trial would have taken lots of time and money to determine the main disputed fact, and there was no abuse of discretion in this right either. 2. Relation back -- rules 15(b) and 15(c) Topic Notes: FRCP 15(a) generally sets forth the standards for granting all amendments to pleadings FRCP 15(b) deals with amendments at trial FRCP 15(c) deals with amendments when the amendment gives rise to a statute of limitations issue With 15(b) comes an understanding of the doctrine of "variance" or "variance between pleading and proof." Variance: if one party seeks to introduce evidence or issues that were "outside" the pleadings; such evidence would ordinarily not be admitted (this is used less b/c of amendments to pleadings, discovery, and other pre-trial procedure) --> see FRCP 15(b)...outlined in book FRCP 15(c) deals with the substitution of parties after the statute of limitations runs out...it provides that a party can be substituted to either a add a claim or to deal with a matter of confusion. Ex: A sues DF on fed. employee discrimination statute; then wants to amend to include another charge under the state code. Ex. #2: A sues DF who makes a mistake with the name of a party dating back to the statute of limitations, or it arose out of some the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or the amendment changes the name of the party involved in the accident (who should have known and won't be prejudiced by this amendment) Brink v. First Credit Resources (1999) Case Brief: Style (name of case): Brink v. First Credit Resources, U.S. District Court for the District of AZ (1999). Cause of action: The following is a cause of action for violation of the Fair Debt Collection Practices Act, in which PL alleges DF of trying to collect on a time-barred debt. Procedural History: PL filed a motion for leave to file an amended complaint. DF filed a timely motion in opposition. PL's motion is granted. Facts: DF's challenge PL's motion to add of the names of the president and vice president of the company. Letter was mailed 4/29/97. Motion for leave to amend took place in 10/98 (over a year later, after statute of limitations). DF's claim the motion lacks notice or mistake, which are the components of FRCP 15(c). Issue(s): Under FRCP 15(a) is PL barred from adding the names of company officials in suit when the suit itself is for the actions of a party for violating a time-barred provision? Is the filing of the motion for leave to amend after the statute of limitations barred b/c the statute of limitations is also a statute of repose? Court's Rationale/Reasoning: Notice requirement. As per FRCP 4(m), DF needs to receive notice of the amended claim within 120 days of filing the original complaint. This court says notice does not have to be formal but actual. This circuit also says notice can be constructive. All there needs to be is an identity of interest as it relates to the party being sued originally and the amended DF's to the claim (like subsidiary in a parent company claim). Mistake. DF's argue their being name to the complaint was not mistake b/c the omission of those DF's was not a mistake. This circuit construes the mistake as to amending the complaint with names of parties not known to the complaint at the time of filing is okay when the previously unknown defendants were identified only after the statute of limitations had run. If the party had doubts as to whether to name the party, then relented, then decided to later, is not allowed. They are also not allowed to add defendants if they know the identity of the parties before the statute ran out, but added them later. The situation where this is permitted is when the identities of the parties is available but those parties do not come out of the woodwork until after the statute of limitations has run. PL did actively seek the names through discovery, but never got an answer from them. Like the rule in 15(c)(3)(B), DF's should or should have known their identities were being sought in the complaint, and they failed to provide an answer. This is proven by DF counsel's refusal to reveal their names in the discovery process, which links their knowledge to the rule. Rule: Under the FDCPA, the time for the statute of limitations starts running the day the letter is sent, or if it is amended, and the complaint is timely only if the claims against the new DF's relate back to the original complaint as per FRCP 15(c) Definition of identity of interest: "when the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." For situations which could be barred by res judicata, the definition of those persons who could be brought into an amended complaint are those who: "own most or all of the shares in a corporation and controls the affairs of the corporation, it is presumed that in litigation involving that corporation the individual has sufficient commonality of interest." (see the rest of FRCP 15(c)) Holding: No. In this case, PL was not aware of the identities of the additional DF's until after the statute of limitations had run, and this is b/c the DF's themselves came out of the woodwork late intentionally. This is not in the control of P, and thus he is not barred from adding extra DF's to the complaint despite the statute's running. 3. Florida case Case Brief: E.I. Du Pont de Nemours & Co. v. Desarrollo Indus'l Bioacuatico S.A. (2003) Style (name of case): E.I. Du Pont v. Desarrollo Indus'l and Bioacuatico S.A., Fla. 4th DCA (2003) Cause of action: The following is an appeal to reverse a jury verdict in favor of appellees. Procedural History: Trial court jury ruled for appellee/plaintiff. Reversed on appeal. Facts: Pre-trial, appellees did not have mention of a cause of action relating to "failure to warn." All their theories were based on negligence. During discover, appellant/DF tried to warn the trial court there was a move by PL being played to add a failure to warn claim to the complaint, which it could not after Du Pont answered the initial complaint. Du Pont moved for summary judgment in light of this action, and motion was denied. At this hearing on the motion, DIBSA claimed this was not a labeling case, and instead it was raising a warning claim. Following the hearing, DuPont filed a motion in limine to exclude evidence regarding the failure to warn on the ground that DIBSA had failed to allege a claim for failure to warn in its complaint. PL counsel argued that they did allege a complaint, gleaning from the previous allegations in the complaint, which was contrary to what they argued when they were in the motion hearing for summary judgment. Court denied motion in limine. Failure to warn got into the jury instruction, and the jury came back with that claim as the only one in which it found DF/appellant guilty. Jury came back once during its deliberation, and DF/appellant counsel vehemently objected to this allegation being part of the charge. It awarded damages over $10M dollars. After trial, DF moved for JNOV contending Du Pont was entitled to a judgment in its favor b/c the jury found for PL only on an unpled claim. Motion denied, prompting this appeal. Issue(s): Under FL rules of civil procedure, may a properly plead complaint be amended constructively by the court after DF's answer, in a motion hearing, on the basis the claim could be gleaned from the initial complaint itself? Court's Rationale/Reasoning: After it stated the rule, the court went into various policy reasons why a general cause of action cannot be also molded and shaped into any other type of complaint after an answer has been filed. By objecting to this introduction of evidence on the failure to warn claim, they raised the court's attention that the PL was doing something in which it could not do. The complexity of certain cases these days demands for even more specificity, as the court's diminishing resources in which to understand all these new types of claims must be taken into account. Here, there was never even a mention of a failure to warn in its cause of action. But less than five days before trial, when DuPont tried to exclude the evidence on failure to warn, DIBSA started to for the first time, argue that the pleadings encompassed a failure to warn claim. The trial court got caught up in the seriousness of the charge and failed to take into account there never was a true count for failure to warn in its initial complaint (and was never amended to include it). Thus DuPont was forced to defend a claim which PL affirmatively rejected as being part of its causes of action only two months before trial. DIBSA claims the issue is one of prejudice, and DuPont was not prejudiced b/c counsel knew that failure to warn would be raised by DIBSA early on. BUT, just b/c they knew it could 've come up, doesn't mean it always will come up. Also, how could it be said that DuPont should have prepared for trial on the off chance that DIBSA might raise the issue of failure to warn after not even doing so in its complaint. Claims submitted to the jury must either be pleaded or tried by implied consent with the pleadings conformed to the evidence. Rule: Where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the PL is precluded from recovery on the unpled claim and a directed verdict is properly entered. Holding: No. Each litigant at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. motion in limine: : a usu. pretrial motion that requests the court to issue an interlocutory order which prevents an opposing party from introducing or referring to potentially irrelevant, prejudicial, or otherwise inadmissible evidence until the court has finally ruled on its admissibility judgment notwithstanding the verdict: a judgment that may be granted upon a motion by a defendant whose motion for a directed verdict was denied and that sets aside the jury's verdict in favor of a judgment in accordance with the motion for directed verdict VIII. Discovery Topic Notes: 1. Disclosure: FRCP 26(a) requires parties to produce certain information at the outset of the case (key witnesses, documents to support its case, information re: damage calcs, insurance agreements). 2. Depositions: oral questions posed by attorney of one party to a witness under oath (no judge present). FRCP 30(d) details. 3. Interrogatories: written questions addressed to parties, to be answered in writing (FRCP 33). Useful for specific information. 4. Documents/inspection: FRCP 34 permits a party to seek production of documents and inspection/testing of land and tangible items. Inexpensive to prepare but responding can be time consuming and expensive. Language here (like #3 is problematic). Make sure requests are specific. 5. Physical and mental examinations: FRCP 35 permits a party to seek the physical or mental examination of a party or person under the legal control of a party. The party seeking the examination must show "good cause" and that opposing party's condition is "in controversy." In actual litigation, discovery devices in three phases: 1. Disclosure phase which concludes with the discovery conference and discovery order (first 90-120 days in the case). No other discovery can take place during this time. 2. Formal discovery process: depos, interrogatories, document requests, etc take place here and can last quite a while, but ends as the case approaches trial (many courts will set a specific discovery cutoff date) 3. Pretrial phase: discovery addressed at the trial itself; parties required to disclose expert info as per FRCP 26)(a)(2), expert depos may take place; trial/witness lists disclosed as per FRCP 26(a)(3); parties may seek key admissions as per FRCP 36 Discovery conferences per FRCP 16 Motion to compel FRCP 37(a) Sanctions per FRCP 26(g), 30(d)(3), 37(a) Restrictions on/protective orders for discovery per FRCP 26(c) A. The Scope of Discovery Topic Notes: FRCP 26(b)(1) discovery which is "relevant to the claim or defense of any party." Relevant evidence need not be admissible at trial, so long as it is "reasonably calculated to lead to the discovery of admissible evidence." When a trial court considers whether evidence is relevant at trial, it will decide based on the specific evidence offered and its relation to the issues as framed for trial. But during discovery, issues have not been completely framed and pleadings might not offer too many details. So discovery may be based more on hypothesis than actual concrete evidence. 1. Relevance Pacitti v. Macy's (1999) Case Brief: Style (name of case): Pacitti's v. Macy's, U.S. Court of Appeals, 3rd Circuit (1999) Cause of action: The following is a cause of action for state contract and tort law claims, as well as an appeal on limits made regarding discovery. Procedural History: Trial court summary judgment for DF. Trial court also limited the scope of discovery. This court reverses and remands. Facts: PL won a Macy's contest in which she was cast as Little Orphan Annie for a Broadway production, and after participating in a certain number of national tour productions, but was then fired after 100 performances, replaced by her understudy. Upon winning her contest, PL signed a K which gave Macy's the right to fire PL at will provided they paid her salary the whole time. At trial, PL's tried to uncover information on the relationship between the store and the producers of the show, and the pecuniary benefit DF received from sponsoring the search. District Court limited discovery on "what promises, if any, were made by DF prior to and at the end of the final audition in NYC that the winner would automatically appear as Little Orphan Annie." DF offered in its summary judgment motion evidence its K with the producers, which specified that the successful contestants would receive only the opportunity to enter into a standard actors' equity K with the producers. Issue(s): Under FRCP 26, should the scope of discovery be limited by the trial court as it related to either the communications between parties and monetary benefit to the DF's? Court's Rationale/Reasoning: Scope of review: abuse of discretion, as to "what promises, if any, wee made by DF prior to and at the audition...in NYC that the person selected at that audition would appear in the role as Annie." Based on the Federal Rule, there is allowed broad and liberal discovery. The claims brought up in its complaint correctly sought to connect the monetary benefit from the contest to Macy's and their representation which was relied upon by PL. Any communications and relations to the producers, as well as the possible benefit to Macy's could reveal how much DF did actually know in regards to whether they would actually have kept PL on or not. Rule: FRCP 26(b)(1): "Parties may obtain discovery regarding any matter, not privileges, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party." (info does not also have to be admissible at trial if reasonably calculated to lead to the discovery of admissible evidence.) Holding: No. As long as evidence can appropriately be related to any of the claims in a complaint, anything requested which is not privileged during the discovery process is allowed to be requested, even it would not be admissible at trial, so long as there could be an eventual discovery made in relation to a claim raised in its complaint. pecuniary: consisting of, measured in, or related to, money (ex: pecuniary damages) 2. Privileges Topic Notes: FRCP 26(b)(1) permits discovery of any appropriately relevant matter which is not "privileged." Privilege is a right of a witness, person or entity not to give information or testify with regard to certain matters. (ex: 5th amendment privilege against self-incrimination after an arrest. Most privileges in federal courts are based on the "principles of common law." In matters governed by state law, if there is no constitutional, statutory or federal rules provision, privileges are governed by state law. Santelli v. Electro-Motive (1999) Case Brief: Style (name of case): Santelli v. Electro-Motive, U.S. District Court for the Northern District of IL (1999) Cause of action: The following is a cause of action seeking to overturn an overruled motion to compel. Procedural History: Objection raised at trial, and objection overruled at trial. Affirmed in this court. Facts: PL alleged sexual discrimination, and sued for damages relating to compensation for emotional distress as to seeing a psychotherapist. DF asked for PL's medical records in discovery. Denied. Objection raised as to its relevance by DF, saying they are essential to proving its case. PL says she is not seeking damages as a result of her condition, but just for the time and money spent at her shrink's. Issue(s): Under FRCP and USC §1981(a), may DF correctly raise a motion to compel PL's privileged medical records when PL puts her communications with her psychotherapist at issue in the trial court? (does a Title VII PL put their privileged communications at issue and thus waiving her privilege by seeking to recover damages for emotional distress?) Court's Rationale/Reasoning: Although communications between a psychotherapist and patient may be relevant to a particular issue in a case or significant to the party opposing the privilege, that alone is not enough to deprive a party of this privilege. It can be waived by affirmatively putting the privileged communications directly at issue in a lawsuit. The narrow view of this waived privilege would take place only in PL called the doctor to the stand or introduced the communications directly into evidence, but the court found this unacceptable as the privilege holder could "thwart the truth." The court, after holding that the testimony offered in support of her claim was not relevant to her actual medical records, insomuch as documentation she was just generally there, advised PL that it might be in her best interest to actually disclose her records to DF if she were to try and recover more compensatory damages. However, the court leaves this choice in PL's hands. Rule: Privilege is deemed waived when PL introduces privileged communications in evidence either directly or by calling the particular psychotherapist as a witness. However, compensatory damages may be awarded for humiliation, either inferred from circumstances or established by testimony, and medical evidence of mental or emotional impairment is not necessary to sustain such an award. Holding: No. PL's communications to her psychotherapist are no longer relevant, or if relevant are barely so. 3. Work Product Case Brief: Hickman v. Taylor (1947) Style (name of case): Hickman v. Taylor, U.S. Supreme Court (1947) Cause of action: The following is a cause of action originally for wrongful death and for damages to a tugboat. This action is an appeal on Circuit Court reversal of trial court's finding that information requested was privileged work product. Procedural History: District Court of Eastern District of PA held the requested matters were not privileged. Third Circuit Court of Appeals reversed, holding the information sought was indeed work product and hence privileged from discovery. This Court affirms. Facts: Public hearing after a tug boat accident resulted in counsel for PL filing interrogatories asking for all detailed conversations between counsel for respondent and survivors from the accident. Issue(s): Under federal law, may any pre-trial device at the disposal of either counsel be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation? Court's Rationale/Reasoning: Discovery has a two-fold purpose: (1) to narrow basic issues between parties; and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, related to those issues. The deposition-discovery rules are to be accorded a broad and liberal treatment, but there are limits (oppressing the other party, bad faith). Memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and thus aren't protected from discovery on that basis. Nor is there privilege for information which counsel secured from a witness while acting for his client in anticipation of litigation, and the privilege does not apply to anything prepared by counsel for his own use in prosecuting his client's case, or to writings which reflect an attorney's mental impressions, conclusions, opinions, or legal theories. But the survivors' testimony is of a different matter; they were just as available to PL counsel and they were to DF. There is no evidence of impropriety or dishonesty by those witnesses, the tug owners or Fortenbaugh (counsel for PL). Bottom line: PL's counsel is asking for information which has or could have been provided to him during interrogatories or available to him directly direct from asking the witnesses for the asking. The information requested was also not provided with any proof from PL that any refusal to reveal it would cause hardship or injustice. The District Court just ordered the information be turned over. This is not how the Court sees this process as happening. Such behavior undermines the public policy set which underlies the orderly prosecution and defense of legal claims. If the thoughts of opposing counsel were available before trial by simply asking for it, the whole system would be undermined and would become "unfair." Rule: "Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may be properly had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for the purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty." Holding: No. Were production of written documents statements and documents to be precluded under such circumstances, the liberal ideas of the deposition-discovery portions of the FRCP would be stripped of much of their meaning. Concurring: (Jackson) This is a question as to whether the demand by PL's counsel is authorized by the rules relating to various aspects of discovery. Here counsel is asking for a very broad extension of latitude regarding accessibility of information to him during discovery. This is an adversarial system, and no matter what PL's counsel says, an extension of latitude in discovery materials able to be requested does not apply when the reasoning is to make sure all mental bases are checked, so to speak, in preparation for examining witnesses. This would out trials on a level one step below a "battle of wits." The statements are not usable for discovery purposes, but they are possibly for purposes of impeachment, should the case come up. work product: the set of materials (as notes), mental impressions, conclusions, opinions, or legal theories developed by or for an attorney in anticipation of litigation or for trial work product doctrine: a doctrine or rule that protects an attorney's work product from discovery (called also work product rule) Note: This doctrine applies to work product of all kinds, but it may be waived for certain materials (as documents) if the party seeking discovery shows that it has a substantial need of the materials in preparing its own case and that it is unable without undue hardship to obtain the substantial equivalent of the materials by other means. 4. Expert Information Topic Notes: FRCP 26(b)(4) and 26(a)(2) In re Illusions Holdings, Inc. (1999) Case Brief: Style (name of case): In Re Illusions Holdings, Inc. U.S. District Court for S.D.N.Y. (1999) Cause of action: The following is a cause of action for damages as the result of injuries from a diving accident on DF's boat. This actual action is for a motion in limine. Procedural History: Wagner gets his motion in limine granted, with costs to be submitted after trial. Facts: Motion in limine to exclude the testimony of 2 non-party witnesses who were deposed by DF as "fact" or "lay" witnesses. Wagner, the PL, contends Illusions did not comply with FRCP 26 relating to disclosure of expert testimony, and thus their testimony should be precluded. Wagner also contends he should awarded costs for bringing the motion and for attending the two depositions. Witnesses above testified at a deposition before opposing counsel was notified, despite their filing of a demand for report of expert witnesses, and over the objections of Wagner. DF contends its witnesses were not experts even though it is possible they may be construed as such, and that a trial court would rule on the admissibility of their testimony. Issue(s): Under FRCP 26, is the deposed testimony of 2 "non-expert" witnesses allowed despite the objections of PL and despite the submission of an answer to PL's demand for report of expert witness? Court's Rationale/Reasoning: What is expert testimony and what is not expert testimony has been at debate for a while. The Federal Rules of Evidence provides a "lay witness" is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to clear up a fact in issue. But in Daubert v. Merrell Dow, the court held the trial judge has the duty of making sure an expert's testimony rests on a reliable foundation and is relevant to the case-at-bar. But the line is blurry between what the Rules of Evidence provide for an expert and for a lay witness. The court decides to take the context of the deposed testimony and decide for themselves if it was expert or lay, and they indeed decide it is expert in nature. The advisory committee for the rules of evidence say the rule is broadly phrased. "Expert" can also mean specialized knowledge, which can be qualified by skill, experience, education, or training. The testimony provided in the deposition had to do with training methods, procedures for scuba diving, water temperature, and visibility have more to do with expert opinion than a lay opinion. Rule: Under FRCP 26, all expert testimony is required to be in a written report to opposing counsel. Expert testimony does not just mean an expert who is employed by that parties' company, but can also mean a person who is specifically employed to provide such testimony. The report should contain all opinions to be expressed as well as the bases for those opinions. It should also include the witnesses backgrounds and the compensation they are to be provided, if any, as well as a listing of other cases the witness has testified in the past (even in deposition) in the last four years. FRCP 26 also says if a report is requested, then a deposition does not take place until after the report has been submitted. FRCP 37(c)(1) provides that any expert testimony not disclosed properly may not be used at trial, at a hearing, or on a motion. Holding: No. The testimony of the two "lay" witnesses is clearly based upon specialized knowledge within the scope of rule 702 of the FR of Evidence, and therefore subject to FRCP 26 regarding disclosure. Since Illusions failed to make such disclosures, the testimony may not be used at trial. 5. Protective Orders Topic Notes: In reality, any dispute may give rise to a protective order, especially if the matter or issue has application beyond one or two questions or requests. In this regard, FRCP 37(a)(4)(B)and (C) specifically authorize the district court to enter a protective order in connection motion to compel discovery under FRCP 37(a). Some examples: (a) confidentiality of information/documents (one party wants a specific document kept confidential) (b) location of depositions (when there is litigation involving parties in different parts of the country or world; i.e., traveling to the location of its adversary for a deposition) (c) scope of document discovery (frequently to limit the production of documents of tangential relevance) (d) order of discovery (one event before or after another) 6. The costs of discovery Topic Notes: There are other costs as well to discovery: social costs in supervising the litigation process, the time and effort expounded by parties and witnesses, and the frustration/dissatisfaction with the process. B. Discovery in Action Topic Notes: READ FRCP 26!!! 1. Disclosure Topic Notes: FRCP 26(a)(1) requires both of the parties to provide various pieces of information at the outset of the case. 2. Depositions Topic Notes: Two categories of objections in depositions: (1) question is somehow defective as a question (too long or complicated, assumes facts, unclear) ---> objecting party has no objection to answering a properly framed question; must object at the depo. (2) the question is not only objectionable, but the defending party does not want the question answered at all. ---> objections on the ground of privilege or confidentiality, for example, would fit into this category. (objection based on relevance could fit into either category) See FRCP 30 for more details 3. Interrogatories and document requests Topic Notes: FRCP 33(d) gives parties responding to interrogatories the option, under certain circumstances, to produce documents for inspection. Although FRCP 34 is limited to parties, documents may be subpoenaed from nonparty witnesses pursuant to FRCP 45(c)(2). Interrogatories are limited to 25 as per FRCP 33(a) (unless court says can have more) Same rule requires corporations/organizations to, in effect, search its records to respond to an interrogatory FRCP 33(b)(4), 34(b) require objections with specificity FRCP 33(d) provides business records can serve as alternative to answers to interrogatory FRCP 34(a) requires production of "designated" documents FRCP 34(b) objections to be limited to the part which is objectionable FRCP 26(b)(2)(iii) court can limit a request if the burden outweighs the benefit 4. Mental and physical examinations Schlangenhauf v. Holder (1964) Case Brief: Style (name of case): Schlagenhauf v. Holder, U.S. Supreme Ct. (1964) Cause of action: The following is a cause of action based on diversity of citizenship for personal damages from injuries of a bus accident. It then turned into an action for a writ of mandamus to to enjoin lower court's order. Procedural History: District Court, on basis of petition of tractor company, and w/o any hearing, ordered PL to submit to the tests, nine total, despite the fact there were to be only four examinations. Petitioner applied for writ of mandamus, seeking to have the order set aside. Court of Appeals denied mandamus. Cert granted, and case vacated and remanded. Facts: Bus accident. PL's sue for injuries, and sue the bus company, the driver, the driver of the tractor, the company which owned the tractor, and the company which owned the trailer attached to the tractor. All denied negligence. Cross-claim filed by bus company against the tractor company and the trailer company, alleging negligence on their driver. Tractor company, after filing answer denying the claim, submitted a letter stating the bus driver was not fit to drive the bus, and demanded he be examined in four examinations: internal medicine, ophthalmology, neurology, and psychiatry, along with doctors to choose from in each category. Petitioner's brief in response stated the bus driver's condition was not an issue in controversy, and that the examinations proposed were without good cause. Trailer company proceeded to file a similar answer to the tractor company's. Issue(s): Under FRCP, may the trial court, on just the contentions of opposing counsel, move under rule 35, to have PL/petitioner submitted for physical and psychological testing without asserting either contention in its complaint? Court's Rationale/Reasoning: The Court of Appeals did have such power as to review the possibility of the writ, and the Court of Appeals had the power to apply FRCP 35 to a party DF in this case. The Court of Appeals also gave an unduly restrictive interpretation to the term "opposing party vis a vis the movant" (or at least one of them). It should be read to mean any person who was a party to the action, should the rest of the rule apply. Under such a reading, petitioner does fall into this category, as he was "a party" before the second order entered by the District Court. However, the "in controversy" and "good cause" requirements are of concern to the Court, as there should be discriminating application by the trial judge, who should, according to FRCP 35, make sure that the requesting party has indeed demonstrated the existence of the rule's requirements. This can generally be done through affidavits and the like, stopping well short of a hearing. But there must be sufficient information. Sometimes the pleadings alone can suffice, but not here, as they were not asserted in support of or in defense of the claim. All there were here were conclusory allegations the bus driver saw red lights before the accident, which was part of the attached affidavit to the complaint, in addition to the self-admitted statement by the driver that he was involved in accidents prior. The only specific allegations made by DF in this complaint regarded the driver's eyes, but since there were three other types of examinations ordered by the district court, that judge should also reconsider this order in light of this ruling. Rule: The "good cause" and "in controversy" requirements of FRCP 35 make it very apparent that sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely b/c the person has been involved in an accident -- or has, in this case, two accidents --and a general charge of negligence is lodged. Mental and physical applications are only to be ordered upon a discriminating application by the district judge of the limitations described by the rule. Holding: No. There was at no time any statement regarding the physical or mental condition of PL, and thus there is no cause for the District Court to impose the medical testing on PL. Concurring/Dissenting: (Black) Thinks there was controversy on PL's mental and physical health and there was good cause shown for a physical and mental examination of him, unless a failure to deny the allegations amounted to an admission they were true. Eyesight is important in car accidents, and this kind of examination should be pursued at the very least to make sure it was indeed not the cause of the accident. (Douglas) Deny all relief in regard to FRCP 35. The possibility of medical "fishing expeditions" into finding anything on the driver's part which could cause any kind of accident could and would likely be exploited. writ of mandamus: an extraordinary writ issued by a court of competent jurisdiction to an inferior tribunal, a public official, an administrative agency, a corporation, or any person compelling the performance of an act usually only when there is a duty under the law to perform the act, the plaintiff has a clear right to such performance, and there is no other adequate remedy available also : an action in the nature of a writ of mandamus in jurisdictions where the writ is abolished (compare cease-and-desist order at order, injunction, stay) Note: Mandamus is an extraordinary remedy and is issued usually only to command the performance of a ministerial act. It cannot be used to substitute the court's judgment for the defendant's in the performance of a discretionary act. C. Cost shifting and sanctions Topic Notes: Following rules deal with sanctions/cost-shifting in the described situations:  FRCP 26(c) (w/cross-refs in 37(a)(4) provide fro expenses in relation to a motion for a protective order  26(g) re: signatures on all disclosures, requests, responses and objections, which certifies the stuff  30(d) abuses in oral depos; award of expenses in relation to the motion  30(g) party who fails to obtain the presence of a witness at a depo pays various expenses to other parties  37(a) making of motions to compel discovery in situations when there has been a response but it is unsatisfactory  37(d) re: complete failure to respond to discovery; more severe sanctions  37(b) re: sever sanctions for failing to obey a discovery order, such as one in 37(a), or 37(a)(2), or 37(d)  FRCP 37(c)(1) provides sanctions for failing to make disclosures required under 26(a). Basic sanction - exclusion of evidence. · Chrysler Corp. v. Carey (1999) Case Brief: Style (name of case): Chrysler Corp. v. Carey, U.S. Ct. of Appeals, 8th Circuit (1999) Cause of action: The following is a cause of action for breach of fiduciary duty against former counsel. Procedural History: Judgment for sanctions against DF's. As a sanction, District Court struck the pleadings of the DF's, entered judgment against DF's as to liability, and submitted the case to jury to determine damages. This court affirms the district court's ruling. Facts: DF's used to represent PL with old firm but then left, while taking several confidential/privileged documents with them on the way out. Upon leaving DF's formed a group with other attorneys to work on class action suits, and one came up against PL. DF's former firm, representing PL, demanded DF remove themselves from the case, saying it was a breach of fiduciary duty. This continued with other members of the group filing similar actions against PL. PL filed this complaint, and after began in its interrogatories and requests for production of documents regarding any documents relating to any communication between DF's and , the responded that none existed. The pretrial litigation took over 2 years. At trial, 42 letters & other correspondence involving DF's re: complaints against PL produced by PL's counsel. DF's, 4 days later, shared a document it intended to use in cross; PL notified the judge of the letter, and moved to strike DF's answer, which eventually resulted in default judgment against DF. DF says sanction not possible, and even if so, it was too harsh. Issue(s): Under FRCP, may court strike DF's testimony on findings from PL in a letter revealed to them by DF's counsel which would reveal previous statements to be falsely made by DF? Court's Rationale/Reasoning: Standard of review is abuse of discretion. The letter reveals nothing the PL's never knew, but it did reveal a systematic pattern of discovery abuses by DF. Additionally, previous responses were all contrary to what the letter revealed, so the letter was applicable in an impeachment sense as well. This could suffice as reason to strike the pleadings. The lies prevented PL from making any ability to conduct effective discovery, and thus they likely would have headed to trial with less evidence than they could have entering trial. These lies also cost money, as discovery and pre-trial practices had to take longer b/c PL had to dig longer and harder before finding enough evidence to get there. This cover-up, if you will, did not preserve the integrity of the trial and the judicial system. Further, DF's argue they never got a chance to have their defense heard at a hearing, but the court says there is no requirement for such an action. The hearing that they were involved in before the sanctionable disclosure was appropriate enough to satisfy any due process claims. No requests were made for a hearing, despite DF's contentions to the contrary. Rule: For a FRCP 37 sanction, there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party. Holding: Yes. "When a litigant's conduct abuses the judicial process . . Dismissal of a lawsuit is a remedy within the inherent power of the court." Thus, sanctions in the form of striking statements is okay. Chudasama v. Mazda Motor Corporation (1997) Case Brief: Style (name of case): Chudasma v. Mazda Motor Corp., U.S. Ct. of Appeals, 11th Circuit (1997) Cause of action: The following is a cause of action for products liability gone wrong in the discovery process. The appellate motion is for a stay of an order to vacate and reversal of default judgment against DF and for stay pending appeal of sanctions imposed from trial court. Procedural History: Motion for sanctions and default judgment granted against DF. This court vacates the previous judgment compelling discovery and remands the case to a different district judge. Facts: Auto accident in a used Mazda MPV Minivan. PL suit had 3 claims pertaining to products liability. Various abuses of discovery process by PL resulted in no action by judge. Generally, whenever PL moved for something it was granted or at least looked favorably upon. Conversely, when DF tried to properly respond or make another motion, court would either not rule on it or deny it. Things came to a hilt 2 1/2 years after the suit was first filed, when DF, under an unusual motion to compel (after the previous time was spent debating this area) various documents encompassing just about anything having to do with Mazda, DF had only 15 days to deliver. It had the documents ready to go by compliance day. Upon DF counsel asking PL counsel if the documents could be delivered that day but after 5 PM, PL said no, so DF arranged to have them delivered the following Monday. Meanwhile PL filed for sanctions, which were eventually granted, as well as motion for default judgment and fees shifted to DF. This appeal follows. Issue(s): Under FRCP, may a court refuse to rule on several discovery disputes, 9(b) motions pre-trail, and while refusing to answer such pre-trial motion , demand that discovery continue when it results in various abuses in discovery and an eventual ruling for sanctions and default judgment? Holding: No. A court has a responsibility to manage the cases on its docket. This court failed to do so (more specifically this judge), and thus PL has been put to extreme and unnecessary expense in this matter. Court's Rationale/Reasoning: Standard of review: abuse of discretion (duh!). This court abused its discretion by not ruling on the 9(b) motion earlier rather than never. Such a motion, if granted, and it should have based on the "dubious nature" of the claim, would limit the scope of discovery, therefore avoiding many of these problems, expanded costs and litigation (which by the way included no help from the judge). When the court refused to rule on Mazda's 9(b) motion prior to the compel order, it abused its discretion. FRCP do not eliminate the need for judicial intervention into discovery matters. When there is a discovery dispute, the court should step in and make a call. This didn't happen here very often, and when it did, the court never looked at both sides of the issue and ruled for PL most of the time without a response by DF, or by never responding to separate requests by DF themselves. If these arguments were frivolous, the court might not have cause to listen to all of them, but should have at least made some kind of ruling. The court never considered Mazda's motions, which were filed and argued reasonably and in good faith based on persuasive grounds. This failure to respond concerns the court. That is why the order for the motions to dismiss and for sanctions must be vacated. As for the sanctions, they were the harshest the court could have passed down, and so unduly severe that there could be nothing else but bad faith. The court never said whether Mazda's noncompliance was in bad faith or intentional. See FRCP 37(b)(2). The original motion to compel was completely devoid of any clear instruction as to how to comply with the vast scope of the discovery requests. Mazda made note of these problems, to which the court did not answer four times in seven months. If the court doesn't clarify anything, how could DF ever be right (or wrong for that matter). Clearly abuse of discretion. As to the decision whether to remand to a different judge, the tests reveal the second factor the most telling. In the interest of justice to Mazda, the case must be remanded to someone else, so this judge's abuse of discretion as well as partiality and flat out failure to review the 9(b) motion, the remand is granted. Rule: When faced with a motion to dismiss a claim for relief that significantly enlarges the scope of discovery, the court should rule on the motion before entering discovery orders, if possible. It is more imperative when the claim is dubious. Factors to reassign on remand: (1) whether the original judge would have difficulty putting his previous views and findings aside; (2) whether reassignment is appropriate to preserve the appearance of justice; (3) whether reassignment would entail waste and duplication out of proportion to the gains realized from reassignment. IX. Disposition without trial Topic Notes: There are a number of ways a case can end without trial. A. Default and pre-trial dismissals Topic Notes: A case can be dismissed before trial on various grounds including the following: (1) Default judgment (FRCP 55) (2) Involuntary dismissal on a variety of grounds (FRCP 41(b), i.e., failure to observe various procedural requirements like appearing at hearings, complying w/scheduling orders, filing documents, etc.) (3) Involuntary dismissal for discovery abuses (FRCP 37(b)(2)(C)) (4) In certain situations, PL is permitted voluntarily to dismiss her lawsuit (FRCP 41(a)) 1. Default Topic Notes: default judgment: a judgment entered by a court after an entry of default against a party for failure to appear, to file a pleading, or to take other required procedural steps (called also judgment by default ) --> see FRCP 55 Actually, the 2nd step in the process, after the default itself is put on the record by the Clerk of the Court after a person's failure to plead or defend. The clerk may enter a judgment if the if the sum can be computed to be certain, or the Court may simply rule for whatever the party seeking such judgment requests. FRCP 54(c) --> PL only gets relief up to what's stated in the complaint. Relief from entry of default may be had under FRCP 55(c) for good cause, and can be set aside in appropriate circumstances under FRCP 60(b) 2. Involuntary dismissal Topic Notes: FRCP 41(b) --> DF may move to have case dismissed for "failure of PL to prosecute or comply with these rules or any order of court." This has res judicata consequences, except when there are dismissals on jurisdictional grounds, for lack of venue, or for failure to join a party under FRCP 19. 3. Voluntary dismissals Topic Notes: After filing suit, PL may realize for one reason or another that she would like to dismiss and start over, perhaps in another forum. In most non-class litigation, PL may unilaterally terminate her lawsuit any time before service of an answer or a motion for summary judgment, whichever comes first, by filing a "notice of dismissal" under FRCP 41(a)(1)(i). Can also move for stipulation of dismissal, as long as both parties sign (FRCP(a)(1)(ii)). Such dismissals are generally w/o prejudice Absent notice for dismissal or a stipulation of dismissal consistent with FRCP 41(a), court permission is required, even for PL to voluntarily dismiss her lawsuit. 41(a)(2) says the court must deem the dismissal proper 4. Settlement Topic Notes: Settlement of non-class suits are done without court intervention; class suits are regulated by FRCP 23(e), and must be approved by the court and notice must be given to safeguard the interests of the unnamed class members who will be bound by the disposition of the case. Parties' consent judgments are binding and have a sort of res judicata effect, unless the consent is violated, in which case the party who has been violated can sue. Goals of settlement encouraged by FRCP 68 which permits DF's to make offers and for PL's to accept them if they are reasonable, with penalty suggested should the party seeking damages turns down an appropriate offer and receives less (FRCP 68), which does not apply if PL simply loses after turning down the money. B. Summary Judgment Topic Notes: Motion for summary judgment has been adopted as a screening device -- to identify cases and end cases where there is no need for trial. This means, that under the law and the available evidence, one side would have to win and thus a trial would be a waste of time. More in FRCP (read in great detail) 56(c) grant summary judgment if "there is no genuine issue as to any material fact and...the moving party is entitled to judgment as a matter of law." Note: According to Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment may be made at any time after 20 days following the commencement of the action. Summary judgment may be granted on all or on just part of a case. 56(a): summary judgment can be made almost any time after the case begins, but most courts generally view this as coming after a reasonable amount of time for discovery. 56(f): motion for summary judgment may be denied or continued to permit discovery 2 difficult issues surrounding propriety of granting summary judgment: (1) what showing the party moving for summary judgment must make (2) assuming the movant makes such a showing, what showing the nonmoving party must make to avoid summary judgment Summary judgment: a preemptive termination of a case which prevents a party from going before a jury 1. An introductory note on burden of proof Topic Notes: (a) Burden of production: refers to the concept that a party must produce sufficient evidence to permit a rational trier of fact to find in its favor. If trying several issues, that party is said to have "the burden of production" on each issue. Once the party with the burden of production on an issue has satisfied its burden, the question is submitted to the decisionmaker. That threshold itself can change the burden, if excessively met by the party having the burden. The the burden would shift to the opposing party to establish a burden of production, for if they don't, summary judgment may be found against them. (b) Burden of persuasion: presupposes that there is sufficient evidence for the trier of fact to decide for either party. This tells the jury (or court) how to decide if it can't decide (a sort of tie breaker rule). In most civil cases, the party with the burden of persuasion must convince the jury that its view is "more probable than not." If the jury cannot decide, then the court can rule against that party. And, in most cases (where all burdens of production have been met), the trier can rationally decide one way or the other. So burden of persuasion doesn't "decide" many cases. Higher standard in most cases (e.g., fraud cases require a standard of "clear and convincing evidence;" criminal cases require a standard of "guilt established beyond a reasonable doubt.") (c) Application to Summary Judgment: if the case has one issue and PL does not prove it, judge can issue summary judgment as a matter of law for DF. Judgment can come before the verdict (directed verdict), after the verdict (J.N.O.V.) See rule 50 2. The Movant's Showing Topic Notes: FRCP 56(c) establishes what the movant must establish to get summary judgment. 56(c) and (e) tell you what documents and information may be used, but no rule tells how much is enough. Celotex Corp. v. Catrett (1986) Case Brief: Style (name of case): Celotex Corp. v. Catrett, U.S. Supreme Ct. (1986) Cause of action: The following is a cause of action for reversal of summary judgment ruling, as it pertains to a wrongful death suit. Procedural History: U.S. District Court for D.C. Granted summary judgment for petitioner against respondent b/c latter was unable to produce evidence in support of her allegation that her wrongful death complaint that the decedent had been exposed to petitioner's asbestos products. Court of Appeals for D.C. Circuit reversed, and held that petitioner's failure to support its motion with evidence tending to negate such exposure precluded the entry of summary judgment in its favor. This Court reverses the Appeals Court's decision and remands. Facts: Complaint filed for breach of warranty and strict liability. 2 DF's filed motions challenging personal jurisdiction, while the other 13 filed for SJ. Petitioners said PL failed to provide evidence that the product was proximate cause. Respondent then produced 3 documents which claimed a material issue of fact -- was a letter from a former worker for petitioner, as well as a letter from insurance company to petitioner. Trial court's grant of SJ centered primarily around respondent's claim was not proven within the Statute of Limitations. The decision was reversed b/c Petitioner introduced no affidavits or otherwise to support its motion. Issue(s): Under FRCP 56, was the D.C. Circuit for the Court of Appeals proper in reversing summary judgment on the grounds that petitioner's summary judgment motion was rendered "fatally defective" when petitioner made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion? Court's Rationale/Reasoning: This Court goes by the plain meaning of the rule, which they determine to mean that since a complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial, there can be "no genuine issue as to any material fact." When nonmoving party has failed to make a sufficient showing on an essential element of her case. Party seeking SJ must bear the initial responsibility of informing the court on the basis for its motion, identifying those parts of the pleadings, depos or answers to interrogatories, and admissions on file, together with affidavits, if any. The Court says there is no specific requirement in 56(c) as to affidavits or depositions (the rule says "if any"). 56(a) & (b) add "with or without supporting affidavits." Respondent contends that under 56(e), petitioner cannot just rest on the laurels of his denials to the allegations. But 56(a) & (b) again refute this argument. 56(e) does not mean that the nonmoving party must actually produce evidence, they must merely point to the evidence submitted and provide reasons for SJ from it that there is no material issue of fact, as long as it is the nonmovant is not pointing to the pleadings themselves. Court of Appeals should have looked at respondent's evidence produced in the trial court to see if either petitioner's claim was warranted based on what it pointed out or that the evidence itself could demonstrate that there was a material issue of fact. Rule: FRCO 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Also see FRCP 56(e). Holding: No. FRCP 56 must be construed with due regard not only for the rights of persons asserting claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis. Concurring: (White): "It is not enough to move for SJ w/o supporting the motion in any way or with a conclusory assertion that the PL has no evidence to prove his case." The Court of Appeals should review the contention that respondent is or is not required to reveal her witnesses and evidence to determine if SJ should apply. Dissenting: (Brennan, Chief Justice, Blackmun): What is required of the moving party seeking SJ on the ground that the nonmoving party cannot prove its case. Celotex did not meet its burden of production under FRCP 56. 2 elements for SJ: (1) burden of production which can shift to the other party if satisfied by the moving party, and (2) burden of persuasion which always remains on the moving party. #2 does not get analyzed unless #1 has been initially discharged. FRCP 56 requires the moving party to make a prima facie showing that it is entitled to SJ. The manner in which this showing can be made depends upon which party will bear the burden on the challenged claim at trial. If the moving party will bear the burden of persuasion, then that party must support its motion with any of the 56(c) requirements that would entitle it to a directed verdict if no trial. If burden of persuasion at trial would be on the nonmoving party, the party moving for SJ may satisfy the rule's burden of production in two ways: (1) moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim (2) 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. If nonmoving cannot muster sufficient claim, then there's no use of having a trial and moving party is entitled to SJ. Second option presents some burden of production problems for nonmoving party. Conclusory assertion that the nonmoving party has no evidence is insufficient; moving party for SJ must show in the record there is no evidence in the record, which may require moving party to depose nonmovant's witnesses or to establish the inadequacy of documentary evidence. In this case, Celotex never demonstrated anything in the record, save a 2page statement of facts and a 3-page memo, which is identical to petitioner's motion 3 months prior, to which it withdrew its motion for SJ. Celotex failed to discharge an initial burden. (Stevens): This was clearly erroneous decision, as the Court should affirm the Court of Appeals on the fact that the trial court ruled there was no evidence when there was, even if it had no evidentiary value. 3. The nonmovant's response Topic Notes: After succeeding in its showing that there is no genuine issue of material fact, what must the nonmovant show to be entitled to a trial and to withstand SJ? (1) PL will 1st have to establish a prima facie case for the cause/action (ex: discrimination), putting on evidence that gives rise to a presumption of discrimination (2) DF then must come forward w/evidence of a legitimate, nondiscriminatory reason for its action (reduction in staff, incompetence, budget, etc.) (3) PL then must show that the asserted reason by DF was just a pretext for the real reason: discrimination A lot of discrimination cases involve the #3 portion upon SJ Nidds v. Schindler Elevator Corp. (1996) Case Brief: Style (name of case): Nidds v. Schindler Elevator Corp., U.S. Ct. of Appeals, 9th Circuit (1996) Cause of action: The following is a cause of action for reversal of SJ. Procedural History: AP appeals grant of SJ to APE, his former employer, to which he CA Fair Employment and Housing Act discrimination and retaliation claims. This court affirms. Facts: PL claims he was demoted/moved around b/c of his age (54), and then subsequently fired as retaliation for retaining his discrimination suit. PL was moved and replaced by a younger guy, was moved all around and eventually got PO'd, eventually copping an attitude towards his last client, which was in a bad area, before being fired. PL was originally laid off, subsequently brought back on, but not in same job (took different offer), then was transferred, then transferred again, then fired. At court Nidds did ask for a continuance to depose three witnesses, but he never did, and this suit follows. Issue(s): Under FRCP 56, does PL entitle himself to dismissal of SJ motion on basis he was able to refute DF's rebuttal to his initial contentions for his dismissal as DF's employee? Court's Rationale/Reasoning: The prima facie barrier consists of four parts: (1) PL was member of a protected class, (2) PL performed his job in a satisfactory manner, (3) PL was discharged, (4) PL was replaced by a substantially younger employee w/equal or inferior qualifications. Court even gives lenience to the 4th claim, whereas PL can show employer needed the continual use of their skills and services in that their valuable duties were being performed or that others were treated more favorably. Court said trial court erred in ignoring the flexibility in these cases in concluding that in order to establish his prima facie case, Nidds needed to show that he was at least as qualified as his replacement; the court also erred by counting against Nidds that he was not directly replaced by the younger employee. Thus, Nidds proved the prima facie case. Schiindler's burden was to merely articulate a legitimate, nondiscriminatory reason for the discharge. It did by showing a downturn requiring layoffs, and that it used seniority, performance, technical qualifications in deciding whom to discharge. Now the burden bounced back to Nidds, who had to show either (a) the reasons provided were false; or (b) the true reason he was fired was discriminatory. Nidds tried to show business was not in downturn by bringing in evidence that showed DF's business was doing quite well, but failed to bring in evidence relating to DF's statement that business was sliding b/c of less construction business. Then, PL tried to show there were shifting explanations for his initial layoff. But the reasons were ruled not to be incompatible; "lack of work" generally, in relation to lack of seniority and poorer performance in relation to his coworkers is not incompatible. Nidds cited the "old timers" remark preceding his initial layoff (by District Manager allegedly to another service mechanic). This court likened the comment to another case in which the comment of "we don't like gray hair" was uttered in an ambivalent manner and was not tied to the termination. Here, the comment is vague as to whether it refers to age, performance, or longtime employees. As to the retaliation claim, PL had to show he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the two. Nidds was terminated, there was a causal link in that 4 months after his supervisor asked him if his discriminatory claim was still involved he was fired and one month after he filed his second complaint. Schindler met its burden, again, for articulating a legitimate reason for the layoff (management of last employer asked to remove Nidds). Based on these factors weighed with one another, there was not enough evidence for a reasonable factfinder to conclude that Schindler's reason was a pretext for retaliatory termination. Nidds' last employer wrote a letter discussing its displeasure with PL failing to show to fix something, but the letter was written after his contracting boss spoke to the supervisor, not before, so no causal link. Rule: Standard of review: de novo/plenary. Must decide if there was a genuine issue as to any material fact. Genuine relates to the quantum of evidence PL must produce to defeat DF's motion for SJ. There must be sufficient evidence "that a reasonable jury could return a verdict for the nonmoving party. If evidence is merely colorable (valid or genuine), or not significantly probative, SJ may be granted. Materiality, by the substantive law, refers to which facts should be identified as material. Holding: No. Schindler was entitled to SJ, b/c the evidence PL offered to counteract DF's nondiscriminatory reason is not sufficiently probative that it would allow a reasonable finder of fact to conclude either that the alleged reason is false, or that the true reason for the discharge was discriminatory. Dissenting: (Noonan): The evidence indeed provided a reasonable juror could have inferred PL's dismissal was pretextual and that it in fact laid him off b/c of age Probative (adj.) in evidence law, tending to prove something. Thus, testimony which is not probative (does not prove anything) is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel. 4. Supplemental FL material on summary judgment Topic Notes: FL courts can only grant SJ when the record affirmatively shows that PL could not possibly prove her case, and not b/c she had simply failed to come forward with evidence doing so. To make that showing, a moving party has the burden of disproving his liability. FL SJ cannot exist if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist. Macuba v. DeBoer (1999) Case Brief: Style (name of case): Macuba v. DeBoer, Federal Court of Appeals, 11th Circuit (1999) Cause of action: The following is a cause of action for retaliation claims in relation to a 1st Amendment claim. Procedural History: Trial court denied SJ for DF's; this court reversed (district court erred in considering the hearsay testimony). Facts: PL claims he was squeezed out by DF and another member of commission after DF's brother was fired due to an allegation of impropriety by PL. When new commission was elected DF ran and won, and together with another person instituted a plan to consolidate the office of city manager, in which PL's position was taken away after he was forced to interview candidates Issue(s): Under FRCP, are statements made in a deposition which are not directly heard by deposed party, available to PL in trying to interpose DF's motion to SJ? Court's Rationale/Reasoning: The courts, including this one, had previously erred in including the depositions which were more hearsay than not, as long as the nonmoving party could reduce the statement to admissible evidence at trial or reduced to admissible form. These ideas came from Celotex, which held a nonmoving party in opposing a motion for SJ may refer the district court to the pleadings, depos, answers to interrogatories and admissions on file, as per FRCP 56(c). But the phrases "reduced to admissible evidence at trial" and "reduced to admissible form" are used by the courts to explain that the out-of-court statement made to the witness (the FRCP 56(c) affiant or deponent)must be admissible at trial for some purpose. The statement could fall under the hearsay exception or be used for impeachment purposes. Rule: Inadmissible hearsay cannot be considered on a motion for SJ. FRCP 56(e) requires that "affidavits" that support or oppose SJ motions "shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence." This rule also applies to depositions. Holding: No. Since the testimony cannot be considered, PL has nothing to refute DF's claims and thus SJ is allowable when PL has not brought up a genuine issue as to a material fact. X. Joinder of claims and parties Topic Notes: This chapter addresses issues relating to those who can be and those who must be included in the lawsuit, as to claims and/or parties. Modern joinder provisions allow for the expansion through devices which were once unfamiliar to courts of law. Some joinders are permissive, giving the option of whether or not to join a particular claim or party to a suit. Some it is mandatory, either by FRCP or b/c the operation of principles of preclusion for failure to bring certain claims. New parties must conform to matters of personal and subject matter jurisdiction. FRCP 18: (the ability of one party to join 2 or more separate claims against another party) person asserting the claim to relief originally, third party, cross or counterclaim, may join the either as independent or as alternate claims, and may attach as many claims, legal, equitable, maritime, as the party has against the opposing party. That party may also bring a couple claims, but if they fall under one claim specifically, they can be merged into one. FRCP 17: PL must be the real party in interest FRCP 20: PL has 1st crack at determining the lineup of parties, both as to PL's & DF's (from same transaction). FRCP 14(a): when DF may bring in a 3rd party; claims by a DF against a new party not in the suit (in such a suit, the DF is also called the 3rd-party DF and the new party is called the same. FRCP 19: joinder of parties needed in order to adjudicate the matter (parties not in the lawsuit that DF says should be in the lawsuit) FRCP 24: for parties not a party to the suit, but who want in on the action (absentee wants to intervene). FRCP 13: joinder of counterclaims (by DF vs. PL) but DF can be any party against whom a claim has been brought FRCP 13(g): joinders of cross-claims, which are claims by one DF against a co-DF A. Claim by joinder (in a 2-party setting) 1. By Plaintiff Topic Notes: FRCP 18 imposes no barriers to claim joinder; a party may join as many claims as she has against her adversary. No requirement claims must be related to each other, and the only other requirement is that the claims are all against the same party. But one must consider the matter of SMJ as well in relation to the claims and parties to an action (remember the rule from Gibbs in Chapter III, in which Gibbs court called for "common nucleus of operative fact" as a constitutional prerequisite to joinder of state law claims in federal question suits against non-diverse parties). So, in essence, an additional state law claim can be brought into a federal court if it is sufficiently related to the underlying federal claim. Venue can also be a problem in connection with claim joinder under FRCP 18. If multiple claims from the same action arose out substantial events in two jurisdictions, then each claim may have to be tried in the district which the event occurred. Remember FRCP is permissive but it may also be limiting, in that allowing a person to bring all claims against a person may bar the same person should they decide not to bring every claim against that person 2. By Defendant (counterclaims) Topic Notes: FRCP 13. Counterclaims come in 2 packages: compulsory and permissive Iglesias v. Mutual Life Ins. Co. (1998) Case Brief: Style (name of case): Iglesias v. Mutual Life Ins. Co., U.S. Ct. of Appeals for 1st Circuit (1998) Cause of action: The following is a cause of action for discrimination and contract claims against former employer. Procedural History: PL appeals from district court's grant of SJ. DF appeals from lower court's dismissal of its counterclaim for restitution of money PL got from falsifying expense reports. This court affirms the SJ, but vacates the order dismissing DF's counterclaim with directions to dismiss the counterclaim w/o prejudice for want of jurisdiction. Facts: DF's counterclaim: PL admitted he was padding expenses during a 11/7/91 deposition, after DF warned PL of the severity of this action. This was after SOL ran. DF tried to use info to impeach PL, then tried to use as affirmative defense, but these strategies were learned of after PL was terminated. DF then sought to leave & amend its answer to add counterclaim for restitution. After magistrate granted counterclaim, and 4 yeas of discovery, PL moved for dismissal of DF's counterclaim on grounds of DF's laches. District court dismissed counterclaim as untimely. Issue(s): Under FRCP 13, was DF's counterclaim, which came after SOL, permitted to be barred by the lower court. Holding: PL's discrimination claim which was based on federal law was barred by the SOL, and his pendent state-law K claims against DF (from whom PL was nondiverse) were contradicted by the K. No. DF's counterclaim is permissive rather than compulsory, and is not supported by federal supplemental jurisdiction. Court's Rationale/Reasoning: Only compulsory counterclaims can rely upon supplemental jurisdiction; permissive counterclaims require their own jurisdictional basis. After going through the tests in determining whether a counterclaim is compulsory or permissive, this court decides the 4th test would be the only one possible. Under the 4th test, the court's application determined that DF's counterclaim was permissive, as both claims arose during the same time period but rest on different sets of supporting facts. DF's ability to recover restitution doesn't depend on the success of failure of PL's claims. DF's discovering PL's claims did not trigger past actions. DF could have sought reimbursement for the prior fluffing. Rule: Four tests to determine whether a counterclaim is compulsory or permissive: (1) are the issues of fact and law raised by the claim and counterclaim largely the same? (2) would res judicata bar a subsequent suit on DF's claim absent the compulsory counterclaim rule? (3) will substantially the same evidence support or refute PL's claim as well as DF's counterclaim? (4) is there any logical relation between the claim and the counterclaim? "Logical relation" test: claim is compulsory only if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party DF that would otherwise remain dormant. Compulsory counterclaim: one that arises out of the transaction or occurrence that is the subject matter of the opposing party's claim (FRCP 13(a)) Permissive counterclaim: all counterclaims that are not compulsory (FRCP 13(b)) 3. Cross-claims Topic Notes: Cross-claim: a claim against a party on the same side of an action (as a coplaintiff or codefendant) Note: Under Rule 13(g) of the Federal Rules of Civil Procedure, a cross-claim must be related to the original action in that it arises from the same transaction or occurrence as the original action or a counterclaim, or involves property that is the subject matter of the original action. Think SMJ. A cross-claim will have an independent basis of jurisdiction if, for example, it arises under federal law, or if the parties in the cross-claim are diverse and the claim is in excess of $75K. But if not, supplemental jurisdiction will attach only if the claims are sufficiently related to satisfy paragraph "a" of 28 U.S.C. 1367 B. Real party in interest Case Brief: Naghiu v. Inter-Continental Hotels Group, Inc. (1996) Style (name of case): Naghiu v. Inter-Continental Hotels Group, Inc., U.S. District Ct. for District of DE (1996) Cause of action: The following is a cause of action for loss of consortium. Procedural History: Movement for 12(b)(6) motion (failure to state a claim) granted. Facts: PL harmed in hotel accident. PL's wife claims loss of consortium. DF claims wife was not the party who should be suing. PL argues he was a bailee of the money and is such a real party in interest as per FRCP 17. Issue(s): Under FRCP 17, was PL's wife entitled to file for loss of consortium as a real party in interest, flowing from her husband's injuries as the result of an attack on DF's premises when wife was not a party to the accident? Holding: No. Under FRCP 17, wife or husband never had right to even ratify their claim after not being eligible in the first place under the rule. Court's Rationale/Reasoning: PL argued that as bailee he was a real party in interest as per FRCP 17. The court looked to substantive law creating the right being sued upon to ascertain whether PL possesses a substantive right to relief. Substantive law as to the damages sought is founded in DE, so those are the laws it applies. Choice of law required the court to apply "most significant relationship" approach to contracts, which then through all 5 parts related the court to VA law as to whether PL was a bailee. Bailees by VA law is defined as the "rightful possession of goods by one who is not the owner," and one must have both physical control and intent to exercise that control. Bailors typically have no control over bailees, except to the extent that a contract requires. But PL really was only in custodial possession anyway, as he was directed by others what to do with the money, has no ownership in the money, has no legal interest in it, and was not authorized to seek its recovery. So bailee argument fails. FRCP still provides a possible way to not lose on the consortium claim, b/c failure to have a case prosecuted in the name of the real party in interest, as there is a reasonable time for objection and ratification of the commencement. If Pat Robertson or CBN (parties to the cash which was stolen) never asked for ratification, FRCP 17 real party in interest requirement has not been satisfied as to the loss of personal property in this case. Rule: Ratification under FRCP requires the ratifying party to: (1) authorize a continuation of the action; and (2) agree to be bound by the lawsuit's result. bailee: an individual or entity (as a business organization) having possession of another's personal property under a bailment Note: Carriers and warehouses are two examples of bailees. A bailee's liability for loss or damage to property is determined by the terms of the bailment or the law of the jurisdiction. C. Joinder of parties Topic Notes: PL has considerable choice of who will be in the lawsuit as PL's and as DF's, but those choices are limited by FRCP 20. Puricelli v. CNA Insurance Company (1999) Case Brief: Style (name of case): Puircelli v. CNA Insurance Company, U.S. Dist. Ct. for the N'thern Dist. of NY (1999) Cause of action: The following is a joint cause of action for relief from violations relating to the Age Discrimination in Employment Act of 1967, the NY State Human Rights Law, and intentional infliction of emotional distress. DF moves to sever the claims of PL's as per FRCP 20(a) and 21 on the ground that the claims are misjoined b/c they neither arise out of the same transaction or occurrence or present common questions of law or fact. DF seeks relief under FRCP 42(b) in form of separate trials. Procedural History: Trials allowed to proceed jointly (DF's motion granted). Facts: PL Puricelli and PL Hughes allege age discrimination campaign by DF leading up to their termination. Puricelli and Hughes got out before termination. DF alleges that b/c of the difference in employment capacities, their ratings in evaluations, and disciplinary actions taken (and lack thereof) that the claims should be tried separately. Issue(s): Under FRCP 20(a), do PL's claims meet the permissive joinder requirements when DF claims joint suit contains claims which do not operate out of the same nucleus of operative fact? Holding: Yes. The PL's passed both prongs of the FRCP 20(a) analysis, and thus can proceed jointly. Court's Rationale/Reasoning: Case-by-Case approach for determining whether or not a case came from the same transaction or occurrence. Courts looked to 13(a) for clarification as to the terminology, which says the phrase encompasses "all logically related items." The presence of material dissimilarities does not automatically bring such claims outside the 20(a) classification. PL's claim they were under same process of discrimination by DF, even if the scores and means of discrimination were not the same. This gets them past the 20(a) requirement, as there is an established pattern of conduct commencing after Continental's takeover over CNA, which discriminated on the basis of age. Under part 2 of 20(a) analysis (action raises question of law or fact common to all the parties), does not require the commonality of all questions of law and fact raised in the dispute, rather, the requirement is satisfied if there is any question of law or fact common to all parties. This has also been satisfied, as both claims are under the same law and for same causes. Both sets of allegations are the same, just the facts surrounding their allegations differs. As to the 42(b) motion for separate trials, DF claims one claim could cause prejudice over another or lead to confusion, via the differing facts of the parties involved. The case DF chooses to compare itself to had 11 PL's in it, so there was obvious need for some separation; here there are two people: a reasonable juror/trier of fact could figure this out. Additionally, the claims are the same, and thus prejudice on the same causes makes no sense. At the very least, any prejudice could be remedied by proper jury instructions. Rule: FRCP 20(a): proper joinder of parties requires the satisfaction of 2 criteria: (1) right to relief by both PL's must rise out of the same transaction or occurrence, or series of transactions or occurrences; and (2) a common question of law or fact as to all PL's must arise in the action. Question of joinder lies w/in the discretion of the district court. Policy is to promote trial convenience and expedite the resolution of laws. The Court said, "...severance is appropriate only where the prerequisites of permissive joinder have not been satisfied. D. Third party practice Topic Notes: What if a big corporation were held liable for the damages of one of its employees. The corporation would like to somehow get itself off the hook, and they could do so by bringing in its employee as a 3rd party defendant. Allstate Insurance Co. v. Hugh Cole Builder, Inc. (1999) Case Brief: Style (name of case): Allstate Ins. Co. v. Hugh Cole Builder, Inc., U.S. District Ct. for the Middle Dist of AL (1999) Cause of action: The following is a third party motion to strike, or motion to dismiss, or motion for judgment on the pleadings as to third-party complaint and amendment to third-party complaint from 6/16/99. Third party Jenkins contends the complaint is improper under FRCP 14(a). There is also third-party defendant Coston Plumbing Co.'s motion for SJ on the amended third-party complaint from 6/18/99. Procedural History: Coston filed motion for SJ, asserting Cole and HBC couldn't pursue contribution or indemnification against them under the facts of the case. HCB and Cole amended their complaint to include negligence, breach of K, violation of AL Extended Manufacturers Liability Doctrine, and breach of express warranty (as a result of Coston and Jenkins, HBC was damaged, and now HBC wants damages). Motion for SJ denied as moot b/c it did not effect the amended complaint. On amended motion from 3rd party DF's, Jenkins' motion to strike the amended complaint is granted, and claims against Coston are dismissed as well. Facts: Should really see this case as Allstate v. HBC v. Coston & Jenkins (to straighten things out) Davis' contracted with HCB, the GC, to build a house, and HCB used Coston (gas fireplace) & Jenkins (fire box) as subcontractors on the job. House burned down. Davis files claim with Allstate for indemnification; Allstate pays and subrogates itself to Davis, and turns around and files against HCB for negligence, breach of warranty and habitability & breach of K. Thereafter HCB & Cole file 3rd party complaint vs. Coston & Jenkins for their responsibility for any negligent installation, testing, construction or inspection of the fireplace and gas piping. Coston & Jenkins contend the amended complaint is against FRCP 14(a) b/c it is for a different cause of action than what they are supposed to be impleaded for. Issue(s): Under FRCP 14(a), is an amended third party complaint able to be asserted by one third party DF in response to a motion for SJ by another third party DF? Holding: No. In this case, HCB tried to institute new complaints against the other 3rd-party DF's, and this is not allowed. Court's Rationale/Reasoning: 5th Circuit held that impleader is permitted only in cases where the third party's liability claim is in some way derivative of the main claim. So third party DF must be liable secondary to original DF in the event that the latter is held liable to the PL. An entire and separate claim cannot be maintained against a third party under FRCP 14, even though it does rise out of the same general facts as the main claim. Third party PL's HCB contend their claims against subcontractors are proper under 14(a) b/c the rule was intended to avoid duplicative litigation, which would result if the third party DF's were dismissed from this action. Tried to liken itself to an AL claim, but it was based on severing parties due to the complexity of the trial itself. There is no such thing here. HCB had the duty to assert derivative liability vs. Third party DF's, and in their response do not say they are not seeking contribution or indemnification. This amounts to a separate claim being asserted against a third party DF, which is impermissible under the rule. Rule: In evaluating a motion to strike, the court must treat all well pleaded facts as admitted, and cannot consider matters beyond the pleadings. In any cause of action, a third party DF may bring anyone else into its claim who may be liable to the third party for all of part of the PL's claim in the suit. Thus, a party cannot bring a separate claim to a suit against a third party DF that has nothing to do with the original claim it is defending. Impleader: : the act or procedural device of impleading a third party (Specifically) : a petition or complaint brought in a lawsuit by a plaintiff or defendant against a third party who may be liable to that plaintiff or defendant (called also third-party practice) E. More complex patterns Case Brief: Owen Equipment & Erection Corp. v. Kroger (1978) Style (name of case): Owen Equip't & Erection Corp. v. Kroger, U.S. Supreme Ct. (1978) Cause of action: The following is a cause of action for wrongful death. Procedural History: At trial, it was revealed Owen was not a NE company, as it previously agreed to in its answer to an amended complaint by respondent. Petitioner moved for dismissal, trial court reserved judgment. Jury ruled for respondent. Opinion reported after trial, district court denied petitioner's motion to dismiss appeal. Court of Appeals, 8th Circuit, citing United Mine Workers v. Gibbs, held the claim was within the pendent jurisdiction of the federal courts, as it came from the same core of operative facts, which gave rise to both original actions. Also served as punishment for lying about its citizenship to respondent. The Court reverses Court of Appeals. Facts: Widow sues for wrongful death of husband who died after being electrocuted when the boom of a steel crane next to which he was walking came too close to a high tension wire. Respondent widow filed action in U.S. District Ct. for District of NE against Omaha Public Power District (OPPD), alleging negligent construction, maintenance and operation of the power line caused decedent's passing. Federal jurisdiction based on diversity of citizenship (respondent: IA, OPPD: NE). OPPD then filed third party complaint against crane operator Owen, alleging they, as owners were the responsible party and proximate cause of decedent's passing. OPPD moved for SJ on respondent's claim against it. Court granted SJ, leaving this case. Issue(s): Under FRCP, in an action which federal jurisdiction is based on diversity of citizenship, may PL assert a claim against a third-party DF when there is no independent basis for federal jurisdiction over that claim? Holding: No. Since there was no diversity, the case should be dismissed without prejudice; re-file in state court. Court's Rationale/Reasoning: The Court of Appeals and trial court got the rule of Gibbs mixed up and tried to apply it to a case not where there were federal and state claims against a single defendant in one action, but where there were two independent claims against two defendants and then merged to form this one, but diversity was lost when one party lied about its residency. So, what we have here is a federal claim which was lost, and a state claim which was lost. No federal jurisdiction results from this sequence of events. Even if the District Court thought it right to try the case under Federal jurisdiction, the Court of Appeals was wrong in agreeing merely on that basis. Aside from Article III, there are Congressional acts to consider as well. This Court has rejected a Federal court's assertion of jurisdiction over a state-law claim against a county, even if that claims was alleged to be pendent to one against county officials under 42 USC §1983. In another case, the Court rejected a diversity class action suit where the claim for damages that were less then $10K ($75K now) were pendent to those that were greater. After applying §1332, the majority decided there was no way Kroger could bring an action against Owen and OPPD as codefendants, since IA citizens were on either side of the "v." Diversity was destroyed upon bringing the suit. Limits on federal jurisdiction should be strictly adhered to. The Court says under the rule of the Court of Appeals, parties could sue diversity citizens and wait for them to implead nondiverse DF's. Also, under "common nucleus of operative fact" theory of Gibbs, how come Kroger never brought crane company into the case to begin with? This makes the claim against Owen not ancillary or pendent, but independent. PL cannot get ancillary jurisdiction b/c it is she who brought the original suit (state action in federal court). When that was lost, so was ancillary jurisdiction. Rule: So after the Court applies the Gibbs test ("common nucleus of operative fact"), it must look to the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim, in order to determine whether "Congress in that statute has . . . Expressly of by implication negated" the exercise of jurisdiction over the particular nonfederal claim. Relevant statute is 28 USC §1332: federal courts gets jurisdiction in diversity actions and over civil actions where the matter in controversy exceeds $10K. Dissenting: (White, Brennan): :language of United Mine Workers v. Gibbs was broad enough to handle this case. PL went to federal court in a property diversity suit, and DF impleaded Owen who alleged being from another state, then when original DF bowed out on SJ, then impleaded party decided to tell the truth and fess up to being a state citizen. Under the rule from Gibbs, this would constitute a state question pendent to a an original federal claim, as it was derived from a common nucleus of operative fact. Kroger tried to assert a claim against Owen which derived from its suit against OPPD. This Court's application of §1332 to this case means no citizens from the same state can sue in federal court. There is a failure to take into consideration fairness, economy, and convenience to the litigants (all factors relied upon in Gibbs), as now Owen is in effect being rewarded for lying. F. Mandatory joinder of parties Topic Notes: Under FRCP 20, PL establishes the initial lineup of parties -- both as to PL's (who must be willing to join), and DF's (whether or not they are willing to join). DF has power to assert counterclaims against PL and cross-claims against other DF's, and bring in third parties who may be liable to PL for all or part of PL's claims. New parties are joined in as per FRCP 13(h). This section considers that the DF (and perhaps the court) can insist on the joinder of a party who satisfies none of the FRCP 20 or 13(h) tests. FRCP 19 divides these parties into 2 categories: (1) FRCP 19(a) necessary parties (2) FRCP 19(b) indispensable parties If an absent party is determined to fall within FRCP 19(a), that party must be joined "if feasible." "Feasible" refers to the fact that the existing PL must seek to join that party and has lost a measure of control over the party lineup (if feasible refers to OJ and SMJ and venue; not feasible to join a party that would destroy PJ or SMJ or venue) Temple v. Synthes Corp. (1990) Case Brief: Style (name of case): Temple v. Synthes Corp., U.S. Supreme Ct. (1990) Cause of action: The following is a cause of action for design defect and manufacture, which were proximate cause of injury. Procedural History: Suit filed against PA company in US District Court for E. Dist. of LA and an administrative proceeding against doctor and hospital. DF moved for dismissal for failure to bringing necessary parties to a claim as per 14(a). District Court ordered Temple to join both parties, and when Temple failed to do so, the trial court dismissed with prejudice. Court of Appeals affirmed. Supreme Court reverses. Facts: PL from MI, operated on LA by a doctor, using a part which was manufactured in PA. Part broke inside PL's back (plate and screw device for lower back). Issue(s): Under FRCP 14(a) does a party to a manufacture and design defect suit have to be joined to the defendant in a suit for malpractice and negligence against a hospital when the claims both arise out of the same occurrence or transaction? Holding: No. Both tortfeasors were merely permissive parties, and thus were not required to be joined. Court's Rationale/Reasoning: There is in some instances a public interest in the joining of parties, but there is no such instance here. In the case they compare it to (Provident Bank v. Patterson), there was a declaratory judgment sought against an insurance company, and there it was assumed that the policy holder was a party who should be joined in the suit, if feasible. Since the joinder would destroy diversity, the Court allowed the suit to proceed without the policy holder. Here, neither party is necessary for the other. One is a manufacturing defect, and the other is negligence, at least the Court says so. As potential joint tortfeasors with Synthes, doctor and hospital were merely permissive parties. Rule: It is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. A tortfeasor with the usual joint and several liability is merely a permissive party to an action against another with like liability. (also nothing in LA law to prove contrary to this either) Helzberg's Diamond Shops, Inc. Valley Wes Des Moines Shopping Center, Inc. Case Brief: Style (name of case): Helzberg's Diamond Shops, Inc. v. Valley West Des Moines Shopping Center, Inc., U.S. Ct. of Appeals for the 8th Circuit (1977) Cause of action: The following is a cause of action for preliminary and injunctive relief for breach of K. Procedural History: Trial court (district Court) found for PL. This Court affirms. Facts: PL gets into contract with DF shopping plaza with the provision that there should be no other catalogue or full line jewelry store. DF signs two other jewelry stores, both of whom try to open full line services in addition to their regular jewelry store business. PL sues for injunctive relief; DF counters with a rule 19 claim that the other jewelry stores should have been joined as 3rd party DF's. Issue(s): Under FRCP, does a breach of K suit against a shopping center for breach of K force the PL to join the other breaching parties to the suit in question? Holding: No. A person does not become indispensable to an action to determine rights under a K simply b/c that person's rights or obligations under an entirely separate K will be affected by the result of the action. Court's Rationale/Reasoning: Was the other store's absence from the suit prejudicial to the other store or to DF? No, b/c Lord is not a party to the suit, so its rights are not effected in this suit. The court found that even if the court determined there was a breach of K, that Lord would hold its lease K with West. Thus, Lord's rights are not effected. Lord's absence does not prejudice West either. While it's true West's obligations to Helzberg and Lord are different, but those results come from West's act, not from Lord's absence. This suit is for the lease regarding Helzberg and West, and involves no other party. As to inconsistent judgments (or multiple judgments), again the suit is between West and Helzberg; Lord has not filed suit. No precedent shows there could be such a misinterpretation. Any inconsistencies would again result from inconsistencies in the agreements involving the separate leases. As to prejudice towards the absent party, Lord's had a chance to intervene and assert any rights or stake it might have in the suit and chose against such action. Lord's absence was of its own choice; its decision does not effect West's suit. Rule: The determination of whether or not a person is an indispensable party is one which must be made on a case-by-case basis and is dependent upon facts and circumstances of each case. (1) to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice should be lessened or avoided (3) whether a judgment rendered in the person's absence will be adequate (4) whether the PL will have an adequate remedy if the action is dismissed for nonjoinder. G. Intervention Topic Notes: Intervention is covered by FRCP 20, giving PL's the ability to join multiple parties as DF's. FRCP 13 & 20 give DF ability to join additional parties as DF's if a counterclaim is filed. FRCP 19 gives DF ability to seek mandatory joinder of a person who is not a par to the action. Intervention under rule 24 offers the nonparty the opportunity to get into the lawsuit, even though none of the existing parties want her there. Coalition of AZ-NM Counties for Stable Eco. Growth v. Dept. of Interior (19 Case Brief: Style (name of case): Coalition of AZ/NM Counties for Stable Eco. Growth v. Dep't of the Interior, U.S. Ct. of Appeals, 10th Circuit (1996) Cause of action: The following is a cause of action for intervention in a trial between the above parties for reasons he studied, took pictures of them and persuaded the U.S. Fish & Wildlife Service (FWS) to protect the species at issue. Procedural History: Trial court denied after both parties objected to the intervention, and this court reverses and remands with direction to grant intervention. Facts: Dr. Silver is a commercial wildlife photographer, an amateur biologist, and a naturalist, with a specialty in photographing creatures of the American southwest. For five years, he was active in trying to protect the Mexican spotted owl ("owl") for 5 years, helped petition for it, and even threatened suit against the FWS under the Act's provision. After FWS listed the owl as endangered, it failed to list a protective habitat, so Silver filed suit with other environmentalists to force FWS to do so and won. Present suit for intervention is PL's assertion that DF here did not have sufficient data to find their area as the owl's protective habitat. Issue(s): Under FRCP 24, may a 3rd party intervene in a wildlife protection lawsuit when both parties object to the 3rd party's intervention, and when the 3rd party was the reason the parties were at odds to begin with? Holding: Yes. Dr. Silver has a right to intervene in the action pursuant to FRCP 24 b/c he has had direct, substantial, and legally protectable interest in the subject of the action between the coalition and DOI; this interest may be impaired by the determination of the action; and neither DOI nor the coalition will adequately represent Dr. Silver's interest. Court's Rationale/Reasoning: The court goes through the FRCP 24(a)(2) analysis: (1) application must be timely: Parties agreed to this point. They address de novo the other three parts. (2) interest relating to the property or transaction which is the subject of the action: In order to satisfy this test, Silver must have a direct, substantial and legally protectable interest in the listing of the Owl. The interest part of the prong is very fact specific, and to provide those who are legitimately involved with the suit a chance to intervene. Silver initiated the whole process with the very first petition, and then two letters in which he followed with suit against FWS after its failure to take action. He is also directly involved as photographer and biologist. Economic interest is irrelevant. Silver's interest is also legally protectable based on the statute he used to initially sue under. Thus, Silver satisfies the prong as it is direct, substantial and legally protectable. (3) interest may "be a practical matter" be "impaired or impeded": Silver's impairment does not need to be of a legal nature. There is no restriction to a res judicata test (they can use prior suits, i.e., stare decisis, to figure this out). The complaint says DOI failed to use proper data, used unfounded assumptions, and the like; should the court find for DOI, Silver's interest in the bird would be impaired, as the owl and its habitat would no longer be protected while Silver tried to lift such a permanent injunction and FWS considered FWS considered Silver's petition. Thus he satisfies this prong. (4) applicant's interest is not (adequately) represented by existing parties: the burden under this test is minimal. All Silver has to show is that there is collusion between the representative and the opposing party, that the representative has an adverse interest to the applicant (silver), or that the representative failed in fulfilling his duty to represent the applicant's interest. Silver needs representation which is equal to his interest, and there is no such representation here, as it can be gleaned from the parties' actions that they do not wish to consider any of Silver's interests as they could jeopardize the repeal of the Act. DOI must represent the interests of the public, which may differ from Silver's, but it does not, and this is why it is suspect, and the test passes on this prong as well. Rule: An order denying intervention is final and subject to review if it prevents the applicant from becoming a party to an action. FRCP 24(a): upon timely application, anyone shall be permitted to intervene in an action. . .when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that applicant's interest is adequately represented by existing parties. H. Interpleader Topic Notes: Fighting over the ownership of some property (real or personal). Stakeholder is the one in possession of the property. Stakeholder wants to force all potential claimants into a suit together, to litigate all claimants once and for all. There are 2 types of interpleader: (1) rule and (2) statutory Rule interpleader (uses regular diversity rules): to determine diversity the stakeholder must be diverse from every claimant (complete diversity). The claim must be for over $75K. Use regular service of process analysis and use basic venue rules. Statutory interpleader (governed by 28 USC section 1335, 1397 and 2361): for diversity all you need to show is that one claimant is diverse from another claimant (minimal diversity in section 1397). Claim must be over $500. You may use nationwide service of process (section 2361). Venue is proper where any claimant resides. NJ Sports Prods., Inc. v. Don King Prods., Inc. (1998) Case Brief: Style (name of case): NJ Sports Prods., Inc. v. Don King Prods., Inc., (DKP) US District Ct. for the District of NJ (1998) Cause of action: The following is a cause of action to permit Main Events (also ME, PL's business name) to pay into the court registry over $3M+, to restrain other actions against it affecting the funds involved in the interpleader, and directing the claims on the fund be filed. Procedural History: Court grants Main Events' motion seeking an order (1) permitting ME to pay to the Court registry the $3M+ together with interest, in connection with the interpleader action brought by ME; (2) directing the claims on the alleged fund to be filed; and (3) restraining any other actions affecting the funds involved in this interpleader (except a disciplinary action brought by the NAC against Oliver McCall). Facts: McCall-Lewis fight from 2/7/97. ME entered into 2 K's with McCall and his manager Jimmy Adams (also DF). K #1 was under the rules of the WBC, where McCall promised not to do drugs and to cooperate & assist ME in promoting the fight. ME alleges McCall breached K by being arrested on drug charges and refusing to help w/promotions. Second K was thru the NV Athletic Commission (NAC Contract or NACK), which provided McCall couldn't get the purse if he didn't engage in honest competition. DKP, on behalf of McCall, wanted a letter of credit to be provided to DKP in McCall's name. DKP alleges McCall stopped fighting after the 3rd round of the fight, in effect breaching K#2, which the NAC alleges. NV Atty General filed disciplinary action before NAC for fines against McCall for 10% of his purse and revocation of McCall's boxing license there. McCall and Atty Gen's Office settled, where McCall agreed to pay a $250K fine to NV and got a one-year suspension in NV. NAC required to approve of settlement Atty Gen. agreed to recommend that the NAC order that McCall receive the remaining monies due him minus $250K for breaches of K. ME says since it wasn't a party to the settlement negotiations (although it knew of the hearings), and that only NAC and McCall were privy to the settlement terms, ME should be able to have all six possible claimants to the purse in the suit to settle this once and for all. DKP and McCall oppose the interpleader for lack of SMJ over ME's interpleader complaint, improper venue for interpleader, the court should abstain from exercising interpleader jurisdiction in favor of the action pending before the NAC, court lacks PJ over McCall, and NAC K by its terms designated NAC as exclusive forum to hear these claims. Issue(s): Under FRCP 22, is ME entitled to interplead itself and allege 3 other parties as entitled to a fight purse when opposing party argues lack of SMJ, PJ and improper venue to hear the case? Holding: Yes. Venue, fear of multiple claims if no interpleader is granted, PJ and the ability to enjoin all other state proceedings are factors to granting interpleader under either rule or statutory standards. Court's Rationale/Reasoning: Venue argument: none of the named DFclaimants in the interpleader reside in NJ; under either statutory or rule interpleader, there is proper venue; ME resides in NJ, so rule interpleader is okay. Statutory claim is also fine, as although none of the claimantsstakeholders reside in NJ, PL does qualify as a claimant within section 1397. A PL-stakeholder, based on a textual reading of the statute, provides for venue where any claimant resides, and since the claimant resides in Jersey, the venue is proper. DKP's argument that interpleader is improper b/c there exist no adverse claims to the fund: the existence of 2 or more adverse claims is a prerequisite to the maintenance of an interpleader action. ME has made an adequate showing that is has a "bona fide" fear of adverse claims relating to McCall's purse. ME, although the possible claims of McCall and his trainer Adams are not founded, does assert sufficient evidence to show there is legitimate fear of dual obligations to McCall and Time Warner, the cable company who lent the money as creditor. TW alleged the letter of credit was cashed over its objection after McCall breached its K to the cable company. If McCall is found to be entitled to any or all of the purse, ME could be liable to TW and the its McCall as a result. DKP's argument that this court lacks PJ over McCall: McCall says no. The court disagrees. As per nationwide service of process, PJ is over McCall at least with respect to ME's statutory interpleader claim. So even if the proposed interpleader action is pursuant to FRCP 22, it has PJ over McCall. ME's application to enjoin other state proceedings: Injunction is appropriate, because section 2361 halts any proceedings deemed to be inconsistent with the statutory interpleader proceeding. It's also possible under rule interpleader, b/c if the court can exercise PJ, it can enjoin other courts from hearing the case as well. Rule: See USC 28 sections 1367, 1335, 2361 and FRCP 22. d/b/a: "doing business as" means that the name of the company is the not same name as it is actually incorporated under. Business is done under a name the public would recognize. I. Class Actions Topic Notes: 3 types of class actions: (1) 23(b)(1): prejudicial (individual suits not fair to outcome; individual harm to all class members, "race to the courtroom" lessens funds) (2) 23(b)(2): party opposing a class (DF treated class members alike so they want injunction, declaratory judgment, to fix problem for all) (3) 23(b)(3): common questions predominate and a class action is superior (notice, class rep has to pay to give notice to all members, reasonably identifiable notice, notice tells them everything including opt out option); parties can separately appear with their own lawyer -- settlement/dismissal needs court approval; PJ is assumed with consent to suit, SMJ it might be a federal question, but if not, then it's the citizenship of the representative, who has to be diverse from the DF Courts are split as to whether just the representative has to meet the $75K claim or does it apply cumulatively to the group needed for practicality, commonality, typicality, adequate representation 1. Introduction Topic Notes: Class actions are suits that are brought by the named plaintiffs, or the class representatives. The others on whose behalf the lawsuit is brought are not joined individually as parties -- at least not in the same way that party joinder might be made under FRCPs 19-20. The parties are bound by the outcome of the litigation as if they were made as formal parties, assuming the suit is proper. Procedures surrounding the authorization, or certification of class actions is strict, specifically to the interest of those the person bringing suit and to those who are under the suit as named co-plaintiffs. Common requirements for all class action suits: FRCP 23(b)(1) addressed to settings in which there is a need for unitary treatment of the claimants FRCP 23(b)(2) which is addressed to class actions for injunctive relief FRCP 23(b)(3) which is addressed to damages class actions not implicating the sort of concerns addressed by (b)(1) 2. Class actions & due process Topic Notes: The Due Process Clause limits the ability of a state to enter a binding judgment determining the rights of persons who have not been made parties to a proceeding in a court with personal jurisdiction. Hansberry deals directly with those concerns as they are implicated in the representative suit or class action brought under FRCP 23. More specifically 23(a): (1) the representative's claims must be "typical" (2) the representative must be an adequate representative (3) the claims must share "common questions" of law or fact these elements are designed to insure the requisite commonality of interest to meet the concerns of due process. The Court has said if the interests and claims of the unnamed members of the class are not sufficiently congruent with those of the class representative, then even a vigorous advocate will not be able to maintain a class suit b/c their fates may not be sufficiently linked, thus presenting an unacceptable risk that the class might be shortchanged. Hansberry v. Lee (1940) Case Brief: Style (name of case): Hansberry v. Lee, U.S. Supreme Court (1940) Cause of action: The following is a cause of action by respondents to enjoin the breach by petitioners of an agreement restricting the use of land within a described area of Chicago, alleged to have been entered into by some 500 of the land owners. Petitioners are bound by a judgment against them in a lower court to which they were not parties and claim a Due Process violation. Procedural History: Lower court held for Df/petitioner. This Court reverses, holding that the previous agreement does not bar litigation on this issue again. Facts: Hansberrys, a black family, acquired and occupied land which was previously owned by a white family. The area agreement stated that no one should sell their property, lease their property or allow any black family to occupy the area. The agreement was to be binding if 95% signed the thing. Respondents claim that the agreement was effective, and further said this issue was barred by res judicata by the decree of an earlier suit. Issue(s): Under FRCP, does res judicata bar petitioner's claim against a violation of due process rights when it was not a party to the previous binding decision on the same issue in the same neighborhood? Holding: No. It is impossible to say that although the people who signed the agreement in the neighborhood are parties to the agreement in question, that any two of them are of the same class. Court's Rationale/Reasoning: Members of a class not present as parties to a litigation may be bound by the judgment where they are in fact adequately represented by parties who are present, or where they actually participate in the conduct of the litigation in which members of the class are present as parties, or where the interest of the members of the class, some of whom are present as parties, is joint, or where for any other reason the relationship between the parties present and those who are absent is such as legally to entitle the former to stand in judgment for the latter. The agreement in question did not purport to create a joint obligation or liability. The promises ran severally to every other signer. So they were not a single party, who could bar another party from acting against it should the situation arise, which did. Rule: One is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. A judgment rendered in such circumstances is not entitled to the full faith and credit which the Constitution and statute of the United States, and judicial action enforcing it against the person or property of the absent party is not that due process which the Fifth and Fourteenth Amendments require. 3. The structure of FRCP 23 Case Brief: Hubler Chevrolet, Inc. v. General Motors Corp. (2000) Style (name of case): Hubler Chevrolet, Inc. v. General Motors Corp., US District Ct. for the Southern District of IN (2000) Cause of action: The following is a cause of action for conversion and unjust enrichment. PL seeks to enjoin DF's from spending any more money on the ad campaigns, and to return the one percent which is rightfully theirs. Procedural History: PL's moved for certification of a class as per FRCP 23, and motion was granted by the trial court. Facts: PL's represent all the auto dealers of IN who are distributors of GM cars. They allege GM, which originally promised they would use a one percent hike in MSRP rates for regional ads, but now are withholding that money to use for national ads. Issue(s): Under FRCP 23, is a claim for injunctive relief by a group of auto dealers against its principal manufacturer barred on the basis of being insufficient, inconsistent, and adequately represented and predominate, when there are 258 different petitioners filing under one class action law suit? Holding: Yes. All the analyses under FRCP 23 which are applicable are satisfied in this case. Court's Rationale/Reasoning: Under part one of FRCP 23(a)(1), there are 258 GM dealers in this suit, so numerosity is satisfied. As for part two, GM asserts that the dealers' complaints are based on several different oral and written agreements, but this is an incorrect application of the standard. PL's have the one marketing claim to bind them all as the main contention of its suit, and the one claim is based on a single practice or course of conduct, as the MSRP agreement is at issue. Adequacy of representation refers to a potential conflict of interest by counsel, as the court wants to have no antagonism between the parties. GM provided no evidence to this effect. Additionally, one marketing charge between the 258 of them is a pretty good indicator of solidarity. As for FRCP 23(b), there are 3 parts which should be addressed: the risk factors (1), the injunctive/declaratory relief must predominate as a remedy sought by PL's (2), and questions of law or fact of the group predominate over the individual questions of the group. Part (1) analysis: this is appropriate in cases where there is a common fund that may limit recovery to individual PL's or a if there's a risk of inconsistent standards. Since there is no limited fund, this does not apply Part (2) analysis: primary limitation is that injunctive or declaratory relief is the primary remedy being sought by the class. When the group is seeking money damages, this does not apply. Here, PL's want to prevent future economic harm and would be entitled to equitable recovery based on its unjust enrichment theme. But the concern of the court is that a group might use a claim for injunctive/declaratory relief to claim money damages later on. This is not the case here. Part (3) analysis: are the questions of law or fact common of the members of the class predominant over the individual questions of each member of the class? DF's claim the remedy sought is too diverse and too timetaking to merely figure out. The court thinks otherwise: although there might be several claims, they are subordinate to the one main claim relating to the marketing issue (court also held in the past that sometimes the merits of the case outweigh the several damages claims). The court says the only issue where each PL in the group would have to assert different proof lies in their Indiana Deceptive Franchise Practices Act claim, of which an element is coercion, unless PL's find a way to relate coercion to the whole group. Additionally, the court chose to analyze whether or not a class action would be the superior manner in which to resolve controversy, of which there are two issues: (1) desirability of concentrating the actions in this forum, and (2) the difficulty of managing such a class action as a burden on the court. As to part one, class action is best to avoid numerous potential suits by each litigant in the group, which is feasible. As to part 2, the processes of discovery, communication wit counsel, among others present an easier time for judges to deal with the parties; they are two parties, instead of several on one side and one on the other. This analysis is satisfied as well. Rule: FRCP 23 requires a two-step process: (1) numerosity, in that the class of people is so large that joinder of all parties would be impracticable; (2) commonality & typicality, in that under the questions of law and fact presented in this complaint are substantially related to one another. 23(a)(1) numerosity 23(a)(2) questions of fact or law common of the class 23(a)(3) PL's claim should be typical of those of the class 23(a)(4) adequate representation A. A note on notice in class actions under FRCP 23 Topic Notes: Right to refuse to pay small claims class action judgments is appealable, since at the time of judgment, one has only that time to appeal or not. Notice is on an individual basis, but the best notice practicable under the circumstances, including all notice to members who cannot be identified through reasonable effort. FRCP also does not authorize PL to impose the costs of the suit on an adversarial DF, there is no preliminary hearing to discuss that issue either. 4. Choice of Law & Jurisdiction Case Brief: Phillips Petroleum Co. v. Shutts (1985) Style (name of case): Phillips Petroleum Co. v. Shutts, U.S. Supreme Ct. (1985) Cause of action: The following is a cause of action for recovery of interest on royalty payments delayed by petitioner. Procedural History: Respondents, 28,000 royalty holders, resided in every state, D.C. and foreign countries, and took up their suit in KS state court. Trial court granted relief for respondent, relying heavily on respondent's previous involvement in a KS Supreme Court decision that a gas company owed royalty owners interest for suspended royalties which were pending final federal approval; Supreme Court of KS affirms. Cert granted, and the Court remands on reconfiguring its choice of law analysis (although it holds the procedure respondents took were all correct). Facts: KS resident Shutts and the Andersons of OK, filed a class action to recover interest withheld on delayed royalty payments on gas leases due to petitioner's price increase proposals. Respondents claim petitioner had access to the money for some time while it awaited gov't approval (as under federal law) for its proposed price increases to be approved. Average claim of the 33K royalty owners was $100. After class action certification, respondents sent notice to all 33K people, giving them a choice of being represented by respondents, by themselves, or opting out all together. Final class was 28,100; less than 1,000 of them were from KS, and about one-quarter of one percent of the gas leases in question were in KS. Petitioner raised PJ as a problem via Int'l Shoe, in that most of the claimants were not adequately represented, as they did not have "minimum contacts" within KS. Other objection was that the KS court could not apply KS to every claim. Trial court said that these were class action PL's and not DF's, and all that needed to be raised was adequate notice and adequate representation. Court added that KS law applied unless there was a compelling reason to apply different law. Petitioners claim that the Due Process Clause of the 14th Amendment prevented KS from adjudicating the claims of all the respondents, and that the Due Process Clause and the Full Faith and Credit Clause of Art. IV of the Constitution prohibited the application of KS law to all of the transactions between petitioner and respondents. Issue(s): Under federal law, is a class action suit by 28K parties who reside in every state and some foreign countries barred from pursuing their suit in a KS court when only 1,000 of the claimants reside in KS and are represented nonetheless by counsel for respondent? Holding: Yes. A forum state may exercise jurisdiction over the claim of an absent class-action PL, even though that PL may not possess the minimum contacts with the forum which would support PJ over a DF. Due process requires at a minimum that an absent PL be provided with an opportunity to remove themselves from the class by executing and returning an "opt out" or "request for exclusion" form to the court. Due Process Clause requires the named PL at all times to be adequately representing the interests of the absent class members. Protection afforded the PL class members by the KS statute satisfied the Due Process Clause, as the absent members are protected by the forum state with the opportunity to opt out. However, Court held that application of KS law to each claim was unfair, which is why it remanded. Court's Rationale/Reasoning: Court addresses standing, and in doing so assesses that indeed there is potential for an injury-in-fact (lost damages, potential earnings) should the claim be denied adjudication, so they get past the standing claim. As to the personal jurisdiction/minimum contacts argument of petitioner, the Court said that in its decision in Int'l Shoe, as long as a DF had certain minimum contacts with the State so that it was "reasonable and just according to the traditional conception of fair play and justice" for a State to exercise PJ, the State could force the DF to defend themselves in the forum, upon pain of default and could bind them to a judgment. But here, the Court says petitioner's contention is wrong, as there is a mix-up between the burdens on a class action PL and those of an absent DF. (see rule) Class actions permit parties to consolidate claims ordinarily unworthy of adjudication (here, $100 a party would constitute such a claim). PL's can be added to the suit as per FRCP 23(d), are not subject to other burdens placed on DF's, as they need no counsel there, and can opt out of the suit if they want (as some did here), knowing that they are protected by the rules if they wish to adjudicate in the future. An "opt in" mandatory position for class action PL's would force any potential claimant to adhere to the parameters of one petitioner's claim. As for choice of law, the application of KS law to each and every claim was too arbitrary, and thus needs to be refigured in KS. Rule: A class action PL is bound by the judgment in personam unless it is fully a party to the suit in the traditional sense. The absent parties would be bound by the decree so long as the named parties adequately represented the absent class and the prosecution of the litigation was within the common interest. If the forum state wishes to bind an absent PL concerning a claim for money damages or similar relief at law, it must provide minimal procedural due process protection. PL must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel. Notice must be the best practicable, reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action to afford them an opportunity to present their objections. Notice should describe the action and PL's rights in it. A. Note on subject matter jurisdiction in class actions under FRCP 23 Topic Notes: Class actions based on state law must confront the requirements of the diversity statute (and venue, as per 28 USC 1391(a)). 5. Settlement of class actions Topic Notes: FRCP 23(e): class actions may be settled, but only with the approval of the court. Typically, if a suit has been certified as a class action, and the parties agree to a settlement, the settlement will go before the court and a second round of notice will issue. Fairness hearing follows to see if the settlement is fair to the class as a whole. XI. Trials A. The right to trial by jury Topic Notes: Art. III expressly provides all criminal trials to be by jury, but there is no guarantee for civil suits until the 7th Amendment was ratified in 1791. 1. The merger of law and equity Topic Notes: FRCP established in 1938 a merger of equity, law and admiralty, so that there would be only one "civil action." But the premise of where a case would have come up is the backbone generally of how the decision is reasoned. But cases can involve a merger of both policies, for example: (1) PL brings up both legal and equitable claims (suing for specific performance of a land K, and for damages caused by DF's breach of K) (2) PL has a legal or equitable claim, while the DF brings a legal or equitable claim (whichever was not brought by PL) (3) PL has a legal claim but the process asked to be used is one only found in equity (PL brings a modern class action suit for damages for securities fraud, a claim at law, but the class action itself is a process in equity) Beacon Theatres, Inc. v. Westover (1959) Case Brief: Style (name of case): Beacon Theatres, Inc. v. Westover, U.S. Supreme Ct. (1959) Cause of action: The following is a cause of action for a declaratory judgment by jury trial. But there is a counter-claim against respondent Fox and intervener Westover. Procedural History: District Court viewed the cause of action sought as equitable, and denied a jury trial until the facts were heard by a judge. Petitioner sought by mandamus to vacate certain orders to deprive it of a jury trial in a suit brought by Fox West Coast Theatres. Appeals Court of the 9th circuit refused the writ. The Court granted cert and reversed the judgment of the Court of Appeals. Facts: Fox asked for declaratory relief under the Sherman Antitrust Act/Clayton Act after Beacon opened up a theater and notified Fox that it did not see Fox's exclusive rights to certain pictures as being in line with the antitrust laws. Fox alleged duress and coercion into acquiescing its rights to exclusivity. Declaratory relief and injunction were sought by Fox to prevent irreparable harm. Issue(s): Under FRCP, does a claim for declaratory judgment immediately bar a trial by jury, when the two actions are in equity and at law? Holding: No. A party cannot be denied legal relief just because the other party sued under an equitable action first. Only under the most imperative circumstances can the right to a jury trial of legal issues be lost through prior determination of legal claims, and this is no such situation. Court's Rationale/Reasoning: Standard of review: abuse of discretion. The Court felt the declaratory judgment act drew no support from the equitable issues presented. Assuming that the pleadings can be construed to support such a request by Beacon and assuming that additionally the complaint can be read as alleging the kind of harassment by a multiplicity of lawsuits which would have traditionally justified equity to take jurisdiction and settle the case in one suit, the Court is of the opinion that, under the Declaratory Judgment Act and the FRCP, neither claim can justify denying Beacon a trial by jury of all the issues in the antitrust controversy. The Federal Rules say that courts can try issues of both law and equity (1, 2, 18). So any defenses can be raised to either effect. This promotes resolve of all the issues of one case in one trial. Rule: The declaratory judgment acts still preserve the right to a trial jury by either party should they request one. Dissenting: (Stewart, Harlan, Whittaker): One should be able to exercise their right to bring an equitable claim in advance of a trial. If trial PL Fox thought there was no adequate remedy at law but for the injunction, trial court had every right to address such an issue without a jury trial, in order to dispense with the equitable portion of the relief sought, at least temporarily. Then there could have been a trial. These claims should have been tried separately. treble: having more than one decidedly dissimilar aspects or qualities 2. New statutory rights Topic Notes: This portion discusses some of the newer state and federal legislative vehicles passed for which to bring causes of action under, and the determination that follows as such in determining whether the cause if one of equity or law. Chauffers, Teamsters & Helpers Local No. 391 v. Terry (1990) Case Brief: Style (name of case): Chauffers, Teamsters & Helpers Local No. 391 v. Terry, U.S. Supreme Ct. (1990) Cause of action: The following is a class action for back pay as the result of a breach of duty by a union. Procedural History: 1983: respondents filed in District Court for breach of the CBA in violation of the Labor Management Relations Act. Suit requested a permanent injunction against DF's to cease their actions and sought compensatory damages for harm suffered. 1986: McLean files for bankruptcy, and the suit was dismissed, in addition to all claims for injunctive relief. Respondents requested a jury trial in their pleadings. Union moved to strike the jury demand on the ground that no right to a jury trial exists in a duty of fair representation suit. District Court denied motion to strike, 4th Circuit affirmed. Facts: Respondents were employed by McLean, who was party to a collective-bargaining agreement that governed the terms & conditions of employment at McLean's terminals. All were members of the union. Respondents were transferred to another city, but were promised better rights than those in that city who were already unemployed. After being called in and out of work with McLean for a short while, they were discharged, and this effected their seniority rights. Respondents filed a grievance with the union, to which McLean was ordered to change its practices, but this continued, as did the grievances. On the third grievance, the Union refused to pursue the grievance as they said the prior grievances had resolved those issues. Issue(s): Under FRCP, may an employee who seeks relief in the form of backpay for a union's alleged breach of its duty of fair representation has a right to trial by jury? Holding: Yes. The seventh Amendment entitles such a PL to a trial by jury. Court's Rationale/Reasoning: Standard of proof for respondent is to show that the union breached its duty in the handling of the grievance, by showing that (1) the employer's action violated the terms of the CBA and (2) that the union breached its duty of fair representation. As to the constitutional question, the Court looked to the common law statutory actions which were brought into court, and the kind of relief now to see whether they are comparable to any previous causes of action. Breach of a union's duty was unknown at common law, and petitioner compares this to a dismissal of an arbitration hearing. The Court finds no comparison, as this was a breach of duty claim. The next comparison is one of a trust beneficiary against a trustee for breach of fiduciary duty, which this Court seems to take more stock in. Respondents claim that this is more like a malpractice claim does not hold water, as the malpractice claim involving a doctor or lawyer involves more personal decisions than what a union may offer. However, under the fiduciary analogy, there still is no equitable backbone to the claim: it is the nature of the issue not the character of the claim. The nature here is to show a breach of contractual duty (legal), not for the relief, which is a subsidiary of the breach claim (equitable). However, the damages here are more legal as well, as they are not for restitution. No one here is withholding money, this is for damages as the result of bad Union practice, which is more of a legal classification. Rule: Damages in restitution are considered equitable, but in the case where backpay is sought for bad practices resulting from a breach of duty, the cause becomes legal in nature. Concurring: (Brennan): Simplify the test for determining whether a particular cause of action is legal or equitable by historical process. Decide seventh amendment claims on the basis of relief sought. If the relief is equitable in nature, then that is the action, etc. The test employed asks the Court to do a lot more historical background than is necessary. (Stevens): Thinks the suit represents a malpractice claim, which is legal in nature anyway. Dissenting: (Kennedy, O'Connor, Scalia): Think the action at hand is more equitable than legal in nature, as there is no legal action which even sprouts out of the claim either to justify a legal application. The breach of contractual duty is not in play in a suit against a trustee. The remedy argument is not soluble either as damages by statute are not more legal in nature than compensatory just b/c a statute might liken them to it. 3. The jury's role Topic Notes: Judge still plays a role in this. Although juries have to apply the relevant law, it is given to them by the judge through instructions or charge to the jury after all evidence has been presented. Thus, a jury could be expected to follow the judge's instructions as to the law, and if they did not, the court would simply order a new trial. Markman v. Westview Instruments, Inc. (1996) Case Brief: Style (name of case): Markman v. Westview Instruments, Inc. U.S. Supreme Ct. (1996) Cause of action: The following is a cause of action for patent infringement Procedural History: Petitioner, a patent owner, sought review of the judgment of the United States Court of Appeals for the Federal Circuit, which affirmed a grant of judgment as a matter of law in favor of respondents, alleged by petitioner to have infringed the patent at issue, despite a jury's finding of infringement, based on the court's own construction of a term of art within petitioner's patent. Facts: Petitioner, the owner of a patent that described a system that could monitor and report the status, location, and movement of clothing in a drycleaning establishment, filed a suit against respondents, the maker of an alleged infringing product (maker) and an operator of a dry-cleaning establishment using the alleged infringing product, for patent infringement. Respondent maker denied infringement. Part of the dispute hinged upon the meaning of the word "inventory," a term found in one of petitioner's claims. The central issue of the case related to an analysis of whether claim construction was a matter of fact to be judged by a jury or rather a matter of law, and who was better placed to analyze claim construction. Issue(s): Under FRCP, is the interpretation of a so-called patent claim, the portion of the patent document that defines the scope of the patentee's rights, a matter of law reserved entirely for the court, or is it subject to a 7th amendment guarantee that a jury will determine the meaning of any disputed term of art about which expert testimony is offered? Holding: The construction of a patent, including terms of art within its claim, is exclusively within the province of the Court. Court's Rationale/Reasoning: The Court asked first whether this was a case at law or if it was something close enough so that the legal and not equitable standard would apply. The Court found this was indeed a matter of law, and then asked if it warranted a jury trial. Applying the historical standard, the Court found judges frequently construed written documents. Precedent shows that juries were used to determine patent terms when it was subject to evidentiary proof, which is not the case here. In fact, a discussion regarding the determination of when to use juries and when to use judges ended at a dead end. When there is something as difficult as the construction of a patent to determine, precedent did point to favor of judges over juries. Claim construction by a judge without a jury had several advantages: an increased stability in the criteria used to determine infringement or not, as well as the assurance that a judge is usually better placed to analyze the claims of a patent by using established rules of interpretation. Consequently, it was held that claim construction was not to be left to the hazards of a jury trial, and hence the concept of separate trial was created. Rule: When the claim at law is in question as to it needing a jury trial or not, the court will ask where this brand of case came from historically, and if there is no exact antecedent, it will compare the case/claim to earlier ones they do know. 4. Selecting the jury Topic Notes: Group of potential jurors is called the "venire." Challenges to the construction of the jury are allowed, but usually require detailed explanation. Challenges to cause occur when counsel suspects a potential juror cannot be fair and impartial. Peremptory challenges are allowed, but are limited and if prejudicial can be stricken. Challenges can be made to the peremptory challenges in both criminal (Batson) and in civil trials (Edmonson v. Leesville Concrete Co.) Hidalgo v. Fagen, Inc. (2000) Case Brief: Style (name of case): Hidalgo v. Fagen, U.S. Ct. of Appeals, 10th Circuit (2000) Cause of action: The following is a tort action for injuries suffered in a screw conveyer accident. Procedural History: PL-AP sued his employer, the manufacturer, the parts manufacturer for the machine, the contractor hired to construct the survey system he was injured, and two other parties who oversaw the construction. District court granted SJ for manufacturer and the two other parties; partial SJ for the contractor on breach of implied and express warranties. Matter went to a jury trial on the negligence claim and verdict for contractor. PL-AP seeks new trial b/c court improperly denied his Batson challenge to Fagen's peremptory strikes, which permitted the contractor to exclude all Hispanics from the jury. This court affirms. Facts: PL-AP severely injured his arm, so as to require amputation, after an accident involving the cleaning of a screw conveyor at a meat packing plant. Trial voi dire saw exclusion of two Hispanic women. Upon Batson challenge, judge asked counsel for Fagen to explain only his second strike, as the first exclusion was not challenged. Upon giving an alleged facially neutral response, the judge allowed the stricken jurors. Issue(s): Under FRCP, does an inquiry by a judge into the racial motivation behind a Batson challenge suffice the standard itself, when the judge did not question counsel about the other stricken juror who was of the same decent? Holding: No. There was no intentional discrimination for clear error. Court's Rationale/Reasoning: Standard of review: de novo. Discriminatory intent implies that the decisionmaker chose a course of action "b/c of, not merely in spite of its adverse effects upon an identifiable group. When the judge asked counsel his reason for the strike, he gave a raciallyneutral answer regarding wanting an older jury to hear the case, there was no clear error in allowing the juror to be removed. Additionally, PL-AP's claim that there was a gender motivation behind the exclusion of the two women when counsel for Fagen said he preferred male jurors is unfounded. There never was such a challenge to the jurors for this same reason before. Rule: Batson challenge allows for a challenge to a peremptory strike if opposing counsel believes the strike is discriminatory in nature. The striking party must then give a neutral, legitimate reason for the strike. B. Control of the decisionmaking process 1. The phases of a trial 2. Procedural controls 3. Taking a case from the jury Case Brief: Pennsylvania RR Co. v. Chamberlain (1933) Style (name of case): Pennsylvania RR Co. v. Chamberlain, U.S. Supreme Ct. (1933) Cause of action: The following is a cause of action to recover for the death of a brakeman, allegedly caused by petitioner's negligence. Procedural History: Jury verdict in District Court for RR. Circuit Court of Appeals reversed. The Court affirms. Facts: Judge did not submit PL's witness' testimony to the jury and subsequently the case, after he found the testimony riddled with inconsistencies, as well as being circumstantial in comparison with the others who saw the accident in question. At most there was an inference to the crash. Issue(s): Under FRCP, does the judge have the right to disallow testimony at trial to be submitted to the jury if it is not consistent with opposing party's testimony to the same events? Holding: Yes. If the testimony is not consistent in that it does not directly verify one way or the other as to the circumstances which occurred, the testimony may be disallowed on the basis of its inconsistency and insufficient. Court's Rationale/Reasoning: A party cannot resolve the doubt as to which of two equally justifiable inferences shall be adopted by drawing a conclusion, which, if accepted, will result in a purely gratuitous award in favor of the party who has failed to sustain the burden of proof cast upon him by the law. A rebuttable inference of fact, "must necessarily yield to credible evidence of the actual occurrence. Witness' testimony is simply hard to believe; it is unlikely to see an accident when one says they are not really paying attention to what is going on around him. A preliminary question before a judge is, not only whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed. And where the evidence is "so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury. Rule: Where proven facts give equal support to each of two inconsistent references, and neither of them is established, judgment as a matter of law must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover. Howard v. Wal-Mart Stores, Inc. (1998) Case Brief: Style (name of case): Howard v. Wal-mart Stores, Inc., U.S. Court of Appeals for the 7th Circuit (1998) Cause of action: The following is a cause of action for injuries from a slip and fall. Procedural History: DF removed case to district court, where there was enough reason to believe damages sought would be more than $75K. Later she recovered and asked for only $25K in damages. Jury awarded her over $18K. DF appealed for fear of future appeals. Jury verdict affirmed. Facts: PL slipped and fell, injuring her leg. However, there is question as to how long the soap was on the ground at the store in question, so as to prove causation. Issue(s): Under FRCP, was there enough evidence of liability to allow the case to go to a jury, and, specifically, whether there was enough evidence that an employee rather than a customer spilled the soap? Holding: Yes. The evidence presented shows that it is possible PL could've been injured by the store's negligence. Court's Rationale/Reasoning: Howard could only prevail only if there was enough evidence that an employee spilled the soap to satisfy the requirement of proving causation by a preponderance of the evidence. The accident occurred in the morning, when employees stock their shelves. The puddle PL slipped in was about the diameter of a softball as per evidence presented at trial, and also was in the middle of the aisle. Any number of things could have happened to cause such a spill (cap fell off, employee dropped it, customer could've dropped it, etc.). But the case that caused the spill was never recovered. So the court said that the jury properly could find for PL, even if barely. After applying the rule to the case-at-bar, the court also determined that as long as an inference can be drawn from the evidence, and not just a mere probability, that the testimony and the cause of action may stand as a matter of fact in a trial court. Here, despite that this is a tiny case by comparison, there is no reason for PL to have go and prove her cause of action one way or the other above and beyond what she did in filing and deciding to go to court. It would simply not be feasible to warrant such extra research to go into trying such a case on its facts. Rule: Judgment as a result of probability as it relates to causation (the chance that one thing or another caused injury, and ruling on that percentage alone) is not enough to make a judgment on the facts. 4. New trials Latino v. Kaiser (1995) Case Brief: Style (name of case): Latino v. Kaizer, U.S. Court of Appeals for the 7th Circuit (1995) Cause of action: The following is a cause of action for arrest w/o probable cause and false imprisonment. This appeal is to reverse a damages award against them in favor of PL's. Procedural History: PL's jury award plus attorney fees came after the second trial. First jury found in favor of DF's, but that verdict was vacated was vacated by the district judge on a post-trial motion under FRCP 59. This court reinstates the verdict in favor of the DF's. Facts: PL's were arrested by DF and an undetermined officer for ticket scalping. Testimony of the events leading up to and after the arrest differed. Other PL Slawinski testified he had no tickets before being arrested, and that two tickets were clipped to his arrest sheet after they got to the station. Officers say they saw both Slawinski and Latino scalping the tickets outside the arena, arrested them, took their tickets, asked for and got their Id's, took them to the station where he later took each of their tickets after processing them. Trial judge believed officers' stories were mostly perjured, which is why he set aside the jury's verdict in the second trial. Issue(s): Under FRCP, did the trial judge abuse his discretion upon taking the case from the jury and ruling on the issues of fact and law himself? Holding: Yes. There was abuse of discretion in district court's decision to grant a new trial based on weight of evidence; trial judge improperly usurped the jury's role in deciding the most reasonable inferences to be drawn from the evidence. Court's Rationale/Reasoning: Standard of review: abuse of discretion. In cases involving simple issues but highly disputed facts, greater deference should be afforded the jury's verdict then in cases involving complex issues with facts not highly disputed. A trial judge must indeed evaluate and weigh the evidence; but just b/c the judge might come up with a different verdict, doesn't mean the judge can get rid of the jury verdict. The district judge can take away from the jury testimony that reasonable persons could not believe. However, the exception is a narrow one, and can be invoked only where the testimony contradicts indisputable physical facts or laws. Judge's decision that the officers' testimony was perjured was not based on their demeanor. It was not unlikely that 2 guys would want to turn a $600 profit on a couple of NBA Finals tickets, as the trial judge improperly thought was ridiculous. In relation to these and the rest of the facts, a jury would be best situated to deal with these questions of fact in combination with the simple law. Trial judge thought that b/c the tickets were not in numerical order, that there was no intent to sell them. A reasonable juror could infer they got the tickets mixed up when they divided them up to sell. Additionally, the judge thought these guys couldn't possibly get their wallets with one free hand, but a reasonable juror could infer otherwise. Even Latino's friend was not believed by the jury; credibility of witnesses is a jury question as well. Rule: A district court may grant a new trial because the verdict was against the weight of the evidence "only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks [the court's] conscience." 5. Procedures governing post-verdict motions Weisgram v. Marley Co. (2000) Case Brief: Style (name of case): Weisgram v. Marley Co., U.S. Supreme Court (2000) Cause of action: The following is a cause of action for wrongful death. Procedural History: At trial, DF's tried to move under FRCP 50 for judgment as a matter of law, but were denied. PL's won at trial; jury verdict against Marley. After denial of post-trial motions for a new trial, and judgment as a matter of law, Marley appealed to the 8th Circuit, which vacated (trial judge abused his discretion) and instructed the lower court to rule for DF as a matter of law. Circuit Court held that this was not a close case without the expert testimony proffered, and that there should be no 2nd chance to try the case. This Court affirms. Facts: After a fire, fire captain's, metallurgist's, fire investigator's testimony to the accident was found to be "patently speculative" by the Circuit Court, after there was no problem at trial. All three were expert witnesses for PL; testimony said to be stretching the truth, or at least giving qualified opinions which were hard to believe. Issue(s): Under FRCP, if expert evidence is erroneously admitted at trial, and if the erroneously admitted evidence is what defeats a timely post-trial motion for judgment as a matter of law under Fed. R. Civ. P. 50, then may the appellate court overruling the admissibility of the evidence simply order entry of judgment as a matter of law, or must it remand so that the district court may consider ordering a new trial instead? Holding: Yes. The courts of appeal may do any of three things, as circumstances warrant: (1) direct the entry of judgment as a matter of law; (2) order a new trial; or (3) remand so that the district court may make the decision. Court's Rationale/Reasoning: To the holding in Weisgram, it might be objected that directing the entry of judgment in such circumstances is unfair, because it deprives the proponent of the evidence (typically the plaintiff) of any opportunity to substitute other, admissible evidence, as the proponent might have been able to do, had the proponent foreseen the precise grounds on which the evidence actually proffered was going to be found inadmissible. And to that objection, the simple rejoinder might be offered that any such unfairness was already possible before Weisgram, because the district court itself might refuse a new trial. All Weisgram did was to clarify that courts of appeal could do the same. But the Weisgram Court felt the need to go beyond that simple rejoinder. To the particular plaintiffs before it, the Court said that their claims were probably beyond hope of redemption in any event -- as the Eighth Circuit said that this was "not a close case." Maybe the PL's in Weisgram might possibly have prevailed if not shackled to their improvidently chosen expert witnesses, but we shall never know for certain whether the district court would have given them the chance for a redo. Meanwhile, by way of assuaging more general concerns about fairness, the Weisgram Court served up the following language: Since Daubert, . . . parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail. We therefore find unconvincing [plaintiff's] fears that allowing courts of appeals to direct the entry of judgment for defendants will punish plaintiffs who could have shored up their cases by other means had they known their expert testimony would be found inadmissible. In this case, for example, although [plaintiff] was on notice every step of the way that [defendant] was challenging his experts, he made no attempt to add or substitute other evidence. The question, perhaps, boils down, as the Court's language suggests, to the issue of notice. One wants litigants to have some opportunity to address claimed deficiencies in their experts' testimony. A superficial reading of the first sentence in the quotation above would suggest that in the Supreme Court's view, the mere issuance of the opinion in Daubert, by itself, put all proponents of expert evidence on notice of every conceivable evidentiary objection, so that experts may legitimately be expected to address all such objections when they first state their opinions in their initial reports. But that superficial reading cannot be correct, because the opposite is actually true. Before Daubert, under Frye, the proponent knew, at least, that the admissibility of expert evidence would depend on a showing that the expert was qualified and on a showing that the expert's methods or opinions were generally accepted in the relevant scientific or technical community. Rule: After Daubert, there are innumerable grounds on which expert testimony may be attacked, and no comprehensive list of potential objections can be imagined. In vastly expanding the scope of possible quarrels over expert testimony, Daubert actually diminished the foreseeability of each particular challenge. 6. Excessive verdicts Topic Notes: 7th Amendment has two clauses in it relating to excessive verdicts: (1) preserves the right to trial by jury in civil actions at common law (2) declares that no fact tried by a jury shall be reviewed other than in accordance with the common law An award of a new trial for excessiveness of the verdict is a form of review of a jury's finding of fact (as is the grant of a new trial b/c the verdict is against the weight of the evidence). The Court has also upheld the practice of allowing a new trial on damages alone, at least when the damages issue was sufficiently distinct from issues surrounding the merits, and when no injustice would result. Remittitur: courts permitting the prevailing party to accept a nonexcessive sum (i.e., less than the jury award), as a way to avoid a new trial Gasperini v. Center for Humanities, Inc. (1996) Case Brief: Style (name of case): Gasperini v. Center for Humanities, Inc., U.S. Supreme Court (1996) Cause of action: The following is a cause of action for reversal of a jury verdict, after original trial court entered judgment for $450,000 in damages. Procedural History: The Center moved for a new trial contending that the verdict was excessive. The District Court denied the motion. The Court of Appeals observed that New York law governed the controversy in this diversity case. Under New York law appellate courts are empowered to review the size of jury verdicts and to order new trials when the jury's award "deviates materially from what would be reasonable compensation." Contrarily, under the Seventh Amendment, "the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." Guided by New York Appellate Division decisions reviewing damage awards for lost transparencies, the Court held that the $450,000 verdict "materially deviates from what is reasonable compensation." The court vacated the judgment entered on the jury verdict and ordered a new trial, unless Gasperini agreed to an award of $100,000. Facts: William Gasperini, a journalist and photographer, loaned 300 original slide transparencies to the Center for Humanities, Inc. When the Center lost the transparencies, Gasperini commenced suit in the District Court. The Center conceded liability. A jury awarded Gasperini $1,500 per transparency, the asserted "industry standard" of compensation for a lost transparency. Issue(s): Under FRCP, does New York's law that empowers appellate courts to review the size of jury's awards conflict with the Seventh Amendment's guarantee of jury trials in civil cases? Holding: No. The Court ruled that New York's law controlling compensation awards for excessiveness or inadequacy can be given effect, without detriment to the Seventh Amendment, if the review standard is applied by the federal trial court judge, with appellate control of the trial court's ruling confined to "abuse of discretion." Court's Rationale/Reasoning: The Court, after applying the rules from Erie and Guaranty Trust, reiterated that the state law, if not in conflict with the federal question, could in fact be used to determine whether or not a jury verdict was excessive. Historically, the NY statute was used to make sure that juries didn't get too crazy with its awards. Here, the trial court simply went by an industry standard, which resulted in a grossly excessive award if the state law were applied. However, the state law, even though the reward would have been different, the verdict still would have been the same, which is not what Erie and Guaranty Trust held according to the majority. As such, the jury award statute may be used as state law as a check on the District Court jury's award, which is why the verdict was vacated and remanded to see if the trial judge's application of the "deviates materially" standard would change the award. Rule: NY's "shock the conscience" test involves jury awards that deviate materially from what is reasonable compensation. Erie also applies: if the federal question is not substantially changed by rendering the state law effective in its court, then the state law can apply as well. Appellate courts have "abuse of discretion" review over excessive jury awards in trial courts. Dissenting: (Scalia, Chief Justice, Thomas): Trial judges are not supposed to review matters of fact; matters of fact are for the jury. The majority also sets the bar for tolerance of jury awards, which is also not appropriate for federal courts of appeals, whether or not the court is sitting in a diversity case. The first argument goes against what the Framers of the Constitution wished in devising the 7th Amendment. The 7th Amendment further limits appellate courts from deciding whether or not a case needed to be remanded for reconsideration of jury awards. Such a ruling by the majority, the dissent argues, greatly diminishes the power of the jury; the Court mistakenly regards as substantive whatever changes the outcome of a case. "Outcome determination was never intended to serve as a talisman." What's more is that the Court had a remedy in front of its face the whole time: FRCP 59. It allows an appellate court to grant a new trial for, among other thing, when the jury has reached a seriously erroneous result, and letting the verdict stand would be a miscarriage of justice. A. Note on Gasperini Topic Notes: The majority treats as an Erie question 1) the standard by which the trial court should assess the jury verdict for excessiveness and 2) the standard by which the court of appeals should review the trial court's ruling, and concludes differently with regard to the answers; the first question is governed by New York law since Rule 59 does not (per the majority, but see the dissent) prescribe a standard for deciding the question, and the balancing test tips in favor of NY law (again per the majority but see the dissent), and the second question is governed by customary federal law since the balancing test tips the other way. 7. A detour - judicial review of judicial factfinding Topic Notes: In theory, there is no judicial review of factfinding, outside of the context of the trial court's decision to grant a new trial for a verdict's being against the weight of the evidence. Judgments as a matter of law based on evidentiary insufficiency, although they require an assessment of the evidence at trial to determine whether rational facfinders could come out as they did, are treated as questions of law. Decisions with respect to the grant or denial of judgments as a matter of law are reviewable de novo, with no deference given to the court below. The grant or denial of a new trial is reviewable for an abuse of discretion. But the factual findings of the jury are not otherwise subject to review. XII. Appeals Topic Notes: The law governing appeals has built-in provisions that tend to uphold trial court decisions, and that both discourage appeals and make reversals unlikely. But still can think of appeals with the following questions: (1) can every ruling be appealed? (2) when can it be appealed? (3) what standard of review is applied by the appellate court? (4) how long will it take and how much will it cost? (5) what happens in between? (6) what are the chances of winning? (7) if the trial loser wins on appeal, what happens next? A. The timing of appeals Topic Notes: In federal courts, only final orders can be appealed. A final order is one that decides the case (usually, a decision regarding who wins and who loses). On appeal, a party can appeal on any order, even those that are interlocutory. The winning party can cross appeal any interlocutory orders it lost as well. Some states allow the immediate appeal of some important interlocutory orders. They are set forth by statute, or they are not capped but the appellate court has first discretion to consider the question based on precedent, sometimes a party must get permission from the trial court or appellate court. According to Fed. R. App. P. 4(1)(A), a party must bring an appeal within 30 days of the final decision. Notice for the appeal is filed in the district court, not the appellate court. If there is a timely post-trial motion (post-verdict motion for JMOL or a motion for a new trial) the time for an appeal begins to run from the disposition from the last such motion, not from the prior entry or announcement of judgment. 1. The final decision rule and exceptions Topic Notes: (a) the Final Decision Rule: 28 U.S.C. §1291 states that the Court of Appeals have jurisdiction over "final decisions." however the statute never says what a final decision is, so it could be motion for SJ, FRCP 12 motion to dismiss, JMOL before verdict, or entering judgment on a jury verdict (b) Statutory exceptions are set forth in 28 U.S.C. §1292 in which immediate appeal of an interlocutory order is permitted; they are granted to special district courts not in the 11 Federal Districts as well as those in the 11 districts in (a)(1), and in part (b) an interlocutory decision may be heard by an appellate court if there is a controlling question of law whose immediate appeal may advance ultimate termination of the litigation. But the trial court and appellate court must agree for the ruling to be reviewable. (c) Rules-based Exceptions in FRCP 54(b) provide for immediate appeal of a final decision on one part of a case that is separable from the other remaining parts of the case, at least in multi-party or multi-claim litigation (d) Judge-made Glosses on the Final Decision Rule: An interlocutory appeal may also be entertained under two largely judge-made doctrines: "the collateral order doctrine" and the writ of mandamus. The collateral order doctrine is said to apply to an order which is unrelated to the merits of the action which cannot be effectively reviewed after the case is completely over. Mandamus has been used so that federal appellate courts were allowed to keep the lower courts within their jurisdiction (or to command them to exercise that jurisdiction Liberty Mutual Ins Co. v. Wetzel (1976) Case Brief: Style (name of case): Liberty Mutual Ins. Co. v. Wetzel, U.S. Supreme Ct. (1976) Cause of action: The following is a cause of action for Title VII action. Procedural History: District Court ruled in favor respondents on issue of petitioner's liability under the Act, and appealed to the Third Circuit, who held that it had the jurisdiction to hear petitioner's appeal pursuant to §1291, and affirmed the District Court. This Court vacates the judgment of the trial court with instructions to dismiss petitioner's appeal from the order of the District Court. Facts: Respondents at trial asked for injunctive relief, damages, a new hiring practice and attorney's fees in its discrimination action, and moved for SJ in trial court on its liability issue, which the court granted. Petitioner filed a motion for reconsideration, which was denied. However, the other three issues were never ruled on. Issue(s): Under FRCP, is a trial court ruling appealable to the Circuit Court when none of the issues a party requests relief for at trial are granted in the final judgment? Holding: No. Entry of judgment for plaintiffs but withholding of desired injunction until after appeal is not a final judgment for purposes of appeal. Therefore, the District Court's order was not appealable to the Court of Appeals. Court's Rationale/Reasoning: The Court found that such a trial court judgment amounted to nothing more than declaratory relief, which was not requested. Under such a standard, the trial court clearly was erroneous in rendering a final judgment based on an FRCP 54(b) motion for liability only. It did not apply to a single claim action, and expressly does not even touch on more than a couple of them. Additionally, there were several claims for relief all stemming from the one claim of discrimination. Therefore, there was no final judgment b/c not all the claims were finally ruled upon. There was an SJ granted on the liability claim, but nothing else. Such circumstances mean this was more of an interlocutory decision and not a final judgment. As to the rules, the appeal does not qualify under §1292(a)(1) doesn't apply b/c there was no injunctive issue settled. Under §1292(b) b/c there is no controlling question of law (and no appeal w/in 10 days) and there was no issue ruled on which was asked for under FRCP 54(b). Rule: An appellate court has a duty to consider sua sponte (on its own accord) whether appellate jurisdiction is properly invoked. District Court interlocutory orders might be appealable if they address what relief is actually being requested. 2. The collateral order doctrine Case Brief: Lauro Lines, S.R.L. v. Chasser (1989) Style (name of case): Lauro Lines, S.R.L. v. Chasser, U.S. Supreme Court (1989) Cause of action: The following is a cause of action for damages; appeal for forum-selection clause. Procedural History: Petitioner's pre-trial motion to dismiss based on the forum selection clause on each ticket the passengers received for their purchase, which said customers had to sue in Italy and waived a right to sue anywhere else. District Court denied, as the clause was not reasonable notice to the passengers. Court of Appeals dismissed on grounds that District Court's order was interlocutory and not appealable until final judgment Facts: Respondents filed a wrongful death order for the death of Leon Klinghoffer as a result of a terrorist attack on the Achille Lauro ship in 1985. Issue(s): Under FRCP, is an interlocutory order of a U.S. District Court which denies a DF's motion to dismiss a damages action on the basis of a contractual forum-selection clause immediately appealable under 28 U.S.C. §1291? Holding: No. District Court's ruling that forum-selection clause was invalid and trial could proceed in U.S. court are non-appealable before final judgment because it could be reviewed later. Court's Rationale/Reasoning: Such an order is not final in the usual sense, for it does not end the litigation on the merits but, on the contrary, ensures that the litigation will continue. Nor does the order fall within the narrow exception to the normal application of the final judgment rule known as the collateral order doctrine, for the order is not effectively unreviewable on appeal from final judgment. The right to be sued only in a particular forum, as compared to the right to avoid suit altogether, although not perfectly secured by an appeal after final judgment, is sufficiently vindicable (capable of setting free) at that stage and is not essentially destroyed if vindication is postponed until trial is completed. Moreover, the costs associated with unnecessary litigation, should it eventually be decided that the District Court erred in trying the case, do not warrant allowing an immediate appeal of a pretrial order. That there may be a policy favoring enforcement of foreign forum-selection clauses goes to the merits of petitioner's claim that its ticket agreement requires that suit be filed in Italy and that the agreement should be enforced by the federal courts, but does not affect the appealability of a prejudgment order, which turns on the contours of the right asserted, not on the likelihood of eventual success on the merits. Rule: A judgment is final when it ends the litigation on its merits. Concurring: (Scalia): The collateral order doctrine is correctly applied here, as the question which was sought for appeal is not independent and separable from the rest of the case for purposes of review. The "too important to be denied review" refers to a right that could be lost if not appealed right away. As such, the right for a forum selection clause to state a customer has its rights waived in all places except Italy is not something which would be lost if not appealed right away. B. Standards for and limitations on review Topic Notes: Certain questions of law are reviewed "de novo," meaning that the appellate court decides whether the district court's ruling on the point of law is right or wrong. Certain cases are decided on basis of "clearly erroneous" or "clear error" standard. This standard is applied to factual rulings in court, and means that the appellate court will not reverse simply b/c it thinks the wrong decision has been made, but rather that the question is not especially close and that the lower court's ruling was wrong to a heightened degree. (being or containing a finding of fact that is not supported by substantial or competent evidence or by reasonable inferences) Note: The requirement that findings be clearly erroneous to be set aside is a standard of review used esp. by an appellate court when reviewing a trial judge's (as opposed to a jury's) findings of fact for error. Third, certain questions will be reviewed on the basis of a standard of "abuse of discretion." This means that an error of judgment by a trial court in making a ruling that is clearly unreasonable, erroneous, or arbitrary and not justified by the facts or the law applicable in the case. (when reviewed decision lies beyond the pale of reasonable justification under the circumstances) Note: this could apply to how the judge runs their trial procedures (amendments to pleadings, discovery, etc.) "clearly erroneous" and "abuse of discretion" reversals are not too great in number. The Contemporaneous Objection Rule: a losing party generally cannot raise an issue on appeal unless she has raised the issue in the trial court and properly reserved the question for appeal. The Harmless Error Rule: appellate courts will not review rulings which are errors, but which are determined to be harmless. FRCP 61 suggests that any such ruling will be disregarded unless "inconsistent with substantial justice," and sometimes courts phrase the test as: a ruling which affected the "substantial rights of the parties." This doctrine is frequently applied to rulings based on discovery motions before trial and evidence issues during trial. Anderson v. Bessemer City (1985) Case Brief: Style (name of case): Anderson v. Bessemer City, U.S. Supreme Court (1985) Cause of action: The following is a Title VII action. Procedural History: Trial court ruled in favor of petitioner after it asked petitioner's counsel to set forth a memorandum detailing the questions of fact and law that should be considered, and also after a short response by respondent's counsel. Trial court held for petitioner for several reasons, of which consisted the interviewing process, and the lack of the same questions to the males, her overall qualifications, and testimony of one of the committee members who said the job would be hard for a woman. Court of Appeals reversed on basis of "clearly erroneous" in applications of allowing the petitioner's counsel to write the findings of fact and law. This Court reverses. Facts: Petitioner applied for a position to which she was the only one of eight applicants to be female. During the interview, she was asked among other things, what her husband thought of this position, which required late nights and some travel. She got passed over for a male who had just recently graduated from college (she was an eight year veteran). Issue(s): Under FRCP, is the standard for "clearly erroneous" correctly applied when the appellate court reverses on grounds that the trial court should not have allowed petitioner's counsel to write the findings of fact and law? Holding: No. W here there are two permissible views of the evidence, the trial court's acceptance of one of those views cannot be clearly erroneous. This standard not limited to questions where credibility is critical. Court's Rationale/Reasoning: This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The procedure the trial court used for petitioner's counsel to write the memo regarding the findings of fact and law was used after the trial court had made its decision in the case. In any case, there was no writing of facts not directed by the trial court judge previous to the writing of the findings. Additionally, respondent was entitled to write a response to the findings. As to the finding of fact, which is required by FRCP 52(a) as the grounds for which judgment can be reversed, the Court held that the appellate court erred itself by trying to take the role of the trial court in its review of the facts. If there were evidence that should result in a reversal of the trial court's decision, the case is different. Here, the only issue is whether the facts/evidence presented could have only resulted in a reversal of the trial court. The Court does not find that here. There is also a public policy type of argument here, in that trial courts' discretion will be severely hampered if appellate courts were allowed to reverse final judgments solely b/c they thought the facts should be reversed when there are different manners which the trial court could've ruled. The 52(a) standard demands even greater deference to the trial court's judgment, as there are differences in demeanor and tone of voice only apparent to the trial court judge. What happened in the Appellate Court was a de novo review of the case. No such facts, or application of the law in question demanded such a review. The trial court properly determined, based on the evidence and testimony, that the issues of fact weighed in favor of the petitioner. Rule: If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. An appellate court must determine if the trial judge's conclusion was clearly erroneous. C. Relief from Judgment - Rule 60(b) Topic Notes: Final judgments entered by a court with good jurisdiction are ordinarily to be given full faith and credit, even if the decision might have been erroneous in some respect. FRCP 60(b) says there are circumstances where a party may get relief from a final judgment; situations such as inadvertence or mistake, new evidence, fraud, void judgment, the judgment is no longer equitable, and any other reason justifying relief from the operation of the judgment. The motion must be made timely (within one year generally). DeWeerth v. Baldinger (1994) Case Brief: Style (name of case): DeWeerth v. Baldinger, U.S. Court of Appeals, 2nd Circuit (1994) Cause of action: The following is a cause of action for replevin. Procedural History: Respondent and third party DF Wildenstein & Co. appeal from a judgment entered in U.S. District Court that granted PL's 60(b) motion for relief after judgment for DF's in previous trial. This court reverses. Facts: A Monet landscape owned by Gerda DeWeerth disappeared from storage in Germany after American soldiers occupied the family home in 1945. In 1981, DeWeerth learned the painting had been exhibited in 1970 at a gallery in New York City and had been included in the exhibition catalog. The lender of the work was not identified in the catalog. After several rounds of litigation, the gallery was ordered to disclose the identity of the lender. (The gallery was reluctant because it had sold the work to the lender originally.) DeWeerth then sought the return of the painting from the lender, Edith Baldinger, who denied that DeWeerth had a right to the painting. Baldinger claimed to have received a good title from the gallery when she bought the painting in 1957. The gallery, brought into the action as a third party, pleaded that it had acquired the painting in 1956 from a Swiss art dealer. Baldinger and the gallery asserted that the statute of limitations had now run, barring the action. Also, the equitable doctrine of Laches was asserted (that is, DeWeerth had allowed the work to become "free floating" in the marketplace by not seeking the work through advertising; she had therefore given up rights to it). Trial judge rejected DF's claims of PL's claims being barred by SOL and of laches, and that the SOL didn't even begin until she demanded the painting back, and ordered Baldinger to deliver to DeWeerth. This court (previous to this judgment) reversed. PL then moved for relief from judgment per FRCP 60(b)(5) (a prior judgment settled this from another case) Issue(s): Under FRCP, did the district court judge abuse discretion in granting PL's 60(b) motion when he ruled that a prior case settled the matter? Holding: Yes. Because the district court's grant of relief under 60(b0(6) and (b)(5) were inappropriate, the court also finds it unnecessary to consider DF's arguments for laches or superior title issues. Court's Rationale/Reasoning: Under the 60(b)(6) determination, this court has determined that such an order can be invoked when extraordinary circumstances or where the judgment may work an extreme and undue hardship on the PL. The previous case which PL asserts helping her cause is Guggenheim, in which a person acted with reasonable diligence in attempting to locate the stolen object. That same court held that under the Erie standard, the court should change its ruling to comport with that of the district court to avoid inconsistency. But this court found that a change in the rule did not constitute an "extraordinary change", to qualify using state law when there was no federal law governing, and as such denied 60(b)(6) relief. PL claims there was no change in the law, but merely a clarification that the NY law was contrary to what the federal law thought it was. However, this court believes the court didn't even do that; it merely clarified that the NY rule was established and never added a diligence requirement. Also, the state court determined state law, which was not clear. PL, by bringing the claim to federal court instead of state court, took her chances by placing an interpretation of the law in a federal court, where they are only to try and assess the true meaning of the precedent if not clearly stated. This court believes its prior panel made the right call. Moreover, the court also never had to consider the opinions expressed by the Guggenheim court were not even made in DeWeerth's brief: that since legislative intentions to modify the due diligence requirement into statutory consideration failed, the court wanted to make an equitable decision to help in Guggenheim. Here, PL never even brought these reasons up until after filing a petition for rehearing. And since arguments as such were never made previous to filing the petition, they are waived. Thus, there is no Erie problem. Rule: A district court may consider a post-appeal Fed. R. Civ. P. 60(b) motion when later events arise that were not previously considered by the appellate court. XIII. The Preclusive Effect of Adjudication on Subsequent Litigation A. General Introduction Topic Notes: Courts go by the notion of stare decisis, but there are three other doctrines which regulate the extent to which a decision in one proceeding should or must have some preclusive impact on all or part of another case or of a separate proceeding in that same case: (1) the law of the case; (2) claim preclusion (res judicata); (3) issue preclusion (collateral estoppel) law of the case: a doctrine in legal procedure: an issue especially of law that has been decided (as by an appeals court) will not be reconsidered in the same case unless compelling circumstances warrant such reconsideration also : a matter of law considered as settled in a case Example: the jury instructions were not objected to and thus became the law of the case claim preclusion (res judicata): a specific doctrine that precludes relitigation of claims and issues arising from the same cause of action between the same parties and their privies after a final judgment on the merits by a competent tribunal or after some other final determination having the same effect Example: res judicata precludes only subsequent suits on the same cause of action; collateral estoppel may preclude relitigation of issues in later suits on any cause of action collateral estoppel: estoppel by judgment barring the relitigation of issues litigated by the same parties on a different cause of action (broadly) : estoppel by judgment barring the relitigation of issues litigated by the same parties on a different or the same cause of action B. Stare Decisis and the Law of the Case Case Brief: Society of Separationists, Inc. v. Herman (1991) Style (name of case): Society of Separationists, Inc. v. Herman, U.S. Court of Appeals, 5th Circuit (1991) Cause of action: The following is a cause of action for religious freedom. Procedural History: District Court dismissed for failure to state a claim. This court affirmed. The current action brought seeks damages and declaratory and injunctive relief against the trial court judge, the county court judge, the clerk, and bailiffs of both courts. The district court held the issue was res judicata. This courts reverses. Facts: Plaintiff sued a local judge after she was held in contempt for refusing to take an oath or affirmation as a precondition to serving on a jury. The plaintiff alleged that her constitutional right to "separation of church and state" was violated when she was excluded from the jury simply because she refused to take the oath. Issue(s): Under FRCP, is a current case for damages and declaratory relief barred when it arises out the same set of facts for which a claim for free exercise rights were denied? Holding: No. The judge's actions violated the potential juror's right to Free Exercise guaranteed by the First and 14th Amendments. The previous suit does not bar this action and Herman did violate the juror's free exercise rights. Court's Rationale/Reasoning: This Court reversed on the ground that the plaintiff's Establishment Clause case and Free Exercise case called for very distinct inquiries, and were "governed by altogether different legal standards." The court uses a later decision to settle up as to which precedent is controlling, it's former opinion of the same parties' case a few years back, or one which came a year later. In deciding to adopt the latter, the court found that an inquiry under the later case (Ferguson), established an inquiry much like that of the case which is before the court now: a person exercising religious freedom on the basis that an affirmation can be seen as an oath, which is against an atheist's beliefs. The former decision with the same parties was only seen as dicta. The old case was an Establishment Clause case, while these are Free Exercise challenges, each involves a different inquiry. Regarding res judicata, the trial court judge Herman was not a DF in the previous suit and was not privy to it either, as he was in a different court at the time of the first suit. Collateral estoppel cannot be claimed here b/c, as stated before, a Free Exercise claim is different from an Establishment Clause claim, and Murray's discussion of the jury oath is not a "critical and necessary part" of the decision. Additionally, the skeletal fact pattern in combination with the other two parts, shows that this was a question of law and not of fact. What's more is that Murray involves a conflict in the applicable law application when compared to Ferguson, not as not to be estopped from bringing the claim. Finally, the law of the case-at-bar deals with that of trials overall, whereas the previous case was specific to her refusal. Rule: As to stare decisis, one panel may not overrule the decision of a prior panel in the absence of an intervening contrary or superseding decision by the court en banc or by the Supreme Court. Where two previous holdings or lines of precedent conflict, the earlier opinion controls and is the binding precedent in the circuit. As to claim preclusion, the earlier suit is res judicata if, among other things, the parties are identical in both suits. As to collateral estoppel, for a prior judgment to have preclusive effect as to an issue, the doctrine requires that: (1) the issue at stake be identical to the one involved in the prior litigation; (2) that the issue has been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation has been a critical and necessary part of the judgment in that earlier action. C. Claim Preclusion (Res Judicata) Topic Notes: What renders a suit sufficiently distinguishable from the original judgment so as to be permitted to bring suit? Sopha v. Owens-Corning Fiberglas Corporation (1999) Case Brief: Style (name of case): Sopha v. Owens-Corning Fiberglas Corp., Supreme Court of WI (1999) Cause of action: The following is a cause of action for damages and wrongful death related to asbestosis. Procedural History: Original claim dismissed with prejudice after it was withdrawn voluntarily by PL. After husband's death, the complaint was amended to include a cause of action for wrongful death. Circuit court ruled the SOL barred the 1997 action but claim preclusion did not apply b/c PL could not have recovered for mesothelioma in the original action. State court of Appeals certified the appeal to the WI Supreme Court, who reversed. Facts: Plaintiff wife appealed the order granting defendants' motion to dismiss PL's action on the ground that it was barred by the statute of limitations. Plaintiffs filed a complaint seeking damages for injuries to plaintiff husband's lungs allegedly caused by exposure to asbestos. Plaintiff husband died of mesothelioma; the complaint was amended to include a wrongful death claim. Claims were in 1987 and 1997. DF's argument: "single cause of action" rule: no subsequent action after dismissal with prejudice can result in another claim from the same injury PL's argument: "discovery rule": tort claim accrues for the purposes of the SOL upon the date it is discovered or with reasonable diligence should be discovered, which ever comes first. Issue(s): Under doctrine of res judicata, was PL's second suit in relation to a claim for damages for asbestos-related injuries barred when PL added a wrongful death claim as the result of her husband's death? Holding: No. The court concluded that a person who brought an action based on a diagnosis of a non-malignant asbestos-related condition could have brought a subsequent action upon a later diagnosis of a distinct malignant asbestos-related condition. Court's Rationale/Reasoning: The court, after noting both parties' arguments, finds that the question of what constitutes a cause of action and the concept of a statute of limitation is basically a question of public policy. PL's argument is for fairness, DF's is to limit suits. Here, though, the suit was immediately brought upon the diagnosis of mesothelioma, so the PL's claim for fairness should prevail. Public policy comes into play b/c allowing PL's suit in effect encourages people to file clams as soon as they find out, even if there might be worse injuries unknown on the horizon. There is also the principle behind tort law, in that PL's are entitled to recover for meritorious claims resulting from DF's actions. As to claim preclusion, the claim has to arise out of the same relevant facts, transactions or occurrences. The doctrine involves when the following three factors are present: (1) identity between the parties or their privies in the prior and present suits; (2) prior litigation resulted in a final judgment on the merits by a court with jurisdiction; and (3) identity of the causes of action in the two suits. But even though there might be some indication of knowledge that mesothelioma could come into play, this court did not blindly apply claim preclusion; this court found that some issues of fairness and justice were exceptions to the rule. If the court held for claim preclusion, it would effectively force parties to choose between suing for nonmalignant damages, or waiting until the injury festered enough to bring suit. This was a consideration the court wasn't willing to take. Injuries take a while to develop in such an instance, and cannot possibly know what kinds of injuries are to come, which means they cannot sue for any and all possible injuries as a result. Rule: The diagnosis of a malignant asbestos-related condition created a new cause of action and the statute of limitations governing the malignant asbestosrelated condition began when the claimant discovered, or with reasonable diligence should have discovered, the malignant asbestos-related condition. The statute of limitations did not bar PL's action. Semtek Int'l Inc. v. Lockheed Martin Corp. (2001) Case Brief: Style (name of case): Semtek International Incorporated v. Lockheed Martin Corporation, U.S. Supreme Court (2001) Cause of action: The following is a cause of action for breach of K and other tort violations. Procedural History: In the District Court, Lockheed successfully moved to dismiss Semtek's claims, as they were barred by CA's 2-year statute of limitations. The dismissal with prejudice was upheld on appeal. Semtek then filed suit in the State Circuit Court for Baltimore City, Maryland, alleging the same causes of action. The suit was not time barred under MD's 3-year SOL. Case brought on federal question grounds b/c Lockkheed is a MD citizen. The court dismissed the case under res judicata. In affirming, the Maryland Court of Special Appeals held that the California federal court's dismissal barred the Maryland complaint because the res judicata effect of federal diversity judgments is prescribed by federal law, under which the earlier dismissal was on the merits and claim-preclusive. Facts: Semtek Int'l filed a complaint against Lockheed in California state court, alleging breach of contract and various business torts. Based on diversity of citizenship, Lockheed moved the case to the District Court. Issue(s): Under FRCP, is the claim-preclusive effect of a federal judgment dismissing a diversity action on statute-of-limitations grounds determined by the law of the state in which the federal court sits? Holding: No. In a unanimous opinion, the Court held that "because the claimpreclusive effect of a federal court's dismissal upon the merits of a diversity action on state SOL grounds is governed by a federal rule, which in turn (in diversity cases) incorporates the claim-preclusion law that would be applied by state courts in the State in which the federal court sits, the MD Court of Special Appeals erred in holding that the CA federal court's dismissal upon the merits necessarily precluded the Maryland state-court action." In essence, not all judgments dismissed "on the merits" are entitled to a preclusive effect. Court's Rationale/Reasoning: Where a judgment has not passed upon the substantive merits a claim (such as Semtek's claim here, where the suit was dismissed on state statute of limitations grounds), that judgment is not necessarily claim-preclusive. Therefore, FRCP 41(b), which sets out the effect of involuntary dismissal in federal courts, does not preclude the refiling of a claim that was dismissed on other than substantive grounds. Federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity - the applicable law in this situation is the law that would be applied by state courts in the state in which the federal diversity court is sitting. There are Erie implications by allowing the old version of 41(b) to stand, as substantial variations on outcomes between state and federal forums would influence the choice of forum (Hanna v. Plumer). The Court wimped out here, failing to make a broad federal rule for diversity cases where a federal court's dismissal on the merits abridged a substantive right to exceed the authority of the Rules Enabling Act. Instead, the Court used the fact that this case dealt with state law and not federal law to make the claim preclusion issue more tricky than it was before. (this is a variation of Gasperini: federal courts interpret state court decisions the best they can and that decision stands, even if the state's highest court later comes up with a definition of the law which is greatly different than that of the federal court b/c the case has been judged on the merits) Rule: The District Court's dismissal on the merits of claims as untimely under California law did not preclude Semtek from asserting its claims in a different state court forum. In such federal diversity cases, it is the state - not federal - rule of construction that applies regarding the preclusive effect of the prior judgment. D. Issue Preclusion (Collateral Estoppel) Topic Notes: Issue preclusion applies only to the attempt to relitigate and issue of law or fact that has actually been the subject of a prior adjudication. It is a comparatively more precise instrument than claim preclusion in that it excises only a specific issue, rather than an entire cause of action, from judicial consideration. Consequently, issue preclusion can only occur when the claim containing the subject issue was not barred by claim preclusion. Issue preclusion does not bar litigation of a matter that was not, but could or should have been, adjudicated. 1. The Essential Elements A. Identicality Case Brief: In re the termination of parental rights to Greg H.L. v. Jerome E.M. (2001) Style (name of case): In re the Termination of Parental Rights to Greg H.L., a Person Under the Age of 18: Gail M. and Roger M. v. Jerome E.M., Court of Appeals of WI (2001) Cause of action: The following is a cause of action to appeal the termination of parental rights. Procedural History: This court affirms the Circuit Court, which granted termination of parental rights. Facts: Jerome fathered a child with Gail, but while maintaining residencies in both WI and HI, never contributed to the birth of their son, nor to any of the child's well-being thereafter. Jerome petitioned WI court to be Greg's father; Gail appealed the judgment of paternity, which was pending when the petition to terminate Jerome's parental right were filed. Circuit Court granted termination after testimony revealed Jerome threats and violent conduct by Jerome to Gail, in combination with his failure to pay any support, showed an intent to abandon and a physical act to manifest that intent. Issue(s): Under WI rules of civil procedure, did the prior adjudication of biological paternity bar by the doctrine of res judicata, or claim preclusion, the termination of parental rights? Holding: No. While issue preclusion can prevent re-litigation of issues actually litigated and determined in a prior lawsuit, even if the cause of action in the second lawsuit is different from the firstl its ultimate application is a discretionary decision of the circuit court whether it should be applied. Court's Rationale/Reasoning: Standard of review: clearly erroneous. The petition to terminate Jerome's parental rights is not a collateral attack on the judgment that Jerome is Greg's biologival father, but rather that it is in Greg's best interests to have Jerome's parental rights terminated. No determination was made on this later claim during the paternity proceeding. Thus, claim preclusion does not bar this proceeding to terminate Jerome's parental rights. The circuit court determined that Greg's best interests were furthered by terminating Jerome's parental rights. His assertion that the court couldn't have determined him to be the biological father of Greg w/o making a contrary finding is incorrect; this wasn't an adjudication as to whether Jerome's status as biological father would be terminated, as the suit only went to his parental rights (two separate issues). Rule: Claim preclusion requires: (1) identity of the parties or their privies in both actions (2) a prior final judgment on the merits by a court with jurisdiction (3) identity of causes of action in the two suits For issue preclusion to be applied, there must have been actual litigation of the same issue that was necessary to the outcome of the first action. collateral attack: an attack on a judgment made during or by a proceeding brought for a different purpose B. Actually litigated & unambiguously determined Herrera v. Reicher (1980) Case Brief: Style (name of case): Herrera v. Reicher, MO Court of Appeals, Western District (1980) Cause of action: The following is a cause of action for tort violations as the result of a car accident. Procedural History: Permissive driving had been an issue in an earlier case in which a judgment (SJ) had been rendered. In a second case, the trial court held collateral estoppel principles precluded relitigation of the permissive driving issue. This court reverses. Facts: PL struck by a car DF's son was driving. Tort action brought against both parent and insurance company. Issue(s): Under MO rules of civil procedure, is the litigation of a permissive driving complaint barred by the doctrine of issue preclusion/collateral estoppel when the second case is based on a incidents arising under the same transaction or occurrence? Holding: No. Collateral estoppel could not be invoked because permissive driving had been only one of seven propositions hypothesized in a verdict director given the jury in the first case. Court's Rationale/Reasoning:Since the general verdict favorable to the father in the earlier case did not reveal which of the elements the jury failed to believe, it was impossible to know why the jury found for the father. Since other hypothesized facts in the instruction could have been the basis for the jury's verdict, the resultant judgment was ambiguous as to the "permission" issue. (should have asked the jury which part of instruction seven they believed) The fact that the tort judgment was entered for DF was a general verdict, but again, did not show which part of jury instruction #7 it did not believe. The second action was not identical to the first action, and thus there is no collateral estoppel which can be asserted. Rule: Collateral estoppel forecloses a party from litigating an issue only if that exact issue was unambiguously decided in the earlier case. Rudow v. Fogel (1978) Case Brief: Style (name of case): Rudow v. Fogel, Supreme Judicial Court of MA (1978) Cause of action: The following is a cause of action for declaratory judgment that the uncle DF held certain real property in trust for PL. Procedural History: DF moved for SJ as a matter of law seeing as res judicata barred the case from being discussed again. Judge allowed the motion for SJ to stand, but the Appeals Court reversed on "clearly erroneous" standard of review. This court reverses the trial court's decision and affirms the appellate court's ruling. Facts: PL's father, now suing for son who is a minor, wants to get back land which was originally held for him, but quitclaimed to his wife who conveyed to DF for no consideration with the alleged understanding he was holding it for the same reason that the father, then wife did. Case #1: ejectment action by DF vs. PL's father, when DF claimed a right to the possession and asserted father was in wrongful possession, but the court found that the father, who lost tenancy by the entirety rights to the land when his wife quitclaimed the land to uncle, still was a life tenant in common with uncle, as a result of curtesy after his wife died. Issue(s): Under FRCP, does a declaratory judgment action get barred on claim preclusion when the second case, although against the same DF, but has a different PL? Holding: No. Parent-child relationship do not equate to identical parties to a suit, therefore no claim preclusion exists. Court's Rationale/Reasoning: The determination against Marvin in the ejectment action (case #1) on the issue of the existence of a trust cannot be used against PL in case #2 b/c there is no sufficient legal identity between DF in case #1 and PL in case #2. This is a policy argument by the court, that blood relation should not bar future actions. Even if the parties were assumed to be the same, the actions are not, and so there is still no issue preclusion (ejectment vs. declaratory judgment). Rule: Claim preclusion does not bar an action where the parties are different. The fact that dear old dad is suing b/c his son cannot does in fact change the identity of the parties. York Ford, Inc. v. Bldg. Inspector & Zoning Adminstrator of Saugus (1995) Case Brief: Style (name of case): York Ford, Inc. v. Bldg. Inspector & Zoning Administrator of Saugus, Appeals Ct. of MA (1995) Cause of action: The following is a cause of action to challenge the validity of a zoning order. Procedural History: Zoning board dismisses first claim brought by PL to extend a previous use was denied. Second case, which challenged the zoning order of the building inspector for the same thing, was struck from a general board of zoning's meeting docket b/c it has been discussed in case #1. Case #2 went to trial court, where judge dismissed declaratory judgment complaint. This court vacates the trial court's judgment and ordered the board to have a new hearing on the facts. Facts: Case #1: PL applied for a special permit to continue parking cars in a lot zoned for residential use for over 30 years, which was denied. The board denied b/c it was illegal and detrimental to the surrounding neighborhood. Case #2: building inspector ordered PL to remove all business-related vehicles from the lot as per town's zoning bylaw. PL appealed to the board, but the board struck the appeal from its docket b/c it felt the matter had already been decided in case #1. Issue(s): Under FRCP, is PL barred by principles of issue preclusion from challenging the validity of a zoning enforcement order of the building inspector when the board dismisses a previous claim by the same applicant? Holding: No. There never was a final judgment, and thus there is no claim or issue preclusion. Court's Rationale/Reasoning: PL might have felt that bringing an appeal on case #1 would be seen as a frivolous suit, or that the board would uphold its prior judgment to the second part, regarding the detrimental nature of the lot. Apparently, the building inspector in case #2 acted when such time for an appeal on case #1 had expired, denying PL a chance to raise more claims or defenses. Rule: When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Further, if a judgment of a court of 1st instance or of an administrative tribunal is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone. 2. Parties subject to issue preclusion - the death of mutuality Parklane Hosiery Company, Inc. v. Shore (1979) Case Brief: Style (name of case): Parklane Hosiery Company, Inc. v. Shore, U.S. Supreme Ct. (1979) Cause of action: The following is a cause of action for stockholder's class complaints (issuance of materially false and misleading proxy statement in connection with a merger. Procedural History: DF Shore brought the class action in Federal District Court. Before trial, the SEC brought suit against the same DF's and won a declaratory judgment which was upheld by the Court of Appeals. DF's in present case moved for partial SJ against PL's on claim that PL's were collaterally estopped from relitigating the issues that the SEC resolved. District Court denied the motion, that PL would get its 7th amendment right to a jury trial. The Second Circuit reversed, holding that a party who had issues of fact determined against them after a full and fair opportunity to litigate in a nonjury trial is collaterally estopped from obtaining a subsequent jury trial of these same facts. This Court affirms Second Circuit's decision. Facts: Alleged false and misleading statements made about a merger resulted in this suit (see procedure). Issue(s): Under FRCP, may a party who had issues of fact adjudicated adversely to it in an equitable action be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought it by a new party? Holding: Yes. The Court will not be a party to those who decide to "wait and see" on DF verdicts before attaching themselves as new PL's. Such a policy if held otherwise, would increase and not decrease litigation as it pertains to a matter. But the Court will allow such a policy to trial courts when it does not. There is no reward to a private PL who could have joined the previous action, b/c the SEC beat him to court. There is no unfairness to petitioners in applying offensive collateral estoppel here. There is no reason not to defend the case vigorously to avoid later suits. There are also no procedural opportunities available to the petitioners that were unavailable in the first action of a kind that might be likely to cause a different result. Court's Rationale/Reasoning: First question: Whether a litigant who was not a party in an earlier action (Shore) can use a judgment from the earlier action offensively against an opponent who was a party in the prior action. The mutuality question had already been disposed of; now the court is asking whether a party who was not involved in the first suit can use it offensively against a party who was in the first suit. Note that a party who was a stranger in suit # 1 cannot be subject to a preclusion of an issue in suit # 1. Due process says you cannot bind a party who was a stranger to the original litigation. The second question deals with whether the preclusion of an issue in a first trial where there was no right to a jury can now be used as collateral estoppel in a second suit where the opposing party has a right to a jury. (footnote on p.809, footnote 7 is this statement) "It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard. (Blonder-Tongue)." Defensive use: The PL in suit #1 lost against DF#1. The PL #1 then files a new suit against DF #2 seeking to litigate an issue that PL #1 lost in suit #1. In that situation, DF#2 can use the prior loss on the issue against PL#1. This is classic defensive suit of collateral estoppel. Notice that the factual scenario in Blonder-Tongue, where PL#1 versus DF#2, could not have arisen under the mutuality regime, because DF#2 was not bound by the first judgment. This case gives us a classic offensive use of collateral estoppel. This situation would not have been permitted in a mutuality regime either. Another thing to note is that offensive use of collateral estoppel cannot violate the due process principal either, because PH was not a stranger to the first action, they already had the chance to litigate the issue. But what about the 13 other strangers? The offensive use of collateral estoppel holds the potential for a certain degree of unfairness to defendants: (1) You may have a situation where the DF had very little incentive to defend a claim vigorously in the first suit, and subsequent litigation was unforeseeable. (2) Or, the first lawsuit might have been litigated under unfavorable situations, maybe an inconvenient forum, or there were procedural disadvantages. (3) Or thirdly, there's an scenario where you have a mass tort defendant, and the defendant wins 500 claims in a row, and they lose 501st claim, and claimants 502-1000 seek to piggyback on that one successful outcome; it doesn't seem quite right. (standard of review: trial judge has discretion to say whether preclusion would be fair; but the appellate review scope is abuse of discretion) What are the factors on which the judge's discretion must be based, in this case? Start by figuring out what the policies, competing norms/values/goals are, then you look at the particular factors that give you discretion, and you apply those factors in the particular case. (see rule for applicable factors here) Rule: (Parklane applies to only FEDERAL COURTS) State courts are not obligated to follow the Supreme Court.Need to check the law to see if that district has abandoned mutuality, and if so, to what extent. (1) Could nonparty have joined in prior litigation? (2) Was subsequent litigation foreseeable at the outset of the first suit? (3) Is the judgment being relied on consistent with prior judgments against this DF? (4) Are there any procedural opportunities available to DF in the second action that would lead to a different result? In cases where a PL could have joined in the earlier action, or where for the reasons above or other reasons, the application of offensive estoppel would be unfair to a DF, a trial judge should not allow the use of collateral offensive estoppel. Dissenting: (Rehnquist): The majority ignores the 7th amendment fundamental right to jury trial in civil cases. This would never have happened if the Framers were here today. Such procedural reforms such as those today would not survive the Framers' sixth amendment scrutiny. A jury trial in a second case could lead to a different verdict, and as such the respondents here should have a chance to at least see what a jury think of their injury from petitioner's acts. Doctrine of mutuality of parties: neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment.