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civil-procedure-wasserman

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									                          CIVIL PROCEDURE - WASSERMAN

Intro
Rules Enabling Act, 28 USC §2071-74
    2071- Supreme Ct. May prescribe rules of practice and procedure.
    2072- SC can prescribe rule of practice & procedure & rules of evidence that cannot abridge,
      enlarge, or modify any substantive right, and if they do they are not valid
    2073- judicial conference right to prescribe rules to be considered by the committee. Rule must
      be discussed at a public meeting.
    2074- SC must submit proposed rules to Congress by May 1 and if no action is taken by
      Congress by Dec 1, the rule goes into effect


Pleadings
Documents that contain the parties’ claims and defenses.
Purposes: define controversy, put Δ on notice or claim and theories, put π on notice of defenses, ID
subj. matter to determine jurisdiction

Rule 7(a):
    complaint: Allegations by ¶ that Δs did something
    answer: Challenges jurisdiction, assert defenses. Can also include counter-claims: if the Δ
      was going to sue anyway, why prevent him from doing it now: the parties are already in Ct.
           o motion- request for court order
                  to dismiss- instead of answer
           o counterclaim: the Δ brings a claim against a ¶.
           o cross-claim: the Δ brings a claim against another Δ.
    reply to counter-claim denominated as such
    answer to cross-claim
    third-party complaint: Δ brings a claim against a person not a party to the suit yet.
           o third-party answer: answer to a 3rd-party complaint
    Court may order a reply to an answer or a third-party answer
    May include demand for jury trial (easiest time to ask is in pleading)

Describing π’s claim
Rule 3- civil action commences by filing complaint w/ court and served on Δ
Rule 8(a) General requirements for reliefextends to other pleadings that state claims
Pleading that sets forth a claim for relief (complaint, counter claim, cross claim, 3 rd party complaint)
must contain:
   1. short and plain statement of the grounds for court’s jurisdiction (unless ct already has jd)
   2. short and plain statement of the claim (not action which is a legal theory) showing the pleader
      is entitled to relief; and
   3. a demand for judgment for the relief the pleader seeks

Rule 10: format of the pleadings  answer should mirror format of complaint
a. Caption and name of the parties
                                                    1
b. Paragraphs and separate statements
c. Adoption by reference and exhibits

Problems w/ Specificity
Rule 12(e). Motion for a more definite statement:
If the pleading is so vague that the party can’t frame a responsive pleading, the party can move for a
more definite statement before responding.

Rule 12(e) motions could be used in some situations:
    complaint does not include date of events  need to know if stat/lims has run
    Breach of K: oral or written  May have Stat. of Frauds defense
    Rule 9(b) pleading reqm’t: some cases must be pleaded with particularity

Rule 12(f)- ct. may strike insufficient or redunant defenses (on its own or by motion filed w/in 20 days)

United States v. Board of Harbor Commissioners: (D. Del. 1997) p. 134
Facts: Δs claim that the complaint is not specific enough 12(e): which Δs caused the oil to spill?
How much will it cost to clean up?
Holding: Rule 12(e) motion is only appropriate if the pleading is unintelligible, not if it is not detailed
enough to raise affirmative defense (lacks dates of alleged offense for SOL).
    Rule 8 is met & party has notice about nature of claim, the 12(e) motion is inappropriate.
    12(e) motions should not be used flesh out other party’s case or prepare for motion to dismiss.
    Δ could do some preliminary investigations or DKI (not enough info to know if Δ is guilty)

Consistency
Rule 8(d): party can have alternative/ inconsistent or hypothetical claims or defenses (2 or more)
    Π will want to settle on single theory at some point (for jury/judge image)
    Election of remedies certain laws may entitle only 1 of 2 inconsistent remedies (spec. perf or $)
Rule 11- can’t file claims w/out merit


Truthfulness
Rule 11: Representations to Court
Ensures truthfulness in pleadingBy signing the pleading/ motion/any paper, you represent that
information included is supported by inquiry reasonable under the circumstances.

Rule 11(b)
    Must be presented for real purpose & have sufficient legal & evidentiary support
         o Evidentiary support = reasonable investigation under the circumstances
               (b)(3): you don’t have to evidence in your hands at that point, but must believe
                 you WILL have evidentiary support after reasonable opportunity for discovery
               (b)(4): denials of factual contentions must be warranted on evidence or
                 reasonably based on lack of information
    Argument must be non-frivolous (i.e., not something reject twice in past years)

Rule 11(c)
                                              2
The Court may assess sanctions, monetary or otherwise, to deter future violations
    Motion for sanction must be separate from other motions
          May not be made on ct’s initiative
    Purpose of sanctions is not to compensate the other party but to deter future violation
    Non-monetary sanctions = admonition on the record, requiring more legal education
    Monetary sanctions are limited = shifting fees, paying a penalty into court
          Not reasonable to impose monetary sanctions on client if lawyer makes a legal mistake

Rule 11(c)(2):Safe harbor period: Party serves motion on other party FIRST, but not with the court.
    Opponent has 21 days to think it over/ consider fixing or withdrawing the challenged pleading
    If the pleading is fixed or withdrawn, the court never has to know
    If not withdrawn, the party may serve the motion to the court.

Split on authorities on two issues:
    What if case unfounded but good faith? What if bad faith with founded case?

Zuk v. Eastern Pennsylvania Psychiatric Institute: 3rd Cir. P. 143
Facts: Doc who made therapy tapes and wanted them back from hospital.
His copyrighted books referred to un-copyrighted videos. Reference did not entitle the videos to
copyright protection. The att’y didn’t investigate to see if Δ had been renting out the videos w/in past
3 yrs. (SOL). If atty. had done research into law & facts, he would have seen he had no case. He
could have argued for a non-frivolous change of the law, but he didn’t indicate that at the beginning.
Holding: Att‟y violated R11, but vacates sanctions b/c it was unclear how much of each type of
sanction was imposed (¶ or his lawyer) and under what statute/rule.
     Att’y may rely on client’s statements to satisfy 11(b)(3) + history w/ client or corroberation


Sufficiency of π’s claims
Rule 12(b)(6): Motion to Dismiss for Failure to State a Claim
May lose because the law doesn’t recognize that as a claim and/or the law can’t fix the problem
Ct only assumes factual allegations are true (not legal)

Two possibilities:
   Bad pleading: didn’t allege all the elements to establish a cause of action. (E.g., pleaded there
     was a duty, but didn’t plead a breach of the duty.)
   The law doesn’t recognize your claim as an actionable wrong
         o Ct. decides motion based only on allegations in complaint If Δ includes additional
              matter, the motion is treated as one for summary judgment (Rule 56).
         o Π may have opportunity to amend the pleading

Timing:
 Δ is required to set forth defenses in a responsive pleading (e.g., answer) except for the 7
defenses that may be made by pre-answer motion (12(b)(6) is one of these 7)

12(b)(6) can not be used to decide a disputed factual question (Judge has to assume all the
well-pleaded facts in complaint as true)


                                             3
Mitchell v. Archibald & Kendall, Inc.: 7th Cir. P. 156
Facts: Truck driver robbed outside the Δ’s warehouse. Δ moved to dismiss 12(b)(6) because the ¶
was robbed on public street, not on Δ’s premises. Suit dismissed. ¶ now claims that he was arguing
for an extension of the law. However, ¶ didn’t indicate that on complaint.
Holding: π‟s action dismissed Δ has no duty to protect π on street= no claim
Ct. required to accept only well-pleaded facts as true; not required to accept legal conclusions that
may be alleged or that may be drawn from the pleaded facts (¶‟s argument for extension of law was a
legal conclusion)
     Although issue of street vs. Δ’s premesis is material fact, the π made distinguishment in their
       pleading so ct. took what π alleged as true
     Π should have amended his pleading to make premises argument

Heightened Pleading Requirements
Rule 8(a) and 8(e): short and plain statement; simple, concise and direct averments.

However, some claims require higher specificity:
   Fraud, civil rights (but not employment discrimination, see Swierkiewicz), securities litigation

Rule 9(b): Complaints alleging fraud or mistake require pleading of facts w/ particularity. Other states
of mind can be averred generally (malice, intent, knowledge)

Particularity = Time, places, and circumstances indicating falseness or mistake

Policies behind the rule:
    Seriousness of the allegation (fraud = no morals)
    Powerful remedies (like punitive damages, rescission of a contract); require stronger support
       before allowing suit to proceed
    Also, possible criminal liability, unlike other civil cases
    Higher pleading requirements reduces likelihood of frivolous claims


Bell Atlantic Corp. v. Twombly
Sherman Anti-Trust Act- different members of industry can engage in parallel behavior, cannot
have K, conspiracy, or agreement in restraint of trade
    Π alleging violation must present evidence that excludes possibility of indep action
Facts- class action Π alleged that reg. phone companies engaged in parallel anticompetitive
behavior and agreed not to compete (Baby bells)
    Conley- once a claim has been states adequately, it may be supported by showing any
       set of facts consistent w/ allegations in complaint
           o This sounds like a evidentiary standard, but ct. calls it pleading
holding-SATA doesn’t restrict all restraint of business, only those which stem from conspiracy.
       o parellel business practice ≠ conspiracy or SATA offense
Dissent-Discovery & sum jdgment resolve claims w/out merit, not plding procedures

Note: Shift from minimal rule 8 requirements, to pleading must be plausible

Swierkewicz v. SOREMA N.A.: U.S. Supreme Court p. 177


                                            4
Facts: ¶ alleged age discrimination. SC rejected requirement of pleading a prima facie case: that is
an evidentiary, not pleading standard (and may not be needed at trial). That would go against the
rationale of the Rules.
Issue: does π’s complaint need to satisfy rule 8 or is it subj to fail under rule 12(b)(6) under
McDonnell which held π must prove in discrimination case
               1. π is member of protected class 2. Π qualified for position in question 3. Π was
               denied/ fired from position 4. Circumstances to support inference of discrim
Holding: “[A]n employment discrimination complaint need not include such facts and instead must
contain only „a short and plain statement of the claim showing that the pleader is entitled to relief.”
       o McDonnell was an evidentiary standard not a pleading standard
       o It wouldn’t make sense to require him to plead more than he may need at trial.
       o The court has refused to extend the Rule 9(b) requirements of particularity.

Pleadings must comply with 8(a) unless otherwise stated in the federal rules

Congress can legislate to impose requirements of greater specificity. E.g., Private Securities
Litigation Reform Act of 1995, 28 U.S.C. § 78u-4.
     Required that complaint:
           specify each statement alleged to have been misleading
           The reason or reasons why statement is misleading
           If an allegation regarding the statement or omission is made on info and belief, must
             state w/particularity all facts on which the belief was formed
     Competing interpretations of the statute:
           ¶ may allege that D had motive & opportunity to commit fraud (2d, 3d cir)
           ¶ must allege "facts giving rise to strong inference recklessness (6th Cir)
           ¶ must allege facts that "constitute circumstantial evidence of deliberate recklessness or
             conscious misconduct (9th Cir)
          

Δ’s Response to the Complaint
Pre-Answer Motions
Rule 12(b): Defenses must be asserted in responsive pleading (answer), w/ 7 exceptions, which may
be raised by pre-answer motion.
   1. Lack of SMJ
   2. Lack of PJ
   3. Improper venue
   4. Insufficiency of process
   5. Insufficiency of service of process
   6. Failure to state a claim upon which relief can be granted
   7. Failure to join a party under R19

Rule 12(c): Motion for Judgment on the Pleadings: Any party can move for jj on the pleadings after
pleadings are closed. If info outside the pleadings presented  motion treated as one for sum jj as
provided in Rule 56 (all parties given reasonable opportunity to present all material made pertinent)

Rule 12(f): Party can motion to strike insufficient defense, redundant, immaterial, impertinent or
scandalous matter w/in 20 days after service of the pleading (or upon the court’s motion at any time)

                                            5
Rule 12(g): Joining motions: If a defense is raised by motion, the party must raise all motion defenses
allowed or waive them, except as noted in (h)(2).
     If a defense is not available at the time of the pre-answer motion and later becomes available,
      it’s probably a favored defense under (h)(2)

Rule 12(h): Motion defenses divided into three:
1. “Disfavored defenses”: (h)(1)lack of personal jurisdiction, improper venue, insufficiency of
    process, or insufficiency of service of process. Must be raised the first time ∆ speaks. If not
    raised then, waived forever. If an amendment can be made under 15(a) as a matter of
    course, it could be amended and the defenses can be included (must be made quickly).
2. “Favored defenses”: (h)(2)failure to state a claim, failure to join an indispensable party, objection
    of failure to state a legal defense to a claim. May be made by pleading, or by motion for
    judgment on the pleadings, or at trial on the merits.
3. “Most favored defense”: (h)(3) lack of subject matter jurisdiction. This can be raised at any time.

Why would Δ ever move first, instead of answering?
 Buy time: don’t have to answer until motion is ruled on
 If dismissed on motion, may win w/o having to admit anything
 Cost of preparing motion can be cheaper than cost of preparing the answer
 Answer can force ∆ to show his cards or admit liability
Reasons NOT to move first:
 You don’t want to tip off your opponent on their error via motion to dismiss
 If you wait, you can lock them into a single theory under oath that may be more problematic


The Answer
Admissions and Denials of the Averments
Rule 8(b): Defenses and forms of denials
    Short and plain statement of defenses.
    ∆ has 3choices: Admit, deny, DKI (deny knowledge/ info to form a belief as to truth of
      allegation) on the averments.
          o DKI counts as a denial that the ¶ will have to prove.
          o Can make specific denials (individual paragraphs) or deny all except those averments
             specifically admitted.
    Counterclaims MUST be denominated as such to trigger responsive pleading from π

Rule 8(d): (Gen denials that don’t specify which part of a complaint is being denied, are discouraged)
    If a response is required, the failure to deny will be an admission
    If no response is required, a denial of allegations is assumed
    General denials are deemed ineffective:
          o If ¶ alleges tons of stuff in one paragraph, ∆ can be deemed to have admitted
             allegations even if denied generally b/c of the limited nature of the denial
          o ∆ has burden of responding w/right degree of specificity




                                            6
David v. Crompton & Knowles Corp.: E.D. Pa.(Part 1)
Facts: ¶ injured by shredder. Δ DKI’d. Now they want to amend to deny b/c they found out the
defective machine was made by subsidiary (Δ not liable).
Holding: DKI was not proper and deemed an admission.
       o Δ information to form a belief (K they signed w/ subsidiary was in their exclusive control)
       o Also, Δ misled the ¶ into thinking they were going after the right party and now the SOL is
          expired and the ¶ can’t go after the correct party.


Affirmative Defenses (Yes, but …. )
MAY admit/deny/ DKI + raise affirmative defenses
2 Federal Rules in issue:
    12(b): Except for 7 specified defens (pre-answer motion), defenses should be raised in answer
    8(c): in a responsive pleading, Δ shall set forth affirmatively specified defenses "and any other
      matter constituting an avoidance or an affirmative defense"
          o Applies to anyone in a defending posture (responding to a preceding pleading), not
             specifically just the Δ
          o Rule lists common affirmative defenses (NOT exhaustive)
                  Assumption of risk , Accord & satisfaction, Arbitration & award, Contributory
                     negligence, Discharge in bankruptcy, Duress, Estoppel & Res Judicata, Failure
                     of consideration, Fraud, Illegality, License/Easement, Payment, Permission,
                     Release, Statute of Frauds, Statute of limitations, Waiver

      If the defense is mistakenly labeled as a counterclaim (or vice versa), the court treats it as it
       has been labeled correctly if justice requires
            o “except” language in statute usually indicates affirmative defense
      Difference b/w affirmative defense and counterclaim: An affirmative defense will defeat the
       plaintiff’s claim, but will not result in any recovery for the Δ

Affirmative defenses must be raised or they are waived (& no evidence of them of them can be
used at trial)
    issue may be able to be added later on as an amendment as long as the P does not object

Policy: Avoid surprise of the other party at trial. You can’t have discovery about new issue at that
point. The trial should be about issues in the pleadings.

Layman v. Southwestern Bell Telephone Co.: Mo. Ct. App. Supp p. 5
Δs installed lines in ¶’s land, causing it to devaluate. ¶ alleged trespass. At trial, Δ introduce
evidence of an easement. ¶ objected, saying this was affirmative defense and should have been
raised in answer.
Holding: Easement evidence was an affirmative defense b/c the Δs do not deny the ¶‟s allegations
but seek to introduce additional information for purposes of justification  must be raised in answer;
not at trial
    o There‟s a difference b/w refuting what ¶ alleges (using evidence) and avoiding liability even if
        what ¶ says is true


      Non-conceptual approaches to determining if a defense is an affirmative one:

                                             7
          o Historical test: If it would have been treated as "confession and avoidance" at common
            law, it should be treated as one now
          o Functional test: consider the function of 8(c) in determining if a defense is an affirmative
            one. What's the purpose of the rule? Would someone be caught off guard at trial?


The Reply
Rule 7(a)(7): Written response to answer allowed
   o Does NOT permit a response to an affirmative defense in a pleading (unless one of the above
      claims is attached)

Rule 8(b)(6): effect of failing to deny
    If responsive pleading req & allegation NOT denied deem ADMITTED
    If responsive pleading NOT req allegation deemed DENIED OR AVOIDED

Rule 12(a)(1)(C): Timing of the Reply
   o Party who receives pleading stating a cross-claim has 20 days after service to respond [unless
      service is waived under 4(d)

Amendments to Pleadings- before/at/ after trial
Rule 15
Rule 15 is a liberal pleading rule. If claim is dismissed for failure to state a claim, ¶ is normally given
chance to amend pleading.
Amended claim (if allowed) will be treated as though it was filed w/ original pleading (was SOL for
amended claim up at time of filing of 1st claim?)

Rule 15(a): General rules about pre-trial amendments
   o May amend pleading once as a matter of course before a response to the pleading is served
         o 12(b)(6) motion is NOT a responsive pleading
   o If no responsive pleading permitted, party has 20 days after service if action has not been
      placed on the trial calendar.
   o Otherwise, can amend on leave of court or consent of adverse party.
         o LiberalLeave is freely given if justice so requires (court asks if adversary would suffer
             any prejudice or any undue delay?)
   o Party has time remaining to respond to amended pleading

David v. Crompton & Knowles Corp.: E.D. Pa. Part 2 p. 215
Facts: Δ seeks permission to amend under 15(a). Δ has to ask permission, since they waited too
long for amendment as matter of course.
Holding: Permission to amend was denied b/c of the prejudice to ¶ (would leave π w/out possible
remedy because of the SOL had run on liable party) & undue delay (should have known long ago)

Reasons a court may deny permission to amend:
    Risk of prejudice to adversary:
         o Surprise, like Laymen case, ¶ needs extra time to deal w/surprise issue (may have to
            do more discovery, problems of lost evidence, forgotten memories, dead witnesses
            w/limited cost)

                                              8
           o Statute of limitations problem (Crompton & Knowles)
       Undue delay (could they have amended w/ing the 20 day prd for amendments)
       Futile claim: when court concludes that no amendment will be able to fix that problem (e.g.,
        Mitchell v. Archibald & Kendall)
       Repeated failure to correct an error in a prior amendment (Too much trial and error 
        permission to amend granted several times just can’t get it right)

Rule 15(b): Amendments to conform to the evidence (very late amendments at trial or after trial)
   o If issues not in the pleadings are presented @ trial w/o objection, they may be treated as if
      raised in pleadings.
          o Can amend pleadings to conform to the evidence (For future reference).
          o Failure to amend pleadings doesn’t affect the outcome.
   o If someone objects to the new evidence, the court shall allow amendment if:
          o It will serve the purpose of presenting the merits, AND
          o There is no showing of prejudice to objecting party


Relation Back of Amendments [Rule 15(c)]
Possible problem: statute of limitations runs after filing of initial complaint and before amendment of
complaint. Rule 15(c) allows an otherwise time-barred complainant to sue a new party if the
amended pleading is similar enough to the initial one.
Purpose: make sure Δ still has benefit of SOL

Rule 15(c): Amended pleading stating claim for which SOL has run: allowed when:
   1. applicable SOL law allows relation back
   2. “Relates Back” amendment permitted when:
      Claim/Defense in amended complaint arose out of same conduct, T/O set in original occurence
                 Same evidence test: Will the same evidence or witnesses be used to support or
                   refute the claims?
                 Common question of fact or law: Are the issues of fact and law raised by the
                   claims largely the same?
                 Res judicata test: Are the claims so closely related that res judicata would bar a
                   subsequent suit on 2nd claim? (If so Δ would already have notice)
                 Logical relationship test: Is there any logical relation b/w the claims? [Most
                   malleable test!!]

   3. Amended pleading changes party or naming of party if (2) is met AND
      A. Party got notice w/in 120 days [required by R4(m)] so that it won’t be prejudiced in
         defending, (Majority view is only informal notice req’d), and
      B. Party knew or should’ve know that, but for mistake in ID, it would’ve been sued in beginning
         o Does this apply to ADDING a party? Some courts allow the addition of ∆s, others
            construe the rule only to apply when there is a mistake in identity

Purpose of statute of limitations is important:
    Information could be lost
    It's harder for the court --> witnesses are fresh, info still around when recent
    Repose: at some point if ¶ doesn't sue, ∆ should be able to put that episode behind them



                                             9
Swartz v. Gold Dust Casino, Inc.: D. Nev. P. 218
Facts: ¶ fell on stairs and first sued operator for negligent maintenance of stairs. Later, wanted to
add owner and lessor for negligent construction of stairs, who claim SOL have expired
Holding: Amendment was permitted.
    Same transaction: “different invasions of primary right and different breaches of same duty.”
    New party got notice, since Δ was both the owner of casino & constr co. who built stairs.
    New party has not shown potential for prejudice by allowing amendment.

   Lack of knowledge of as to who the proper party IS  split of authority on this issue:
    Should the rule apply to only true mistake cases or be extended to cases where P doesn't
      know who the right party is (so sues a John Doe) and later seeks to add the right party when
      he learns of their identity?
          Broad view works in favor of ¶ (that's what the court accepts)  it prevents ¶ from being
             w/o recourse
          Narrow argument: intent of the drafters of the rule was simply to cover cases of
             mistaken identity  expansion of the rule would be beyond its intent

Changing “naming of the parties”: it’s supposed to be if there was an error naming a party, and now
just trying to correct it.

Timing problems: The rule doesn't permit relation back when ∆ receives notice after 4(m) period (120
days) but before statute of limitations runs
    If P files early, 4(m) period runs before statute does
           The problem arises if P seeks to amend after statute
           The intent of 1991 amendments to rule was to fix the filing period problem, but it actually
              limits it in some respects


Preclusive Effect of Judgments
Res Judicata or Claim Preclusion
Party can’t sue same party more than once on same claim as long as the suit came to final
judgment resolved on merits
    Bars every matter raised + every matter that could have been raised

Any evidence or theories that were part of the claim in the original suit will merged into the judgment
or be barred from subsequent suit:
Merger versus bar:
     Merger applies if the party wins the first suit:
          o All claims that were raised or could have been raised (were available at the time) merge
              into judgment  All of ¶’s rights to go after ∆ for this wrong merge into one judgment
          o Hypo: π sues Δ after car accident and wins damages for shoulder injury, P can not sue
              later for an injury to a different part of body
     Bar applies if the party loses the first suit:
          o Hypo: P is in car accident and sues and loses, doctrine of bar would preclude P from
              suing again about same accident (regardless of new theory)
          o If new information arises that was not reasonably discoverable at the time of the first
              suit, the party is not barred from relitigating a new theory based on that information

                                            10
          o Cannot bring claim even if law changes (and prior claim was dismissed under 12(b)(6)

1- Same claim requirement (scope of claim)
    Transactional approach /Same nucleus of op facts (R2d of Judgments) (majority):
         o Res jud bars claims w/ respect to the same transaction, or series of connected
            transactions, out of which the claim arose (claims brought or claims that were available)
                 Series=facts that are similarity in related in time, space, origin, motivation
                 Do they form a convenient trial unit does treating them as unit conform to
                   parties expectations (business understanding/ usage)?
                 Sufficiently close factual overlap?
                 Will they use the same evidence/witnesses?
                 Is there an understanding or feel that the transaction should be together?
    Other/ older approaches:
         o Same right invaded by same wrongs
         o Same evidence used/witnesses
         o Would decision in 2d case be inconsistent w/decision in 1st case?

2- Same parties requirement (or in privity)
    Due process allows person to be heard unless sufficient legal relationship
         o Privity- so identified w/ one another that he represents the same legal right
                   1. Non-Party who has succeeded to party’s interest in property
                   2. Non-party who controlled original suit
                        Had choice of legal theories, proof, and decision to appeal
                   3. (in fed. ct.) non-party whose interest were adequatley represented
                        Interests must have been alignes
                        Party must have understood she was acting in a rep. capacity & ct. must
                           have protected her interests

3- On the Merits Requirement  first case must have been decided on the merits
On the merits/Other Judgments given preclusive effect:
    JJ or jury verdict (or JNOV) &Summary jj (in some jurisdictions), Default jj (absent party),
      Dismissal for failure to state claim on which relief can be granted (Δ time & $$), Sanctions for
      failure to comply w/discovery requests
Not on the merits =Lack of jurisdiction, Improper venue, Failure to join necessary party under Rule 19
    Policy: Δ hasn’t incurred great expense b/c these are early in the suit

Defense: Other actions pending: (π may file same suit in multiple courts
    Court may stay action until judgment is entered on 1st pleading

Policies:
    Finality: We don’t want parties revisiting issues repeatedly
    Efficiency: Allowing parties to split up their claims into little pieces is inefficient
    Consistency: Permission of relitigation of issues could lead to inconsistent decisions that
       would erode the integrity of judicial decisions

Manego v. Orleans Bd. of Trade: 1st Cir. P. 1095



                                           11
Facts: ¶ denied liquor and entertainment licenses. ¶ sued for racial discrimination and lost on
summary jj. ¶ sued again for antitrust violations, dropping one party and adding another. Should the
¶’s 2nd claim be precluded?
Holding: ¶ is precluded in regards to everyone but the new party.Adopted “transactional” approach
     Because π’s 2nd antitrust claim arose out of same transaction as 1st civil rights claim (on which
        a final jj has been entered)  res judicata applies
            o Same facts, players, etc. Only difference is claimed motivation for same transaciton.
            o For added party only in 2nd suit: no preclusion, since not a party to the first suit.

Basic rules for ¶:
    If you want to add parties, go ahead. If you want to add claims or theories, go ahead. But do it
       the first time. If you don’t you lose your chance.
    Plead the claims you think you have, even if you are not sure. However, will this get you in
       Rule 11 problems? Tough position for ¶:
          o Preclusion doctrine says to throw in every theory that they have to avoid possible
               preclusion later
          o Rule 11 says you better not throw in things that you don’t have enough support for
          o Liberal amendment policy helps resolution of the tension (you can wait to plead a theory
               and amend later when you get support)

Application of res judicata to Δ:
   Bring all defenses or lose them, & you can’t attack jj later (defenses also merge into the jj)
   However, the Δ didn’t choose the forum, nor ask to be sued; Rules recognize different posture:
          o If there is a compulsory counterclaim, you have to bring it up
          o If not compulsory, you don’t have to bring it up. You can sue on it later. [Exception: if
              the 2nd judgm’t would undo the 1st judgm’t, you can’t bring it up later.]

Rhine v. Locke
Facts: ¶ arrested by cops on false report. ¶’s first suit dismissed for failure to plead lack of probable
cause/ failure to state a claim 12(b)(6). Π rried to sue again and amend pleading.
Holding: Rule 41(b): unless the court stays a dismissal is w/o prejudice (wouldn‟t prejudice Δ), a
12(b)(6) dismissal for failure to state a claim = judgment on the merits. (barred by res judicata)



Collateral Estoppel or Issue Preclusion
Suing on a different claim, but a specific issue may have been resolved by earlier suit  bars
relitigation issues already decidedAssumes 2nd lawsuit is NOT precluded by claim preclusion

   Was the same issue actually litigated (not just raised)?
   Was that issue actually decided? (not always crystal clear)
   Was that issue necessary to support the judgment in prior action?
       o Ie: suit for faulty ladder. Jury found Δ made ladder, ladder had defect, but defect didn’t
           cause injury  issue of Δ as ladder maker can be relitigated b/c it wasn’t necessary to 1st jj.
               Finding Δ as ladder maker didn’t effect outcome of suit
       o Reluctance to grant issue preclusion when the issue is Q of law rather than Q of fact
       o Reluctance heightened when there has been intervening change in the law in btwn suits
   Party against whom preclusion is invoked must have had a full and fair opportunity to litigated

                                            12
Polices: Consistency: issue should be resolved the same way

Little v. Blue Goose Motor Coach Co.: Ill. p. 1142
Dr. Little got in accident with bus. Bus co. sued and got judgment against Little. Little sued Bus Co.
for negligence. Little died and widow took over.
Held: Little is precluded. First suit found that Little was liable. Under practice at the time, the Bus Co.
had to prove itself free of contributory negligence Therefore, the issue of the Bus Co.‟s negligence
has been settled.
      She also loses on willful negligence claim b/c If Bus Co. had been “willfully negligent,” it would
        not have won the first suit.
      She was precluded from wrongful death claim ( b/c she was in privity w/Little (as executrix of
        his estate, she succeeded in his property interest)


Determining Issues Litigated in Different Types of Verdicts

      General verdicts do not tell us what issues were actually litigated (could have independent
       alternate grounds problem)
           o Looking at the record, the pleadings (shows what P alleged)
           o If P alleged only one theory of liability, then we would know what the jury found
           o In some systems, judge is required to make findings of fact during bench trial
           o The record of the charge to the jury --> "if you find this, you should find for the P…"
      Special verdict (jury answers specific question), you can see the jury's finding there
      Special interrogatories (the jury's given a list of questions and then enters a verdict) is also
       helpful in distinguishing what the jury decided
      Look at the law governing the claim (this one would have shown what P had to prove in order
       to recover--> that they had to prove that they weren't contributorily negligent)
      Arbitration generally has same issue/claim preclusive effect as ct. judgment




Non-Mutual Collateral Estppel
Allows new party to invoke collateral estoppel against party who litigated and lost on an issue in a
prior action  must meet all same criteria as coll estopp

Hardy v. Johns-Manville Sales Corporation: 5th Cir. P. 1146 (diff π and Δ)
Facts: Prior suit (Borel) established that asbestos companies were liable to ¶s. Hardy wants to use
that jj against different Δs to say that, Δ has duty to warn as matter of law (“offensive collateral
estoppel”). “Non-mutual” offensive collateral estoppel, since Hardy (π) was not a party to the first suit
& is not bound
Holding: The duty to warn was not clearly decided in Borel. ¶s in this case may not have worked
w/asbestos from the 30s to the 60s, like Borel. Some ¶s in this case had a different job and may
have had different warnings. The Borel jury didn’t decide, as a matter of fact, that all manufacturers
have a duty to warn

      Concerns about use of non-mutual collateral estoppel here:
         o Can’t estop new Δ from presenting state of the art evidence

                                             13
          o It may be unfair to allow second ¶ to use the first ¶’s results and get a free ride when Δ
            won other judgments. Wait and see π problem
          o Also, if the damages in the first suit were small, the Δs may have had little incentive to
            fight hard. However, the second suit may have damages in the millions.

Commissioner of Internal Revenue v. Sunnen: U.S. Supreme Court p. 1151
Inventor assigned patents to his wife so she could claim income & reduce joint taxes.IRS sued & lost.
IRS came after them again for other tax years. Δ (inventor) claimed preclusion. (Issue preclusion
applies b/c each tax year = different claim).
Holding: π can’t claim preclusion. This is not the same issue b/c each agreement was a different K +
there was an intervening change in the law (new SC decision)
    Separate facts doctrine- if relevent facts of 2 cases are seperable, even though they are
       similar or identical, Coll Estop doesn’t govern legal issues which recur in separate case
          o Facts must be idential in all respects
          o Stauffer Chemical- Sunnen rule only applicable to tax cases

      Hesitation to preclude government:
          o Govt litigates tons of cases and the effect of preclusion will be more burdensome 
              there’d be no development of the law and no splits among the Circuits
          o Idea of a clean slate: a new administration shouldn’t be bound by cases litigated by
              prior administration
          o It would eliminate the government’s discretion in what cases it hears on appeal
              (flexibility in what issues they will hear is better)
      Notion that collateral estoppel applies more powerfully to questions of fact rather than
       questions of law.
          o Law evolves over time and is dependant on the development of subsequent cases
          o Concern about inequitable administration of the law: If other people can litigate their
              issues under a new legal regime, but the original P can not, it's unfair to the original P
              who is estopped
                   Although it has been said that only changes in constitutional law are applicable
          o Problem is mixed questions of law and fact



Alternative Grounds for Decision
If a suit was decided on alternative theories, there is no preclusion to any of them. The losing party
would have no incentive to appeal, since she wouldn’t win anyway.

Independent Alternate Grounds Problem: The concern is that we have independent alternate
grounds to support the judgment  either 1 of the 2 findings would have supported judgment for
Little, so it's possible that neither claim got sufficient attention
 There may not have been careful deliberation if the issue was not determinative (issue would have
     gotten more attention if the entire case turned on it)
 There’d be no appellate review of issue: no incentive to appeal b/c it’s seen as irrelevant to case
         o Even if the appellate court agreed to hear it, they’d probably decide nothing turns on it
         o It won’t get as extensive a review b/c it wasn’t extensively litigated
 Would cause cautionary appeals: parties would appeal alternative ground for decision “just in
     case” there are later suits and would defeat the efficiency rationale of collateral estoppel

                                            14
Restatement (2nd) of Judgments to Independent Alternate Grounds:
    if the issue was necessary for all of the alternate findings, there is preclusive effect.
    if the Δ did appeal on the issue and lost, there is preclusive effect.
These two are consistent with Halpern.

Some jurisdictions DO give preclusive effect to issues that were alternative indp grounds.

Halpern v. Schwartz: 2nd Cir. P. 1158
Facts: ¶ adjudged a bankruptcy in prior litigation on 3 bases, only 1 of which req’d intent to defraud
creditors. She petitioned to discharge her debts and her trustee opposed the petition on the ground
of the fraudulent intent. Under bankruptcy law, can’t discharge debt if had intent to defraud.
Holding: Prior case does not have preclusive effect on the finding of intent. Though the intent issue
was fully litigated & finding was made, if issue was not necessary for the judgment (was incidental,
collateral, or immaterial), the prior judgment will not foreclose reconsideration of same issue.
     Δ’s intent was found in connection w/ only 1 of 3 independent grounds for bankruptcy

Underlying concerns in this case:
   Both she and the court should know that when you are bankrupt, you will want to get the
      benefit, too (discharge). They both should have known that the finding of intent would be
      important.
   This holding is not accepted by all courts


Persons Bound by Judgment
Privity
Privity: a person is so identified with another that they represent the same legal right.
Person in privity for preclusion purposes:
    2. A party who has succeeded in another party’s interest. E.g., you buy a house and prior owner
        had boundary dispute with neighbor and lost. You are bound by the judgment, since you
        succeeded prior owner in interest.
    3. A nonparty who controlled the original suit: effective choice over theories and whether to
        appeal/can make decision to appeal. E.g., parent co. and subsidiary.
    4. A nonparty whose interests were adequately represented by a party in the original suit:
        someone was looking out for your interest. “Virtual or adequate representation.”
                   Legal relationships that show a consistency in interest
                   Consent (someone appointing another to act as their representative)
                   Necessity (if someone NEEDS a means for proceeding for a person who can’t
                      represent themselves  coma, incompetent, guardians)
                   Class actions (consent + necessity)


Benson and Ford, Inc. v. Wanda Petroleum, Inc.: 5th Cir.
Facts: First suit: Shelby v. Wanda Petroleum. Ford testified for Shelby. Shelby lost. Then Benson&
Ford filed its own suit against Wanda. The trial court awarded summary jj in favor of Wanda because
of preclusion. ∆ argues is that the parties are in privity and a judgment against one should collaterally
estop Ford even though they were not a party in the first suit.
Holding: Ford is not precluded from relitigating the same issues b/c they were not in privity w/ Shelby

                                            15
      No control: Ford was not in control of the original litigation, since he didn’t have effective
       choice over theories and whether to appeal. He only testified and attended strategic mtgs.
      No adequate representation (it’s MORE than just having the same interests)

Joinder- a non-party not generally req. to seize avaiable opp to intervene in pending litigation that
represents a Q affecting them as non-party
Fairness: non-party has due process right to be heard; non-party may use non-mutual coll estop



Non-Mutual Collateral Estoppel
Mutuality is lacking when the party seeking to invoke estoppel was not a party to the first suit and
would not have been bound by that judgment.
Traditional view: no party can be bound by jj unless both parties can be bound

Defensive [shield]: a nonparty ∆ seeks to preclude ¶ from relitigating an issue P litigated and lost
      ¶ v. ∆1 [¶ loses]
      ¶ v. ∆2 [D invokes collateral estoppel]  OK
           If P had won, he can not estop ∆2 b/c ∆2 never got his day in court/full and fair
             opportunity to litigate  DP would be violated
           Defensive non-mutual collateral estoppel is generally accepted (think of it as a ∆ using it
             as a shield  the D is using it as a defense to liability)
                                          st
           Incentive to join all Δ’s in 1 action (judicial economy)

Offensive [sword]: a nonparty P seeks to preclude ∆ from relitigating an issue ∆ litigated and lost
      ¶1 v. ∆ [P wins]
      ¶2 v. ∆ [P invokes collateral estoppel] generally NO (although ct. has discretion)
                    1. could π have been easily joined in 1st suit?
                    2. would it create unfairness for Δ?
          o If ¶1 had lost the first suit, ¶2 is not bound b/c of DP
          o This will promote wait and see π’s (see how 1st suit goes then sue same Δ)
                  E.g., the Hardy case (where P was relying on previous Borel asbestos decision
                    to establish liability)


P1 v. D  D wins
P2 v. D  P2 not bound b/c they were not a party (assuming no privity)  DP day in ct.

P1 v. D  P wins
P2 v. D  P2 still can’t use it b/c they would not have been bound had it gone the other way

P v. D1  P wins
P v D2  P can’t use judgment  DP day in ct. (Hardy case)

P v. D1  D wins
P v D2  D2 may use the judgment to estop from litigating issue b/c P was party
Even though its non-mutual (P could’t use jj against D2)  P already had opp to litigate and is now
stuck w/ consequences of jj


                                            16
Parklane Hosiery Co. v. Shore: U.S. Supreme Court p. 1174
Facts: Shareholders sued for misleading merger statement. SEC also filed suit and won before the
first suit. Then shareholders want to preclude the Δs from relitigating.
      If the SEC had lost, ¶s would not be precluded b/c they were not parties to first suit. (this is
        offensive collateral estoppel)
      Court has allowed non-mutual defensive collateral estoppel before.
Concerns that explain hesitancy to allow use of offensive collateral estoppel  Positive
answers to these questions counsel AGAINST allowing use of collateral estoppel
      Is this just a wait-and-see plaintiff? (Efficiency = Incentive to join all Δs versus wait-and-see ¶)
      Fairness factors:
            o Is there a risk of inconsistent judgments?
                     Doesn’t seem fair to bind Δ by one loss when he may have won other judgments
                     If 25 people sue Δ and lose, then the 26th person wins, he could be bound by
                         that ONE loss in every subsequent suit
                     26-1 aberrational judgments won’t be binding, but if the scorecard is 2-1, we
                         don’t know if it’s aberrational
            o Amount at stake/incentive to litigate vigorously? What did Δ think was at stake? Could
                he foresee later litigation?
                     Δ may not litigate vigorously in the first suit if there’s not much at stake
                     If later suits come and bind Δ by that first judgment, much more may be at stake
                          seems unfair
            o Are procedural opportunities the same? Did Δ‟s inability to pick the forum hurt him?
                     If the first suit is in an inconvenient forum for Δ, he could lose because of little
                         discovery or subpoena power (argument that it’s unfair to preclude him in a place
                         where he’d have a better chance of winning due to these advantages)
                     2nd suit could be in a place where Δ doesn’t have these procedural advantages
Holding: Court permitted offensive collateral estoppel, but they allow discretion:
      They’ve told judges what the factors are  it can be granted in cases where the factors
        counsel in favor of it
      Sticking point: there was no opportunity for a jury trial in the first suit (equity suits have no
        right to jury trial) ---> if they were allowed to re-litigate, they'd have a right to a jury trial [Court
        says it's a neutral change in fact-finding  no effect on outcome b/c merits are the same]


Joinder
“Ancillary”: ¶ sues with federal claim, then adds state claim
“Pendant”: ¶ sues with federal claim, Δ counterclaims with state claim
“Pendant Party”: ¶ sues Δ1 with a federal claim, then adds Δ2 with a state claim
    Distinctions don’t matter after § 1367

Joinder of Claims

Joinder of Claims by the Plaintiff

Rule 18(a). Party (π or Δ asserting cross/counter/3rd party) w/ a claim against another can join all the
claims it has against opposing party.
Claims don’t’ have to be related (no common T/O test)
                                               17
Caveats:
   there are some claims you will lose if you don’t join them [compulsory counterclaim]
   Rules don’t confer jurisdiction  court must have subject matter (Fed Q) juriscidtion for
     each claim or supplemental jurisdiction must be analyzed if there is no independent
     basis for jurisdiction.
   Only a pleading rule claims may still proceed seperatley if necessary
   Not compulsory  but 1st jj may preclude 2nd suit under claim under claim preclusion

Supplemental Jurisdiction with Federal Questions (1367)
TEST:
  1. There has to be a substantial federal claim, not just an excuse to bring state claim into federal
      court [Need not necessarily survive 12(b)(6) motion]
  2. Next, is there a common nucleus of operative facts? 1367(a) codifies Gibbs test
         a. So related they form same case or controversy
         b. No supp jd over claims by π’s against people made parties under Rules 14, 19, 20, 24
         c. When exercising supp jd would be inconsistent w/ 1332 (diversity)
         d. + would court decline supp jd under their discretion?
  3. Last part, would the ¶ be expected to try this all claims in one case?

Even if case meets 1367(a)  must go on to b & c (exceptions)

Policies served:
    Efficiency: Goal of judicial efficiency isn’t met if underlying facts in each claim are diff
    Fairness/Uniformity: Making sure a person is ABLE to bring federal claims in federal court
          o Federal courts may be more sympathetic or experienced w/federal claims than states
          o Shouldn’t have to give up expertise of federal courts to get efficiency.
    Federalism/Uniformity of federal law judgments

United Mine Workers v. Gibbs: U.S. Supreme Court supp p. 10
Facts: ¶ (TN citizen) got job and K with mine. Union (based in DC) protests (violence). ¶ lost job and
many Ks. ¶ sued union under Labor Management Relations Act and common law of Tenn. (tortious
interfering with contractual relations).
Holding: Dist ct. had jd to hear state law claims b/c a common nucleus of opperative facts existed
btwn state and fed claims. w/o regard to fed/state character we would expect to π to bring claims in
one suit to avoid preclusion
     Art III. § 2 of Constitution is basis for supplemental jurisdiction:
            o Federal courts can hear all cases arising under federal law
            o If claims so closely related that they form a single “case or controversy” it is
                constitutional to hear them together.
     ASIDE: Gibbs could not use diversity jurisdiction b/c the union is considered a citizen of every
        state in which it has members

The Gibbs Test:
1. If the anchor claim is a federal question claim, it has to be a substantial claim (but it need not
   necessarily survive 12(b)(6) motion.
2. Common nucleus of operative fact test:
        a. There must be a significant factual overlap b/w the state and federal claim --> it doesn't
           have to be a complete factual overlap

                                            18
      b. Similar to the test used in res judicata to determine if two suits are really the same claim
              i. Some courts have held that just SOME overlap is enough to permit the court to have
                 the POWER to hear the state claim (doesn't mean they have to)
3. Ignoring fed/state claim distinction, would we expect the claims to be brought together?
      a. Is the theory b/w the 2 claims so close that we would expect P to bring them both, and he'd
          be prevented from bringing the second one later?
      b. They have to be close enough to be transactionally related

Discretion to decline to hear supplemental claims 1367(b)&(c)
    If federal claims are dismissed before trial, police from above won’t served
    If state claim predominates. The tail (federal claim) shouldn’t wag the dog (state claim)
    If state claim is a novel or complex issue of state law 
          o State court will have a better handle of state law than federal court
          o If there is disagreement to application of state law, it should be left to state courts

28 U.S.C. § 1367 codifies the result of Gibbs:
(a). There must be original federal jurisdiction  Must be related so as to be single case or
controversy [USE GIBBS TEST]
(b) In diversity cases, the court should NOT exercise supplemental jurisdiction if any of the following
destroy diversity:
     Claims BY PLAINTIFFS against persons made parties under Rule 14, 19, 20 or 24, OR
     Persons proposed to be joined AS PLAINTIFFS under Rule 19, OR
     Persons seeking to intervene AS PLAINTIFFS under Rule 24
(c) Exercise of supplemental is jurisdiction is discretionary [consistent w/Gibbs] and should be
declined if
    (1) The claim raises a novel or complex issue of state law (a little diff than Gibbs)
    (2) The state claim substantially predominates over fed claim (consistent)
    (3) Fed claims have been dismissed (consistent)
    (4) In exceptional circumstances, there are other compelling reasons for decline jurisdiction
             Suggests that if 1-3 exceptions aren’t met, you really should exercise supplemental
               jurisdiction unless there are COMPELLING reasons not to

The common understanding is that the scope of supplemental jurisdiction is:
   o Constitutional power = Gibbs test (nucleus of fact) = compulsory counterclaim statute
        The limits of supplemental jurisdiction overlap in each case
        This presumes that there isn't supplemental jurisdiction over permissive counterclaims --
            -> by presuming that they don’t arise from common nucleus of operative fact

An alternate view is taken in the Second Circuit in Jones:
   o Constitutional power > Gibbs test > Compulsory counter claim statute
          Takes position that some permissive counterclaims may satisfy the Gibbs test -->
             implies that Gibbs requires less than the compulsory counterclaim statute
          They also hint that the Gibbs test does not define the outer limits of constitutional power
                 An even more expansive view implies that the Constitution grants power to hear
                    any claim that the rules permit to be joined (reading "case" and "controversy"
                    broadly) with a loose factual connection



                                            19
Joinder of Claims by the Defendant

Counterclaim (defending party asserts claim against party who has claimed against him)
You may bring all the counterclaims that you have at the same time.

Caveats:
   You must bring some counterclaims (compulsory counterclaims)
   The Rules don’t confer jurisdiction
   Distinction b/w compulsory and permissive counterclaims is only relevant if the counterclaim is
     not brought and ∆ seeks to sue on it in subsequent litigation

Rule 13(a). Compulsory counterclaims = must be brought in original or they are waived (don’t
need sep basis for jd
If the counterclaim arises out of the same transaction or occurrence, the party must plead it,
      Exceptions:
            If the claim is already in another suit or if the claim requires third parties that the court
              doesn’t have jurisdiction over
            Don’t have to counterclaim if this was a quasi in rem attachment, as in Shaffer
        T/O Tests  is the answer to any one of them is “yes,” then the counterclaim is compulsory:
            Same evidence test: Will same evidence or witnesses be used to support or refute
              claims?
            Common question of fact or law: Are the issues of fact and law raised by the claims
              largely the same?
                  o Factual questions  what happened? Who did what?
                  o Legal questions  what theories of law will be used? What are the applicable
                      standards for negligence/intentional torts/contract breach?
            Res judicata test: Are the claims so closely related that res judicata would bar a
              subsequent suit on the second claim? ? (this was developed in pendant party
              jurisdiction (Gibbs) context
            Logical relationship test: Is there any logical relation b/w the claims? [Most malleable
              test!!]

Compulsory counterclaims are compulsory not in the sense that you will be forced to make them, but
that there will be consequences if you don’t: you’ll lose them and forever be barred.

Policies for making some counterclaims compulsory:
    efficiency: if the claims arise out of the same transaction, why not solve both at the same time?
       Why have two trials involving the same evidence?
    consistency: we don’t want a trial on 1 claim saying one thing and another trial saying another.

Rule 13(b). Permissive counterclaims
You may bring any other counterclaims you have that are unrelated to original claim
Need separate basis for jurisdiction

Wigglesworth v. Teamsters Local Union No. 592: E.D. Va.
Facts: ¶ sued union for violations of Labor Mgmt. Reporting Disclosures Act. The day he filed suit,
the ¶ accused the union at a news conference of being run by the mob and fixing elections. Δ


                                             20
counterclaimed for libel, slander, malicious misuse and abuse of process. ¶ moved for dismissal for
lack of subject matter jurisdiction
If counterclaim is compulsory, there is no need for a separate basis for jurisdiction.
If it is permissive, there is a need for an additional basis for jurisdiction.
Holding: Here, the counterclaims on libel and slander will require different evidence. Δ‟s claim is
permissive counterclaim—doesn‟t have indep basis for jd  Δ‟s claims dismissed

For decades the rule of thumb was just accepted (and still is generally):
    Compulsory = Supplemental jurisdiction is always available b/c it passes T/O test
    Permissive = No supplemental jurisdiction available
Jones (Recent 2nd Circuit decision) casts doubt on the rule of thumb:
    Some permissive counterclaims may have supplemental jurisdiction if they are not related
      enough to be compulsory but still pass logical relationship test
    Problem with Wigglesworth case is that they didn’t do the jurisdictional analysis at all, the just
      accepted the “rule of thumb” after establishing claim was permissive

Cross-claims
Rule 13(g): Cross-claim against Co-Party.
You may bring as a cross-claim against a co-party (on same side of v) arising out of the same
transaction or occurrence.

Right to bring cross-claim is not as flexible as the right to bring a counterclaim.
    You can bring unrelated counterclaim, but you cannot initially bring an unrelated cross-claim.
    You must first file a related cross-claim that satisfies 13(g). Then, under 18(a), you can file
       additional claims that you may have, even if unrelated.

Caveats:
  o Cross-claims are not compulsory
          It would require Ds to point fingers at each other, and that could prejudice them if they
           were stopped from putting forth a united front
          In indemnity cases, it could be more efficient to see what happens on the Ps claim (the
           Ds cross-claim may ultimately be unnecessary)
  o Jurisdictional limits: the rules do not supply subject matter jurisdiction for cross-claims
          Proxy: If the cross claim meets 13(g) test, it's likely that there will be supplemental
           jurisdiction over the cross-claim (but it still makes sense to ask the jurisdictional
           question, unlike Wigglesworth court)


Permissive Joinder of Parties
Rule 20.
    ¶s may join in one action if claims arise out of same transaction/occurrence and if common
      questions of law or fact.
    Π may join multiple Δs if right of relief arises from same transaction/occurrence and if
      common question of law or fact.
    Rule doesn’t confer jd  still need subj matter jd

Requirements of Rule 20:
   Claims must arise out of the same T/O or series of T/O, AND
                                            21
      There must be a question of law or fact common to all of the parties
          o Example of legal question: State standards for vicarious liability
          o Example of factual question: Whether the light was red at the time of the accident

Examples: ¶1 + ¶ 2  Δ or ¶  Δ1 + Δ2

Rule is written to speak to plaintiffs, but also speaks to others via Rule 13(h):
    Persons not in the original action may be joined as new Δs to counterclaim or cross-claim
      under Rules 19 or 20
    The rules allow it, as long as same transaction/occurrence.

Second hypo: what if other driver is a teen. Teen sues W. Wants to join the teen’s parents? Rule
13(h) allows it, as long as same transaction/occurrence.

Kedra v. City of Philadelphia: E.D. Pa. p. 235
Facts: Family that sues for pattern of abuse by cops. Δ claims improper joinder b/c diff claims against
diff Δs didn’t arise out of same transaction or occurence
Holding: The incidents are related enough because of the alleged pattern of behavior. Following the
broad, liberal interpretation of the rules, absolute identity of events is not necessary.
      The fact that the incidents stretched over time does not make the relationship more tenuous.
      Any possibility of prejudice to the parties caused by association (degree of involvment) will be
        resolved after discovery.

Insolia v. Philip Morris, Inc.: E.D. Wisc. P. 237
Facts: Three smokers suing cigarette and tobacco companies. Δs claim improper joining of parties.
Most questions will be different: Was ¶1 injured by smoking? Was ¶2 injured by smoking? Different
injuries and damages. Few common questions: when did co’s know about effects of tobacco? What
did they do about it? But beyond that, wouldn’t make sense to join parties for efficiency: different
people, different causation, different times
Holding: Claims were not sufficiently similar to warrant joinder under Rule 20. Large potential for
prejudice to Δ + jury confusion.




Supplemental Jurisdiction over Pendant Parties
Exxon Mobil v. Allapattah Services: U.S. Supreme Court, 2005

Hypos of the state of Supplemental Jurisdiction after Exxon Mobil:
   1. Claims by P against D2 in fed Q cases? (this is Finley)  there is supp jurisdiction
          a. Assume there's a fed Q against D1 but not D2, and the claims against D1 and D2 are
             close enough to satisfy Gibbs test (1367(a))
          b. 1367(b) does not apply b/c basis for fed jurisdiction is fed Q (not diversity)
   2. Counterclaims and cross-claims that join additional parties?  there is supp
      jurisdiction


                                           22
        a. If jurisdiction of a counterclaim WAS based solely on diversity (closely enough related to
           original claim to be part of same case or controversy) as long as parties aren't joined by
           rules mentioned as exceptions (14, 19, 20, 24)
        b. Remember 1367(b) applies only to PLAINTIFFS
        c. This is consistent w/case law pre-Finley
3.   Third party claims?  there is supp jurisdiction
        a. E.g., P suing D in fed ct based solely on diversity, and D is suing a third party like ins.
           co for indemnity, and there is no diversity b/w D and 3d party
               i.   Assume that the claim b/w D and 3d party is a state law claim
              ii.   Assume that 3d party claim is sufficiently closely related to satisfy 1367(a)
        b. 1367(b) is satisfied b/c the claim is not being brought by the plaintiff
        c. This is consistent w/case law pre-Finley
4.   Claim by non-diverse P2 against D?  No supp jurisdiction (Dicta in Exxon)
        a. Pa P1 + NY P2 v. NY D  the Ps chose to join together, diversity is incomplete
               i.   1367(b) doesn't apply because D wasn’t joined under Rule 20, the plaintiffs were
        b. If 1367(b) isn't the problem, the problem is there is no "civil action of which the district
           courts have original jurisdiction" 
               i.   If there's incomplete diversity in the entire action, the fed court doesn't
                    have jurisdiction over the entire action, just one claim within it
              ii.   There's a diverse claim, but no diversity over the action as a whole because it's
                    been contaminated
                        1. Ct rejects contamination theory in other contexts, but says it's needed
                           here
                        2. The diverse claim can't be used as a hook for the other claim b/c it's
                           contaminated by the other one (the joinder of the non-diverse claim
                           destroys jurisdiction over the rest of the lawsuit)
                               1. If the non-diverse party is added via amended complaint, it could be
                                  argued that there is an original anchor claim that the court DOES
                                  have jd over, no real answer
                               2. Court may not allow it  that would be an easy way to get around
                                  jd req
             iii.   But other part of diversity reqs can be analyzed claim by claim (amount in
                    controversy doesn't contaminate other parts)
5.   Claim by P against non-diverse D2?  No supp jurisdiction (Dicta in Exxon)
        a. Pa P v. NY D + Pa D --> incomplete diversity b/c of the additional D
        b. 1367(b) is the hurdle b/c the P's claim is against a person made a party under Rule 20
6.   Claim by P2 that fails to satisfy amount in controversy requirement (this the
     Tuna/Ortega issue in Exxon Mobil)  there is supplemental jurisdiction
        a. Pa P ($80 K) + Pa P ($20 K) v. NY D
        b. “Amount in controversy” is analyzed claim by claim (diversity is analyzed civil action by
           civil action)  as long as ONE person meets amount in controversy, other claims can
           attach if they don’t meet the amount
        c. 1367(b) does not take away jurisdiction b/c Ps were joined under Rule 20, it’s not a
           claim BY plaintiff AGAINST a person made party by Rule 20
7.   Claim against D2 that fails to satisfy amount in controversy requirement?  No
     supplemental jurisdiction (Dicta in Exxon)
        a. Pa P v. NY D1 ($80 K) + NY D2 ($20 K)
        b. P against D1 can serve as anchor claim b/c there is complete diversity, BUT


                                          23
         c. 1367(b) takes away supplemental jurisdiction b/c it’s a claim by P against a person
             made party by Rule 20
               i.  Court in Exxon says it’s an unintentional drafting gap (If P’s are joined under rule
                   20 and one doesn’t meet amount it’s ok, but it’s not ok for Ds)
              ii.  Court says it’s Congress’ problem to fix  Congress could have said that Ps
                   joined under R20 ALSO had no supplemental jurisdiction
   8. Claims of absent class members that fail to satisfy the amount requirement? (this is
      other issue in Exxon Mobil)  there is supplemental jurisdiction
         a. Similar analysis to #6 above
         b. Court rejects contamination theory in this context because it wouldn't further the
             purpose of diversity jurisdiction
               i.  If complete div is destroyed, ct doesn't need to protect foreign Ds from local bias
              ii.  Amount in controversy req is intended to keep petty claims out of fed courts --> if
                   all Ps don’t meet amount requirement, that doesn't mean that it's a petty claim

Policies underlying 28 USC 1332 are important:
o Policies underlying diversity jurisdiction  to prevent bias against foreign defendants in state
   court, protect interstate relations if people of one state feel they are unfairly treated in other states
o Policies underlying jurisdictional amount requirement  to ensure fed courts don't get bogged
   down w/lots of insignificant claims
o Policies underlying COMPLETE diversity requirement  if there are parties from the same state
   on each side, risk for bias is significantly reduced


Compulsory Joinder of Parties
Deals with whether certain persons not joined as parties have sufficient interest in the suit so that
they must be joined & whether, if not joined, the suit can proceed (case by case determination)

Rule 19.
   o 19(a) says this is a party that you need to join and if you won't do it we'll do it for you if the
      court has PJ and they would not destroy complete diversity. If any of these are met, they are a
      necessary party:
          19(a)(1): If complete relief can't be granted w/o them/issues can't be fully litigated
                 Primary concern is with the P --> if P will be able to get everything she's entitled
                    to from the people who are already before the court if this party is missing
          19(a)(1)(B) If the missing person's has an interest related to the subject of the
             action and is so connected to the disposition of the action that in their absence
             their interest will not be protected AS A PRACTICAL MATTER
                 Primary concern here is for the absent person  the concern is that the absent
                    person, even if not precluded will still be effected by the outcome of the lawsuit
          19(a)(1)(B)(ii) If missing person's have an interest related to the subj of the action
             & so connected to the disposition of the action that in their absence the Δs
             already involved have substantial risk of incurring multiple or inconsistent
             obligations
                 Primary concern here is for the defendants already parties
                 This doesn't protect against all risk of inconsistency:
                         Joint tortfeasors are typically not viewed as necessary parties



                                             24
                            Inconsistent judgments is not the type of inconsistency that we're
                             concerned with  we're worried about having to pay twice for the same
                             thing or to do things that are mutually inconsistent
                          If the joined person objects to venue and they'd make venue improper,
                             then they should be dismissed from the action
   o   19(b) If a person described in 19(a) can't be made a party (b/c the court does not have
       PJ or they would destroy diversity), the court has to determine how critical it is that this
       person be joined
           If the person is indispensable (can't go forward w/o them), lawsuit should be dismissed
           If they're not indispensable, we can go forward
           Factors to be considered by the court in deciding to go forward or dismiss:
                   How severe the prejudice that the P, D, or absent party may face
                   If the risk of prejudice can be minimized (i.e. though the shaping of relief - if it's a
                     suit for injunctive relief, awarding money damages can minimize risk of prejudice)
                   If the judgment rendered in the person's absence will be adequate
                   Whether P will have an adequate remedy if the action is dismissed for nonjoinder

   Failure to join a necessary party under Rule 19 is a defense under Rule 12(b)(7)
   o If this defense is not raised the first time you speak (pre-answer motion), it's not waived b/c it’s
       a favored defense
   o This defense can be raised in any pleading permitted under 7(a) [answer] or in a motion for
       judgment on the pleadings

§ 1367 (b) expressly prohibits adding claims by new ¶s or against new Δs added by Rule 19.

Janney Montgomery Scott, Inc. v. Shepard Niles, Inc.: 3rd Circ. P.243
Facts: Janney had a contract w/Underwood and its subsidiary Shepard Niles to find a creditor to
refinance SN’s debt. Later, UW began dealing with Unibank to find financing for SN, which Unibank
did. J claims that it provided support to UW and SN through the negotiations
     J (PA) v. SN (NY), Underwood [UW] (PA) + 2 subs [state court]
     J v. Unibank [federal court] ---> tortious interference w/K
     J (PA) v. SN (NY) [federal court] --> breach of K

SN moved to dismiss for failure to join UW as an indispensable party; Basic question is if Underwood
is a necessary party in the third suit?
Holding/Analysis: None of there requirements are met. UW is not a necessary party, don‟t need to
determine if they are indispensable.
    o Rule 19(a)(1)-Under PA law, K law allows co-signors to be joint and severally liable; complete
       relief is possible for Janney
    o Rule 19(a)(1)(B)(i)- No evidence that judgment would impede or provide any persuasive
       precedent in suit against Und. b/c Und. & Shep. separate corp. entities
           o The judgment would bind Shepard only, not Underwood
    o Rule 19(a)(1)(B)(ii)- continuation of action w/out Und. If Shepard is held not liable, it
       cannot be sued in state ct. & if held liable, it is free to claim contribution indemnity from
       underwood

          o Potential Precedent Problem is not accepted by this court (impeding interests as
            a PRACTICAL matter)

                                             25
                    If potential for precedent made someone a necessary part, the pool of necessary
                     parties would be greatly expanded
                    Precedent wouldn’t be influential here b/c fed court is deciding state law

Temple v. Synthes Corp., Ltd.: U.S. Supreme Court Supp p. 15
Facts: MS res had implant surgery in LA. Implant fell apart. Π filed suit in fed ct. against mfr synth
(PA) & state suit in LA against doc and hostpital. Synth motion to dimiss for failure to join doc and
hosp (who were potential joint tortfeasors)
Holding: General rule is that joint tortfeasors are not necessary parties under Rule 19


Challenge under this rule can be made in pre-answer motion [it’s a favored defense, can be
raised at any time], motion on the pleadings pursuant 12(c), in a trial on the merits pursuant
under 12(h)(2)


Impleader
Rule 14(a) allows Δ to bring 3rd party. This is not a vehicle to say “you sued the wrong Δ.” The 3rd
party liability must depend on the liability of the Δ.

3 caveats:
    The rule is permissive, not compulsory (a Δ can wait and see what happens in suit #1 and sue
      3d party later.)
    Almost always will meet §1367(a): common nucleus of facts (since 3rd party Δ’s liability is
      derived from Δ’s liability) § 1367(b) won’t prohibit, since it doesn’t forbid claims by Δs against
      parties to be joined under Rule 14 (only those made by original ¶s)
    Under Rule 18, can bring additional claims once the first one is asserted. However, there may
      not be jurisdiction over additional claims.

Requirements of the Rule:
   TPD’s liability to the Δ must derive from Δ's liability to the ¶
   The claims must be closely related to one another (same T/O) [so there’s usually supp.
      jurisdiction]
   Timing: Δ can bring 3d party claim simultaneously to the answer
           If he brings it within 10 days of answering ¶'s complaint, he doesn't need permission
           After 10 days Δ must bring motion to get permission from court and give notice to all
              parties  it's to Δ's advantage to act quickly


Claims that TPD can bring:
 Defenses, counterclaims and cross-claims just against other parties (R 12 and 13)
       3d Party D can make motions to dismiss under R12 defenses (lack of PJ, SMJ, no claim for
          which relief can be granted)
       3d Party D can (or must) bring compulsory or permissive counterclaims (Rule 13 does not
          speak only to the D, it speaks to all parties who receive a pleading)
 Defenses to the original P's claim (even when there's no direct claim b/w P and D)
       That's the TPD helping the D out  can not bring defenses that are personal to D
       TPD has incentive to help D win against the P b/c the TIPD is not liable if D is not liable


                                            26
  Claim against P if it arises out of same T/O as P's claim against D (not D's claim against 3d
   Party D)
       Once TPD has 1 claim against P that satisfies R14, then can bring other claims under R18
       Assuming lack of diversity jurisdiction b/w P and 3d Party D, there should be supp
          jurisdiction under 1367(b) b/c the claim is not made by the P (but wouldn’t work for P’s
          counterclaims)
Claims that P can bring against TPD:
       The claim must arise out of the same T/O that is the subject matter of the P's claim against
          D (TPP)
       This is where supplemental jurisdiction will likely not be available under 1367(b)

Any party to the lawsuit can object (move to strike the 3d Party claim or for its severance or separate
trial)

3d Party D can start the cycle all over again by impleading another person who is not already a party
to the lawsuit (successive impleaders) --> that'd become a 4th Party D
         It must be derivative of the D's claim against the 3d Party D

Reasons to allow impleader:
   Fairness: avoid inconsistency. If Δ loses, then turns around to sue 3rd party, he may lose and
     be left holding the bag. E.g., store owner loses to customer. In 2nd suit, it may be shown that
     the mfr. isn’t liable b/c the customer stuck fork in the toaster. Store owner is stuck.
   Efficiency: litigate all issues once in single suit.
   Speed the process up b/c evidence and witnesses may be lost

Clark v. Associates Commercial Corp.: D. Kan. P. 260
Facts: ¶ suing Δ: repossession was hostile and there were injuries. Also, Δ violated provisions of the
UCC. Δ wants to implead the people who did the actual repossession under agency theory. The 3rd
parties and the ¶ all object. 3rd parties claim that impleader is improper b/c of comparative fault (they
can only be found liable for their %-age of fault). The Δ can’t seek to be indemnified for its own
proportional fault
Holding: Motion to strike 3d party complaint is denied. Comparative fault is only for negligent torts in
Kansas, and here there is an intentional tort at issue. Δ also has indemnity claim under agency
theory, does not depend on the existence of a duty on the part of the 3d Party.
          o The Δ wasn’t claiming that they weren’t liable and that the 3rd parties were. This
              wouldn’t work under impleader, since it involves derivative liability. “If I’m liable to ¶,
              they’re liable to me.”
          o Also, Δ pleaded inconsistently, but that’s allowed under R 8(a). First, Δ claimed the 3rd
              parties were not employees, Δ is not liable. Then, Δ claims they are employees and
              therefore Δ shouldn’t be liable. The inconsistency is necessary. Without it, they would
              run a big risk.

Interpleader
A “stakeholder” may be subjected to inconsistent obligations to multiple parties. Interpleader allows
the stakeholder to avoid inconsistent obligations by forcing all the parties to fight it out in a single suit.
       Can be used by π or Δ

           Statutory interpleader                       Rule interpleader (FRCP 22)
           (§ 1335, 1397, 2361)
                                              27
           Minimal div. b/w. any 2 claimants          Complete div.
           $500 in controversy                        Per § 1332, >$75,000 in controversy
           Nationwide service of process              Rule 4(k) governs
           Venue: residence of one claimant           Venue: residence of all claimants or
                                                      where claim arose
           Provision for injunctions                  Anti-injunction. act applies

      Statutory Interpleader Act dealt with the problems [28 U.S.C. §§ 1335, 1397, 2361]
           § 1335(a): minimal diversity and $500 amount in controversy
           § 1335(b): eliminates equitable restrictions that limited the utility of the equitable
              interpleader action
                   A stakeholder who wants to use this procedure has to be prepared to
                     deposit the money or property into the court
                   Doesn’t expressly state defensive interpleader is allowed, but has been
                     interpreted that way
           § 1397: venue can be in the judicial district in which one or more of the claimants reside
      § 2361: Liberalizes service of process and allows injunctions
           It authorizes nationwide service of process
                   4(k)(1)(c) specifies this statute as one of the statutes authorizing nationwide
                     service of process
                   As long as the claimants reside in the U.S., they can be served anywhere in the
                     U.S. wherever they reside or wherever they can be found (if they live in Alaska
                     and the suit is in W.D. Pa, they can be served in Alaska)
           Injunctions: It allows courts to restrain claimants from instituting or prosecuting any
              proceedings affecting the property at issue  any litigation that has been filed against
              the property can't be started or continued [idea is “let’s settle it all HERE]


State Farm Fire & Casualty Co. v. Tashire: U.S. Supreme Court
Facts: Accident in Calif. involving Greyhound bus and truck. Δs other than Greyhound (a Calif. corp.)
are citizens and residents of Oregon. State Farm is insurer for truck driver. It brought action in the
nature of interpleader to require all claimants to bring their claims in a single suit and to discharge it
from obligations beyond the $20,000 policy cap. The insurance co. really wants the remedy to bar
further suits and be discharged from having to defend the truck driver in every suit, even after the
policy cap is reached.
Holding: Greyhound is not entitled to injunction it sought, since it does not have a claim to a limited
stake, like the ins. co. does. The ins. co. does not get the injunction it sought, either. The stake is so
small and disproportionate to the amount actually to be awarded. The ins. co. shouldn‟t be allowed to
steer the litigation w/such a small stake.
     Is ins. co. entitled to any injunction at all? Only over those people who may actually have
        claims against the ins. co. [those who plan to go after the insured or the ins. co directly via
        direct action statute]. Those who won’t go after them don’t have to be enjoined.
            o 1335 allowed for interpleader suits to start when parties may claim liability. State farm
                was potentially liable, only if Clark was found liable
            o If Clark found liable  then they could proceed w/ interpleader
     The fairest thing would be to divide the $20,000 in proportion to all the parties’ individual
        judgments. If there was no injunction the first two claimants may each get the $10,000
        individual maximum and the rest will get nothing.

                                            28
Intervention
A party outside the suit may think she has to be involved in the suit. Intervention allows her to step in.

Policies:
    Efficiency: have a single suit resolve all the issues.
    Fairness: Absent person’s int. in the suit
    Parties’ in limiting the scope of the suit is inconsistent with the other 2 goals.
          o Party may want, simple & small suit.

Advantages:
    Interveners will be bound by result. This may result in fewer cases in the future.
    The more parties are in the suit, the more ideas and theories you have. The arguments will be
      of better quality; the result will be more accurate

24(a): intervention as of right, must be timely (subjective-not defines) AND
    Unconditional right to intervene granted by statute, OR
    Claim interest in subj of action- Applicant must be situated so that ability to protect interest will
       be impaired/impeded as practical matter, unless there is adequate rep (by existing party)

24(b): permissive intervention (court has broad discretion to allow it), must be timely AND
    Conditional right to intervene by statute, OR
    Applicant’s claim or defense has common questions of law/fact w/ the main claim
    consider prejudice to original parties or delay

24(c): procedure
    File motion w/court and serve on all existing parties:
          o Must state grounds for intervention
          o Must include pleading that sets forth the claim/defense for which intervention is sought
             (on P’s side it will be in form of complaint, on D’s side will be in form of answer to
             original P’s complaint)

Jurisdiction in Intervention:
   o The claim has to be sufficiently closely related under 1367(a) for supp. jurisdiction [but can be
       destroyed by 1367(b)]:
            According to 1367(b): when intervener seeks to intervene on P's side, there's no
               supp jurisdiction if it would destroy diversity (b/c denies jurisdiction over claims
               made by persons seeking to intervene as Ps under R24)
            When intervener seeks to intervene on D’s side there probably will be
               supplemental jurisdiction but it’s an area of debate:
                    Some say it’s not really a claim by P against the applicant so it should be allowed
                    Others say if the applicant is joined as a D, it IS a claim by P
            It’s clear that if P really does have a claim against an intervening D, there’s
               probably not supplemental jurisdiction


Natural Resources Defense Council, Inc. v. US Nuclear Regulatory Commission: 10th Cir. P. 277
When NRC issues a license, it is considered major federal action. NRC is required by law to prepare
an environmental impact statement. The NRC gave the NM agency, NMEIA, the right to issue the
                                             29
licenses. However, the St. agcy. is not req’d to prepare the impact statments. NRDC files a suit to
require impact statements. NMEIA had approved a license for United Nuclear, but hadn’t issued the
license yet. UN and other industry players seek to intervene as of right under 24(a). There is no
statute giving right to intervene, they say their interest will be effected as a practical matter
Holding: UN‟s motion was granted, clearly satisfies 24(a) b/c they have a pending license. the
injunction is granted, UN won‟t get the license for a long time if ever and no one in suit adequately
represents them (government and industries are adversaries in theory.

Kerr McGee- intervention granted- don‟t have pending licenses but may be effected as a practical
matter by binding precedent this suit could create. UN doesn‟t rep their interests

American minin co- intervention granted- they rep & bind many other companies in the industry

Three types of interests
      1. person has legally protectable interest (right to sue under law)  definitley qualify
      2. No right to sue, but strong economice interests  maybe (cts are split)
      3. “Just” political/ideological/moral interest- usually isn’t enough



Class Actions
Complicated joinder device: Permits one person to stand in and represent the interests of a large
group of people without joining them through Rule 20 {and they'd be bound by the judgment}

      Objectives/missions of permitting class actions:
           o Efficiency: it's a tool to aggregate many small claims (saves time and $$)
           o Empowerment: vindicate rights of group who might not sue individually
      Policy dilemma of fairness [of binding absent class members] v. efficiency: Tension b/w
       benefit of bringing everyone in and binding everyone despite the fact that they're not an
       individual party  class members may opt out in some cases
      Lawyer's role and ethical issues/risk of conflict of interest:
           o Lawyer has much more at stake --> absent class members have less at stake
              individually so lawyer has more pressure to put her own interests first



The Problem of Representation
Hansberry v. Lee: U.S. Supreme Ct. [case was decided pre-R23, but defines constitutional limits of
binding class members] p. 291
An earlier class action suit, Burke v. Kleiman, validated the restrictive covenant of this neighborhood.
The parties stipulated that enough people (95%) had signed the covenant and was thus valid. Now a
property owner has sold house to a black family and a neighbor sues to enforce the covenant, citing
the earlier litigation as binding on the class, including the property owner who just sold. The Court
focuses on adequate representation. If everyone’s interests were represented, there was a fair result
and it’s fair to bind the parties.
The Court concludes that the representative in the first suit did not represent all the parties, since
there must have been some property owners who opposed the covenant (% didn‟t sign it). Binding
absent parties is constitutional when absent party has:
    A joint interest (not the same as successive property interest)  that’s the problem here
                                              30
      Adequate Representation
      Actively participated in the first suit

      Aside: Parties in first suit stipulated 95% of property owners had signed covenant when that
       was not true, but the Court that res judicata barred re-litigation of that issue [obviously wrong]
      It was a different claim (no res judicata), and stipulations don’t receive preclusive effect b/c
       they are not actually litigate (no collateral estoppel)

If Burke had done a better job in the first suit, she would have sued on behalf of those wanting to
enforce the covenant. She would have sued those wanting oppose the covenant. Though we don’t
know what the ints. of the property owner in the 2nd suit, whatever they were, they would be
represented, since both sides were at the table.

The Standards for Certification
Requirements of 23(a) all must be met for the class to be certified:
(1) Numerosity: Group must be so numerous that joinder is impractical
     No magic number, but Court says 50-100 is impractical, usually more than 25 or more
     Other factors:
           o Geographical dispersion
           o Unknown identity or locations of class members
           o If they are in existence today
(2) Commonality: Common questions of law or fact (not all, but language indicates more than one)
(3) Typicality: Class rep must have a claim or defense that is typical of the class (they should all be “in
    the same boat”  related to both commonality and adequacy of representation)
(4) Adequate representation: class rep must fairly and adequately protect the interests of the class
     Must assess the adequacy of the lawyer:
           o Experience
           o Financial means and resources to prosecute lawsuit of this magnitude
     Lack of antagonism: no conflicts of interest among the class members so that rep must
        represent the interests of other class members (civil rights desegregation example)

Court should not consider the merits of the claim in assessing whether to certify the class.

Class must meet all four 23(a) requirements and ONE 23(b) requirement:
Rule 23(b)
    It’s possible for a class to be certified under more than one 23(b) section

23(b)(1) is designed to protect same interests as R19; if class not certified there is risk of:
       (A) incompatible obligations for the opposing party.
       (B) interests of absent parties would be affected as practical matter

23(b)(2): party opposing the class party has acted/refused to act w/respect to class as a whole,
making injunction or declaratory relief for class appropriate. (typical to civil rights cases)

23(b)(3). Common questions to class predominate over individual questions and class action is
superior to other methods.
Factors:
    interests of members in individual control

                                                 31
      nature and extent of litigation already pending
      desirability of concentrating in single forum
      practical difficulties
          o (b)(3) class requires notice to all class members as well as an opportunity to opt out
          o Other types do not permit opting out
          o As long as named rep meets amount in controversy, then supplemental jurisdiction
              should be available as long as § 1367 (a) requirements are met (Exxon Mobil)
              [although this doesn’t matter anymore with Class Action Fairness Act]

                     Rationale for mandatory class actions: Why don't (b)(1) & (b)(2) class members get notice and
                      an opportunity to opt out? Why are there any types of classes that don't have this right?
                           If P is seeking an injunction, the injunction binds the losing D in respects to everyone as a
                              practical matter (i.e., if govt had to change forms here, it would effect everyone whether
                              they were part of the class or not)
                           Risk if we allow just one person to opt out --> that one person could sue separately and
                              get an inconsistent judgment
                           Complications arise when Ps seek injunctive relief AND monetary relief --> is it a (b)(2)
                              class or a (b)(3) class?
                                  o Circuit Courts have struggled with what to do about this --> some have created
                                       "hybrid class actions" where a piece is (b)(2) and a piece is (b)(3)
                                  o Court has said which ever side predominates (injunction or money)


   AH Robbins IUD/Securities Fraud Example: millions of shareholders claim company lied, enticing them to buy stock
    One shareholder sues on behalf of the class  can they be certified under 23(b)(3)
    23(a) Requirements:
          Numerosity is met  lots of shareholders, joining them would be hard
          Commonality  common questions of law and fact = what did HH Robbins know and when did they know
             it? Did they make false and misleading statements?
          Typicality  probably met
          Adequacy of Representation  interests of shareholders are common; counsel needs to be qualified
    23(b)(3) Requirements:
          Predominance of questions of law/fact in common?
                  Reliance is a common question so not really a concern (buying on the market is reliance on all
                      info available)
                  Individual questions would be the amount of damages for each



Walters v. Reno, 9th Cir
Facts: notice of fraud hearing led immigrants to believe they could waive fraud hearing, & still get a
deportation hearing. But, waiver of fraud hearing=pleading guilty to fraud= no deportation hearing. Π
sued on behalf of class for declaratory relief and injunction forcing forms to be changed.
Holding: Class certification and injunction upheld. Class meets all four 23(a) requirements and
23(b)(2) requirement for class certification
    Party opposing class has acted/ refused to act on grounds that apply generally to whole class
    Court has broad discretion to type of relief  granted injunction to reopen fraud cases

In the Matter of Rhone-Poulenc Rorer, Inc.: 7th Cir. P. 309
Facts: Class suit by hemophiliacs infected w/HIV by contaminated blood products. Δ is appealing
the certification of the class . The district ct. came up with a creative scheme to have limited class
action as to the issue of negligence. If no negligence, all members lose. If negligence, each takes
that finding to its own home and conducts individual part of claim: damages, etc.

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Holding: No certification. Commonality was a problem: In this case, like in many other mass tort
cases, it is difficult to find commonality in some respects. When did they use the product? How
often? What else did they do that could give rise to infection? What damages did the member
suffer? Also, here they are suing partly under the novel “serendipity” theory of liability. Some states
won‟t buy this argument. This is an area of state law (tort law). Whose law are they going to choose?
General common law?
     Magnification of liability could cause bankruptcy:
            o So far, very few ¶s have sued and Δ has won 12 of 13 suits. Statute is going to run
                soon. Most people should know about their infection.
            o However, if class is certified, the statute will be tolled and more people may sue. The
                liability of the company is increased all of a sudden.
     7 Amendment concerns: Juries in individual parts will necessarily have to revisit issue of
         th

       negligence to weigh against comparative/contributory negligence. Violation of 7th Amendment
       rule that jury findings should not be reexamined
Mass tort cases are more troubling for nationwide class certification than securities fraud:
     The common questions of law and fact have to predominate over individual questions
            o If legal standards vary from state to state, questions of law will vary b/c of different legal
                standards --> if one state's laws apply there's no problem with this
            o Plane crashes/train accidents are more amenable to nationwide class actions --> same
                occurrence at the same time to all individuals
            o Exposure cases are more difficult:
                     Present more individual questions of causation and proximate cause
                     Insolia case complications
     Resistance is more understandable in mass exposure cases

Before the passage of 23(f), you couldn’t challenge the class certification, since it is not a final
judgment  Now it allows discretionary appeals after an order granting or denying class cert.
    Under 23(f), the court has to feel that it’s worth it, and lawsuit can proceed unless the district
      court chooses to stay proceedings pending the appeal
    Rhone-Poulenc Rorer defendant used write of mandamus (ordering lower court to perform its
      duties correctly b/c it usurped authority)




The Class Action Fairness Act, 28 U.S.C. § 1332 (d)(1)-(10), § 1453 (d)(1)-(10)

Class action settlements:
    If there’s a contingent fee awarded to the lawyer when the class gets coupons, the fee is bases
      on the value of coupons that are redeemed
          o Reduces potential fee for the attorney
          o Delays payment to the attorney significantly (people need time to redeem the coupons)
    The court must determine the settlement is fair, reasonable and adequate

Completely Separate Grant of Jurisdiction for Class Actions
   1332(d)(2)(a): Only minimal diversity required (between ONE class member and ONE
     defendant)
         Same notion as interpleader  we WANT these cases in fed court so diversity
            requirement is lower
                                        33
      1332(d)(2): Amount in controversy must be at least $5 million exclusive of interests in costs
           When the class is not seeking money, the problem is the same as in other diversity
             cases when P is seeking some type of non-monetary relief (determining amount)
           Different ways to determine the amount in controversy in non-monetary cases  try to
             quantify the value to P, cost to D, whichever is greater

Exceptions to broad jurisdiction provisions:
    § 1332(d)(4)(B) Home state exception: Court MUST decline jurisdiction when 2/3 of Ps and
      the primary D are citizens of the forum state (problem can be determining who is the primary
      D)
    § 1332(d)(4)(A)  Local controversy exception: Court MUST decline jurisdiction when 2/3 of
      Ps and at least one D from whom significant relief is sought are citizens of the forum state
      AND the principle injuries were incurred there
    § 1332(d)(3) Court MAY dismiss when more than 1/3 but less than 2/3 of class members
      and the primary Ds are citizens of the forum state


      Expansion of removal jurisdiction [§ 1453]:
          § 1453(b):
                Ban of removal when D is a citizen of the forum state doesn’t apply
                1-year limit for D to remove to fed court doesn’t apply
                Any D may remove  don’t need all to agree
          Discretionary review of remand orders is available under § 1453(c)(1)



Discovery
Purposes of discovery:
    Sort out the facts to make sure cases are decided on merits and not surprises @ trial
    ID and clarify the issues for trial and dispose of the ones w/ no support
    Preserve evidence and record testimony that may be lost

Criticism:
     Overuse, Misuse: harass, wear down opponent, Exacerbating factors (esp. when rule was
        more broad): billable hours, zealous representation of client, fear of malpractice

Recent attempts to fix via amendments include limits on questions, # of depositions & greater judicial
supervision

Mandatory Disclosure
Before, you had to be asked for info. Now, under Rule 26(a)(1), must have initial disclosure very
early on in the case (w/out being served w/ request):
   (i) Name and number of parties w/info. that may support your case
   (ii) copy or description of documents and tangibles in your control and may support your case
   (iii) computation of damages and documents on which this is based
   (iv) insurance agreements that may cover all or part of the judgmen

Experts [26(a)(2)]: experts who will be used at trial must be disclosed 90 days before court date

                                           34
Pre-trial [26(a)(3)]: very close to trial  information about trial evidence & witnesses that will be relied
on or presented at trial must be disclosed

26(g) analogous to Rule 11: must certify disclosure & discovery. No safe harbor or preference for
non-monetary sanctions.

26(b)(1): Information sought must be relevant to the claim or defense  must be admissible or
reasonably calculated to lead to things that are admissible

26(b)(2): Court can limit frequency or extent of discovery if (i) unreasonably duplicative or cumulative,
or available from reasonably more convenient source, (ii) had ample opportunity to get info., or (iii)
burden or expense outweighs benefit

26(f): Pre-Discovery Conferences there must be a conference of parties to discuss claims &
defenses, and possible settlement. Develop discovery plan. Submit written report to court.
         Parties can not take discovery unless they have conferred prior to scheduling conference
           under R16

26(b)(2)(B)- inaccessible materials
26(b)(5)(B)- clawback provision



Discovery Devices
Parties can begin serving requests for discovery using these devices after initial disclosures.

Document Inspection
Rule 34. Request permission to inspect and copy docs or tangible things and enter land.
       What it covers: Electronic documents, tangible things, right to enter land to inspect,
          measure, sample, photo or survey
       Who it covers: Limited to parties to suit (not witnesses)
            o Documents from non parties can be obtained via subpoena power of R45
       Timing of Response: response must be within 30 days of document demand
            o Response can just describe what will and will not be provided
            o The actual documents don’t have to be produced for a “reasonable” time specified in
               the demand (longer than 30 days b/c they need time to produce response first)
       Location: Reasonable place (lots of faith in parties to act reasonably)
       Manner of production:
            o In smaller cases, it’s most convenient to make copies and number them w/bait-
               stamp before handing them over
            o Electronic documents cause other problems (ESI)
                    Large volume of e-mails, lots of copies of the same document can be floating
                      around (w/forwarding, etc.),
                    Presence when they were intended to be delivered
                    What format should they be in when they are turned over? Electronically?
                      Printed out?
                    Experts sometimes called in to help develop a plan electronic discovery

                                             35
             o They have to be turned over or presented for inspection as they are kept in the usual
               course of business, or organize and label them to correspond with the categories in
               the request --> this means you can't take things from their normal place and bury
               them somewhere so that hopefully they won't be found [Rule 34(b)]
             o Spolation- can’t destroy, discard, alter info  but no sanction for discarding info in a
               routine business way (good-faith req)


Can’t give docs. to someone else to avoid release: rule includes documents in control of party.

Interrogatories
Rule 33.
Written questions that may only be served to parties to the suit seeking written answers.
        What it covers: Written questions with written answers, signed and under oath
        Who it covers: Limited to parties to suit, included companies (not natural people)
        Timing of Response: response must be within 30 days
        Manner of production & answers: Limit of 25 questions per party (may agree to more or
          seek more from ct)
             o Since number is limited, careful decision tree questions used (you don’t know
                 answer to question 1 when you write question 2) (if no ; if yes )
             o Rule says party himself should answer questions under oath; in practice the lawyer
                 drafts answers by consulting w/client
             o If there any objections to questions, the grounds must be stated
             o 33(d): can turn over business records if the answer can be found there, if give
                 instructions to allow party to find just as easily as responding party.

Advantages in interrogatories over depositions:
    Can get into lawyer’s head, since answers will be drafted by them, not client.
    In deposition, answer can be “I don’t know.” Interrogatory answers can’t.
    Less expensive; can have template adapted every time.

Disadvantages of interrogatories :
    No surprise factor; can’t catch party off-guard
    If there’s an unexpected answer, can’t follow up with more questions, like in deposition.
    Different timing rules make it slower

Depositions
Rule 31: out of court testimony given under oath
   o Attorney sends questions to all parties. Then other parties send cross examination questions.
      Then first party sends redirect questions. Then, re-cross-examination questions.
   o All questions shared before deposition.
   o Court reporter reads off the questions to the witnesses, who answers them under oath.

Rule 30: oral depositions
       What it covers: Oral responses to oral questions
       Who it covers: Parties and non-parties, real persons and corporations (can list the
          organization itself & tell them category of Q’s so that they produce appropriate person)

                                           36
         Timing: reasonable notice has to be given prior to the deposition that you will take this
          person’s deposition at a certain time and place
         Location: Specified in notice, often the lawyer’s office, but could be anywhere
             o Parties can be deposed anywhere since already subject to suit & jurisdiction
             o Non-parties have to be deposed somewhere they are subject to subpoena
         Manner: Notice will specify means (stenographer, audio, video, etc.)
             o Parties are entitled to have their lawyers present
             o Everything “on record” is recorded (included “stipulations” that parties agreed to)
             o Lawyer begins questions after witnesses are sworn
                     Objections can be made:
                            Objections like leading the witness can be fixed then, so they must be
                              made or they are waived
                            Other types of objections can be made but the client must answer
                              anyways (lawyer can not lead or make suggestions through objections)
                     Client can be directed not to answer if a question:
                            Goes beyond the scope of discovery
                            Asks for privileged information
                     There can be cross-examination by others and re-direct questions
                     Can use Rule 34 to get parties to bring along documents
                            Notice sent with notice of deposition
                            Non-parties can be sent document request along with subpoena
         Number: Limited to 10 depositions per side (and TPD), 1 day (7 hours) [petition for more?]

Why use it?
   Get info from party who won’t talk to you voluntarily
   Preserve testimony of old/sick person
   Lock person into a story; avoid inconsistent positions
   Check out the person, see if the jury will believe/like him.
   Time b/w question and answer  there should be NO communication b/w deponent and atty

Medical Examinations
Rule 35. Physical and mental examinations
What it covers: Examination by licensed professional.
Manner: Need permission from court, unless stipulated by parties. Make motion for permission.
        Only court can compel exam on good cause.
        After the exam is held, the doctor prepairs a report  exchanging the reports is a waiver of
          privilege (if you request the other side’s, you have to turn over your own)
Who it covers: Only parties or persons in their control or custody whose condition is in controversy.
Time and Place: Within the court’s discretion; usually defers to choice of the parties

Even though person has probably been seen by doctor, you want your own doctor to examine,
instead of just asking for records.

Time and place: usually dictated by the ct.
After examination, examinee can request a copy of the report. However, he will then be req’d to
release his own medical records. He waives privilege.


                                          37
Exemptions From Discovery
Hickman v. Taylor: U.S. Supreme Court
Tugboat sank and co. anticipated lawsuit and hired lawyer. Surviving crew members participated in
public hearing. Atty. also interviewed them individually. Eventually, there is suit against tug owners.
Other party is requesting written statements signed by crewmembers, att’y notes about interviews w/
crewmembers, and, if documents not available, the lawyer’s current impressions & recollection

¶s request by serving interrogatories on lawyer, asking for documents. Wrong process  At the time,
you needed court’s permission to request documents. Doing it this way gets around that requirement.
Is Rule 34 the best way? Well, the atty is not a “party,” but the docs. are still in the “control” of the
party. So 34 is proper. Alternatively, could do subpoena under Rule 45.
Holding: Not protected by atty.-client privilege, since the lawyer didn‟t get this info. from the client.
The Supr. Ct. held there is a “work product” privilege. Reasons:
    1. No “free riders.” Some lawyers do the hard work. We shouldn’t let the free rider take
       advantage of all the efforts by the hard worker.
    2. It maintains some element of surprise, which keeps people honest since they don’t know
       EVERYTHING the other side has.
    3. Lawyer privacy: lawyers need a sphere of privacy within which to work or they will be
       inefficient if they are afraid of writing things down. Will allow better representation of client.

Rule 26(b)(3). Protects only materials prepared in anticipation of litigation, not prepared as a matter
of routine or public disclosure requirement  can be prepared by lawyer or his representative
working in anticipation of litigation
        o Work-product protection has qualified immunity & can be overcome if following are shown:
               o Substantial need (person may obtain copy of own statement w/out showing need)
               o The information is not otherwise available
        o Some types of work product (Mental impressions, opinions, conclusions and legal theories)
           have much stronger protection [almost ABSOLUTE immunity]  above showings would
           have to be even stronger

Sanctions
If party objects to discovery, either party can go to court to ask for action.
Rule 37:
    1. 37(a)(2): Can move for party or non-party to comply, but must certify that there’s been a good-
        faith effort to work it out.
    2. 37(a)(4) & 26: Can impose costs of motion on losing party as a punishment for not complying
        or compromising
    3. 37(b)(2)(A)-(E): If there is an order to comply and not obeyed consequences have sharp teeth
         Consider as admission that information sought is detrimental to you
         Strike out pleadings or part of them
         Refuse to let you press this claim or defense
         Dismiss action or enter judgment by default (most severe; very rare)
         Contempt of court (only sanction available for non-parties)
    4. 37(d): sanctions can be assessed for failure to respond to discovery request
         Include failure to appear for deposition or acknowledge/object to interrogatories
         This allows party to skip motion to compel and go directly to sanctions for certain violations
    5. 37(c)(1): Material not disclosed in initial disclosures [26(a)] may not be used at trial or in
        connection with a motion
                                            38
Summary Judgment
Burdens of proof at trial has two parts:
    Burden of production [can shift]: Person who bears initially must show enough proof so that
      jury could find for her
    Burden of persuasion [no shift]: Person has to prove their case by a preponderance of the
      evidence (standard in civil cases)
          o If it ends up in equipoise, the person with the burden of persuasion will lose

            ¶ starts here
______________________|_________________________________|_______________________
jj as a matter of law for Δ x  zone of jury discretion  y  jj as a matter of law for ¶


       If ¶ has burden of proof, and doesn’t even get to x, the jury can’t find for her. Judgment as
       matter of law for the Δ.
       If ¶ presents so much evid. that we are beyond point y, she has shifted the burden and the jury
       has to find for her, unless Δ presents evidence to bring it back between x and y or below x

Rule 56(c): summary judgment shall be granted if: * can be made at any time
    there is no genuine issue as to a material fact (judge can decide on facts at hand), AND
    movant is entitled to judgment as a matter of law

Genuine issue as to a material fact = if there is genuine issue of material fact, then it should be
resolved by the jury and there should be no summary judgment.
Entitled to judgment as a matter of law = no reasonable jury would find for the other party. On these
undisputed facts, I have to win.

Motion to dismiss vs SJ:
  o In motion to dismiss-you take all the allegations as true. Gives non-moving party the benefit of
      the doubt.
  o Summary jj- court doesn’t accept all allegations as true, π must have PROOF/evidence to
      support claim ct must determine based on discovery (disclosures/affidavifts) if there is
      genuine issue of material facts

JJ as matter of law- motion after party presents its case (during trial) claiming opposing party doesn’t
have sufficient evidence to support its case (other side of summary jj)

How the motion is made:
   File notice of motion for summary jj + brief that explains entitlement to jj as matter of law
   Typically you file affidavits (sworn statements under oath and in writing)

Adickes v. S.H. Kress & Co.: U.S. Supreme Court 1970 p. 428
White teacher in the South went to store with black students and was refused service. Upon leaving,
the police arrested her for vagrancy. At the time, she couldn’t sue the police under §1983.
Therefore, she sues the store, claiming there was a conspiracy with the police. If she didn’t present
any evidence at trial that there was a conspiracy (cop in the store), all the Δ would have to do is ask
for judgment as a matter of law, since she didn’t meet her burden of production.


                                            39
      Affidavits from officers swear that there was no request to arrest her, but they don’t swear they
       weren’t in the store.
      P has a witness that swears they were in the store.
      How much does the Δ have to do to get summary judgment?

Three different approaches to summary judgment:
    Currie approach: D has no burden (exactly the same as situation at trial, D has no burden
      of proof at trial)  D can wait and see if P meets HER burden and do nothing if she does not
    Moore approach (Traditional view): movant must shift a burden of production onto the
      non-movant (he must offer so much proof that a reasonable jury would HAVE to find for him)
          o This is a heavy burden on D
          o Could be a tool of harassment for D to use against P
    Louis approach: intermediate approach can be satisfied in one of two ways
          o D can show with evidence on record that P lacks enough evidence to support her claim
          o D can offer affirmative evidence to meet his burden of production (that a reasonable jury
              COULD find for him), but not enough to SHIFT the burden of production

Holding: The Court said that the movant failed to prove that there was no policeman at the store.
This seems to be the Moore approach (but Celotex clarifies that court adopted Louis approach).
However, another reading of the case (maybe too far-fetched) is that the Δ could have met its burden
by attacking the ¶‟s proof.
    If the witnesses CAN swear that they saw a cop in the store  there's a genuine issue of
       material fact and D is not entitled to summary jj, but if they can’t swear to that, then summary jj
       could be granted [P saying a student saw a cop is inadmissible hearsay]
                   Rule 56(c): Motion can be made at any time



Celotex Corp. v. Catrett: U.S. Supreme Court [appears to have adopted the Louis approach] p. 435
Facts: Suit by woman against asbestos mfr. claiming her deceased husband was exposed to
asbestos. Δ moved for summary jj b/c π didn’t offer evidence to prove their product was prox. cause
of death, but didn’t offer affirmative proof that he wasn’t exposed to asbestos.
Holding: The Court looked at the language of Rule 56: it makes it seem like affidavits. are optional.
The Δ doesn‟t have to disprove. The movant can point out deficiencies in the ¶‟s case. The movant
has to say that the ¶ doesn‟t have any evidence

A defendant moving for summary judgment has two choices:
    Choice #1: Affirmatively disproving part of the claim (via offering evidence)
          Must D offer its own affidavits to show that P wasn’t exposed to D's asbestos?
    Choice #2: Attempt to show that P doesn't have enough proof to support her claim
          Go through discoveryWhat if there is some proof in the record that P was exposed to
            D's asbestos? (i.e., what if a former coworker said he saw "Celotex" on a wrapper?
            That's what we have here)  D didn’t deal w/ this evidence

If D satisfies his initial burden, then P has to respond
     Can offer new affidavits or other proof in support of the necessary element of her claim that D
       claimed was lacking
     P can show that if what D alleges is true, it’s not enough that D is entitled to summary jj

Both the majority and dissent agree on the test, but they disagree on the outcome.
                                           40
      Majority: The ¶ does have evidence  the affidavit by dead husband. But that is not
       “reducible” to admissible evidence.
      Dissent: However, there are also letters from the insurance guy and the husband’s former
       supervisor. These people may be available to testify at trial.. You can’t ignore this evidence in
       the record. You have to attack it. If you don’t, the non-movant doesn’t even have to respond.

To show the ¶ has nothing, the Δ could depose the parties. Maybe someone else told them that
there was asbestos. This would be hearsay. Or maybe they saw it themselves.

Meeting the Burden of Production
Arnstein v. Porter: 2nd Cir.
¶ sues Δ for copyright infringement. To show this,π must prove access or get Δ’s admission. ¶
claims that Δ had stooges get the music for him. Δ has sworn affidavit that he never accessed the ¶’s
music. Δ is using Louis I approach (affirmative evidence that Δ has no case).
Holding: ¶‟s “stooges” story is fanciful, but his credibility should be left to the jury, they may be
believe him. If there‟s even the “slightest doubt” of the truth of ¶, summary jj should be denied.

Dyer v. MacDougall: 2nd Cir.
¶ accuses Δ of libel. ¶ claims he has witnesses: persons present at the time Δ made remarks.
Problem: Δ and witnesses now all deny any of those statements occurred
Holding: Court grants summary jj (casting doubt on the “slightest doubt” approach from Arnstein)
    If at trial, the witnesses got on the stand and denied allegations, could the case go to the jury?
    Jury could disbelieve witnesses.
    ¶ lost chance to attack their credibility (and strengthen his argument that case should go
      forward to trial) b/c he did not exercise option to depose them
         o Witnesses could change their story in an environment of a courtroom w/judge present
         o BUT, if we deny summary judgment any time a jury could maybe disbelieve, we are
              never going to be able to get rid of baseless suits early on

Other differences between Arnstein and Dyer?
    Arnstein at least had a little proof (similarity of songs). Dyer had nothing.
    Less reason to doubt credibility in Dyer:
           o In Arnstein, the Δ was swearing under oath.
           o In Dyer, the Δ + third parties were swearing under oath. Third parties did not have an
              int. in the outcome. In fact, one of the witnesses was the ¶’s sister in law




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