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Civ Pro Short Outline - Sachs, Exercises of Civil procedure

University of California - Los Angeles (UCLA)Civil procedure

Civil Procedure Outline (Short), Sachs Fall 2011. Goal of FRCP: just, speedy, inexpensive determination of every action. To get into fed court need SMJ + PJ ...

Typology: Exercises

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Civil%Procedure%Outline%(Short),%Sachs%Fall%2011%
"
Goal"of"FRCP:"just,"speedy,"inexpensive"determination"of"every"action"
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To%get%into%fed%court%need%SMJ%+%PJ%+%venue%
To"determine"if"PJ"or"venue"proper,"first"figure"out"if"consented"w/"forum"selection"clause"or"waived"objection"12(h)"
%
SUBJECT%MATTER%JURISDICTION"–"Ability"of"court"to"hear"particular"type"of"case."Cannot"be"waived."
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"
1. Diversity%Jurisdiction:"The"power"of"federal"courts"to"adjudicate"disputes"between"citizens"of"different"states"if"
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"
a. Citizen%of%a%different%state"(Article"III).""Need"complete%diversity:%all"Ps"from"different"states"as"all"Ds"
[Strawbridge]"
b. AmountNinNcontroversy%statutory%requirement"exceeds"$75,000"exclusive"of"interest"or"costs"(§1332).""
Legal"certainty;"reasonable"to"conclude"that"P’s"injuries"would"support"recovery"of"that"amount"
[Difenthal,"flight"attendant"treated"passengers"“brusquely”,"no"legal"certainty"that"facts"supported"
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• P"can"aggregate"claims"against"single"D"
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• Exceptions:"supplemental"jurisdiction"&"common"undivided"interest,"joint"claim"that"is"“indivisible”"
"
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b. Partnership"–"citizen"of"state"where"all"partners"domiciled"
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d. Alien"="domicile"
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3. Rationale:"easy"to"determine"jurisdiction"from"onset"
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Download Civ Pro Short Outline - Sachs and more Exercises Civil procedure in PDF only on Docsity!

Civil Procedure Outline (Short), Sachs Fall 2011 Goal of FRCP: just, speedy, inexpensive determination of every action To get into fed court need SMJ + PJ + venue To determine if PJ or venue proper, first figure out if consented w/ forum selection clause or waived objection 12(h) SUBJECT MATTER JURISDICTION – Ability of court to hear particular type of case. Cannot be waived. Constitution (Article III) + Statute (§1331, 1332). Fed courts have limited SMJ. Note states have very, very broad SMJ.

  1. Diversity Jurisdiction : The power of federal courts to adjudicate disputes between citizens of different states if more than $75,000 at stake. a. Citizen of a different state (Article III). Need complete diversity: all Ps from different states as all Ds [ Strawbridge ] b. Amount-­‐in-­‐controversy statutory requirement exceeds $75,000 exclusive of interest or costs (§1332). Legal certainty; reasonable to conclude that P’s injuries would support recovery of that amount [ Difenthal , flight attendant treated passengers “brusquely”, no legal certainty that facts supported damage claim of $10k ] - P can aggregate claims against single D - P cannot aggregate claims against multiple Ds - Co-­‐Ps cannot aggregate claims. - Exceptions: supplemental jurisdiction & common undivided interest, joint claim that is “indivisible” How to define citizenship? *calculate as of date action initiated a. Individual – domicile (only 1) = present + intent to remain indefinitely b. Partnership – citizen of state where all partners domiciled c. Corporations – state of incorporation + principal place of business, where high level officers direct, control and coordinate corporation’s activities, nerve center [ f Corp. , Breyer, usually the headquarters unless it is a mail drop box or bare office; must be single location, test not perfect and can create anomalous results] d. Alien = domicile
  2. Federal Question Jurisdiction §1331, the power of federal courts to adjudicate disputes arising under the Constitution, laws or treaties of the US Constitution defines outer bounds of jurisdiction Congress may confer upon courts. §1331 interpreted more narrowly in that requires at least an essential federal ingredient [ Merrell Dow, Grable ]. a. Cause of action under which P sues is created by federal law i. Mottley (1908) – P’s original claim must arise under a federal law. P enforcing federal right. Court doesn’t have jurisdiction just because federal claim-­‐related defense is anticipated. Only look to P’s original complaint (no counterclaims) [ P’s claim under state contract law not federal law; RR would need to bring federal law as part of defense ] 1. Well-­‐pleaded complaint rule – fed claim must appear on the face of the complaint 2. Holmes’s creation test – Suit “ arises under the law that creates the cause of action.” Can claim proceed without reference to federal law? If yes, then doesn’t belong in fed ct. *works for most cases 3. Rationale: easy to determine jurisdiction from onset b. Cause of action includes essential federal ingredient i. Grable (2005) – Claim that doesn’t follow creation test can be tried in fed ct. if there is (1) essential federal element embedded in otherwise nonfederal claim (2) federal ingredient must actually be disputed (3) federal ingredient must be substantial (4) court should consider careful balance b/t state and fed courts
  1. Serious federal interest in adjudicating claim
  2. Potential for disrupting balance b/t state and fed cts. (federalism)
  3. Impact on fed dockets
  4. *Goes beyond Holmes but faithful to Mottley (looks to what P must prove) [ resolution involves implication of notice statute in fed. tax law ].
  5. Removal – §1441 if P brings case in state court, D can remove case to fed ct. so long as fed ct. has “original jurisdiction” (this means SMJ must have existed). Fairness to D. a. Federal claims – regular FQ analysis b. Non-­‐federal claims (state claims) – need supplemental jurisdiction (same case/controversy w/ common nucleus of operative fact, §1367(b) exceptions
  • File notice of removal w/ clerk w/in 30 days of service or 30 days after becomes removable (amended pleadings), §
  • Must move to fed district ct. “for district where action pending” *Venue §1391 does not apply to removed cases
  • All original Ds must join in notice of removal
  • Exception: §1441(b) Forum defendant exception : bars removal of diversity case if D resides in state where suit brought. D doesn’t need to be protected b/c at home. Does NOT bar removal of fed Q case
  • §1441(c) motion to remand must be w/in 30 days of else waive objections (other than SMJ) PERSONAL JURISDICTION – Ability of court to exercise authority over D (require D to appear before it and to render judgment that will be binding on D). Can be waived. Constitution (DP, notice and opportunity to be heard and FF&C, full faith and credit will be given in each state) + State statute (long-­‐arm statute) + 4(k) (notice of lawsuit) *This answer assumes the state long-­‐arm statute extends to the limits of DP with regard to the claim(s) at issue. Also assume contacts mentioned are D’s only contacts w/in forum state.
  1. Basis for Personal Jurisdiction – cannot sue people wherever you feel like it; need DP a. Domicile b. Presence, service of process while physically and voluntarily present in forum state [ Burnham (Scalia) transient presence , father visiting kids in CA when served, 4-­‐4 split, Brennan: need to do Shoe ] Note this is only for individuals, service ok but cannot obtain PJ by serving officer of corporation (but not partnership) who happens to be in forum state c. Consent: express (contract) or implied ( Hess , PA citizen injured MA citizen in MA; voluntary act of driving in MA implied consent ] d. Waiver: failure to waive w/in specified time 12(h) e. Minimum contacts: D must have sufficient contacts in state such that D has purposefully availed himself of privilege of conducting activities in state and thus should reasonably anticipate “being haled into court.” Further, exercising PJ over D does not offend traditional notions of fair play and justice [ Shoe , no offices or contracts or sale in WA but shoe salesmen were continuous and systematic contacts, received benefits/protections of WA laws ]
  • D’Arcy (1851) – Need service of process in forum state or voluntary appearance in forum state.
  • Pennoyer (1878) – Need service of process in forum state or voluntary appearance or property in state and property attached before litigation begins (quasi in rem). DP req. actual notice.
  • International Shoe (1945) – Need minimum contacts. D submits to litigation in forum state if claim arises out of voluntary activities in forum state. This is fair to D and ok under DP [ no offices or contracts or sale in WA but shoe salesmen were continuous and systematic contacts, received benefits/protections of WA laws ]

d. Calder , if D acts outside state that knows will cause harmful effects w/in state, subject to min contacts w/in state [ FL publication published story about CA entertainer, knew she lived in CA, knew would cause harmful effects in state, PJ ]

  1. Initiate – Did D initiate contact w/ forum state
  2. Stream of commerce – if D puts products in stream of commerce, is he purposefully availing himself to whichever state products end up? Asahi does not resolve this (4-­‐4 split) a. Brennan: good enough, D benefits from sales in other states regardless of how products get there, reasonable anticipation REJECTED b. O’Conner: not enough, also D must also clearly seek market there (intent to serve state)
  3. Stream of commerce+ Target state (advertising, marketing, serving business in forum state) [ Nicastro (2011) , machinist’s fingers severed, no PJ over foreign D although product in “stream of commerce” b/c D did not purposefully avail himself of NJ / did not directly target NJ ] (4-­‐ 2 -­‐3 split) - Kennedy: Stream of commerce + target specific state. No PJ b/c need conduct purposefully directed (emphasis) at (targeted) at forum state (not natl market). Not enough might have foreseen goods might reach forum. D did not target NJ, no offices there, no direct sales there, no ads. *notes there may be exceptions for intentional torts - Breyer: Stream of commerce + isolated sale + something more or regular flow of merchandise. No PJ b/c had isolated sale but not something more i.e. no intention, explicit desire to sell in NJ (advertising, state-­‐related design, advice). No regular flow of merchandise (only 4 machines). Suggests that size of company might make a difference [ Appalachian potter v. large corporate D ] - Ginsburg: Contact made/sold. Yes PJ b/c D targeted / purposefully availed themselves of US natl market (attendance at conventions, derived substantial revenue). Fairness and justice req. large companies to defend at place where products cause injury. DP, not state sovereignty, at issue in determining PJ. Natl contacts are increasingly common, PJ ok.
  4. If internet involved: a. Zippo test – translate virtual contacts into contracts framework, sliding scale (dated) (1) Passive, merely allow to post information (no PJ) (2) some interactivity (no PJ) (3) active, interactive elements that allow owners to “engage… with forum residents over the internet” i.e. advertising (yes PJ) BUY/SELL i. Provides little guidance, no limit to jurisdiction (active websites subject to PJ everywhere) b. Calder effects test – intentional targeting of wrongful conduct toward forum resident supports PJ [ PJ over FL publisher for publishing defamation article expressly aimed at celebrity in CA, knew “brunt of the injury would be felt” by P in CA ] i. (1) where is server based? (2) who is it marketed towards? (3) where does it draw its sources? (4) ties to forum state D argue – PJ min contacts analysis qualitative, not quantitative, and “quality” of these sporadic (too isolated or casual) contacts will probably be too low to establish PJ Step 2: Claim arises out of these contacts Step 3: Fair and reasonable, does not offend “traditional notions of fair play and substantial justice.” Consider (1) burden/inconvenience on D (2) forum state’s interest (3) P’s interest in obtaining relief (4) efficient resolution of controversies (witnesses, evidence etc.) (5) shared interest in substantive policy (fundamental social policies ex. interest in family harmony). [ Burger King ] a. McGee (1957) , increased transportation/communication has reduced inconvenience of D defending action in another state ] b. Note when min contacts in forum state, hard to prove unreasonable to subject D to PJ in forum state. D needs to make “compelling case” that other considerations make exercise of PJ unreasonable.
  1. Challenging PJ a. Direct attack : challenges to PJ in ct. where lawsuit filed i. Special appearance – D appears in court where original action brought w/ purpose of questioning PJ. D waives objection if raises any issues other than PJ. ii. 12(b)(2) – D may appear before answering merits of complaint and object to PJ; may raise other issues w/o waiving objection to PJ (more liberal)
  2. Either approach: objection must be made immediately or else lost b. Collateral attack : challenges to PJ in enforcing court (risky, only makes sense when D has no defense) i. D fails to appear in court where P filed initial suit; default judgment against D. P take judgment state where D lives or has assets and asks court to enforce judgment under Full Faith & Credit clause; “judgment on the judgment.” D appears in enforcing court and contents that original court’s judgment was invalid for lack of PJ and should not be enforced.
  3. In Rem and Quasi in Rem Jurisdiction – jurisdiction over property w/in state if property seized through attachment a. In rem – over property, as against all possible claimants known and unknown. PJ over property, not necessarily all claimants ex. clear title to real property, probate proceeding to settle estate b. Quasi in rem (type I) – about who owns property ex. disputes over property title c. Quasi in rem (type II) – know who owns it, about some other claim. Purpose not to resolve conflicting claims over property. Need attachment (property as hostage) i. Pennoyer (1878) – court has authority to exercise in rem / quasi in rem jurisdiction if asset at issue is w/in state and asset attached at outset of case ii. Harris (1905) – quasi in rem attachment of intangible asset, expansion beyond traditional roots which involved physical control of asset [ X owed Y who owed Z, attachment of X’s debt to Z appropriate through service in MD ] iii. Shaffer (1977) – quasi in rem of property merely “elliptical way” of asserting PJ over Ds. Seizing property at outset not enough [ Pennoyer ], need min contacts under Shoe [ derivative suit w/ attachment of DE common stock; corporate officers had no contacts, ties or relations to DE; dissent: officers voluntarily associated themselves w/ DE and purposefully availed of benefits of DE law]
  4. Service of Process – Establishes PJ over D and notifies D of case gives opportunity for D to appear and defend, Rule 4. Can be waived. *Need service of process for PJ but can service without PJ. Analyze separately!! a. Need “ notice reasonably calculated under the circumstances” [ Mullane ] b. Need to serve all Ds c. Must take reasonable steps in attempt to provide notice, if practicable to do so. If aware D did no get service, may need to try other steps. [ Flowers , house taken, maybe constructive service but no actual notice ] - Summons and complaint - W/in 120 days after complaint filed - By non-­‐party, 18+ d. 4(e) Serving individual – (1) state law (2) personal service (3) leave at house w/ person of suitable age and discretion who also lives there (4) authorized agent. Exceptions: minor/incompetent person, state law only. e. 4(h) Serving corporation, partnership – (1) state law (2) personal service to officer, managing or general agent, or other authorized agent f. Waiver of service – less expensive, gives D 60 days to respond. If D does not return waiver then must pay all costs of formal service, including attorneys’ fees

e. Forum non conveniens : If correctly filed, can dismiss for inconvenience but only when alternative forum exists and D waives SOL defense. Permissible even when law of foreign forum would likely give P less desirable remedy than P could get in fed ct. [ Piper Aircraft, crash in Scotland but decedents sued in US b/c law more favorable, dismissed ]. More reluctant to grant than §1404 transfer b/c hard on Ps (SOL). Balance private and public interest factors. Private interest factors: (1) D’s choice of forum (2) P’s choice of forum *typically given substantial weight (3) whether claim arose elsewhere (4) convenience of parties (5) convenience of witnesses (6) ease of access to sources of proof Public interest factors: (1) transferee’s familiarity w/ governing laws (2) relative congestion of courts (3) local interest in deciding local controversies at home PLEADING

  1. Complaint *each new complaint starts cycle anew – if amendment allowed, opposing party has same right to respond to amended pleading as original pleading (14 days) a. 8(a) includes jurisdictional statement (refers to SMJ), relief sought, short and plain statement of claim b. 8(b) can state alternate/inconsistent/contradictory claims c. 9(b) heightened pleading for fraud/mistake, state w/ particularity d. 11 – reasonable inquiry under the circumstances; all papers signed by attorney; sanctions for frivolous arguments, harassment, or lack of factual investigation
  2. Pleading standard Liberal pleading approach (adopted as part of shift from code pleading/common law pleading to notice pleading, consistent with liberal threshold in determining 12(b)(6)) a. Purpose – to set forth claim and give fair notice b. Form 11 – On date at place, D negligently drove motor vehicle against P. P injured. c. Conley (1957) – cannot dismiss unless appears beyond doubt that P could prove no set of facts in support of claim which would entitle him to relief d. Smith (2005) – application of Conley , P does not need to allege facts corresponding to each element; court can infer from facts that elements are satisfied, even if not explicit in complaint e. Leatherman (1993) – rejected heightened pleading standards that are not explicitly required by FRCP [ heightened pleading not req. for civil rights cases alleging municipal liability under fed statute, suggests discovery/MSJ should be used to weed out unmeritorious claims ] Twombly/Iqbal – shift to fact pleading; to survive 12(b)(6) must cross line from conceivable to plausible f. Twombly (2007) – rejects Conley , req. fact pleading; need factual allegations that plausibly (not conceivably) state claim for relief, no legal conclusions, “requires more than labels and conclusions, and a formalistic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true” [ class action alleging baby bell’s parallel conduct inferred agreement violating Sherman Act, could be consistent with common business strategies, complaint dismissed ] i. Note similarity to 11(b)(3) req. facts have evidentiary support or will after discovery ≠ 8(b) ii. Confusion re: Rule 8, Leatherman heightened pleading g. Iqbal (2009) – applies Twombly to all civil actions [ Muslim detained/beaten in prison; alleges detention policies were racial discrimination; pleaded conclusions that Ashcroft and Mueller knew and willfully/maliciously condoned policy, facts did not “plausibly” lead to this conclusion; dismissed ] h. Pros: helps control cost of discovery, return to practical

i. Cons: difficult to make non-­‐conclusory plausible allegations before discovery, relies on judicial expertise, judgment close to deciding facts that jury would decide j. Takeaways:

  • Subtract out conclusory (conclusions of law, court will ignore) *innovation
  • Assume well-­‐pleaded facts (non-­‐conclusory) as true
  • Draw all plausible (reasonable) inferences for P *ct will use own experience/common sense to determine plausibility, allows great discretion
  • Once draw reasonable inferences, are all elements either (a) pleaded or (b) inferred?
  1. Answer – allows parties to focus on what is actually in dispute a. 21 days after complaint or 14 days after pre-­‐answer motion denied b. Assert unwaived defenses c. Admit/deny/lack knowledge or info sufficient to form a belief (failure to deny = admission) d. Raise affirmative defenses 8(c); same pleading req. as complaint; do not waive if not raised in timely manner b/c can typically amend to include more ADs as long as no unfair surprise [ Ingraham ] e. Assert counter/crossclaim
  2. Pre-­‐Answer Motions 12 a. MTD 12(b); (1) lack of SMJ (2) lack of PJ (3) improper venue (4) insufficient process (5) insufficient service of process (6) failure to state a claim upon which relief can be granted (7) failure to join party under 19 i. 12(b)6) tests legal validity of P’s allegations (not factual disputes); rely on complaint, answer, and reply (if any); take well-­‐pleaded facts as true
  3. Failure to plead enough facts to meet Twombly/Iqbal
  4. Even if all facts are true, no law permitting recovery
  5. P pleads herself out of court (fatal fact, establishes affirmative defense) b. Motion for judgment on pleadings 12(c) *same standard as 12(b)(6) i. (1) D has AD in answer that is un-­‐rebuttable (2) D’s only AD destroyed by some element of the pleading c. 12(d) – 12(b)(6) or 12(c) + evidence outside pleadings = MSJ, apply standard no genuine issue of material fact d. Motion for more definite statement 12(e) – so vague or ambiguous , D must request defects complained of and details desired [ Matos , need not be literary gem ] e. Motion to strike 12(f) – insufficient defense or any redundant, immaterial, impertinent, or scandalous matter; needs to prejudice D i. P’s version of 12(6)(b); P has same opportunity to challenge legal sufficiency of D’s answer/affirmative defenses [ Reis Robatics ] f. Omnibus motion rule 12(g) – if party files pre-­‐answer motion, cannot make another 12 motion based on defenses or objections that were available when filed pre-­‐answer motion g. Waiver trap 12(h) – if do not object to 12(b)(2)-­‐(5) defenses, then waive i. *Must consolidate all 12(b)(2)-­‐(5) defenses into one motion or if no motion, answer (lack of PJ, improper venue, insufficient process, insufficient service of process) ii. *Can assert other 3 defenses later in litig. (until trial for 6, 7) iii. If any 4 defenses omitted, they are waived 12(b) motion to dismiss Can raise 1-­‐ 7 Answer Can raise 1, 6, 7 and 2-­‐5 [unless waived from earlier motion] 12(c) motion for judgment on pleadings Can raise 1, 6, 7 and 2-­‐5 [2nd^ time only] Trial 1, 6, 7 and 2-­‐5 [2nd^ time only]

a. 18(a) Party asserting claim, counterclaim, crossclaim, or third-­‐party claim may join, as independent or alternative claims, as many claims as it has against opposing party b. 18(b) This is ok even if claims arise out of completely unrelated events (contingent claims)

  1. Joinder of Parties 20 – Bringing legal claims against several parties together a. 20(a)(1) for P and 20(a)(2) for D – P (or D) can sue together (not required to and can sue for different relief) if: i. Assert claims that arise out of same transaction/occurrence and ii. Claims involve any common questions of law or fact to all Ps (or Ds) b. 42(b) court may order separate trials to prevent delay/prejudice c. 21 – Misjoinder not grounds for dismissing but can sever claims or add/drop parties [Holbein, denied motion to sever b/c claims against Ds arose from same transactions/occurrences and involved same questions of law/fact, P injured by same general policy, important to weigh burden on D v. judicial economy]
  2. Counterclaims 13 – vs. opposing party; encourages efficient resolution of all issues related to same transaction/occurrence *invoke §1367 if claim won’t stand alone a. 13(a) compulsory counterclaims – arises out of same transaction/occurrence that is subject matter of opposing party’s claim and does not require adding another party over whom court cannot acquire jurisdiction and when action commenced compulsive counterclaim was not subject matter of another pending action i. Use it or lose it (waive); claim preclusion ii. Logical relationship test for determining same transaction/occurrence *narrower than t/o test
  3. Are issue of fact/law raised in claim/counterclaim largely the same?
  4. Would issue preclusion bar subsequent on party’s counterclaim, absent compulsive counterclaim rule?
  5. Same evidence, witnesses to support/refute claim and counterclaim?
  6. Logical relationship b/t claim and counterclaim?
  7. *Focus on underlying events giving rise to litig. b. 13(b) permissive counterclaims – whatever party wants, everything else *need independent basis for jurisdiction (SMJ or DJ) c. If counter/crossclaim then other party MUST assert compulsory counterclaims *Can 13(a) crossclaim or implead (14) and then add additional claims 18(a). If additional claims are state claims, need supplemental jurisdiction i.e. additional claims need to be part of same case/controversy under Article III ( Gibbs standard, same case/controversy, common nucleus of operative fact).
  8. Crossclaims 13 – vs. party on your side *invoke §1367 if claim won’t stand alone a. 13(g) may assert crossclaims against co-­‐party arising from same transaction/occurrence that is subject matter of original action or counterclaim or claim relates to any property that is subject matter of original action
  9. Impleader 14 – D can assert claim against non-­‐party who may be liable to D (contribution for some damages, indemnification for all damages) *invoke SJ if claim won’t stand alone a. Can implead non-­‐party who is/may be liable for all of part of the claim b. 14 days after answer, or else motion c. P cannot implead alternative target for P or seek damages that D may have suffered from underlying issue d. 4 factors: (1) timeliness of motion (2) potential for complication of issues at trial (3) probability of trial delay (4) whether P may be prejudiced by addition of parties [ Erkins, Case sought to implead Fitzpatrick, ok b/c claim arose out of “all or part of claim” and satisfied 4 factors]

e. Third party P = party asserting impleader claim; third party D = party brought in; third party complaint = impleader complaint f. Original P options: i. 14(a) may assert claims against third party D that arise out of same transaction/occurrence. Then third party D can respond w/ defenses, counterclaim or crossclaims g. Third party P options: i. Join other claims against third party D h. Third party D options: i. May/must assert counterclaims against third party P ii. May assert claims against original P arising out of same transaction/occurrence iii. May assert defenses to original P’s claim iv. May implead new parties v. Must assert defenses under Rule 12 i. Third parties need PJ and SMJ!! Third party doesn’t need proper venue *Impleader (14) claims are contingent on original claims against D. If original claim is wiped out then impleader claim gone too.

  1. Required Joinder 19 *joint tortfeasors never required a. Step 1: Is absentee required (indispensible) party? i. Court cannot accord complete relief among existing parties w/ person’s absence, or ii. Absentee claims interest relating to subject of action w/ conditions that might:
  • Impair/impede person’s ability to protect that interest or
  • Create double obligations b. Step 2: Is joinder feasible? i. If feasible, must join ii. Infeasible if:
  1. Absentee not subject to PJ where suit brought
  2. Joinder of absentee will destroy complete diversity (negates SMJ)
  3. Joinder of absentee makes venue improper (if absentee from different state than D) c. Step 3: If not feasible, decide whether to continue or dismiss, 12(b)(7)? Factors in 19(b): i. Risk of prejudice to absentee or other parties if case goes forward ii. Ways to lessen such prejudice by fashioning judgment iii. Whether judgment rendered in person’s absence will be adequate iv. Whether P will have adequate remedy if action is dismissed for nonjoiner (most weight, should not dismiss unless alternative forum) v. *Court can also limit scope of judgment in order to prevent dismissal but satisfy 4 factors [ Torrington, MTD for failure to join, employer was required party, not feasible to join (would destroy DJ), should be dismissed b/c failed to satisfy 4 requirements]
  4. Intervention 24 – party “stranger to suit” but resolution of case likely has significant practical effect on non-­‐party [ Ford Motor, railroad tracks critical to operation ]. Broader than 20. Need PJ! *can intervene as P or D, can block settlement a. Timely motion to intervene, factors (1) stage of lawsuit (2) purpose of intervention (3) when you knew (4) prejudice to original parties b. 24(a) intervenors of right (court must let intervene) i. Fed statute or ii. Applicant has interest in transaction or property + disposition will impair his interest – no existing party can adequately represent interest c. 24(b) permissive intervenors (court may let intervene) i. Fed statute ii. Claim/defense that shares w/ main action a common question of law/fact (broad standard) iii. Only if participation will not unduly delay or prejudice adjudication of original parties’ rights

iii. District court has dismissed all claims over which has original jurisdiction (and only state claim remains) iv. Other compelling reasons (exceptional circumstances) First, does court have original jurisdiction. Then, is there independent SMJ over second claim (DJ/FQ)? No, then: CLASS ACTIONS – One or more class members litigate actions on behalf of class of persons w/ similar interests. Reduces cost of litigation and makes lawsuit financially viable (not negative value suit). *Can have class of Ds.

  1. Requirements, 23(a) a. Hansbury (1940) – DP concerns, class action binding on all members. Need (1) shared interest (2) adequate representation and (3) procedures [ binding judgment in Burke deprived Ps of DP ] b. Implicit requirements:

i. Sufficiency of class definition (ct doesn’t have to speculate) ii. Whether proposed reps satisfy definition c. Explicit requirements i. Numerosity – so numerous that joinder impracticable ii. Commonality – common questions of law/fact, does not req. all or even most questions in common iii. Typicality – claims/defenses of rep. parties are typical of claims/defenses of class iv. Adequacy of representative – rep. parties will adequately and fairly protect interests of class

  1. Types of Class Actions 23(b) a. 23(b)(1) prejudice class action; cannot opt-­‐out and may provide individual notice; prosecuting separate actions would create risk of: i. Incompatible standards of conduct on D ii. Impair/impeding ability to protect interest of P, limited fund (has to really be limited) b. 23(b)(2) injunctive/declaratory relief, cannot opt-­‐out and may provide individual notice i. Injunctive relief primary relief sought (money damages incidental) ii. Cohesiveness, preexisting or continuing legal relationship or significant common traits ex. race/gender c. 23(b)(3) damages/catch-­‐all, can opt-­‐out initially and at settlement and must provide individual notice i. Common questions of law or fact and class action superior to other methods for fairly/efficiency adjudicating controversy ex. mass tort ii. Predominance : most or all common questions predominant ((stricter than 23(a)); (1) requires same proof (2) bound by mutual interest (3) resolution of common interests would significantly advance litigation (4) one or more common issues constitute significant parts of each class members’ individual case (5) common questions central to all members’ claims (6) same theory of liability asserted by or against all Ds iii. Superiority : class is superior method for resolving dispute (1) class members’ interest in individually controlling prosecution/defense of separate actions (2) extent and nature of any litig. concerning controversy already begun by or against class members (3) desirability of undesirability of concentrating litig. of claims in particular forum (4) likely difficulties of managing class action Class Definition Policy Objective Practical Application 26(b)(1), prejudice class action -­‐mass version of 19 -­‐cannot opt-­‐out -­‐may provide individual notice Avoid inconsistent decisions or impair/impede interests of class members Limited fund cases, if suits brought individually first P takes everything. Class action protects against this. 26(b)(2), injunctive/decl aratory relief -­‐no $ damages (or incidental) -­‐cannot opt-­‐out -­‐may provide individual notice Protect rights where large numbers of persons are affected, need cohesiveness, preexisting or continuing legal relationship or significant common traits Civil rights cases, ex. race/gender 26(b)(3), damages, catch/all -­‐$ damages -­‐must present common questions of law or fact ( predominance of common questions) -­‐must be superior to other available methods -­‐must provide individual notice (P bears cost) Judicial efficiency, allows relief where individual P could not economically pursue action (negative value suits), only effective method of deterring D’s behavior Where nobody would sue individually (minimal damages) but makes sense as class. [ Synfuel Tech ]

Court has power to manage discovery, but generally done by parties through:

  • Required initial disclosures, 26(b)
  • Duty to supplement, 26
  • Doc production requests, 34
  • Rules to enforce discovery orders, 37 P files motion to compel production (or sanctions) D has several options. Note there are no silent objections in discovery!
  1. Properly requested? Does it comply w/ all rules, discovery order, any protective orders?
  2. Within scope of discovery? 26(a)
  3. Object on grounds of undue burden or expense
  • E-­‐discovery need not provide if undue burden or cost [ McPeek, searching DOJ tapes ]
  • 26(b)(2)(c) 3-­‐part test for objections: (1) unreasonably cumulative or duplicative (2) ample opportunity to obtain info by discovery (3) burden or expense > benefit
  1. Counter w/ protective order 26(c)
  • Certification that movant has in good faith conferred or attempted to confer w/ other affected parties
  • Can protect from annoyance, embarrassment, oppression, or undue burden or expense
  1. Object based on privilege 26(b)(5)
  • Ex. attorney-­‐client privilege ; communication made b/t persons in confidence for purpose of obtaining or providing legal assistance for the client; protects content of discussions not facts (i.e. identity of witnesses or existence of documents); note some states apply control group test
  • Need to expressly state claim and describe nature of documents, privilege log
  • Exception: if privilege is controversy
  1. Object based on work-­‐product doctrine [ Hickman , protects compilation and selection of work product, attorneys’ added value , intangible things ex. interviews also protected but not in rule] *does not need to be generated by attorney
  • 26(b)(3) May not discover (1) documents and tangible things (2) prepared in anticipation of litigation or for trial (doesn’t include general business records, 3 approaches) (3) by or for another party or its representatives
  • Rebut by showing good cause i.e. substantial need for materials, cannot obtain equivalent of work produced by other means and inability to discover will create undue hardship (i.e. witness died, evidence gone)
  • Still must protect against disclosures of mental impressions, conclusions, opinions or legal theories of party’s attorney , also previous statements (absolute immunity, will be protected even if substantial need)
  • Note testifying experts (“hired guns”), req. disclosure of identify and expected testimony v. non-­‐testifying experts, protected from discovery, role is to help attorney understand difficult facts; unbiased expert?
  • Policy rationale: (1) efficiency, don’t want lawyer to fear discovery and writing things down before trial (2) accuracy, if lawyer can’t prepare for trial, outcomes suffer (3) entrepreneurial spirit, why pay attorney if can’t perform to best of ability? (4) don’t want other lawyers riding on coattails (5) don’t want lawyers ending up as witnesses for own cases
  1. Methods of Discovery

Filing  service  26(f) meet & confer  [14 days] 26(a)(1) required disclosures + 26(f) discovery plan  [ days] 16(b) scheduling conference and order

  • Scheduling order due: (1) 90 days after appearance of D or (2) 120 days after complaint served on D
  • Scheduling order due: 21 days after 26(f) meet and confer a. Informal Investigation , 11 – make reasonable inquiry before filing complaint b. Meet and Confer , 26(f) – discuss discovery plan, time limits, case management schedule, claim/defenses, settlement c. Required Disclosures 26(a), cheap starting point + discovery plan 26(f) i. Initial disclosures, must provide with info that is reasonable available to party: - Name, address, telephone of all individuals likely to have discovery info, along w/ subject of info that disclosing party may use to support its claims or defenses - Copy (or description) of all documents that disclosing party has in its possession - Computation of each category of damages by disclosing party - Any insurance agreements ii. Don’t need to make prior to judgment or dispositive motions if “no useful purpose” in making disclosures [ Flores , no reason to delay disclosure of insurance agreement] iii. Prior discovery disclosures must be supplemented if found to be materially incomplete/incorrect, or if additional/corrective info has been made iv. Expert testimony – need to disclose expert disclosures at least 90 days before trial v. Trial evidence – need to provide evidence of what will present at trial at least 30 days before trial vi. Why? (1) prevent surprise and (2) enable objections vii. 26(g) sign disclosures and discovery requests to ensure complete, correct, and not unduly burdensome d. Scheduling Conference and Order 16(b) judge present, someone to authorize stipulations or potential settlement, modify only for good cause w/ judge’s consent (managerial judging) e. Interrogatories , 33, cheap, identify/locate evidence i. Questions to other parties, limited to 25 Qs ii. Request in writing iii. If corporation, info available to the party iv. Answer under oath in 30 days / object in writing; can produce business records instead (advantage: shifts cost; disadvantage: P could find something else) v. Can object to pure questions of law; cannot object to info about party’s application of law to fact f. Depositions , 30 (oral, follow-­‐up, spontaneous or candid evidence from witnesses) & 31 (written, simple Qs that require no follow-­‐up, cheaper) *for party OR non-­‐party (subpoena) i. Oral or written questions under oath to any person or organization ii. Written notice to all parties, compel w/ subpoena for non-­‐party deponents (for PJ)
  1. Service by non-­‐party 18+, delivery to person, w/in district of issuing court or outside district but w/in 100 miles or state statute or court authorization
  2. Move to quash or modify subpoena, 45
  • Required: (1) fails to allow reasonable time to comply (2) non-­‐party to travel 100+ miles (unless maybe still w/in state, then ok) (3) disclosure of privileged info (4) undue burden
  • Discretionary: (1) un-­‐retained opinion

What record? Law + well-­‐ pleaded allegations in complaint Law + well-­‐ pleaded facts in complaint, answer and reply (if any) Law + undisputed facts from discovery Law + all facts from P’s case Law + full trial record Law + full trial record Who can file? Only D P and D P and D Only D P and D P and D

  1. Voluntary Dismissal 41 a. P can notice dismissal, 41(a)(1), usually without prejudice unless second voluntary dismissal, then with prejudice and operates as adjudication on merits (claim precluded) i. Before opposing party serves answer or MSJ or ii. Stipulation by all parties iii. [ In re Kitchen & Bath Fixtures Antitrust Litig., putative class noticed voluntary dismissal, Ds objected as untimely, court found timely b/c D had not filed answer or MTD and MTD ≠ MSJ under 12(d)] b. P can move for voluntary dismissal, 41(a)(2), without prejudice i. Court decides w/ discretion ii. Aims to avoid plain legal prejudice when D has spent significant time, effort and expense iii. Courts factor: (1) stage of litigation (2) numbers of papers filed (3) number of pretrial conferences (4) prior hearings adverse to P’s position (5) number of hearings (6) if parties have undertaken substantial discovery
  2. Summary Judgment 56, last gate-­‐keeping function before trial, whether claim could go to jury? Use when material facts not in dispute, all that remains is to apply the law. Notice pleading vague, 12(b)(6) don’t weed out meritlesjurs claims. a. Challenge party’s ability to prove allegations before lawsuit; determine whether there is a genuine dispute of material fact (i.e. fact related to the issue) and if not, whether moving party is entitled to judgment as a matter of law on undisputed facts b. Standard = genuine dispute of material fact; whether any reasonable-­‐fact finder could decide an issue as matter of fact for non-­‐moving party c. 30 days after close of discovery; judge can grant in whole/part d. How lawyers make MSJ: i. Defendants – attack one of P’s key essential elements w/o which he wouldn’t have a case ( disproof of 1 element, absence of proof ) [ Slaven, prisoner committed suicide, D showed P had no proof to show duty ; DuPlantis, P slipped on board, D showed P had no proof re: ownership of board ] ii. Plaintiffs – must show all undisputed facts supporting each and every essential element of claim ( proof of the elements – P, must present undisputed facts supporting each and every element of claim iii. Set out specific facts by citing to materials in record and support w/ affidavit (personal knowledge); can also support w/ depos, answers to interrogatories, admissions iv. *Opposing party must respond w/ countervailing evidence in order to avoid entry of judgment against him; can’t just reiterate allegations in complaint – need proof! e. How does court decide? i. What substantive law applicable? ii. Which facts are material? iii. What evidence about material fact is in record? iv. Has non-­‐movant successfully rebutted? v. What is proper disposition? f. How courts review?

i. Review record as whole ii. Do not determine credibility of witnesses or weigh the evidence iii. Draw reasonable inferences in favor of non-­‐moving party g. Three options for what courts can find: i. The jury could not find for P – no genuine issues of material fact, SJ granted ii. The jury could either find for P or D – genuine issue of material fact (evidence is contradictory), goes to jury, SJ denied iii. The jury must find for D – no genuine issue of material fact, SJ granted h. Policy rationales: i. Pro: Req. Ps to reveal factual basis for conclusory allegations before trial, thereby having time and $ for court. Weeds out cases that are factually frivolous even after discovery ii. Con: P’s DP right to day in court under 7A

  1. JMOL i.e. directed verdict 50(a) a. If party has been fully heard on issue during jury trial, other party can file motion for JMOL at any time before case submitted to jury; can file on partial issue a. Standard = reasonable jury would not have legally sufficient evidentiary basis to find for the party on that issue by a preponderance of the evidence *same as MSJ (test verdict for sufficiency) (1) Note, some states apply scintilla approach = consider only non-­‐moving party’s evidence even if non-­‐ moving party has offered mere scintilla of evidence in support of position (stricter, harder to win JMOL) b. Judge considers jury (RPP) would conclude evidence sufficient to support verdict (1) without weighing credibility of witnesses or (2) otherwise considering weight of evidence [ Chamberlain, brakeman killed, JMOL granted b/c evidence so overwhelmingly on RR’s side as to “leave little room to doubt what fact is” ] c. Burden of production – P must produce enough evidence that jury (RPP) could find elements must prove are met d. Burden of persuasion, preponderance of evidence – P must provide enough evidence that jury (RPP) would find for P
  2. Renewed JMOL i.e. JNOV 50(b) *same standard as JMOL a. After trial, party can file motion for renewed JMOL no later than 28 days after entry of judgment b. Cannot renew unless made 50(a) motion that raised same issue [ Trievedi, D failed to preserve 50(b) motion for hostile work environment claim b/c did not file 50(a) motion ] c. May include alternative or join request for new trial (59) d. Courts typically deny 50(a) motions over 50(b) motions i. If appeal and remand for retrial w/ 50(a) expensive, time-­‐consuming retrial vs. 50(b) judge will only need to enter judgment based on jury’s original verdict
  3. Jury Trial a. 7A – suits at common law, value in controversy > $20, right to trial by jury shall be preserved. Historical test preserves right to jury as existed in England 1791. Doesn’t bind to exact procedures. Look to origins of claim and remedy requested (greater emphasis) and case will be tried in appropriate ct. i. Equity = injunction, declaratory relied, accounting – JUDGE ii. Law = $ damages, return of property – JURY b. FRCP 1938 merged law and equity c. Determine jury issue by issue. If issue of fact underlies law and equity, get jury. Try jury issues first. d. Dairy Queen – jury goes first!! If issue w/ overlapping facts involves legal and equitable claims, trial should be structured so that jury determines issues common to both claims. Judge will then follow jury’s findings on those issues if they are also relevant to equitable claims in action. Note expansion of right to jury trial