civil procedure outline
posted by another law school student at 11:19 PM
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PART I
I. Due Process
- Due process must be proportional to the direness of the situation (Goldberg v. Kelly - temporary deprivation of welfare benefits meets brutal need requirement)
- Notice
o must be reasonably calculated to apprise interested parties (Greene v. Lindsey - If posted notice does not work, mail service is necessary)
o Matthews v. Eldridge balancing test determines what process is due (Lassiter v. Dept of Social Services)
§ Interest of claimant
§ Interest of government that provides the hearing
§ Risk of error
- 12(b)(4) motion – insufficiency of process
- 12(b)(5) motion – insufficiency of service of process
II. Jurisdiction
- FRCP (4)(k(1)(1) – a court must have personal jurisdiction and subject matter jurisdiction
Personal jurisdiction
- First, look for general jurisdiction – is individual present, resident, or domiciled, or corporation based or incorporated in that state, or are their activities within that state systematic and continuous in that they would expect to be hailed into court there? If yes, jurisdiction is dispute blind. If not, look for specific jurisdiction. Are there minimum contacts with the foreign state? Is there purposeful availment? If yes, are traditional notions of fair play and substantive justice met? If yes, jurisdiction is dispute-specific.
- Jurisdiction over an individual
o Pennoyer – Each state is limited to jurisdiction over person present within its borders. Full Faith and Credit.
o Burnham – “tag jurisdiction” – in-state service of a non-resident when present within the state. Physical presence is sufficient to establish minimum contacts, even if D had no contact w/ state at time of the events giving rise to the suit.
o Jurisdiction over a person domiciled within the forum state, even if temporarily absent from the state. Domicile is the place where he has his current dwelling place, an intention to remain for an indefinite period, or an intention to return to.
o In some states, jurisdiction based on D’s residence in the forum state, even if absent from the state.
o Minimum contacts apply to individuals as well as corporations. Kulko – unilateral activity does not give rise to jurisdiction
- Jurisdiction over a corporation
o General Jurisdiction – presence of D in foreign state (Helicopteros)
§ corporation is incorporated in that state OR
§ systematic and continuous activities such that such it expect to be hailed into court there
§ enjoyed benefits and privileges of doing business in the state
§ Jurisdiction is dispute-blind
o Specific Jurisdiction (International Shoe)
§ minimum contacts with foreign state
§ fair play and substantive justice
§ Jurisdiction is dispute-specific
o Purposeful availment necessary for minimum contacts
§ Hanson v. Denckla
§ Stream of commerce
· World Wide Volkswagen – D’s contact with forum state must be such that he should reasonably anticipate being hailed into court there. Mere foreseeability that product will be taken into state does not equal purposeful availment.
· Asahi - Court is split as to minimum contacts. O’Conner – mere awareness is not enough. Other judges – sending goods into stream of commerce constitutes purposeful availment. But court agrees that traditional notions of fair play and substantive justice are not met. Five factors:
o Burden on D
o Interests of state
o Ps interest in obtaining relief
o The interstate judicial system’s interest in obtaining the most efficient resolution of controversies
o Shared interest of several states in furthering substantive social policies
§ Burger King – Foreseeability of litigation is not sufficient, but reasonable anticipation of litigation and purposeful availment are necessary for specific jurisdiction.
o In rem, quasi in rem jurisdiction
§ In rem – attachment of property related to the lawsuit. Property is evidence of minimum contacts.
§ Quasi in rem – attachment of property unrelated to lawsuit. Must be evaluated by same standards set forth in Shoe of minimum contacts and fair play and substantive justice.
- REMEMBER – personal jurisdiction claim is waived if case is litigated out; if default judgment, personal jurisdiction can be waived later and judgment can be voided.
- 12(b)(2) motion – lack of jurisdiction over the person
Subject matter jurisdiction
- CANNOT BE WAIVED
- Constitutional limits (Article II) broader than statutory limits – allows minimum diversity, “arising under” not central aspect of controversy
- 12(b)(1) motion – lack of jurisdiction over the subject matter
- Federal Question Jurisdiction
o 28 USC 1331
o Requirements:
§ (1) federal law has substantial and direct bearing on the case – the P’s right to relief depends on resolution of a question of federal law;
· Franchise Tax Board v. Construction Laborers Vacation Trust, Smith v. KC Insurance & Trust, Merril Dow Pharm v. Thompson (test for whether federal law implies a right of action, unless explicitly stated)
§ (2) the “well pleaded complaint” – P’s claim must include the federal question
· P’s claim of federal question can’t be in anticipation of defense argument (Louisville v. Nashville RR Co v. Mottley)
· D can’t claim federal question as a way to get the case into federal court unless the P claimed federal question (§1441 – D can only get into federal court if P COULD HAVE had a federal question complaint.
- Diversity Jurisdiction
o 28 USC 1332
§ complete diversity required
· Mas v. Perry - domicile
§ amount in controversy must be >$75,000
o Concurrent jurisdiction – Erie rule applies
o 28 USC 1367 allows minimum diversity in accidents with mass fatalities
Switching courts
- Venue, Transfer
o Subject matter jurisdiction and personal jurisdiction is STATE SPECIFIC. (if one district court has it, every district court in the state has). Venue is DISTRICT SPECIFIC – you can have correct jurisdiction but improper venue but a judgment made in the wrong venue but correct jurisdiction cannot be void
o VENUE IS WAIVABLE
o 28 USC 1391 – establish proper venue for subject matter jurisdiction
o 28 USC 1404 – transfer to another venue because forum is proper, but inconvenient
§ sua sponte transfer – on the court’s initiative (Republic of Bolivia)
o 28 USC 1406 – transfer to another venue because forum is proper
o 28 USC 4109 – pretrial transfer to consolidate cases for discovery, then return to where there is territorial jurisdiction
o 12(b)(3) motion – improper venue
- Forum non conveniens
o Dismissal in contemplation of suit elsewhere
§ Chosen forum is substantially inconvenient, but convenient forum under different jurisdiction
§ Chose forum is correct but more convenient forum is under a different jurisdiction
o Substantive law of different jurisdictions is a non-issue unless there is no remedy available (Piper Aircraft)
o Balancing factors (Wiwa v. Royal Dutch) – (1) government interest, (2) convenience of parties, (3) availability of remedy
- Federal Removal jurisdiction
o 28 USC 1441
§ action brought in state court that could’ve been brought in district court may be removed to district court by D
· action can originally be filed in federal court if there is complete diversity, but cannot be removed when D is a citizen of the state where the action was brought – purpose, in diversity situations, of removal jurisdiction is to avoid home-courting
§ when 1331 claim joined w/ nonremovable claims, entire case may be removed.
§ 1369 caveat (e)
o 28 USC 1446 – procedure for removal
§ waived if not made w/in 30 days of receipt of pleading
§ Federal judge can remand when federal claims in case are dismissed and only state law claims remain
o Caterpillar v. Lewis
III. The Pleadings
- FRCP 7(a) – the pleadings
o Complaint, answer, counterclaim (included in answer), P’s answer to counterclaim, cross claim (between Ds), 3rd party claim, 3rd party answer
o Pleading has to set forth all elements of cause of action but can do so in conclusory manner
- FRCP 10 – Form of pleadings
- The complaint
o FRCP 8 – General rules of pleadings
§ (a) “short and plain statement” of (1) grounds upon which court’s jurisdiction rests, (2) claim showing that P is entitled to relief, (3) demand for judgment for the relief P seeks.
· P can fail to state a claim in two ways: (1) factual – complaint has insufficient detail to allege violation of existing, valid law, (2) substantive – complaint fails to state claim b/c there is no existing law to support it
· A complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing (American Nurses).
· Complaint should not be dismissed under 12(b)(6) unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief. Rather, all the rules require is a short and plain statement of the claim that will give D fair notice of what Ps claim is and the grounds upon which it rests. (Conley v. Gibson).
o FRCP 9 – Pleading special matters
§ (b) averments of fraud stated with particularity, conditions of mind can be averred generally (i.e. securities fraud litigation)
- Responding to the complaint
o D can default or (1) serve an answer (pleading) requesting relief from the court or (2) make a motion asking court to do something specific now (like dismiss)
§ Objections available to D in responding to the complaint: denial of factual allegations, affirmative defenses (8c), 12(b)(6), jurisdiction and venue problems (waivable defenses), counterclaim, other defenses (bad service, service of process, other defects in complaint
o FRCP 8
§ (b) defenses
· Zielinski v. Philadelphia Piers – cant lull P into thinking he was suing the right D until its too late – insufficient denial is an admission
§ (c) affirmative defenses are waived if not pleaded in a timely manner (Ingraham v. US)
· To determine if a defense is affirmative consider whether (1) necessary to the cause of action, (2) extrinsic (can’t take P by surprise), (3) if a denial would require the P to prove a negative, (4) who has access to information, (5) policy implications
· Tension between P losing substantively because caught unawares and doesn’t have opportunity to present defense, and D losing procedurally by not being able to present affirmative defense.
§ (d) claims specifically not denied are considered admissions (benefit of omnibus denial)
§ (e) pleading to be concise and direct – you can plead your way out of court
§ (f) all pleadings construed so as to do substantive justice (trumps procedure)
o FRCP 12 – Defenses and objections
§ (a) time limits in responding: (A) within 20 days, (B) waiver of service – pros and cons for P
§ (b) pre-answer motions:
· (1) lack of subject matter jurisdiction,
· (2) lack of personal jurisdiction,
· (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 – even if all the allegations in the complaint were true, there is no law under which P would be entitled to relief.
· (7) failure to join party under rule 19.
§ (c) motion for judgment on the pleadings (filed after pleadings are closed)
§ (d) preliminary hearings
§ (e) motion for more definite statement
§ (f) motion to strike scandalous or redundant allegations
§ (g) consolidation of defenses in motion
§ (h) If not waived in pre-answer motion, D waives defenses of 12(b)(2)-(5). 12(b)(1), (6) and (7) are not waivable.
o Ds who think case against them is hopeless can file 12(b)(6), 12(c), 56
o At trial, evidence can only be presented for issues in controversy in the pleadings (Fuentes v. Tucker)
o FRCP 61 – Harmless error rule
- Amending the pleadings
o Rule 15 – amended and supplemental pleadings
§ (b) amendments to conform to the evidence
§ (c) relation back of amendments: when amendment is related to occurrence set forth in original pleading – arising out of same transaction or occurrence (Barcume) – would the D be prejudiced in his ability to present claim or defense?
§ When amendment seeks to change the D party (mistaken identity)
o Due process outweighs rule 15 right to amend (Nelson v. Adams USA).
- Counterclaims
o FRCP 13 – Counterclaim and crossclaim:
§ (a) compulsory – arise out of original claim
· ancillary jurisdiction (1367) over compulsory counterclaims (Appletree)
· waivable BUT repercussions of barring an action as a waived compulsory counterclaim much more severe than calling a counterclaim compulsory and exercising ancillary jurisdiction.
§ (b) permissive – any claims not arising out of
§ (c) counterclaim exceeding opposing claim – may not diminish or defeat recovery sought by opposing party
- Policing the pleadings
o FRCP 11
§ (a) signature – signature denotes merit (Business Guides v. Chromatic Comm)
§ (b) representation to court – attorney certifies that (1) it is not presented for any improper purpose, (2) claims or defenses are either warranted by existing law or are nonfrivolous argument for changing the law (Saltany v. Reagan), (3) allegations have evidentiary support or are likely to after discovery, (4) denials of the claim are warranted on the evidence or based on a lack of knowledge.
§ (c) sanctions
· what is sanctionable:
o bad factual allegations
o allegations that are bad law
· sanctions can be monetary or non-monetary
§ (d) inapplicability to discovery
IV. Discovery and Disclosure
- FRCP 26 - Discovery
o (a) mandatory disclosures
§ (1) initial disclosures
§ (2) disclosure of expert testimony
§ (3) pretrial disclosures
§ (4) form of disclosure
§ (5) methods to discover additional matter
o (b) discovery scope and limits
§ (1) in general – “any matter not privileged that is relevant to the claim or defense of any party” reasonably calculated to lead to admissible material - these privileges are subject to waiver
· Relevance
o Relevance must be understood in context of burden.
o If fact would be admissible at trial, then discovery of that fact is allowed (Blank v. Sullivan & Cromwell)
· Self critical analysis – must be prepared w/ expectation that it be kept confidential, and has been kept confidential
· Attorney-client privilege (Upjohn v. US) – (1) a communication (2) from the client to the lawyer (3) without the presence of others (made in confidence) (4) for the purpose of seeking legal advice
o Absolute defense. Waivable if disclosed to 3rd party. Facts are not privileged, but communication is. Must give opposing party brief description of it w/o disclosing substance.
· Work product
· FRE 501
§ (2) limitations – duplicative, ample opportunity to obtain information sought, undue burden
§ (3) materials – Work product – documents prepared in anticipation of litigation (Hickman v. Taylor – no borrowed wits)
· Must show substantial need and substantial hardship in obtaining it elsewhere
· No disclosure of mental impressions, conclusions, opinions, or legal theories (opinion work product is an absolute defense)
§ (4) experts – may depose any testifying expert. May discover facts or opinions of non-testifying expert upon showing of exceptional circumstances (Coates v. AC & S)
§ (5) privilege – when a party withholds discoverable info they must describe the nature of the documents and the reason for withholding so other party can assess
o (c) Protective orders (from annoyance, embarrassment, undue expense or burden, etc).
o (d) sequence and timing of discovery in any order as long as it doesn’t operate to delay the other party’s discovery
o (e) duty to supplement if new information comes to light
o (f) conference of parties to discuss possibility of settlement.
o (g) signing of disclosures, discovery requests, responses and objections
- FRCP 37 – Failure to make disclosure or cooperate in discover; sanctions
- Experts
o FRE 7 – opinions and expert testimony
o Rule 702 – what constitutes scientific testimony
o Rule 703
o Rule 705
o Rule 706 – court appointed expert
o Rule 35 – parties can conduct physical and mental exams of persons on both sides – mandatory exchange of reports whether or not these experts will testify
o Greater discovery and disclosure is required from testifying experts
Testifying expert
Non-testifying expert
Required/mandatory disclosure (26a)
Yes
No.
Discovery availability (26b4)
26(b)(4)(a) - yes
26(b)(4)(b) – no, unless exceptional circumstances
o Expert witnesses cannot switch sides in litigation. In deciding whether to disqualify, consider (1) was it objectively reasonable for the 1st party who retained the expert to believe that a confidential relationship existed? (2) Did that party disclose confidential info to the expert? (3) competing policy interests, (Cordy v. Sherwin-Williams).
V. Pretrial
- Managerial Judging
o Most cases resolved by (1) default judgment – FRCP 55, (2) settlement, (3) Dispositive motion – resolved “with prejudice,” except 12(b)(6) motions b/c not a dismissal on the merits
o FRCP 26(f) – REQUIRES attorneys to meet early in litigation to discuss agenda, settlement
o FRCP 16 – pretrial conferences, scheduling, management
§ (a) – PERMITS judge to direct attorneys to appear at pretrial conferences, 16(a)(5) for facilitating settlement
§ (c)(9) – settlement or special procedures: mini trials, summary jury trials, mediation, neutral evaluation, non-binding arbitration.
· Strandell – extrajudicial procedures are desirable but not mandatory. Use of mandatory summary jury trial as pretrial settlement device would seriously undermine rules concerning discovery and work-product privilege. Settlement generally better than trial, but sometimes undesirable (public interest in outcome, precedential value > outcome to parties)
o FRCP 68 – offer of judgment – if judgment obtained by P is less favorable than rejected settlement offered by D, pay must pay costs incurred after the offer was made.
§ Limitations: (1) if P, having rejecting Ds offer, recovers nothing at judgment, Rule 68 does not apply; (2) do costs include attorney’s fees? (Mark v. Chesny – attorney’s fees are awardable as costs under FRCP 68 if so defined in underlying statute.
- Summary judgment
o FRCP 56 – summary judgment
§ (a) for claimant
§ (b) for defending party
§ (c) judgment sought shall be rendered if all the documents show that there is no genuine issue as to any material fact and that the moving party is entitled to a JMOL.
· Compare to 12(b)(6) – assuming all facts to be true, is there a valid issue of law? Rule 56 – look at documentary evidence that supports the claim or defense to see if there is a sufficient factual basis to go to the jury.
§ (d) court can make summary judgment on some facts and direct further proceedings for facts that are in good faith controverted
§ (e) Can be decided on the pleadings – must have supporting affidavits
§ (f) when the party opposing the motion cannot present affidavit facts necessary to support their opposition (Adickes), court may deny application for judgment or order continuance
§ (g) sanctions imposed for affidavits made in bad faith
o Burdens
§ Pleading burden (burden of proof), Burden of persuasion (persuade factfinder of material issue), Production burden (present evidence that will make factual issue debatable)
§ At summary judgment
· If moving party is P, P has burden of production to support its motion with credible evidence that there is a genuine issue of fact, and that D will be unable to produce sufficient evidence at trial to survive Ps trial motion for JMOL
· If moving party is D, D has burden of production to support its motion with evidence that P will be unable to produce sufficient evidence at trial to satisfy Ps burden of production, such that D would succeed on motion for JMOL
§ At trial
· If D moves for JMOL, must prove that P failed to meet burden of production
· If P moves for JMOL, must prove that D failed to meet burden of production
· If both parties met burden of production, factfinder decides whether party with burden of proof met that burden
o Primary difference between summary judgment and directed verdict is procedural (summary judgment based on documentary evidence, directed verdict based on admitted evidence, but the inquiry is the same (Anderson v. Liberty Lobby)
o Cases
§ Adickes - D failed to meet burden of production. Had they, burden would’ve shifted to P and complaint and unsworn affidavits would’ve been insufficient
§ Celotex – P can’t win when she has no evidence and is instead relying on cross-examination to come up with evidence. D not required to adduce affirmative evidence of non-connection to asbestos; rather it could point out that P would be unable to make this connection.
§ Matsushita v. Zenith – claim must make economic sense (but was it a factual question?)
§ Anderson v. Liberty Lobby – expanded summary judgment to libel cases.
o Policy
§ Court’s incentive for summary judgment: efficiency, shift burden of persuasion to movant, increasing distrust of juries to decide complex cases
§ Tactical reasons for using summary judgment: educate the judge, impose costs on non-moving party, powerful tool for discovery of otherwise privileged information
VI. Trial
- Right to a jury
o 7th amendment – test is whether claim is one that could be tried in courts of law (jury right) or courts of equity (no jury right) pre-merger, at time of independence
§ Problems: (1) applying historical tests to causes of action not present pre-merger, (2) extensive overlap between courts of law and equity, (3) sketchy historical records, (4) underlying policies today different than in 1775.
o FRCP 38 – jury trial of right
§ (a) 7th amendment right shall be preserved inviolate - historical test (Curtis v. Loether)
· compare to older types of actions – legal or equitable? Is there a statute that creates legal rights and remedies? If you can’t tell, look at:
· Type of remedy – is the action enforceable in courts of law? Are the damages awardable in courts of law?
§ (b) any party may demand a trial by jury of any issue triable of right by jury
§ (c) specification of issues
§ (d) right to demand trial by jury is waivable.
o FRCP 39 – trial by jury or court
§ (a) by jury
§ (b) issues not demanded for trial by jury shall be tried by the court, but the court can at its own discretion order trial by jury.
§ (c) advisory jury and trial by consent
o Jury’s competence – sometimes facts and law merge together and facts may be too complication for a jury – difficult to separate out what gets tried by court and what by jury
§ Markman – patent infringement is a question for the jury, but interpretation of terms of art is a matter of law reserved for judge. Complexity exception - Jury less capable of evaluating expert testimony about patent, need for uniformity.
- Choosing a jury
o FRCP 47 – Selection of jurors
§ (a) examination of jurors
· systematic exclusion not allowed, although perfect cross-section of community unnecessary (Thiel v. Southern Pacific)
§ (b) peremptory challenges - no jury discrimination on basis of race (Edmonson) or gender (JEB)
· violates equal protection rights of challenged jurors; perception of law as fair and the jury as neutral
· enforcement problems: party objecting to peremptory must show pattern of unlawful peremptories, but the ability of party giving peremptory to come up with race-neutral explanations has rendered these holdings fairly useless.
§ (c) excuse
o FRCP 48 – number of jurors, participation in verdict
- Managing the jury
o FRCP 51 – charge – imperfect charge grounds for dismissal – “magic words”
o FRCP 49 – special verdicts; interrogatories (jury returns general verdict too)
o FRCP 50
§ JMOL (directed verdict) – if overturned on appeal, new trial
· Essentially summary judgment at later stage – should be granted in favor of movant when, viewing all evidence in the light most favorable to the nonmovant, there is no evidence upon which a reasonable juror could find for the nonmovant (Galloway)
§ Renewed JMOL (judgment notwithstanding the pleadings) – if overturned, jury verdict reinstated
o FRCP 59 – new trial
§ b/c of judicial error, prejudicial statements/attorney misconduct (Sanders El), jury misconduct, against the weight of the evidence.
o Standard of review of granting new trial less searching that for renewed JMOL (Spurlin, Mann v. Hunt)
o Damages
§ Additur (not authorized by federal courts) and remittitur – P cannot contest a remittitur he had accepted on appeal (Donovan v. Penn Shipping)
§ Itemized damage awards, Structured judgment
§ Limits on punitive damages (State Farm v. Campbell) Consider (Gore standard):
· Degree of reprehensibility, disparity between actual or potential harm suffered by the P and the actual punitive damages award (single digit multipliers good), and the difference between punitive damages awarded and civil penalties
VII. Repose – Ending Disputes
- Direct Attacks
o FRCP 60(b) – relief from judgment of order – (1) mistake, (2) newly discovered evidence, (3)fraud, misrepresentation, misconduct (Kupferman), (4) judgment is void (Durfee), prior judgment has been reversed or vacated, or it is no longer equitable that the judgment have prospective application (Agostini), (6) any other reason (judgments contrary to law: Pierce v. Cook)
§ 1 year statute of limitations, except for fraud upon the court
§ once you choose not to appeal you waive the right to appeal later (Ackerman)
§ Tamini – offensive attack: bring independent action in Thai court to vacate; defensive attack: assert invalidity of judgment in Thailand as defense to enforcement in NY
- Collateral attacks
o Claim preclusion (res judicata) – subsequent actions are precluded b/c of prior actions
§ R §§17.1 and 18 (merger – P won and Ps claims are merged so P can’t bring new action), 17.2 and 20 (bar – D won and claims favorable to D bar new claims by P, 25.(splitting)
§ Gowan – mere differences in legal theory do not create separate causes of action; unnamed members of class in privity w/ named members of class and thus precluded from new actions on same claim
§ Federated – Res judicata precludes claims that are refiled in 2nd action rather than appealed
o Issue preclusion (collateral estoppel)
§ R §§ 27, 28, 29 (issue preclusion cannot be asserted against a party who was not party to the 1st action)
§ P uses offensive issue preclusion against D to say that the issue should be found in P’s favor b/c it’s already been found against the D (IRS v. Sunnen – no preclusion - each years taxes are a new issue, Allen v. McCurry – yes nonmutual defensive issue preclusion)
§ D uses defensive issue preclusion against P to say that the issue should be found for D b/c it’s already been found against P (Parklane v. Shore – SEC case)
o Preclusion in a federal system
§ R §§ 86, 87
§ Issue preclusion has to actually be litigated, claim preclusion doesn’t (Kremer – state administrative decisions not preclusive on federal courts but state court decisions are)
§ Ps can bring action in state court and challenge it up to the SC for constitutional issue, OR Ps can bring it in federal, but can’t do both (England v. LA State)
§ Full faith and credit clause requires federal courts to give same preclusive effect to the claims as the state court would give it – b/c they settled, Ps were precluded from bringing claim in federal court – Matsushita
VIII. Joinder of Parties
- Joinder
o FRCP 18 – anyone asserting claim to relief may join as many claims as they have; D can assert all counterclaims. Rule 42(b) allows: Severance, separation, consolidation (rule 18, merge pretrial stuff)
o Permissive joinder FRCP 20 – arise out of the same transaction or occurrence, raise at least one common issue of law or fact. (Mosley)
§ cost of error of applying preclusion > cost of error of applying joinder
o Compulsory joinder FRCP 19
§ (a) If they don’t destroy diversity, join if…
§ (b) If the party is indispensable, consider whether the action should be dismissed in their absence.
· Temple v. Synthes – joint tortfeasors are permissive, not compulsory parties; empty chair is Ps problem
· Helzberg Diamond – party not indispensable b/c their rights are protected by their contract. D voluntary incurred conflicting obligations.
- Impleader, Interpleader, Intervention
o Impleader FRCP 14 – D becomes 3rd party P by joining 3rd party D if it does not destroy diversity. Or P can join 3rd party D against a counterclaim by D against P. P can only claim against 3rd party D impleaded by D if D makes claim against P.
§ Toberman – 3rd party complaint can’t say 3rd party D is the correct D for P (affirmative defense), but rather must set out claim of 2ndary liability
o Interpleader
§ FRCP 22 – rule interpleader – follow normal rules of SM jurisdiction, personal jurisdiction, and venue
§ Statutory interpleader – remedies rule interpleader limits
· SM jurisdiction - 28 USC §1335 – min diversity, amt in controversy >$500
· Venue – 28 USC §1397 – any district in which one or more P resides
· Personal jurisdiction – 28 USC §2361 – nationwide standard of service of process
§ Applicable when stakeholder has money claimed by multiple claimants; stakeholder knows money isn’t theirs but doesn’t know which claimant to give it to, and doesn’t want to incur double liability for the money. Stakeholder commences interpleader against claimants and deposits money with the court to sort out.
§ Can’t use interpleader as an alternative to bankruptcy or to limit liability (State Farm)
o Intervention FRCP 24 – can’t intervene if it destroys diversity. (a) intervention of right; (b) permissive intervention (court’s discretion)
§ American Lung – can’t intervene before one’s interest is at stake.
- Supplemental Jurisdiction
o USC 1367
§ (a) related claims can be joined if they form part of the same case or controversy as the original claim over which court has original jurisdiction
· common nucleus of operative fact (United Mine Workers)
§ (b) when SM jurisdiction founded solely on diversity, can’t exercise supplemental jurisdiction over claims made under Rules 14, 19, 20 or 24 if it would destroy diversity
§ (c) court’s discretion. Court may decline to exercise claims if: (1) novel or complex issue of state law, (2) predominates over original claim, (3) all claims over which it has jurisdiction are dismissed, (4) exceptional circumstances.
§ (d) statute of limitations
o 1367 enacted to reverse Finley – today, court would have to expressly forbid supplemental jurisdiction
o Free v. Abbott Labs – no stare decisis effect
- Class Actions
o FRCP 23
§ (a) prereqs to class action (Angelastro):
· (1) numerosity
· (2) commonality
· (3) typicality
· (4) adequacy – Hansberry v. Lee - parties with divergent interests of the class they seek to represent may not adequately represent those of the class in disagreement with them.
§ (b)(1) separate action would create risk of (A) inconsistent or varying adjudications that would impose varying standards (i.e. action to enjoin corporate merger). (B) allows class to share, for instance, limited insurance fund in fair and reasonable manner
§ (b)(2) claims where a party against the class, i.e. governmental agency, acted towards entire class in certain way, and class seeks declarative or injunctive relief – i.e., Civil Rights litigation
§ (b)(3) Common question of law or fact predominate; class action = fair and efficient adjudication; seeks monetary relief.
§ (c) certification (Angelastro)
§ (d) opportunity to opt out, to be heard, and notice required for (b)(3), allowed but not required for (b)(1) and (2). P bears cost of notice (Eisen)
· opt out for (1) and (2) would be meaningless; notice not required b/c prohibitively expensive for P + no money damages = disincentive to bring suit
§ (e) settlement. (Amchem, Ortiz)
§ (f) appeal
§ (g) class counsel
§ (g) attorney’s fees awards – attny can manipulate settlement process to get best fee.
o Failure to intervene does not bind parties b/c intervention is permissive, not mandatory (Martin v. Wilke)
o If due process rights of class members are met (notice, opp to participate, opp to opt out, adequacy of representation) no requirement of personal jurisdiction/minimum contacts. BUT power to apply jurisdiction not co-equal with power to apply state’s law – choice of law not the same as jurisdiction (Phillips Petroleum v. Shutts, where Kansas court could exercise jurisdiction over class members with no minimum contacts to Kansas, but class members in different states got different awards b/c of different laws in each state).
IV. Erie
PART II
I. Pleading
a. Complaint
i. Practical effect is to toll statute of limitations
ii. Trigger moment for service of process
iii. Strategic reasons for more detailed pleading:
1. Seem knowledgeable
2. Defendant knows you mean business; longer narrative might make it seem like settlement cost might be higher
3. Longer complaint may entitle P to more discovery information
4. Preemptive strike against Rule 11 motion
iv. Code Pleading
1. Requires “ultimate facts” to be pleaded
2. Check-a-box case
a. Not enough facts
v. Rule 8a: three elements:
1. Jurisdiction: short and plain statement
a. Diversity (including “in excess of 75K”) or federal question
2. Statement of claim: short and plain statement showing plaintiff is entitled to relief
a. Legal theory not required
b. But cannot be simply conclusory
i. E.g. “D has discriminated against me on the basis of my race.” – doesn’t include the basic facts surrounding the transaction at issue
3. Relief: a demand for judgment for the relief
vi. Rule 8b: “Defenses; Form of Denials”: party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies.
b. Motions
i. Rule 12 motions raise threshold objections to the complaint
ii. 12(b)6)
1. assume that facts are true
2. standard: “complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson
iii. 12(e): motion for more definite statement
1. can be raised even after 12b motion denied
2. standard is if it gives defendant enough information from which to draft his answer and to commence discovery
iv. 12(c): motion for judgment on the pleadings
v. 12(g): consolidation
vi. 12(h)3: court can dismiss for lack of smj, no leave to file a second motion
vii. filing 12b will often stop the clock (normally have 20 days to file an answer); also parties will also extend time through professional courtesy, unless judge is known for keeping court on time because of docket pressures
viii. Also remember provision in rule 4 that gives 60 days to answer
c. Answer:
i. D can admit allegations you know to be true under rule 11
1. also might want to admit for strategic reasons, e.g., if you don’t want embarrassing details to go to a jury
ii. D can deny
iii. D can “DKI”: has same practical effect as a denial, issue will be open to discovery and can contest it at trial
iv. General denial: one sentence answer that D denies every allegation in the complaint, everything can then go into discovery; if you put in a general denial what the consequences at trial? What can judge do? Look at rule 8d, judge can strike your answer which has the effect of deeming everything admitted
v. “Good faith requirement”: Zielinski case.
1. P combined three allegations in one complaint (forklift was “owned, operated, and controlled by” D and D specifically denied the paragraph but part of the information was true (D operated and controlled but did not own the forklift);
2. P was prejudiced by not getting notice and so unable to look for a new defendant as a result of Ds bad faith
3. Court holds D responsible, deemed the paragraph admitted
vi. Affirmative defenses are not limited to those listed in 8(c). Layman case (telephone company brought in evidence of an easement that plaintiff didn’t know about that they did not disclose in their answer).
1. Key issue of whether a matter should be an affirmative defense is whether it would surprise the plaintiff if it is brought in.
d. Ways to address strategic behavior:
i. Something section 1927 – very hard to prove intent so weak
ii. Courts retain “inherent authority” – weak concept
iii. Rule 11: doesn’t require bad faith; uses subjective standard
1. Lawyer’s obligation:
a. Must sign pleading
b. Certify to the best of the lawyer’s knowledge, information and belief
c. Must perform a reasonable inquiry under the circumstances
2. prohibited:
a. improper purpose
b. legal contentions must be warranted – Gerbode case.
i. Question whether you can try to argue that you know the law says one thing but you feel law should be changed based on a moral theory
1. to avoid Rule 11 sanctions should be able to cite existing legal commentary supporting your view
c. factual contentions must have evidentiary support (or are likely to have support after reasonable investigation) – Business Guides case.
d. denials are warranted on the evidence or if based on DKI are reasonably based
3. sanctions:
a. normally is just a fine paid to the court
b. includes attorney’s fees (fee shifting; criticism is that not meant to give defendants a windfall)
i. but only if “warranted for effective deterrence.”
4. What is “reasonable inquiry”?
a. Depends on the case
b. Duty not to reaffirm bad pleadings (lawyer later learns that pleading is not meritorious)
c. “Bad faith” not required
i. if lawyer honestly believes that complaint is true but a reasonable person would have made inquiries and learned that complaint was false then sanctions may be imposed. Business Guides.
5. Client’s obligation:
a. Responsible for facts: where the pleader lies to her lawyer, leading the lawyer to believe that a claim or defense has merit when it does not court may impose sanctions
b. If Client signs the pleadings then is treated essentially like a lawyer for rule 11 purposes
6. Also applies to defenses who put in spurious claims or used to harass plaintiffs, had chilling effect on civil rights claims;
7. other bad effects: increased caseload and contributed to deterioration of civility in the profession
8. if can show you need discovery then can usually avoid sanctions
9. sanctions can be based on oral statements
10. question of whether you can escape sanctions if you are trying to change existing law (e.g. haddle case) by taking advantage of split in circuits; should at least show that you know the law
11. Safe harbor provision
a. Have to serve other party with notice then wait 21 days
b. Significance is that it puts plaintiff at advantage: even if rule 11 motion is filed same day as notice given to D, answer has to be submitted within 20 days and that gives P 1 day to withdraw/amend complaint before rule 11 kicks in; this basically gives P free information from D (cost free discovery)
12. Court can impose sanctions on its own initiative
a. Even if case is voluntarily dismissed by plaintiff under rule 41 or court has no SMJ
b. 1993 amendments now have to have separate hearing for rule 11; under old rule rule 11 sanctions were too hard to appeal
e. Rule 9 (heightened pleading)
i. Makes assumptions, e.g. that fraud cases are too easy to file
ii. Catalogue of matters requiring heightened pleading:
1. legal capacity
2. fraud or mistake
3. condition precedent
4. existence of judgments or official documents and acts, on which the pleader plans to rely
5. material facts of time and place
6. special damages
7. admiralty and maritime
iii. Plaintiff cannot claim need for discovery as reason to circumvent heightened pleading requirements. Olsen case (alleged fraud – but not enough evidence without discovery)
iv. What if state law being used in federal court:
1. same policy concerns that fraud cases too easy to file
2. but Rules Enabling Act (28 USC 2072) states that rules cannot abridge, enlarge or modify any substantive right – so questionable if OK to require higher pleading requirement in federal court than state law would require if case were in state court(?)
v. If item is not listed in Rule 9, no heightened pleading is required. Leatherman case.
1. Rule not followed in civil rights cases: 5th circuit has gotten around Supreme Courts holding of no heightened pleading requirement in civil rights cases by imposing a reply requirement that has a heightened requirement; Hersh says this approach will be the law of the land in 5 years
a. Argument in favor of this approach: if I can’t show a pattern or practice then can’t prove case
b. Argument against this approach: should let plaintiff go through first round of discovery (plaintiff not in a position to have the knowledge up front) to find evidence then if they don’t find anything then impose rule 11 sanctions
c. Another argument is that legislature should decide; counter is that legislature may not be able to do this politically
f. Allocation of Elements
i. Rules for allocation of elements of a cause of action are completely political
ii. FRCP 8c gives a list of some affirmative defenses, but not exhaustive, e.g. “qualified immunity” as in Leatherman is not on list but was treated as an affirmative defense
iii. One test is the “exception clause”
1. E.g.: “person shall be liable for injury to others caused by failure to take reasonable care; provided no person shall be liable if plaintiff’s own negligence was the primary cause of injury”
a. If there is an exception clause that is embedded in the end then the court will usually allocate the exception clause to the defendant, but if no exception clause then probably allocated to plaintiff
b. But it is not true that simply finding an exception clause after the enacting clause means that D is stuck with the burden of allocation
c. So under this clause 12(b)(6) motion would not work because would say that plaintiff has met his burden, up to defendant to bring up the defense
2. One clue are the words “if”/”unless”; words coming after “unless” are construed as elements allocated to defendant
iv. Burden of pleading typically runs parallel with burden of proof
v. Explanations of why burden is allocated:
1. negative/positive theory: place burden on party that wouldn’t have to prove a negative; see this in Gomez case
2. “Essentiality” argument: A party has to allege the elements “essential” to its claim
3. Probabilities: sometimes court feels that more likely than not certain things happen in a certain way; e.g. bill collection, American Express says you didn’t pay the bill and you say you did pay the bill. Who should have the burden of alleging non-payment? Most of time credit card company is right
4. Better access to information: may be more efficient to allocate those issue to the party who has the better knowledge; counter example is fraud, by requiring heightened pleading from plaintiff in fraud case we are requiring information that is often exclusively within the custody of the defendant.
a. What about discrimination case? Could say that defendant knows whether he has discriminated but it would be implausible to allocate to defendant
5. Public policy
II. Amendments
a. Rule 15
i. Amendments (Rule 15a):
1. Can amend once as a matter of course before the other party responds
a. If no response required by other party then have 20 days to amend as a matter of course
2. Otherwise can amend if given leave from court
a. Standard for granting leave to amend: “leave shall be freely given when justice so requires”
3. Rule15a: when might D be put under hardship of allowing plaintiff to amend? E.g. if I initially plead 100K in damages and now I’m alleging 4 million in damages plus punitive damages. First you thought it was a small case but now it is a big deal; court doesn’t take quantitative factors into account; argument might be that that is OK because defendant is inconvenienced but it does not rise to the level of prejudice that rule 15 is looking for;
ii. Relation Back Doctrine (Rule 15c):
1. Didn’t exist at time of Zielinski; allows amending party to avoid statute of limitations problem by dating their amendment to same date as original complaint/answer.
2. Most federal laws don’t have statute of limitations; Hardest application of 15c comes up in civil rights cases, plaintiff tries to sue police officer on duty but doesn’t know their name, statute of limitations runs out but after discovery goes forward plaintiff can find out the names, courts have gone both ways in deciding whether plaintiff can use the names(?);
3. Standard for granting: leave to amend should be denied only if it would cause actual prejudice to the other party. Beeck v Aquaslide (Court allowed Aquaslide to withdraw its admission; no prejudice against Beeck because Beeck would not have prevailed on the merits)
4. Change of party requirements:
a. same transaction or occurrence
b. 120 days (FRCP 4m) after service of summons and complaint
c. opposing party has to have notice such that it is not prejudiced in maintaining a defense on the merits
d. “but for” a mistake concerning the identity of the proper party, the action would have been brought against the party
III. Discovery
a. 3 types of discovery under 26(a) (?):
i. persons, things, documents, and damages(?)
ii. expert opinions
iii. miscellaneous(?)
b. under 26(d) the parties may not seek discovery until they have conferred (may be by telephone), have 20 days
c. 5 types of discovery:
i. deposition: limit of 7 hours to any deposition; district courts cannot opt out of 7 hour limit
ii. interrogatories:
iii. documents and tangible things; can enter land and inspect; something about rule 45 subpoena
iv. requests for admission
v. physical exams (we are not going to cover)
d. 2000 amendments make biggest difference on rule 26b; don’t know what effect it will have
e. “Relevance” under 26(b)(1):
i. Pre-2000 amendment standard:
1. “Relevant to the subject matter”
a. Example is obtaining information showing discriminatory practices made in deciding who makes partner at Sullivan and Cromwell (wall street firm) to show by analogy discriminatory practices in hiring. Blank v Sullivan case.
1. OK under pre-2000 standard, not clear if OK under new standard.
ii. Post-2000 amendment standard:
1. Information sought must be “relevant to the claim or defense of any party”
a. Example of how new rule might work: trying to discover information about specific homosexual acts by a sailor when case is about sailor being discharged based on statements he made and not acts he performed. Court found Navy could not discover information relating to the acts because it was not relevant to the claim or defense regarding the statements made by the sailor. Steffan v. Cheney case.
iii. Court may order discovery of relevant material for “good cause”
iv. “relevant” material need not be admissible
1. would either be admissible or be reasonably calculated to lead to admissible evidence
f. Subpoenas (Rule 45)
i. Defenses against a subpoena
1. Cannot compel witness’ attendance at trial if he lives outside of 100 mile radius (Rule 45c3A)
a. but can go to witness to depose
2. would disclose privileged information or other protected matter (Rule 45c3B)
3. would require disclosure of an unretained expert’s opinion (Rule 45c3B)
4. would require disclosure of information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of either party (Rule 45c3B)
ii. Court can overrule defenses if the party shows :
1. a “substantial need” and
2. cannot otherwise obtain the information without “undue hardship” and
3. reasonably compensates the party subject to the subpoena. (Rule 45c3B)
g. Protection from discovery
i. Absolute immunity from discovery:
1. subjective thoughts, legal theories, mental impressions, etc. of the attorneys
2. Attorney-client privilege:
a. Confidences passed from client to the lawyer (privilege is unidirectional, does not cover material from lawyer to client)
ii. Qualified immunity from discovery:
1. “work product” immunities; 26(b)(3)
a. materials prepared by counsel for trial purposes and opinions of experts that counsel has consulted in trial preparation.
b. requires three things to overcome work product protection. Hickman case.
i. substantial need
ii. would create undue hardship
1. hostility of witnesses
iii. to obtain equivalent materials
iii. Discovery sequence:
1. 3 waves of discovery:
a. Automatic disclosures, 26(a)(1)
b. Disclosure of expert testimony, 26(a)(2)
c. Pre-trial disclosures, 26(a)(3)
2. Automatic disclosures:
a. Timeframe: must be made within 14 days of 26(f) conference
b. Includes:
i. Name, address, phone of each person that disclosing party plans to use
ii. Copy or description of each document, data compilation or tangible thing that the disclosing party plans to use
iii. Computation of each category of damages claimed by the disclosing party
iv. Copy of any insurance agreements
3. Disclosure of Expert testimony:
a. Written report
i. Complete statement of opinions and basis and reasons therefor
ii. Qualifications of expert
iii. The data or other information considered by the witness in forming the opinions
iv. List of all publications authored by the witness within the preceding 10 years
v. Compensation to be paid for the study and testimony
vi. Listing of other cases in which the witness has testified as an expert at trial or by deposition within preceding 4 years
b. Timeframe: as directed by the court or 90 days before trial
4. Pre-trial disclosures:
a. Disclosures:
i. Name, address, and phone of each witness who may be called at trial
ii. Name of witnesses whose testimony at trial will be by deposition
iii. Identification of each document or exhibit to be introduced at trial
b. Timeframe: must automatically disclose at least 30 days before trial.
iv. Experts retained but not called at trial:
1. Can only discover facts, opinions, and reports of experts who will not be called at trial “upon showing of exceptional circumstances.”
a. Only one expert available: one situation which satisfies “exceptional circumstances” is if there is only one expert available in the field, and where the side resisting discovery has retained him for the sole purpose of keeping him out of the discovering party’s hands, without intending to call him at trial.
h. 16(b) conference
i. 120 days after service of process
ii. 26(f) happens 21 days before 16(b)
iii. three main things that occur:
1. consider amendments
2. add parties (joinder)
3. determine(?) how long discovery will run
iv. Judge issues a “pretrial order” which recites the actions taken at the conference (e.g. summarize list of witnesses); pretrial order can be modified to “prevent injustice”
1. sanctions can be ordered if a party fails to participate or doesn’t do so in good faith
v. one of the key functions is to promote settlement (but if judge goes too far may be reversed on appeal)
vi. Judge can’t coerce parties into settlement. Kothe case.
vii. German advantage article(?) – Hersh doesn’t think we can successfully import procedural rules from civil law countries
IV. Default judgment (Rule 55)
a. default judgment can only be reopened if the party requesting the reopening had a meritorious case. Peralta case.
i. Want to give D a chance to defend on the merits if at all possible
V. Dismissal of action (Rule 41)
a. Voluntary (Rule 41a1): Plaintiff may voluntarily dismiss
b. Involuntary:
i. Sua Sponte by court(?)
ii. If plaintiff fails to reply to a discovery request
iii. If plaintiff fails to respond to a court order
1. related to res judicata
VI. Summary Judgement (Rule 56)
a. Are a DISFAVORED, but important procedural shortcut
b. Heart of rule 56 motion is evidentiary support, most often use affidavits (affidavits must be based on first hand information), but can also use discovery materials
c. Rule 56 assumes that discovery has taken place
d. Standard: moving party must show that there is no “genuine issue of material fact” in the lawsuit (moving party has the burden even if the burden would be different at trial)
e. Moving party must show (e.g. by using affidavits and other discovery materials - but evidentiary sources are not required – see PROVE IT MOTION) that there is no genuine issue of material fact (Rule 56c) then burden shifts to other party to come forward with specific facts beyond the his pleadings (e.g. affidavits) to show that there is a genuine issue for trial.
f. Adickes standard: Rule is that moving party has to foreclose possibility of opponent winning at trial
g. Celotex case (the “standard”) standard:
i. Plurality: Rhenquist
ii. Concurrence: White
iii. Dissent: Brennan
iv. Rule is that moving party only has to show that other party lacks evidence that it requires to prove an element(s) of its case. The burden then shifts to the non-moving party to show that it can obtain admissible evidence to support the element in question.
1. Supreme Court plurality: we have liberal discovery so if there is no evidence by this point then there is no basis for moving forward
a. Counter: sometimes evidence like a deposition that was not put in as evidence can be cured
b. D can still use Adickes route and foreclose the possibility to obtain Summary Judgement (Adickes not overruled)
2. Concurrence: D needs “more than conclusory evidence.” D could depose P’s witnesses and point out flaws/lack of real evidence. Then P has 56(f) option, or can bring in new evidence, or can show inadequacies in D’s findings.
v. Possible exception to the hearsay rule, p632 casebook, first full paragraph
1. Famous confusing paragraph: Rhenquist says that “[w]e do not mean that the non-moving party must produce evidence in a form that would be admissible at trial…”
a. Hersh says that he might be saying that underlying facts might be admissible or that it might be an exception to the hearsay rule; problem is there is no case law to support this interpretation
h. “Prove it” motion:
i. A motion by D where D does not bring forth evidence but only points out that P has failed, after discovery, to make a showing sufficient to establish the existence of an essential element in that party’s case.
1. Rhenquist opinion in Celotex says prove it motion is OK
2. White and Brennan leave open possibility of prove it motion
ii. if allow prove it motion then this shifts the costs of deposing the witness to P who has to use the deposition to support the challenged element(s) of his allegation
iii. What can P do to defend against a prove it motion?
1. use overlooked evidence
2. put in additional evidence
3. ask for more time to do discovery under 56(f)
iv. District courts are allowing prove it motions
i. Visser case (applying celotex standard to a civil right case)
i. Visser was fired several months before his pension was to vest after refusing to pledge allegiance to the Packer, the principle corporate officer.
ii. Reinforces what non-moving party has to show to avoid summary judgment
1. under adickes packer would have to foreclose possibility that he fired visser based on age discrimination
2. under celotex packer could put in an affidavit saying that he did not have a discriminatory intent to fire visser
3. What should visser have put in his opposition papers?
a. Hersh didn’t answer; visser should have said that Packer’s explanation is a pretext and that real reason was to save money for the corporation by not having to pay out the costs of the pension;
VII. Erie doctrine
a. Steps to solve an Erie problem:
i. Is this a diversity case?
1. If no then Erie doesn’t apply
ii. Is this US Constitution v state law?
1. US constitution trumps state
iii. Is there a federal statute on point?
1. If yes then Federal statute trumps state (Rules of Decision Act)
iv. Is there a Federal Rule (FRCP) on point?
1. Yes – Can both be followed simultaneously?
a. Yes – then follow both (Burlington Northern)
b. No – apply Sibbach test: Is Federal Rule valid under Rules Enabling Act? If valid under Sibbach test then use the rule.
i. “test must be whether a rule regulates procedure – the judicial process for enforcing rights and for justly administering remedy and redress for disregard or infraction of them”
ii. Virtually no chance of failing Sibbach test since Supreme Court made up the FRCP rule in the first place
v. Does the federal policy conflict with the state rule or policy
1. If no then follow federal policy
vi. Is the area one of the few areas suitable for federal common law?
1. use federal common law
2. Gaspirini case – Ginsburg uses balancing test, basically creates new rule of federal procedure
vii. If no FRCP on point then is the state policy or rule basically substantive or procedural?
1. “Warren test” to see if state policy or rule is basically substantive or procedural, 3 parts:
a. is the form procedural or substantive
b. is it a housekeeping rule
c. is it likely to have substantive effects
2. If basically substantive then follow state law (Erie v Tompkins)
a. Straightforward “easy Erie”
3. If basically procedural then use balancing test:
a. Glannon calls this the “constitutional prong” and also the “Hanna part 1” test
b. Basically substantive if “bound up with the definition of rights and obligations”
c. Basically procedural if “form and mode of enforcing”
d. Balancing test, 3 parts:
i. Is it likely to have substantive effects?
1. if yes then favor state rule
ii. Is it outcome determinative?
1. If yes then favor state rule (York case)
iii. Will it lead to forum shopping/lack of uniformity?
1. If yes then favor federal rule (Byrd case)
iv. Will it lead to inequitable administration of laws?
1. If yes then favor federal rule (Byrd case)
b. Reverse Erie
i. When state court is applying federal law it has to apply federal procedure – can be a problem when there is a federal common law
VIII. Preclusion
a. Res judicata (“claim preclusion”)
i. Defense raised at Rule 56 stage
ii. Policy reasons for having preclusion rule:
1. efficiency
2. reliance interest by P in not having to relitigate
iii. Elements:
1. suit #1 must have been on the merits
2. suit #2 must be by the same parties or their privies
3. Forum #1 must have had jurisdiction in the original action
4. Facts must pass the transaction test
iv. Precludes claim splitting
v. “Rule of mutuality”: Precludes relitigation between the same parties and their privies (others can still sue)
1. Privy is one who has a mutual or successive interest (Searle case)
a. Idea is that their interests would be adequately represented and protected
vi. The action must be “on the merits”:
1. What counts as on the merits:
a. after consideration of a claim by a judge or jury (e.g. trial)
b. summary judgment for either party
c. consent judgments
d. any judgment in favor of plaintiff in the original action (including a default or summary judgment)
e. successful 12(b)(6) claim against P or D
i. can amend or appeal but P cannot commence a new action
f. settlements: generally settlements count as on the merits
g. dismissal by court as sanction for failure to comply with court order
2. What isn’t on the merits:
a. Voluntary dismissal by plaintiff (Rule 41(a))
b. Dismissal for lack of personal jurisdiction over D (41(b))
c. Lack of SMJ over D(Rule 41(b)):
i. Easy to challenge SMJ in Forum #1
ii. Hersh says hard to collaterally challenge SMJ in Forum #2 – collateral challenge in Forum #2 restricted to default judgments (?)
d. Failure to join an indispensable party (Rule 41(b))
vii. What is precluded?
1. For plaintiff: any issue, even if not litigated, that was part of the same “cause of action” as the original claim, including all legal theories, damages, and any other remedies
2. For defendant: any claim actually asserted; also covers any compulsory counterclaims that could have been made
viii. Definition of “cause of action”
1. transaction test:
a. any act or series of occurrences out of which the action arose = one cause of action
2. Single contract = single cause of action
3. Installment contract = several causes of action, one each for all installments due at time of action
4. Installment agreement with acceleration clause:
a. Some jurisdictions say single cause of action
b. Some jurisdictions say plaintiff may only sue for items matured
5. Promissory note: can sue individually for each one
6. Single tort act with several injuries = single cause of action
7. Several tort acts with single injury = single cause of action
8. Nuisance/ongoing damages = several causes of action
a. Exception is when nuisance is established as permanent then damages to cover past and future injury
ix. Use claim preclusion rules of Forum #1 (Frier case-P sued D in state court for replevin of his car then sued D in Fed court for violating 42 USC 1983 for depriving him of his property without due process)
1. Even if Forum #1 is state court and Forum #2 is federal court or vice versa
a. Exception: if Forum #1 had no jurisdiction over the case brought in Forum #2 then claim preclusion doesn’t apply, even if it would satisfy the transaction test (Gargallo case-sued in state court for securities violation then sued in fed court for securities violation).
x. Interlocutory appeal
1. Fed courts: once judgment is entered it is “final,” even if an appeal is pending
2. State courts: in most state courts an appeal automatically postpones the finality of the judgment until the appeal is concluded
xi. Defendant should raise defense of preclusion at summary judgment stage
b. “bar” and “merger”
i. merger is when plaintiff won in first action
1. second claim by plaintiff will be “merged” with first
ii. bar is when defendant won in first action
1. second claim by plaintiff will be “barred” by first judgment
c. Collateral estoppel (“issue preclusion”)
i. Defense raised at Rule 56 stage
ii. Three requirements:
1. issue must be identical to one previously litigated or subject to adverse presentation
a. what counts:
i. trial
ii. Motion failure to state a claim - 12(b)(6)
iii. Motion on the pleadings - 12(c)
iv. Summary judgment (56)
b. What doesn’t count:
i. Consent/default judgments
1. may only be an indication of amount in controversy or difficulty in getting evidence
2. don’t want to encourage litigation of petty claims if D would rather concede
ii. Admissions of fact (not adversarial)
2. issue must have been actually litigated and decided
3. issue must have been necessary to the first judgment
a. test is to ask whether the result could have been reached without resolution of the issue
b. if a general verdict is given and the opinion doesn’t tell you which of the issues led to the verdict then collateral estoppel doesn’t apply
i. e.g. Illinois Central case – defendant railroad couldn’t establish whether contributory negligence or no actual damages was basis for verdict in F1 so they weren’t allowed to assert collateral estoppel in F2
c. But if all the issues were necessary (several defenses plead in the alternative were overcome) for the verdict to be given then collateral estoppel does apply
d. If no appellate review then no preclusion(?) (if can’t appeal then you ought not be barred in F2)
i. Hersh likes this rule – otherwise creates incentives for winning party to appeal
iii. Exceptions to collateral estoppel
1. stakes are much larger in second case
2. burden of proof is lower for plaintiff in second case (e.g. first case was criminal and second case is civil)
3. issue arises the second time in a substantially different context
4. other party had no opportunity, as a matter of law, to obtain judicial review of judgment from initial action
5. subsequent action wasn’t sufficiently foreseeable at the time of the initial action
6. “catch all” – there’s some other compelling reason
a. public interest
b. other party labored under significant procedural disadvantages
i. absence of a right to jury trial doesn’t count (parklane case)
iv. Settlements don’t count
1. usually not possible to determine what issues were decided
v. Compare to claim preclusion/res judicata:
1. collateral estoppel is broader because not limited to transactionally related claims
vi. Policy reasons for collateral estoppel:
1. want efficiency in litigation
a. counter-argument is that it creates defensive litigation and defensive appellate practice
vii. Hypothetical example:
1. A sues B in negligence and the jurisdiction says that contributory negligence is an affirmative defense. B doesn’t bring it up. Then B sues A in F2. Since negligence of A wasn’t litigated in F1 then not precluded under collateral estoppel.
viii. “mutuality of estoppel”
1. common law view: if a party seeking to take advantage of collateral estoppel could not have been its victim had the action come out differently, it would not be right to let that party take advantage of the result in its favor
a. Example: A sues B for patent infringement and B wins on ground that A’s patent is invalid. A can still sue C for patent infringement of the same patent and C cannot assert collateral estoppel to establish that P’s patent is invalid. This is because had A won against B, it would not have been allowed to use those findings against C since C would not have had its day in court.
2. modern view:
a. Rejection of Mutuality - Bernhard case (1942)
i. Held that only considerations were the three requirements: (1) identical issue, (2) judgment on the merits, and (3) was the current party a party or privy in the prior adjudication;
b. No mutuality needed when use of CE is defensive - Blonder-Tongue (1971)
i. Non-mutual defensive issue preclusion (NMDIP)
ii. Rejected mutuality doctrine (that D was a party to the first suit) when D is using collateral estoppel defensively;
1. example: if A sues B for patent infringement and court finds the patent invalid and A loses then if A sues C for infringement of same patent then C can apply collateral estoppel defense.
c. Offensive estoppel approved by Supreme Court – Parklane case(1979)
i. Also called “non-mutual offensive issue preclusion” (NMOIP)
ii. Parallels Microsoft case:
1. Government sues Microsoft in anti-trust and wins; then some entrepreneurial lawyer files a lawsuit against Microsoft based on the previous case where government has done all the work
iii. Supreme Court says approval of offensive estoppel should be done on case by case basis
ix. “Indemnity anomaly”:
1. idea is that D1 may lose the benefit of winning/proving her case if she wins against P but then is indemnified to D2 if D2 loses against P concerning same issue
a. example: A is student and sues B, Hershkoff, for educational malpractice; A loses; Then A sues C, the Dean, under theory of respondeat superior; A wins; now what happens? Two conflicting judgments – may be some kind of indemnity relationship; if C supposed to get indemnity from B then B’s victory is snatched from her because even though she successfully proved her case she still has to pay and money goes to A;
x. How do the discovery amendments of 2000 affect preclusion doctrine? (hersh doesn’t answer)
1. fewer issues known to both sides so fewer issues litigated so fewer issues precluded in future suits; in other words, secret material known by one party at one suit can be used to launch a future suit at a later time
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