Civil Procedure II: Schwarzschild Outline 1































ISSUE PRECLUSION – Collateral Estoppel 42





-          M.K. v. Tenet

o   In proposed second amended complaint, π added nine named πs and providing information about existing claims to cure deficiencies in the original complaint

§  Δ moved to sever the claims of the initial 6 πs under FRCP 21

o   Under Rule 18, joinder of new claims is possible.

§  Rule 18(a) A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

-          FRCP 18 removes all obstacles to joinder of claims and permits the joiner of both legal & equitable actions

o   Only restriction on the claims that may be joined is imposed by SMJ requirements.

§  However, Supplement jxdn doesn’t apply to a claim joined w/another under Rule 18(a). Must preserve SMJ!!!

o   Joinder is permitted, never required, BUT if a π doesn’t join all claims arising out of the same transaction, res judicata will prohibit any future claims relating to that transaction.

§  Ex. if A and B involved in car accident where A suffers bodily injury and damage to car

·         Risk of res judicata will typically lead A to join both claims in one action, even though FRCP 18 doesn’t require her to do so. 

o   FEDERAL QUESTIONS CLAIM: If original claim against particular Δ was a federal question claim, a non-federal calim could not be joined to it under 18(a)m unless either diversity exists or two claims are closely related so that the supplement jxdn applies.

o   SUPPLEMENTAL JXDN: If the initial claim against particular Δ is possible only b/c court’s supplement jxdn, there may be problems w/joinder of claims.

§  Ex. Δ’s claim against X is worth less thatn $75K and is allowed only b/c the counterclaim was compulsory and \ within court’s supplement jxdn. An add’t claim against X, which together with the counterclaim doesn’t aggregate to $75K, it’s not joinable.

o   FRCP 18 works w/Rule 15 [Amendment of pleadings] and Rule 20 [joinder of parties], collectively known as “packaging devices”

§  All work to promote trial convenience and efficiency

-          Sporn v. Hudson Transit Lines

o   Attempt to joint 5 COA for negligence with 1 COA for malicious prosecution

§  COA for negligence and malicious prosecution are essentially different in nature.

§  Joinder of claims should not

·         (1) confuse the jury or

·         (2) prejudice the jury


-          Didn’t exist at common law

-          Underlying philosophy: common sense view that someone shouldn’t be compelled to pay one moment what he will be entitled to recover back the next = recoupment

-          Permissive Counterclaims

o   Rule 13(b) says it’s up to Δ’s discretion of “any claim...not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.”

-          Compulsory Counterclaims

o   Rule 13(a) says if a claim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim, then it’s compulsory. Must be brought up in Δ’s pleading

o   Exceptions

§  Rule 13(a) Claims by Δ which for “just adjudication” require the presence of add’t parties of whom the court cannot get personal jurisdiction

§  Rule 13(a)(2) Claims in which the suit against Δ is in rem or quasi in rem (assuming Δ is not making any other counterclaim in the action)

o   Default by π: if Δ asserted a counterclaim and the π doesn’t reply or move against the counterclaim, default judgment against π will be issued.

-          US v. Heyward-Robinson Co.

o   Navy (federal) and Stelma (non-federal) subcontracts for construction jobs. D’Agostino sued Heyward to recover payments alleged to be due on the Navy job. Heward answered denying liability on the Navy Job and counterclaiming for alleged overpayments and extra costs for completing the Navy and Stelma jobs.

o   Issue: Does the federal court have jurisdiction over the counterclaims on the Stelma job?

o   Rule: Under 13(a), a counterclaim is compulsory “if it arise out of the transaction or occurrence that is the SMJ of the opposing party’s claim

§  Courts should give the phrase “transaction or occurrence that is the SMJ” broad realistic interpretation in the interest of avoiding multiplicity of lawsuits.

o   Holding: the counterclaims were compulsory within the meaning of Rule 13(a)

o   Rationale:

§  There was a close and logical relationship btw the claims of the Navy and Stelma jobs.

·         Stelma counterclaims arose out of the same “transaction or occurrence”

·         Single insurance policy covered both jobs.

o   Conclusion: Stelma counterclaims were ancillary to the claims asserted in the complaint over which the Federal Court acquired jurisdiction.

o   Concurrence (Friendly): Counterclaims are not compulsory, but believed it shouldn’t be dismissed on the ground that permissive counterclaims need not have an independent jurisdictional basis.

-          Suggested Four Tests for determining whether claims comprise the same transaction for purposes for FRCP 13

o   Are the issue of and law raised by the claim and counterclaim largely the same?

o   Would res judicata bar a subsequent suit on Δ’s claim absent the compulsory counterclaim rule?

o   Will substantially the same evidence support or refute π’s claim as well as Δ’s counterclaim?

o   One compelling test of compulsoriness: Is there any logical relation btw the claim and the counterclaim? (Must be enough common evidence to support claim & counterclaim)

-          Counterclaims by 3rd Parties

o   Any party may make a counterclaim against any opposing party.

o   3rd party Δ: may counterclaim against either the original Δ or against the original π (however, a claim by the π against the 3rd party Δ must first have been made)

o   Π’s counterclaim: π can have a counterclaim to a counterclaim. The counter-counterclaim is compulsory if it arise from the same transaction or controversy. Δ’s counterclaim is a claim under Rule 8(a), so any other “opposing party” arising out of the same transaction or occurrence, is a compulsory counterclaim under Rule 13(a)

-          USC §1367

o   Compulsory counterclaim to a fed. action is within the fed. ct’s supplemental jurisdiction and requires no independent SMJ grouds

§  Permissive counterclaims are not supplemental and must satisfy fed. SMJ

o   (a) provides supplemental jurisdiction over claims that are part of “the same case or controversy under Art. III” as the π’s claim.

o   (b) places a limit on πs seeking supplemental jurisdiction for a claim when SMJ is based on diversity.

-          Note on Consequences of Failing to Plead a Counterclaim

o   Rule 13(a) doesn’t say what the consequences are for failing to raise a compulsory counterclaim, but failing to state a compulsory counterclaim will bar the claim in future litigation

§  Unclear if this is precluded by rules of res judicata or implied provision of Rule 13.

o   Rule 13(f)

§  Safeway Trails Inc v. Allentown & Reading Transit Co.: leave to amend was granted when the excuse for failing to plead a counterclaim was that Δ’s lawyer hadn’t read the FRCP.

o   Hypo: if Δ failed to raise counterclaim in diversity case in federal court, can Δ bring the claim in state court before the federal claim is terminated?

§  Fantecchi v. Gross: Federal courts can’t enjoin state courts counterclaims since Rule 13(a) does not create another statutory exception to policy of noninterference by federal court with state court action.

o   Spectacor Management Group v. Brown: Δ elected not to file a motion to dismiss for lack of jurisdiction, but asserted a compulsory counterclaim in response to the complaint.

§  Amount of that counterclaim should be considered in determining whether the amount-in-controversy threshold had been met by the π.



-          Rule 13(g) allow party to make, in certain situations, a claim against a co-party, such as a co-Δ or co-π. Counterclaim is a claim made against an opposing party.

-          Requirements

o   Claim must have arisen out of “the same transaction or occurrence that is the subject matter of the original action or of a counterclaim therein,” or else relate to property that is the subject matter of the original action. Rule 13(g)

o   Cross-claim must ask for actual relief from the co-party against whim it is direct.

§  Δ can’t say he’s blameless and co-Δ is liable. That’s not a cross-claim. Must ask for relief.

-          Jurisdiction

o   Cross-claims are within the supplement jurisdiction of the court \ need no independent jurisdictional grounds. Not can a cross-claim affect venue.

-          Lasa Per L’Industria Del Marmo Societa Per Azioni v. Alexander

o   City of Memphis hires Southern Builders, bonded by Continental Casualty; Marble subcontractors: Alexander; Lasa: to supply marble

o   Lasa sued Alexander and Alexander counterclaimed Lasa. Southern counterclaimed against Lasa and Alexander cross-claimed against Southern and Southern counterclaimed against Alexander. Alexander filed a 3rd party complaint against the architects.

o   Holding: All cross-claims are permissive; generally, failure to raise them does not bar suit in a subsequent action

o   Rationale: Rule 13 & 14 are remedial and are construed liberally. Intended to avoid circuitry of action and to dispose of the entire subject matter arising from one set of facts in one action \ administering complete and evenhanded justice expeditiously and economically.

o   Dissent: Cross-claims are not related to the original claim and the counterclaims and there is no identity of the many factual issues involved in the original claim and counterclaims, and in the cross-claims.

-          Who counts as a coparty for the purposes of Rule 13(g)?

o   Earle M. Jorgenson Co. v. T.I. US LTD:

§  Δ filed impleader against 3rd party Δ, Tosti. Another Δ, Reed, cross-claimed against Tosti and Tosti argued the as 3rd party Δ and Reed were no coparties under Rule 13(g).

§  Holding: Reed and Tosti are coparties under Rule 13(g) and \ the original Δ could cross-claim against Tosti.

§  Rule: “Opposing parties” are “parties that formally oppose each other on a pleaded claim, such as πs and original Δs, or 3rd party πs and the 3rd party Δs they have joined.

o   Murray v. Haverford Hospital Corp. defined coparties as “parties having like status, such as, co-defendants”.


-          Rule 20 allows π in certain circumstances to a) join other πs w/herself, or b) make several parties co-Δs to her claim.

-          Requirements

o   Their claims for relief must arise from a “Single transaction or occurrence or series of transactions or occurrences;” and

o   Must be a question of law or fact common to all πs which will arise in the action. Rule 20(a)

§  Common question of law or fact must be of substantial importance to all the claims

o   Each π must be voluntary

o   Δs may be joined if the claims against them satisfy the same 2-prong test for πs-joinder rule. Rule 20(a).

§  Π or πs have the option to join multiple Δs

o   Judicial discretion: Under Rule 20(b), court can arrange the proceedings so as not to cause undue inconvenience or prejudice to any party (e.g. separate trials)

-          Jurisdiction

o   In personam: Where joinder of Δs is involved, the requirements of in personam jxdn must be met with regard to each Δ individually

§  All Δs must be personally served

§  Each Δ must have minimum contacts with the state

§  Long arm limitations of the state in which federal court sits

o    SMJ

§  Diversity must be complete

§  Aggregation: The rules aren’t explicit

§  Supplement jxdn generally doesn’t apply to Rule 20 joinder of multiple πs.§ 1367(b)

o   Venue: easiest way to satisfy this is bringing suit in a district which a substantial part of the events giving rise to the claim occurred

-          M.K. v. Tenet

o   Issue: Δ requests a motion to sever

o   Two-prong test of Rule 20(a)

§  Transactional test”: claims are logically related even that the court can regard as arising out of the same transaction, occurrence or series of transactions or occurrences.

§  Claims are related by a common question of law or fact.

o   Holding: Motion to sever denied.

o   Rationale

§  The policy underlying Rule 20 is to promote trial convenience, expedite the final determination of disputes, and prevent multiple lawsuits.

-          Tanbro Fabrics Corp. (buyer) v. Beaunit Mills Inc. (seller)

o   Seller sued buyer, buyer counterclaimed. Seller sued processor, Amity, and Amity counterclaimed. Seller brought another action jointly against Buyer and Processor. Buyer moved to consolidate the 3 actions.  Seller and buyer don’t want to consolidate b/c they believe they had a separate and different relationship to the buyer with separate and independent Ks. (i.e. not involved in the “same transaction or occurrence”)

o   Holding: Rule 20 should be read broadly to allow the joinder.

o   Rule: There does not need to be an identity of duty or contract between the parties being joined. Rather, the court may grant joinder at its discretion if the claims are logically related.

o   Rationale

§  Alternative liability arise out of a common transaction or occurrence involving common questions of fact and law.

§  The right of joinder is always counterbalanced by the power of the court to grant a severance, or to dent a consolidation, if prejudice or injustice appears.

-          Where 1 of 2 people are liable but the π isn’t certain he can make a case against either, the opportunity to join them as Δs is a tactical strategy.

o   It’s not unfair to require each of the Δs to assume a risk of a failure to show that he was not responsible.

o   Even if the court feels like a prima facie case hasn’t been against one of the co-Δs, it should at least reserve that decision until after the defense rests.


-          Two categories of compulsory joinder:

o   “Necessary parties”: Parties whose joinders, if possible, is required by Rule 19(a)

§  1) service must be validly made on them, and

§  2) their joinder wouldn’t destroy diversity 

§  Must meet one of two tests:

·         Incomplete relief: In the person’s absence complete relief cannot be according amount those already parties Rule 19(a)(1)

·         Impaired Interest: A judgment in the person’s absence will either 1) as a practical matter impair an interest the person has, or 2) impose on some of the existing parties “double, multiple, or otherwise inconsistent obligations Rule 19(a)(2)

o   “Indispensable parties”: Parties who are so vital that if their joinder is impossible, the whole action must be dropped. Rule 19(b)

§  Assuming that the absentee meets the test of 1) & 2)  above, the court then determines whether that absentee is in fact indispensable.

·         1) The extent of prejudice to the absentee, or those already parties

·         2) The possibility of framing the judgment so as to mitigate such prejudice

·         3) Adequacy of remedy that can be granted in his absence

·         4) Whether the π will have an adequate remedy if the action is dismissed

-          Jurisdiction

o   Watch out for party that destroys diversity, has a claim that doesn’t meet the amount in controversy, or if party is beyond the personal jurisdiction of the court.

o   Supplement jxdn:

§  If party is joined as Δ under Rule 19(a) and isn’t diverse w/all πs, or if the claim against her doesn’t meet the amount in controversy requirement, supplement jxdn DOESN’T APPLY to overcome these defects. This is explicit in § 1367(b)

-          Provident Tradesmen Bank & Trust Co. Patterson

o   Car accident. Dutcher owned the car, but wasn’t involved in the accident. Cionci was the driver. Lynch & Harris were passengers. The car hit a truck driven by Smith. Smith, Lynch, and Cionci died. Harris was severely injured.

o   3 tort actions

§  Provident Tradesmen Bank & Trust (administrator of Lynch) sued Cionci in diversity action

§  Smith’s estate and Harris brought suit against Cionci in a state court action.

·         Provident needs to find fund to satisfy that potential liability. (Cionci is broke.)  Fortunately for Provident, Dutcher had a $100K insurance policy on his auto with Lumbermen’s Mutual, covering 1) the liability of anyone driving with Dutch’s permission or 2) vicarious liability as a principal.  But Lumbermens declined to defend Cionci’s estate in the first suit on the grounds that Cionci was not covered by the insurance policy as he was on a frolic at time of accident, and \ Dutcher had not given the necessary permission.  Thus, Provident (π) brought this diversity suit based on its claim from the 1st action:

o   Asking for a declarative judgment that Dutcher had given Cionci permission to use his car.  Harris and Smith’s estate were joined as π’s.  All π’s were residents of PA.  Dutcher was also PA resident. Dutcher was not joined as a Δ.

§  Harris (π) + Smith (π) + Lynch Provident (π) v. Lumbermens

o   Held: Dutcher necessary but not indispensable

§  Dutcher couldn’t be joined as Δ w/out destroying diversity

o   Rule 19(b) [acts to protect judgments from post-trial tactics to have the judgment dismissed for lack of indispensable parties.  (e.g. if missing parties would destroy diversity jurisdiction, then the losing party could move addition which would lead to dismissal after the judgment.)]. If above person cannot be made party (i.e. b/c of p.j. smj or venue), court should determine whether in equity and good conscience it should proceed with parties before it or whether it should dismiss, absent party being regarded as indispensable.

o   Rule 19(b) Analysis

1.      The Ps interest  :

a.       Will P have another adequate remedy if dismissed?

b.      Can state court hear the case if fed dismisses?

c.       Does state sol bar the suit?

2.      Ds interest in avoiding multiple litigation, multiple liability or inconsistent relief.

3.      The interests of the absentees:

a.       Will 3rd part interests be affected in a practical way?

If a person is not a party to suit, won’t be bound: a judgment is not res judicata as to, or legally enforceable against nonparty.  But a judgment might have practical effects on nonparty.

b.      Can relief be shaped to avoid this problem? ($/injunctive: Warner)

4.      The public interest in efficiency:

a.       If there is a forum where all the parties can be joined in one suit then P should go there.

Note: These factors are implicit in 19(b).  Final analysis is a Balancing Test.

o   Prej. to Dutcher since other suits by other injured parties might be brought against Dutcher and this suit might diminish the insurance fund available for those suits, but the prej. was minimal since unlikely any future suits be brought and Dutcher as nonparty wouldn't be i.p. on permission issue.


-          General

o   Rule 14(a): A Δ alleging that a third person is liable to him “for all or part of π’s claim against him” may implead such a person as a 3rd party Δ.  The Δ becomes a 3rd party π.

o   3rd part π can’t claim that the 3rd party Δ is the only one liable to the π and that he isn’t liable at all. 3rd party π’s own liability is a prerequisite for throwing liability on the 3rd party Δ.

§  Alternative Pleading: 3rd party π isn’t precluding from claiming in an alternative pleading that neither he not the 3rd party is liable

o   No leave of court is necessary if the original Δ serves 3rd party summons and complaint upon 3rd party Δ within 10 days of the time the original Δ served his answer to π’s claim.

§  Otherwise, leave of court is necessary. Rule 14(a)

-          Impleader by Π

o   Π against whom a counterclaim is filed may implead a 3rd person who is liable to him for the counterclaim. Rule 14(b)

-          Jurisdictional requirements

o   Rule 4(k)(1)(B) allows service of 3rd party complain anywhere within the 100-mile bulge surrounding the courthouse, even if the place of service is outside the state, and is beyond the scope of the local long-arm statute

o   Supplemental Jurisdiction

§  3rd party claim falls within the court’s supplement jxdn.

o   Venue: If venue is proper btw the original parties, it’s valid no matter where the residence of the 3rd party Δ is. However, if this would result in a great inconvenience to a 3rd party Δ, the court may refuse to allow the impleader at all.

-          Claims involving 3rd party Δs

o   Rule 14(a) allows 3rd party Δs to make claims of his own after he’s impleaded

§  Counterclaims

§  Cross-claims against any 3rd party Δs

§  Any claim against the original π arising out of the same transaction or occurrence that is the subject matter of the π’s claim against the 3rd party

§  Any counterclaim against the original π, if the original π has made a claim against the 3rd party Δ

§  Impleader claims against persons not previously part of the suit, if these persons may be liable to the 3rd party Δ for all or part of the 3rd party π’s claim against him.

o   Supplemental jxdn: All of the above claims, except permissive counterclaims, fall within the court’s supplement jxdn.

§  See highlighted text on next page

o   Defenses: 3rd part Δ may also raise against the original π the same defenses that the original Δ could have raised. Rule 14(a)

§  3rd party Δ may raise defenses against the 3rd party π.

o   Original π may assert any claims against the 3rd party Δ arising out of the transaction or occurrence that is the subject matter of the π’s claim against the 3rd party π. Rule 14(a)

§  Jxdn: this doesn’t fall under supplement jxdn so it must independently satisfy jxdn requirements.

o   Joinder of Claims

§  Original Δ may join to his 3rd party claim any other claims he has against the 3rd party Δ. Rule 18(a)

-          Too, Inc. v. Kohl’s Dept. Stores, Inc

o   Copyright infringement & unfair competition. Δ (Windstar Apparel) moved to file a 3rd party complaint seeking contribution and indemnification from two of Winstar’s former employees.

o   Held:

§  (1) competitor could file third-party contribution claim, but

§  (2) third-party indemnity claim was clearly unmeritorious.

o   In order to find contribution, 3rd party π demonstrate that the 3rd party Δ either had knowledge or “reason to know” of the activity in question.

-          28 USC § 1367 gives supplemental Jurisdiction over additional claims so long as they are part of the same case or controversy as the action over which the court has original jurisdiction.

o   Encompasses impleader and additional related claims asserted by the 3rd party π against the 3rd party Δ.

o   When federal court’s SMJ is based solely on diversity, Δ § 1367(b) explicitly withholds supplemental jurisdiction from πs who bring claims against 3rd parties Δs joined pursuant to Rule 14.

-          Heintz & Co. v. Provident Tradesmens Bank & Trust Co. v. Kerr: π alleged that Δ negligently permitted Kerr to open a bank account in π’s name and to draw checks w/out π’s permission.

o   Δ impleaded Kerr

o   Kerr filed claim against π for services rendered and materials furnished to π in connection with the establishment of a branch office managed by Kerr.

o   Held: Kerr’s claim fell within Rule 14 b/c it arose out of the same transaction as the original suit.

§  Distinction btw Rule 13(a) and Rule 14 is that Δ “must” plead his counterclaim under Rule 13(a) if it grows out of the same transaction or occurrence. Under Rule 14, the 3rd party “may” plead his claim for relief.

·         Court doesn’t see a real distinction

-          Schwab v. Erie Lackawanna R. Co.:

o   Although it would be improper to allow 3rd party π to bring an add’t claim against the 3rd party Δ under Rule 14, the claims was proper under Rule 18 and came within the ancillary jurisdiction of the court.


-          Device designed to enable a party who owes something to one of two or more other persons, but isn’t sure which, may force them to argue out their claims among themselves in a single suit before coming to sue him.

o   Ex. Life insurance company interpleads two parties who both say they have claims to a sole beneficiary policy.

§  Insurance company is called the “stakeholder”

o   Interpleader only works well if there the court has jxdn over both or all claimants

-          Rationale for interpleader

o   Designed to prevent the party from being made to pay the same claim twice. Stakeholder protects herself by ensuring through operation of res judicata, against multiple liability on claims to the fund that might result if each putative claimant were to litigate her own respective claim in a separate forum.

o   Multiple litigation could lead to inconsistent results and multiple liability exceeding the sum of the fund.

-          Types of Interpleader

o   Statutory Interpleader: 28 USC § 1335

§  Allows a person holding property which is claimed or may be claimed by two or more adverse claimants to interplead those claimants

§  Jurisdiction

·         Nationwide service of process in a §1335 action allowed by 28 USC §2361

o   A court in which the stakeholder has filed a §1335 suit may serve process on any claimant, no matter where in the US that claimant resides or is found

·         Diversity is satisfied as long as some 2 claimants are citizens of different states (minimal diversity). §1335(a)(1)

·         Property in controversy value must exceed $500. §1335(a)

·         Venue: suits can be brought in the judicial district in which one or more of the claimants reside. §1397

§  Commencement of Suit

·         Stakeholder (π) must deposit into the court the amount of the property in question, or post a bond for that amount.

o   Π can still deny that he owns claimants any money at trial.

·         Claimants will be enjoined from starting or continuing any other action which would affect the property. §2361  

o   Rule interpleader: Rule 22

§  Whenever a person “is or may be exposed to double or multiple liability,” he may demand interpleader. A person may do this by coming into court on his own initiative as π, or by counterclaiming or cross-claiming as Δ in an action already commenced against him

§  Jurisdiction

·         Rule 22 interpleader has no effect on ordinary jxdn and venue requirements

·         Diversity must be complete btw the stakeholder and claimants

§  Stakeholder isn’t required to deposit property or money into the court

§  Rule 22 allows the stakeholder to deny his liability, whole or in part, to any or all of the claimants.

-          State Farm Fire & Cas. Co. v. Tashire

o   Greyhound bus crash involving pick up truck in California. 2 bus passengers died and 33 others were injured. 10 injured were Canadians. The rest were citizens of 5 US states.

o   State Farm, IL company, who insured the truck driver, preempted everything by bringing an action (interpleader) in Fed. ct in OR. Tashire moved to dismiss the action.

§  State Farm argued that they insured truck driver for a max of $20K. They put $20K in court escrow and ask Court to:

·         Force all claims into this single Federal case.

·         Discharge State Farm from further liability.

·         Decree that State Farm owed no duty to truck driver b/c the insurance policy was void, and refunded their $20K.

§  Greyhound wanted an injunction of any suits against it arising from the accident.

o   Rule 28 USC §1335 Interpleader

§  There was diversity btw State Farm and a Δ, and the amount in controversy was over $10K minimum.

o   Jurisdiction Issue

§  Interpleader statute requires minimal diversity. \ this case can be heard in federal court.

·         Legislative purpose is broadly to remedy the problems posed by multiple claimants to a single fund.

o   Direct Action Not Required

§  Stakeholder doesn’t have to wait to interplead until someone sues; can preempt

o   Forum Issue

§  Interpleader can only require everyone to go to Oregon who has a claim on that one issue, but only on the insurance issue.

o   Greyhound’s Order

§  Restraining order only applied to $20K fund, not Greyhound and its driver.

§  Interpleader was never meant to solve all multiparty litigation arising out of a mass tort. Interpleader shouldn’t be used as an “all purpose Bill of peace”

-          Treinies v. Sunshine Mining Co.

o   Fed. Court could constitutionally assert jxdn under the Fed. Interpleader Act despite the co-citizenship of the stakeholder and one of the claimants.

§  Stakeholder has a disinterest in the claimants and the property in dispute


-          Rule 24 allows a 3rd Party to interject himself into a lawsuit as a matter of right (on their own initiative) or at the discretion of the court, without the permission of the original litigants

o   Two forms

§  Intervention of Right. Rule 24(a)

·         No leave or court required

·         Right to intervene. Must meet all the following criteria:

o   1) Must claim an interest in the subject matter

o   2) Must be so situated that the outcome of the action may as a practical matter, impair or impede his ability to protect that interest

o   3) Must show that his interest isn’t adequately represented by existing parties, or

§  Applicant and the attorney who supposedly represents his interest are antagonistic.

§  Collusion btw the representative and the adverse parties.

o   If he can’t prove (1), he can automatically intervene under Rule 24(a)(1) if a federal statute gives him such a right

§  Most important statute is 28 USC § 2403.

·         Jurisdiction

o   If action is in fed court solely on grounds of diversity, there is no supplemental jxdn over claims by intervenors or claims by π against persons who intervene (28 U.S.C. 1367(b)) = must be an independent basis for fed court juris to permit assertion of the claim.

o   If fed jxdn doesn't depend solely on diversity, there would usually be supplemental jxdn over claims by or against intervenors of right.

§  Permissive Intervention. Rule 24(b)

·         A person who has a “claim or defense” involving a “question of law or fact in common” with a pending action may be allowed to intervene at court’s discretion.

·         Jurisdiction for intervention of right applies here.

-          Smuck v. Hobson

o   School board lost case in Hobson v. Hansen, and decided not to appeal. Dr. Hansen, retired superintendent, board member Smuck, and 20 parents decided to intervene

o   Dr. Hansen had no standing to appeal since he retired. Smuck has no standing since he has no separate interest as an individual

o   Requirements for intervention

§  There is an “interest” in the transaction.

·         Accommodation btw two potentially conflicting goals: Achieving judicial economies of scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from becoming fruitlessly complex or unending

§  Applicant may be impeded in protecting his interest by the action

§  Applicant not be adequately represented by others


-          Purpose

o   Preservation of relevant information that might not be available at trial.

o   Ascertain and isolate those issues that actually are in controversy btw the parties.

o   Find out what testimony and other evidence is available 

o   Facilitating the fair and efficient conduct of individual litigation

o   Promotion of important public interests

§  Calibration of discovery is calibration of the level of enforcement of the social policy set by Congress.

-          Scope of Rule 26(b)

o   Applies to all forms of discovery

o   Generally, parties “may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action.”

-          Underlying framework/policy/bias of the FRCP approach is one of liberal discovery and disclosure and info available before trial eliminates surprises at trial.

-          Discovery Prior to Commencing a Lawsuit

o   In Re Petition of Sheila Roberts Ford

§  Investigation into death of her dad. In π petition, Ford asks for “leave to proceed with the deposition of Elmore County Sheriff Franklin.” She hadn’t been able to file a suit yet, but planned to once she found out appropriate party Δs through Franklin’s depo.

§  Π’s argument: Need to preserve the testimony b4 memories of those involved fade or distort.

·         Not credible. She has file suit today if she’s worried.

·         There’s nothing to indicate that Franklin’s testimony is in imminent danger of being lost. Π wants to know who shot Roberts and why. Rule 27 doesn’t provide for such discovery.

§  Rule 27 extends only to the “perpetuation” of testimony.

·         Perpetuate: Preserve from extinction or cause to last indefinitely.

·         Authorizes perpetuation of evidence, not the discovery or uncovering of it.

·         Rule 27(a)(1) – person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the US may file a verified petition.

·         Rule 27(a)(3) – An order allowing examination may be entered only “if the court is satisfied that the perpetuation of the testimony may prevent a failure or delay justice.”


-          Rule 26(b)(1) requires that the information sought be “relevant to the claim or defense of any party”

o   New Tighter Standard: Prior to 2000, Rule 26(b)(1) required merely that the information sought be “relevant to the subject matter involved in the pending action.”

o   However, “for good cause,” the court may order further discovery of any matter relevant to the SMJ in the action,” which returns discovery to its prior scope.

-          Lindberger v. GM Corp:

o   Π sued Δ for negligence in product design and manufacturing. Π filed a motion to compel Δ to answer certain interrogatories relating to subsequent design changes made to the braking system or brake malfunction warning system of the loader in question. Δ refused to answer.

o   Court ordered π’s motion to compel.

§  The information was relevant to the SMJ of the action. Δ’s knowledge about the adequacy of the design and any information on the subject may be relevant on the issues of negligence and contributory negligence.

-          World Wrestling Federation Entertainment Inc .v William Morris Agency Inc.

o   Court refused to allow π to discover Δ’s contractual agreements w/3rd parties

§  “Treatment of 1 contracting party in the entertainment field does not really illuminate or is not really relevant to how another party in the entertainment field is treated.”

-          The Concept of Proportionality and Discretionary Limits on Discovery

o   Relevance is limited by the concept of proportionality

§  Designed to promote judicial limitation of the amount of discovery on a case-by-case basis to avoid abuse or overuse of discovery.

o   Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(1)

-          Marrese v. American Academy of Orthopaedic Surgeons

o   Academy refused to admit 2 surgeons who applied for membership.  Surgeons alleged violations of antitrust laws (Sherman Act).  Academy then refused to produce confidential membership applications requested during discovery.

o   Holding: Discovery order was erroneous.

§  Files of all voluntary associations are not sacrosanct. They are discoverable under certain circumstances.

o   Rule 26(c) to limit discovery requires judge to compare the hardship to the party against whom discovery is sought, if discovery is allowed, with the hardship to the party seeking discovery if discovery is denied. Must consider:

§  The nature of the hardship

§  The magnitude of the hardship

§  Give more weight to interests that have a distinctively social value than to purely private interests.

§  The possibility of reconciling the competing interests through a carefully crafted Protective Order.

o   Rationale:

§  Since an association would not be genuinely voluntary if the members were not allowed to consider applications for new members in confidence, the involuntary disclosure of deliberations on membership applications cannot but undermine the voluntary character of an association and therefore harm worthy interests, whether or not those interests derive any additional dignity from the First Amendment.

§  The threat to such interests is more than speculative in this case. …The other side of the coin is that barring the πs or their counsel from all access to the membership files would probably make it impossible for them to prove their antitrust case.

§  But there were various devices that the district judge could have used to reconcile the parties' competing needs. … There are so many ways [in camera or redact records] in which Judge Shadur could have prevented the πs from abusing the discovery process, without denying them any information essential to developing their case

o   Dissent: Although the discovery order could have been improved, the district court didn’t abuse its discretion.

§  Upon questioning at oral argument, counsel for the Academy labeled πs' suit a "fishing expedition," an attempt to gain access to otherwise unavailable information.

·         Under the circumstances, however, πs' pursuit of the files and plan to seek further discovery using leads from the files were within the bounds of appropriate discovery. The discovery record in this case evidences not the slightest abuse, harassment, or coercion to pressure a settlement. Judicial concern about discovery abuse is always legitimate, but such arguments are gratuitous in the context of this case. The abuse of discovery here instead is the Academy's obstinate defiance of the trial court, which now is sanctioned by this court.

-          Rule 26(b)(2) is a cost-benefit test.

-          Cable Electronic Products Inc. v. Genmark, Inc.

o   Court granted summary judgment to Δ in an unfair competition action. Rejected π’s request to rule until it complete discovery concerning actual confusion that may be occurring in the marketplace as a result of alleged similarities in labeling and packaging the products since the court thought that the probability was small that π could uncover such evidence. 

-          Protective Orders - Rule 26(c)

o   Seattle Times Co.Δ v. Rhinehart π

§  Δ requested review of WA S.Ct decision that the Protective Order issued to π which prohibited Δ from disseminating info gathered through discovery violated Times’ 1st Am rights.  Π sought review of the order to produce financial info. pertaining to private donations to his religious group. 

§  Holding:

·         Rule 26(c) confers broad discretion on a trial court to decide when a protective order is required

·         If a protective order, limited to pretrial civil discovery, is granted on a showing of good cause, the First Amendment is not violated when the protective order does not restrict dissemination of the protected info if gained from other sources.

§  When the information to be discovered concerns the financial affairs of a party and his organization, in which he and his associates have a recognizable privacy interest; and the giving of publicity to these matters would allegedly and understandably result in annoyance, embarrassment and even oppression, the trial court does not abuse its discretion by issuing a protective order. … The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders. ”

o   It’s common in large cases for parties to stipulate to PO negotiated by opposing counsel. Judges usually assent to these agreements to move cases along and avoid controversy.


-          Biggest changes made to Rule 26 – traditionally, party never had to disclose anything unless the other party first asked for that disclosure. In 1993, parties had to disclose a number of things. In 2000, it was cut back and courts weren’t allowed to opt out of the mandatory disclosure rules.

-          Automatic Pre-discovery Disclosure

o   Witnesses: names, address, and if known phone number of any person the disclosing party may use to support its case. Rule 26(a)(1)(A)

o   Documents & Tangible Things: copy OR description of all documents in its possession that it may use to support its claims or defenses. Rule 26(a)(1)(B)

o   Damages: computation of those damages and produce the documents on which the computation is based. Rule 26(a)(1)(C)

o   Insurance: insurance agreement that might cover the claim. Rule 26(a)(1)(D)

-          Disclosures must ordinarily be made no more than 14 days after the parties hold a discovery-related meeting required by Rule 26(f); this meeting must take place at least 21 days before a “scheduling conference” w/judge, as 90 days of when the Δ either answers or makes a Rule 12 motion.

o   Total = pre-discovery disclosures will ordinarily be due no later than 85 days after Δ first moves or answers.

-          Cummings (π) v. GM Corp.

o   Car accident. π allege there were faulty seatbelts and GM countered that there was contributory negligence. Trial court ruled in favor of GM. After filing an appeal, π discovered 6 videos of child safety sear acceleration tests conducted by GM. π argues that the tests fall within their prior requests for production.

o   Holding: GM wasn’t required to produce any document relevant to the disputed facts at issue in this case.

o   Rule: Under the new Rule 26, a party is not obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use.

§  Rule 26(a)(1) requires that parties make initial disclosure of “all documents, data compilations, and tangible things that are in the possession, custody, or control of the party that the disclosing party may use to support its claim or defenses, unless solely for impeachment.”

-          Comas v. United Telephone Co. of Kansas

o   Rule 26(a)(1): Initial disclosures may be made by describing OR categorizing potentially relevant materials so that the opposing party may “make an informed decision regarding which documents might need to be examined.”

-          Mandatory disclosure applies to every type of case.

o   Exceptions fall under Rule 26(a)(1)(E) where there is little need for discovery or in which party is likely to be conducting his or her own case.

-          Insurance Coverage and Party’s Financial Worth

o   Rule 26 permits discovery of insurance agreements, even though it’s not admissible at trial.

-          Duty to Supplement

o   If the party is honestly mistaken about some facts at the time of disclosure, but learns of her mistake, or if the information isn’t accurate any longer, the party has a significant duty to supplement one’s prior disclosures. Rule 26(e)(1)


-          The most important discovery device

o   Allows x-examination of a live witness by counsel under oath

o   Not confined to parties to the action.

o   Most mechanics of discovery can be varied by agreement btw parties. Rule 29

-          Answers must always be given orally before a court reporter who transcribes what’s said, videotaped or audiotaped. Method of recording up to the party, unless ct says otherwise. Rule 30(b)(2)

-          Parties must designate as officer the reporter who records the questions, the answers, and any objection made by the parties or by the witness.

-          Limited to 1 day of 7 hours [Rule 30(d)(2)], but the court may authorize add’t time if needed for a fair examination or if deponent or another person, or other circumstance, impedes or delays the examination.” Rule 26(b)(2).

o   At the end of the depo, reporter prepares a transcript and the deponent must sign.

-          Presumptive limit of 10 depos per party. FRCP 30(a)(2)(A).

-          If deponent is a party

o   Atty schedules a depo by serving a notice on the opposing atty. Rule 30(b)(1)

§  Notice of individuals must include

·         Name & address of the deponent, if known

·         Date, time and place of the depo

·         Under Rule 30(b)(5), Notice can also include a demand that the party produce docs and other items of evidence at the depo under Rule 34.

·         Since deponent is a party, notice is all that you need to require an appearance

§  Notice of corp or assoc. requires the corp or assoc. to produce a person or persons having knowledge of the subject matter upon which the depo is to be taken. Rule 30(b)(6), 31(a); Notice must include:

·         Details of the issues that are being explored so that the organization can determine which person has relevant knowledge.

§  Failure of the notice party to attend

·         Court can order the party giving notice to pay the other party who appeared the reasonable expenses incurred by that party and that party’s atty in attending + atty’s fees.

-          If deponent is a non-party

o   Although you don’t have a subpoena a non-party to a deposition, she isn’t subject to sanctions if she doesn’t appear w/out a subpoena. Rule 30(g)

§  Summoned by subpoena and fails to appear, non-party deponent can be held in contempt of court.

§  If requesting docs, party must serve subpoena duces tecum (Rule 34 doesn’t apply)

§  Use of a subpoena is advisable. If party notices a depo w/out a subpoena to a non-party and the non-party fails to appear, the party may be ordered to pay the reasonable expenses, including attys fees of any other party for wasting their time. FRCP 30(g)(2).

-          Expectation that the deposition will take place w/out court involvement. Rule 30(a)

o   Counsel must object at the time of the depo if the ground for objection is one that might corrected at trial. Rule 30(c)(2)

o   Deponent may be instructed not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion for a protective order. Rule 30(c)(2)

§  30(d)(3)(A): terminate or limit an examination that is oppressive or conducted in bad faith.

§  30(d)(3)(C) allows the court to impose reasonable costs and atty’s fees incurred by any parties b/c of “impediment, delay or other conduct” that frustrates the fair examination of the deponent under Rule 37(a)(5).

-          Polycast Technology Corp. v. Uniroyal Inc.

o   Deloitte wants to bar Durant’s deposition b/c information wouldn’t be relevant and duplicate the testimony of Bowman, another employee.

o   Durant deposition permitted

o   Orders barring the taking of a deposition are unusual and disfavored.

§  However, non-party witnesses may be subject to somewhat greater protection against costly but marginally relevant discovery that parties.

o   Durant’s testimony used to fill in gaps from Bowman’s testimony.

-           Wilson v. Olathe Bank

o   Δ wants to prohibit videotaping the depo of its President w/protective order.

o   Rule: FRCP 30(b)(2) permits depos to be record by nonstenographic means, absent annoyance, embarrassment, oppression, and undue burden or expense, unless the court orders otherwise. Parties can do so w/out the prior permission of the court.

§  The party taking the depo has choice over method of recording.

o   Δ argues that it’s expensive, impractical, and there’s no indication that deponents will be unavailable for trial.

§  Δ has the burden to justify a protective order against videotaping. They didn’t do so.


-          General

o   Written questions allow one party to send to another a series of questions to be answered under oath within a specific time. Rule 33(a)

o   Can only be addressed to a party to the action. NO NON-PARTIES

o   Answers are always written and signed by the person making them.

o   Objections signed by atty. If the interrogatory question is objected to, the discoveree doesn’t answer the question until the court rules on it.

o   Party must answer all questions in which party has personal knowledge, including those on the basis of information to which she a reasonable access.

§  Party has right option to produce business records when the answer may be derived from them. Rule 33(c)

o   Rule 33(d) required a party exercising the option of producing documents instead of answering to direct to where the answer is within the documents.

o   Presumptive limit of 25 interrogatories, including subparts. Rule 33(a)(1)

§  Limitation can be changed by stipulation or court order. Leave will be granted under cost-benefit analysis

o   Party must answer or object to interrogatories w/in 30 days after their date of service

-          Williams v. Board of County Commissioners

o   What counts as a single interrogatory?

§  According to Advisory Committee: a question asking about communications of a single type should be treated as a single interrogatory even though it request that the time, place, persons present and contents be separately state for each such communication.

-          In Re Convergent Tech. Securities Litigation

o   Issue: When should πs answer contention interrogatories served by Δs?

o   Contention interrogatories: Seek to discover the factual basis for the allegations raised in the pleadings. Requires the answering party to state its legal contentions and theories and the facts supporting them

o   Rule: No party has an absolute right to have answer to contention interrogatories or to any kind of interrogatory.

o   Holding: The discovering party must craft specific, limited (in number) questions. The responding party must examine such question in good faith and where it appears that answering them would materially contribute to any of the goals discussed in this opinion, must answer all the interrogatories.

o   Where party responding to contention interrogatories feels, in good faith, that providing early answers would not contribute enough to justify effort involved, that party should telephone or write opposing counsel to explain basis for his position and if opposing counsel continues to press for early answers, responding party should enter objections or seek permission from district court to file objection to interrogatories as a group with burden thereafter falling on propounding party to seek order compelling answers.

-          Zinsky v. NY Cent. R. Co.

o   “At the time of the accident, was the π engaged in duties which were in furtherance of interstate commerce or which directly and substantially affected interstate commerce?”

o   Holding; Question improperly called for “a legal analysis of one of the factual issues” in the case. Legal theory assertion should be done by lawyers at trial.


-          In general, the presumption is the party that bears the expense of discovery is the discoveree, however may request orders protecting it from “undue expense & burden.” Rule 26(c).

o   This is the American system: party can have as much discovery as it wants by paying only the costs of seeking that discovery; the costs of compliance are generally borne w/out recompense by the opposing party

o   8-Factor Test to determine whether discovery costs should be shifted:

§  Specificity of the discovery requests

§  Likelihood of discovering critical info

§  Availability of such info from other sources

§  Purposes for which the responding party maintains the requested data

§  Relative benefits to the parties of obtaining the info

§  Total cost associated w/ production

§  Relative ability of each party to control costs and its incentive to do so

§  And resources available to each party

-          Zubulake v. UBS Warburg LLC

o   Gender discrimination case. Contends key evidence is located in various emails that only existed on backup tapes and archived media. Restoring the emails would cost $175K. π wants Δ to produce those emails at its expense.

o   Holding: Δ is ordered to produce all responsive emails at its own expense.

o   Rule: 3 step analysis

§  1)  Necessary to thoroughly understand the responding party’s computer system, both with respect to active and stored data. Responding party should pay the costs of producing responsive data.

·         For data that’s kept in accessible format, the usual rules of discovery apply. 

·         When data is inaccessible (e.g backup tape), Ct should consider cost-shifting

§  2)  Necessary to determine what data may be found on the inaccessible media.

·         Requiring the responding party to restore and produce responsive docs from a small sample of the requested backup tapes is sensible in most cases.

§  3)  Cost shifting analysis factors See test above


-          Rule 35 requires court order for an examination of a party and imposes strict standards.

o   Rationale: protecting privacy  

o   Requirements

§  Person’s physical or mental condition must be in question.

§  The movant must show “good cause” to compel the examination.

·         Good cause factors need to be weighed against pain, danger, or intrusiveness of the examination against the need for, or usefulness of, the information to be gained.

§  Notice must be given to the person examine and to all parties.

o   Examined party has a right to a copy of the examination report, even if the party submitted to an exam w/out the compulsion of the court.  Rule 35(b)

-          Court can force a party to submit to examination or to make persons under their legal custody or control available for examination. Movant must initiate by making a motion.

o   Examination is usually agreed upon by the attys and doesn’t require court intervention

§  Rule 35 encourages parties to stipulate to examinations

-          Schlagenhauf v. Holder (Contract Carriers and National Lead)

o   Bus accident. Action based on diversity citizenship against Δ. Greyhound cross-claimed Δ for damages to bus. Δ requested an order for π to submit mental and physical examinations by four different doctors.

§  π says this is an invasion of privacy \ unconstitutional.

§  Rule 35 requires that the person to be examined by a party to the action, not that he be an opposing party vis-à-vis the movant.

§  “In controversy" and "good cause" requires an affirmative showing by the movant that each condition as to which exam is sought is really and genuinely in controversy and good cause exists for ordering each particular exam

·         This can generally be done through affidavits & pleadings and the like, stopping well short of a hearing.  But there must be sufficient information.

o   Dissents

§  Black: Obviously looks like there was a physical or mental defect. Π’s health and vision were definitely “in controversy.”

§  Douglas: if the party seeking the examination hires an expert, the expert may be partial.

-          Winters v. Travia

o   Court refused to order π to a physical/mental examination.

§  Π argued that her present condition wasn’t in controversy since π was willing to abandon any claims that any present or anticipated condition was caused by the medical treatment on which the case was based.

-          Abdulwali v. Washington Metro Area Transit Authority

o   Δ wanted π psychiatrically examined. Π wanted her atty to be at the examination. She also wanted all the notes from psychiatrist and wanted a 3 hours limit on the exam.

o   Held: The greater weight of federal authority favors the exclusion of a party’s attorney.


-          Rule 36 authorizes a party to serve on another party written requests to admit the truth of certain matters of fact or of the application of law to fact, or the genuineness of a document or other evidence that may be used at trial within the scope of Rule 26(b).

o   Purpose isn’t to get information, but to expedite the trial by limiting the issues in dispute and by obviating some of the formalities that control the introduction of evidence at trial.

§  Rule 36 is self-executing.

§  Least used discovery device.

·         Attys view it as a part of trial prep and postpone use until the very end.

o   Timeline

§  Court order not necessary after parties have conferred in accordance with Rule 26(d), although usually not later than 30 days before a fixed trial date.

§  Party receiving the request must respond under oath and in a timely fashion, admitting or denying each matter requested, or providing a detailed explanation why it can’t admit or deny the matter.

·         Responding party can request an extension to respond. Rule 29

§  If the party doesn’t respond to request within 30 days after it was served, the matter in the request is deemed admitted.

·         Depending on the degree of prejudice the requesting party will suffer b/c of its reliance on the admission, a court can

o   Excuse the party’s failure to respond in a timely manner if a party serves a late response, and the opponent refuses to accept it

o   Permit a party to withdraw or modify an admission in a timely response.

-          Rule 36 isn’t a true discovery device since it doesn’t require responding party to disclose information.

o   Can be used a discovery device if the party uses them early on to help identify the issues not in dispute and target the remaining issues for discovery.


-          Work-Product v. Attorney-Client Privilege

o   Attorney-Client Privilege: governs only confidences made by the client to the lawyer, and allows these to be protected against discovery. Doesn’t extend to materials that the lawyer acquired and passed on to the client, not does it cover communications which were made for purposes other than the communication of legal advice. 

o   Work-Product immunity: Governs all preparation for trial done by the lawyer, or by any other representatives of the party. Rule 26(b)(3)

§  Absolute Immunity: Docs containing subjective through (legal theories, conclusions, opinions, mental impressions) of a party’s lawyer or other rep. concerning litigation

·         Almost impossible to overcome.

§  Qualified Immunity from Discovery: All other docs prepared for litigation purposes by either a party or his rep. concerning litigation

·         Can be overcome by a strong showing that the discovering party has a substantial need for the materials and that their equivalent is not available through other means.

o   TEST for hardship under Qualified Immunity

§  The cost of obtaining the information through means

§  The finances of the party seeking discovery

§  Hostility of the witnesses to the discovering party in situations where transcript of witness’ statement is sought

o   Discovering legal claims or defenses

§  There’s nothing preventing the discovering party from directly asking in an interrogatory or a request to admit what the other party’s legal claims or defenses are

·         Even in an interrogatory or a request to admit, can’t ask about matter that involve only legal conclusions.

-          Hickman v. Taylor Δ: crew members drown when tug sank. In anticipation of the litigation, the atty for Δ interviewed the survivors. Π tried to get discovery to obtain copies of his statements.

o   Material obtained by counsel in preparation for litigation is the work product of the lawyer, and while such material is not protected by the atty-client privilege, it is not discoverable on mere demand without a showing of necessary or justification.

o   Limitations include bath faith or harassment or when the inquiry seeks material which is irrelevant or privileged.

o   General policy against invading the privacy of an atty is so well recognized and so essential to the orderly working of out legal system that the party seeking the work product has a burden to show reasons to justify such a production.

§  No other sources available.

-          Snead v. American Export-Isbrandtsen Line Inc.:

o   According to FRCP 26(b)(3), the surveillance films were materially unavailable to the π by means other than discovery and that there was substantial need on the part of the π's atty to have knowledge of the films for the preparation of the case.

o   Balancing the interests of the π against the conflicting interests of the Δ resulted in the court's order allowing Δ to conduct predisclosure depositions prior to the π's discovery of the surveillance films.

-          Privileges and Work-Product – the Extent of Protection

o   Rule 26(b)(1) Material is privileged against discovery if it would be protected against disclosure at trial.

o   Privilege: Gives person a right to refuse to disclose information that he otherwise would be required to provide.

§  Person can prevent someone from disclosing information or it can give its possessor a right to refuse to become a witness.

§  Usually narrowly construed by courts b/c it’s a suppression of relevant facts

o   Elements of attaching privilege to a communication

§  1) The asserted holder of the privilege is or sought to be a client;

§  2) The person to whom the communication was made

·         A) is a member of the bar of a court, or his subordinate and

·         B) in connection with this communication is acting as a lawyer;

§  3) The communication relates to a fact of which the attorney was informed

·         A) by his client

·         B) without the presence of strangers

·         C) for the purpose of securing primarily either

o   i) an opinion on the law, or

o   ii) legal services, or

o   iii) assistance in some legal proceeding, and not

·         D) for the purpose of committing a crime or tort; and

§  The privilege has been

·         A) claimed and

·         B) not waived by the client

o   Upjohn Co.Δ v. US: Δ generated certain internal memos which the gov’t wished to examine pursuant to a tax audit. Δ claimed the memos were protected by atty-client privilege and the work product doctrine.

§  The atty-client privilege extends to communications btw a corp’s attys and non-managerial corp employees.

§  Rule 26(b)(3) applies to, and especially protects, notes of oral statements by witnesses, and great need must be shown for their disclosure.

§  Social policy behind this privilege: Need for open communications btw individuals and their attys.

§  Very substantial need must be shown to justify the discovery.

o   Binding Authority

§  For state courts, atty-client privilege is creation of state law and Upjohn may not be binding.

§  In fed. courts, privilege is a matter of federal law, except when Fed. Rules of Evidence 501 directs a federal dist. ct. in a diversity case to apply the privilege law of the state in which the fed. ct sits.

§  When fed. & state law claims are joined, federal law may govern the atty-client privilege unless the allegedly privileged communication relates solely to the state law claims.


-          How discovery disputes get into court

o   Two ways

§  Party confronting a discovery request might seek a protective order under Rule 26(c)

§  Party confronting a discovery request might refuse to comply and the party seeking discovery would have to move to compel under Rule 37(a).

o   FRCP 26(g) imposed on each atty the duty to make a reasonable inquiry and to certify that certain standards have been met, and it mandates sanctions against attys, clients, or both who violate this duty.

-          The party who fails to disclose information in accordance with FRCP 26(a) is precluded from introducing the information as evidence at trial.

o   This measure doesn’t require a motion by the opposing party.

-          FRCP 26(c) Protective order may be issued to prohibit an entire line of questioning, the use of a particular form of discovery, or the examination of a particular witness. Judge is allowed to make “any order which justice requires to protect a party/person from annoyance, embarrassment, oppression, or undue burden or expense.

o   Kinds of orders

§  Discovery or disclosure not be had at all

§  Order be held only at a certain time or place

§  Method of discovery other than that sought by the discovery party be used

§  Restrict the scope of the discovery or disclosure

§  Order depo be sealed and open only by court order

§  Limit or altogether bar the revealing of trade secrets or other commercial information

o   Prohibiting public disclosure using Seattle Times test

§  Showing of good cause

§  Order is limited to the context of pre-trial discovery in civil cases and

§  Order doesn’t bar the dissemination of the discovered information if it is also independently gained from other, non-discovery sources

-          FRCP 37(a) Compelling discovery when discoveree refuses to divulge requested information.

o   Discovering party can seek an order to compel discovery if he makes an evasive or incomplete answer. Rule 37(a)(3).

-          FRCP 37(b) Sanctions against parties who behave unreasonable during discovery.

o   Usually requires a showing of willfulness or gross negligence (see Cine 42 St.)

o   Examples:

§  Order that facts pertinent to the undisclosed material be established in favor of the party seeking discovery = Establishment of a party's prima facie case

§  Dismiss or default nondisclosing party

§  Hold nondisclosing party in contempt

§  Preclusion of right to present claims or defenses

§  Dismissal of counterclaims;

§  Exclusion of evidence

§  Forfeiture or

§  Jury instruction that a party's failure to disclose can lead to the assumption that evidence would be unfavorable to that party

-          Most severe sanctions, but rarely imposed. Courts are reluctant to deny a litigant her day in court.

o   Throwing out π’s case or

o   Ordering the entry of judgment against Δ.

-          Cine 42 St. Theater Corp. v. Allied Arties Picture Corp.: Magistrate concluded that π had engaged in repeated and willful noncompliance with the court’s orders re: answering Δ’s interrogatories on the issue of damages, with the result that she precluded it from introducing evidence on that issue.

o   Issue: Is gross negligence in failing to obey discovery orders sufficient to justify the severest disciplinary measures available under FRCP 37?

o   Holding: Yes. A grossly negligent failure to obey an order compelling discovery is sufficient to justify even the severest disciplinary measures available under FRCP 37

§  Negligence, no less than intentional, wrongs should be discouraged.

§  Gross professional incompetence no less that deliberate tactical intransigence may be responsible for the interminable delays and costs which plague modern complex lawsuits.

§  Sanctions can include contempt, imprisonment, or fines

·         Court can strike or dismiss any or all of that party’s claim or defense, preclude the introduction of evidence in support of such, or hold certain facts to be established.


-          Pretrial Conference was designed to substitute for formal pleadings the less formal processes of discussion and exchange as ways of narrowing issues for trial and of expediting proof. Rule 16(a)

o   Designed to clarify and strengthen the trial judge’s authority to facilitate the management and disposition of lawsuits

o   Purpose of the Rule

§  Scheduling Order. Rule 16(b)

·         Gives deadlines for specific litigation activities;

·         Makes explicit & expands topics to be discussed at the pretrial conference;

·         Must be issued 120 days after filing of the complaint.

§  Provides for greater supervision of discovery,

§  Allows for earlier consideration of summary-judgment motions; and

§  Confirms the judge’s authority to encourage settlement by ordering the parties to be present at pretrial conferences

o   Trial court has broad discretion in the imposition of sanctions (Rule 16(f)) on the parties for

§  Fails to in good faith, comply with a scheduling order and absence from

§  Lack of preparation for a pretrial conference

§  Rule 16(f) allows judges to use Rule 37(b)(2)(B), (C), & (D) sanctions

-          Velez v. Awning Windows, Inc.:  Employee filed an action against employer and its president, for sexual harassment. Employee filed a motion for partial summary judgment. Following jury verdict in favor of employee, employer appealed.

o   Holdings:

§  (1) employer's motions to extend time to respond to motion for partial summary judgment did not satisfy criteria of rule, and

§  (2) district court's denial of employer's motion to dismiss as sanction for not complying with case-management order was not abuse of discretion

o   Summary Judgment

§  A party who legitimately requires more time to oppose a motion for summary judgment must make the court aware of its plight by either filing an affidavit stating the reasons why more time is required or by its functional equivalent. FRCP 56(f)

o   Trial courts should refrain from entertaining summary judgment motions until after the parties have had a sufficient opportunity to conduct necessary discovery.

o   “Rules are rules – and the parties must play by them.”


-          A single person or small group of coparties may represent a larger group, or “class” of persons sharing a common interest. Can be used when joinder of all potential co-parties is not feasible, either b/c the class is simply too large or b/c of difficulties of personal jxdn, venue or diversity.

-          Allows a single π to represent similarly situations persons and to advance their claims.

o   Like a joinder device

-          Pros

o   Some view mass tort class actions as efficient vehicles for resolving disputes

o   Some view class actions as an essential form of 1st Am. expression and a critical bulwark against executive and legislative abuse

o   Most effective legal technique for avoiding piecemeal litigation and preserving legal resources

-          Cons

o   Others see lack of π autonomy in class actions raising due process concerns

o   Others question the democratic legitimacy of the class action when used to overturn majoritarian decision.

o   Panacea for a myriad of social ills. “legalized blackmail”

o   Burdens overtaxed federal judiciary

-          Operations of the Class-Action Device

o   Initiation of Class-Action

§  Filing a complaint and service of summons

·         Filed in a representative capacity on behalf of persons who are similarly situated to the named π.

o   Represented parties are “absent” and probably don’t know that a lawsuit is being filed.

·         Complaint usually alleges the claims of the named π and also sets up the class-wide allegations of the unnamed putative class members.

o   Soliciting clients for lawyer’s personal gain is ethically prohibited by the S.Ct.

o   Offers of legal services to inform people of their legal rights isn’t unethical.

o   Certification

§  FRCP 23(a): “Prerequisites to a Class Action”

·         Requirement of a Class

o   FRCP 23(c)(1)(C) requires the court to issue an order that defines the class

o   There’s no brightline definition of “class,” but it must be precise, objective and presently ascertainable and must not depend on subjective criteria or the merits of the case or require extensive factual inquiry to determine who is a class member

·         Class Representative Must be a Member of the Class

o   23(a) “one or more members of a class may sue or be sued as representative parties.

§  Like a standing requirement

o   Problem is claim of the named π is resolved before the class is certified

§  Action may be dismissed as moor even if the controversy remains as to the other class members

o   If the matter at issue is such that the class rep’s individual interest, in the normal course of events, will expire before a ruling can be made on class certification, the class may be certified despite the Mootness of the π’s claim.

·         Joinder of All Members Must be “Impracticable”

o   23(a)(1) requires that the class be so numerous that joinder of all members is “impracticable”

§  If a class has more than 40 members, “numerosity” is usually met

§  If the class numbers less than 25, “numerosity” is normally lacking

§  If the class size is btw 25 and 40, other factors are considered, such as geographic dispersion of class members and the size of their individual claims

·         Joinder is impracticable if the claims are small b/c people are not likely to be involved in litigation if only a small amount of money is at stake.

·         Questions of Law or Facts Common to the Class

o   23(a)(2) commonality requires that the action raise questions of law or fact common to the class

o   Critical question is whether “differences in the factual background of each claim will affect the outcome of the legal issue.”

·         The Representative Claims or Defenses “Are Typical” of the Class

o   23(a)(3) usually found when “each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to provide the Δ’s liability”

o   Goal is to ensure that “the named π’s claim and the class claims are so interrelated that the interest so of the class members will be fairly and adequately protected in their absence.”

-          FRCP 23(b): The Kinds of Class Actions That Are “Maintainable”

o   Once the district judge determines the prerequisites are met, she must decide that it falls within one 3 categories of class actions under FRCP 23(b)

§  Prejudice Class Actions under FRCP 23(b)(1):

·         (A) looks for prejudice to the non-class party and deals with the risk that individual actions would create “incompatible standards of conduct” for the party opposing the class. Rule 23(b)(1)()A); or

o   Ex. voting rights disputes. Individual litigation may lead to inconsistent results. Class action would insure a uniform result that will bind all members of the class

·         (B) inquires into prejudice to members of the class and requires that individual actions “substantially impair or impede” the ability of class members to protect their interests. Rule 23(b)(1)(B)

o   Ex. insurance policies; Mass tort claims

·         Class member can’t “opt-out” \ will be necessarily bound by the decision. Rule 23(c)(3)

§  Injunctive and Declaratory Relief under Rule 23(b)(2)

·         Most common, usually in civil rights, employment discrimination, consumer or environmental cases in which the goal is to change Δ’s behavior or policy prospectively and not to provide individual compensation to class members for injuries they suffered in the past.

·         There’s no requirement that the conduct be damaging or offensive to every class member

·         On the theory than an injunctive class is cohesive, notice is not deemed essential in these cases.

·         No opting out. Rule 23(c)(3)

§  Damage Class Actions under Rule 23(b)(3)

·         Most commonly used in damage actions, e.g. mass torts & securities fruad

·         Allows certification of a class when the tie among the members is that they claim to have been injured in the same way the by the Δ

o   Two prerequisites

§  Questions of law of fact common to the class members must “predominate” over any questions affecting only individual affecting only individual class members

§  Court must find that a “class action is superior to other available methods for the fair and efficient adjudication of the controversy”

·         B/c of the non-natural character of the group, 23(b)(3) requires

o   Mandatory individual notice for absent class members and

o   Right to opt-out of the class (Rule 23(c)(2)(A)), but the judgment is binding (Rule 23(c)(3)) regardless

·         Factors court considers in deciding the superiority and predominance questions. Rule 23(b)(3)

o   Interest in individual control

o   Existing litigation

o   Concentration in one forum

o   Difficulties of Management

-          Fair Representation of Requirement – Due-Process Considerations

o   Representatives must not have any conflict of interest w/absent class members and must furnish competent legal counsel to fight the suit

o   Hansberry v. Lee: π bought a house in Chicago allegedly covered by a racially restrictive covenant. Δ tried to stop them from moving in.

§  Due process is satisfied and judgment is binding on all class members when the interests of the class are represented adequately during the suit.

-          Adequacy of Representation

o   Measured before certifying action as a class action

o   Measured again once the suit is over, if the Δ argues that a non-named π is bound by the result. In a new action by the non-named π, the court will evaluate whether representation was adequate in the first suit. If not, the non-named π will not be bound.

-          Castano v. American Tobacco, Co.: Class action against tobacco company and the tobacco institute seeking compensation for nicotine addiction. The class was defined as all nicotine-dependent persons in the US, their estates, and relatives since 1943.

o   Holding: Class must be decertified.

§  A national class action would fail to consider the effects of variations in state law on the requirements of predominance and superiority.

§  The case would be unmanageable with the variations in law and the numerous plaintiffs' interests involved.

o   Class certification creates insurmountable pressures on Δs to settle, unlike individual trials. Creates “judicial blackmail”

-          Certification Decision

o   FRCP 23(c)(1)(C) states that “court must –at an early practicable time – determine by order whether to certify the action as a class action.”

§  D.Ct can change its order at any time “before final judgment”

o   FRCP 23(c)(1)(B) certification order defines the substantive issues the suit will consider

§  Partial class action: considering on a class basis only a limited number of factual issues relevant to a larger cause of action.

o   Consequences of denial: suit can continue by the “representatives” but w/no res judicata effect for the absent would-be class members

o   No right to appeal: b/c the finding is not a final order, the immediate appeal may not be taken

§  Some relief: Rule 23(f) says a ct. of appeals may “in its discretion” hear an interlocutory appeal from a d.ct’s decision to grant/deny class certification.  

-          Notice

o   Purposes

§  Check on the adequacy of representation being provided to the class

§  Render viable the right of unnamed class members to take certain protective measures, specifically to intervene or to opt out of the lawsuit.

o   The Court’s Role

§  Court has discretion to direct notice to absent class members depending on the kind of class action that has been certified.

§  Notie to class members is discretionary in so-called mandatory class actions (those certified as a “prejudice” class under Rule 23(b)(1) or as an “injunctive” class under Rule 23(b)(2))

o   The Content of Notice and Who Should Receive Notice

§  Court have tremendous discretion in mandatory class actions

§  According to Rule 23(c)(2):

·         Notice is essential in Rule 23(b)(3) class b/c it alerts the absentee to the consequences of inaction

o   Requires the best possible notice practicable under the circumstances for (b)(3) classes

o   Use plain, easily understood language w/basic info about the lawsuit, explaining class member’s rights, focusing on the action of the class certified and the class claims, issues of defenses. (i)-(vii)

·         For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.

o   Probably subject to due process (adequate notice).

o   Costs

§  Eisen v. Carlisle & Jacquelin: costs of providing notice must be borne by the party seeking class treatment.

·         If they don’t pay, the class action must be dismissed.

§  Cost of identifying the class. Class can seek the costs of sending notice or costs of producing a mailing list (sometimes a large cost).

·         Oppenheimer Fund v. Sanders (π): If the cost of the compilation would be about the same whether the work was paid for by π or the Δ, the π must pay.

·         If the cost had been “insubstantial” or if the task had been one the Δ would have had to do during the ordinary course of its business, the cost might be placed on the Δ.

·         Test: whether the cost is "substantial," not whether it is modest in relation to a party's ability to pay.

§  Allocation of the costs of notice is affected by the timing of its provision

·         Some courts held that when notice is provided after Δ’s liability has been determined the Δ bears the cost of its provision.

o   Orders Appointing Class Counsel

§  Class action attys exercise significant control over decisions made on behalf of the class, b/c class representatives generally provide less supervision and guidance than do other types of clients. Plus, it’s harder to define “loyalty to the client” when it’s not clear who the “client” is.

§  Concerns over adequacy of counsel, FRCP 23 required greater judicial supervision.

·         23(g) requires the court to designate a lawyer as class counsel, whose assignment is to “fairly and adequately represent the interests of the class” and specifies factors that the court must take into account in making its selection.

o   Catch-all provision authorizing the court to consider “any other matter pertinent to counsel’s ability” and explicitly states the ct has the authority to request information about anticipated fees and costs.

·         Court is allowed to assigned interim counsel before issues its certification order in order to deal with problems generated by “rivalry or uncertainty”


-          SMJ

o   Who court looks at when determining whether there is diversity of citizenship?

§  Supreme Tribe of Ben-Hur v. Cauble: Determinations of diversity of citizenship in class actions should be based on citizenship of the named parties only.

§  Unincorporated Associations in Federal Court

·         Court usually looks to the citizenship of each member of the association to determine whether there is diversity of citizenship, venue & personal jxdn.

·         This has lead to circumvention of the rule by using the class-action device – naming only carefully selected association members as class representatives.

-          Amount in Controversy

o   Every member of the class must satisfy the applicable jxdn amount

§  Zahn v. Int’l Paper Co.: Lk. Champlain property owners suing for pollution damages

·         Held: Each π in a Rule 23(b)(3) class action must satisfy the jxdn amount requirement. 

§  Mass tort cases are an exception

o   Snyder v. Harris (1969): π wanted to aggregate her claim with other members of the class to satisfy the jurisdictional amount requirement

§  Held: Separate and distinct claims could not be aggregated

o   Supplement Jurisdiction: When fed. ct has jxdn over one claim, add’t claims arising out of the same controversy may be added in some instances even if the claims don’t independently satisfy the requirement of fed. jxdn. As along as the named πs have claims exceeding the amt in controversy, the unnamed members need not.

§  §1367 overrules Zahn.

§  Exxon Mobile v. Allapattah Services, Inc.: Anti-trust case. As long one π meets the amt-in-controversy requirement for fed jxdn, § 1367 authorizes fed courts to exercise supplemental jxdn over related claims even if they don’t meet the requirement.

-          Minimal Diversity in Interstate Class Claims

o   Congress adopted a new minimal-diversity jurisdiction statute that extends a federal forum to any class action in which a single Δ is a citizen of a state different from that of a single π and the amount in controversy exceeds $5 Million.

§  Act lists a few exceptions

§  Gives the d.ct discretion to decline jurisdiction based on an assessment of 6 enumerated factors, but no guidance is given as to how the court is to weigh or balance these factors.  

-          Personal Jurisdiction

o   Phillips Petroleum Co. (Δ) v. Shutts: Δ produced oil on leasehold lands owned by individuals such as π. Δ is trying to screw the little guys by paying them royalties on prices that are too low.  π wants to recover interest on the money they haven’t collected.  There are 33,000 people in π’s position who get together to sue for the interest the oil company owes.  π sues in KS.  None of these people have much interest.  Each of them has a small amount of interest in their interest.  This is a perfect example of class litigation bringing together small claims that are too small to litigate individually.  π provides the best possible notice.  He sends out a letter to all of the class members telling them they can opt-out if they want.  28,100 are in, 3,400 opt out, and 1,500 were not found and excluded.  Less than 1,000 of the πs are actually in KS, and a negligible part of the oil and gas leases are in KS.  Δ makes a personal jxdn argument that only the KS πs can sue.  Δ argues that there has to be an opt-in procedure.

§  Held: An absent π who doesn’t “opt out” will be bound by the decision even if he lacked minimal contacts with the forum state.

§  For a class action to bind an absent class member,

·         Notice to the class and the opportunity to exclude oneself from the class — which the Court viewed as a type of implied consent – was all the consent necessary to bind the class.

-          Settlement

o   Most class actions end in settlements

o   FRCP 23(e): class action can’t be settled, dismissed, or compromised w/out court approval and that notice of any proposed dismissal or compromise must be given to all class members.

o   Notice of the proposed settlement must be sent to all class members, who are to be given a “new opportunity” to opt-out of the class if they so choose, and also are given an opportunity to object to the terms of the settlement and to make their views known to the court.

o   Rationale

§  Due process requires absent class members be protected from an unfair settlement.

§  Efficiency and economy objectives would be subverted if the judgment provided by the settlement proves to be vulnerable to collateral attack

o   Settlement Proposal Considerations

§  Fairness, reasonableness, and if it’s in the best interests of the individuals who will be affected by it.

o   “In-kind” Settlement Question: Should it be used?

§  Typically a coupon that allows the π to purchase additional goods from the Δ. Ex. airplane coupons.

-          Attorneys’ Fees

o   FRCP 23(h) authorizes a court to award a reasonable attorney’s fee in any action certified as a class action. Courts typically awarded fees to the winning party.

o   Awarding Attorneys’ Fee Considerations

§  Look at the amount of benefit that the lawsuit produces

§  “Lodestar” Method: looks to the number of hours expended by each attorney on the case, multiplied by a “normal billing rate” and adjusted for discretionary factors like the riskiness of the lawsuit and the quality of the atty’s performance.

§  S.Ct. discourages the use of  risk multipliers in lawsuits involving statutory provisions.

-          Settlement Classes

o   Amchem Products, Inc. v. Windsor: After the consolidation of asbestos litigation (b/c of volume & complexity), counsel for πs and Δ manufacturers reached a partial global settlement: a class consisting of all individuals with potential asbestos claims who had not yet filed lawsuits would be certified pursuant to FRCP 23(b)(3) for purposes of settlement only. D.ct. approved of the proposed settlement created an administrative structure which provided set compensation for certain asbestos-related diseases; proposed class certified. Ct. of Appeals vacated the lower court's order, finding that the requirements of class certification had not been met. Specifically, holding that while a class may be certified for the sole purpose of settlement, the certification requirements of FRCP 23 must still be met as though the case were going to trial. In this instance, the class failed to demonstrate that common issues predominated over other questions, FRCP 23(b)(3), or that the named plaintiffs would "fairly and adequately protect the interests of the class."

§  Issue: May settlement play a role, under FRCP 23, in determining the propriety of class certification?

§  Held: Yes, but a limited one. Ct of appeals was wrong in saying that the settlement wasn’t relevant to class certification determinations, but the lower ct actually closely examined the terms of the settlement, and \ remand was unmerited.

·         Class should never have been certified at all \ the court had no power to approve a settlement.

o   Settlement-only classes must meet the same basic requirements as class actions that will be tried.

o   Fact that the action is being immediately settled does have a bearing

·         No predominance of common questions

·         Inadequate representation

·         Notice not given to all relevant parties

o   Factors in deciding whether to allow certification in product liability actions

§  State-by-state law variations

§  Centrality of single issue

§  Size of typical claim: the larger the individual claim, the less likely ct will allow class

§  Novelty of claim: π’s claim is “novel”, certification is unlikely

§  Closing off of “future” πs: where action binds class members who haven’t suffered physical effects yet, court aren’t likely to certify the class. (Ñ in Amchen)

§  Limited fund: if Δ is likely to be insolvent before everything is paid out, certification is more likely. Ct can make this a 23(b)(1) on theory of a limited fund.

§  Partial Certification, limited to certain issues


-          If one party can show that there is no “genuine issue of material fact”, that he is entitled to judgment as a matter of law. Rule 56

o   Material fact: Fact which will affect the outcome of the case; material fact raises a genuine issue if a reasonable jury could reach different conclusions concerning that fact.

o   Purpose: weeds out frivolous and sham cases, and cases for which the law had a quick and definitive answer.

§  Sometimes viewed as a response to delay as a litigation tactic.

o   Going behind the pleadings: Motion allows a party to pierce the allegations of the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried

§  Parties can prove through affidavits and discovery materials. Rule 56(e)

§  Movant has the burden of production

-          Material fact

o   Lundeen (π) v. Cordner(Δ): life insurance policy dispute btw kids of the 1st wife and the 2nd Mrs. Cordner (Δ). Δ asserts that deceased attempted to change the beneficiaries of his life insurance policy before he died.  If he had completed all the necessary steps required of him to change the beneficiary in his policy, then Δ would be entitled to judgment.  If Δ can demonstrate this issue then there is no issue of material fact and the court may grant a summary judgment pursuant to FRCP 56.

§  Held: Mr. Cordner’s expressed desire to change was beyond any reasonable and genuine dispute

·         Some correspondence indicates “conclusively” that a change in life insurance was already made

·         Benefits administrator was disinterested third party and πs made no effort to depose

§  Rule: Desire for cross-examination will not prevent summary judgment when affiant is disinterested party with no cause to believe he is dishonest or unsure of facts.

-          Prevailing in Summary Judgment: Show Movant Has No Evidence to Support the Claim

o   Celotex Corp. v. Catrett(π): π sued a number of asbestos manufacturers, including Δ, based on evidence alleging that her husband died of health effects of asbestos exposure. Δ said π failed to provide evidence that the product was proximate cause. Π produced 3 docs which claimed a material issue of fact -- a letter from a former worker for Δ, as well as a letter from insurance company to Δ.

§  Held: S. Court said summary judgment could properly be given to Δ

·         There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.

·         All Δ had to do to qualify for summary judgment was point out that π presented no proof to support her claim.

·         Court pointed out that trial court has the discretion to award summary judgment w/out being asked to by either party. \ it wouldn’t make sense to hold that a party moving for summary judgment must be required to show support of their claim.

§  Rule: Since a complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial, there can be "no genuine issue as to any material fact."

-          Cross v. US:  π, a fx language professor, attempted to deduct the cost of a summer vacation to Europe from his federal income taxes.  D.Ct granted SJ for π.

o   Held: SJ reversed. Gov’t should have the opportunity to test his credibility on x-examination.

o   SJ is particularly inappropriate where the “inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”

o   A judge may not draw fact inferences on motion for SJ.

-          Partial Summary Judgment

o   May be granted w/respect to certain claims even when it is not granted with respect to all.

o   If this occurs, the court may order the entry of judgment on the claims as to which SJ has been granted if there is no just reason for delay in the entry of judgment. Rule 54(b).

o   Losing party can appeal the partial SJ while the indisposed of claims are being tried.

o   Court can grant SJ on the issue of liability alone. Rule 56(c)


-          General

o   Π can voluntarily dismiss his complaint w/out prejudice any time before Δ serves an answer or moves for summary judgment. Π can do w/out leave of court. Rule 41(a)(1)

§  If Δ already answer, π can voluntarily dismiss w/court’s permission. Rule 41(a)(2)

o   Puts parties where they were before the lawsuit; No adjudication on the merits and b/c dismissal is w/out prejudice, π can bring the suit again.  

o   To prevent harassing the Δ, if π already once dismissed a claim in either state or fed. ct w/out prejudice, his second dismissal operates as an “adjudication on the merits.”  Rule 41(a)(1)

o   McCants v. Ford Motor Co.: π died while riding in a Ford jeep. After a year of discovery, π moved to dismiss w/out prejudice under 41(a)(2). Π wanted to file a new suit in MS where the controlling statute had not expired.

§  Court granted the motion to dismiss and denied Δ’s motion for SJ.


-          General

o   Court can involuntarily dismiss (Rule 41(b)) a case for failure to prosecute, disobedience, or any of the reasons listed as defenses under Rule 12(b)

§  Usually dismissed w/prejudice \ has effect of adjudication on the merits.

·         Exceptions. Rule 41(b)

o   Lack of jxdn

o   Improper venue

o   Failure to join an indispensable party under Rule 19

o   Courts usually have discretion to dismiss a case if π doesn’t proceed to trial with “due diligence” Messenger v. US

o   Link v. Wabash R. Co.: Petitioner appealed a sua sponte dismissal of his diversity negligence action after he and his counsel didn’t attend a pretrial conference.

§  Held: Affirmed. Court has the power to sanction in order to prevent undue delays and to avoid congestion in court dockets.

§  Dissent (Black): Petitioner shouldn’t be punished for his atty’s misconduct. There are other sanctions that would target the atty.

-          J.M. Shaw Co. v. City of Norwich: Fine may be imposed on attorneys under 41(b) even though that rule, specifically provides only for the sanction of the dismissal of the action.

o   Courts want to avoid dismissing the case b/c of an atty’s actions.

-          GCIU v. Employer Retirement Fund v. Chicago Tribune: Dismissal w/prejudice for failure to prosecute was improper, even if there was a 22-month delay btw judicial proceedings b/c during that period the litigants were actively negotiating.

o   Judge doesn’t have to warn the π repeatedly nor is the court required to issues formal rule to show cause before dismissing a case.


-          General

o   If Δ fails to answer or otherwise plead within time permitted, clerk required to enter default. Rule 55(a)

§  This is an admission of the claim against Δ. So long as the default stands, any attempt by Δ to “answer” or file any other pleading in the case will be disregarded.

o   After an entry of default, π must obtain default judgment. If he’s suing on a certain sum of $, judgment may be entered directly by the clerk of the court. In all other cases, π must present his evidence to the court in order to obtain judgment. Rule 55(b)(1).

§  Limited to relief question in prayer of complaint. FRCP 54(c)

§  Δ isn’t entitled to appear.  

·         Remedy is to move the court to set aside the default & judgments.

o   Motion to set aside default may be made anytime b4 judgment. 55(c)

o   Motion to set aside judgment can be made anytime within 1 year after judgment or order is entered. Rule 60(c)(1)

·         Δ must show

o   Valid excuse for her default (grounds listed in Rule 60(b))

o   Meritorious defense to the action; and

o   Π will not be prejudiced. 

o   Appeal: Not readily granted unless time limit and ground are so clearly satisfied that the trial court ruling was an abuse of discretion.

o   Courts clearly disfavor default judgments and are far more wiling to set aside default judgments in order that cases may be decided on the merits.

-          Coulas v. Smith: Δ or Counsel didn’t appear at trial. Court ordered default against Δ 

o   Court couldn’t order a default judgment

§  A default judgment may not be entered against a defendant who has filed an answer.

o   FRCP 55 authorizes a default “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the rules.

-          Bass v. Hoagland: Default judgment entered in favor of π, after Δ’s counsel filed an answer but withdrew from the case. Δ collaterally attacked the judgment when enforcement was sought against him saying he didn’t get notice.

o   Since an answer was filed, Δ wasn’t in default under FRCP 55.

o   Even if the case fell under FRCP 55, failure to give notice under Rule 55(b)(2) might render the judgment void.

-          Rhodes v. Rhodes: Divorce action. Δ claimed he appeared by signing a property settlement agreement.

o   Δ had not shown that he “appeared” and refused to set aside the judgment.

-          Special type of default judgment – party who’s appeared and contested the matters at issues but willfully violated rule of procedure or disobeyed an order of the court.

o   This “penalty” is invoked normally against parties who are defending claims

o   If the complaining party is guilty, the most typical remedy is to dismiss the case w/prejudice. FRCP 41(b)

o   Trans World Airlines Inc. v. Hughes: increase in damage request is granted. Default judgment on the ground of Δ’s failure to produce the owner of 100% of its stock for a deposition.


o   Institution of Trial by Jury

§  Recently, the jury system has come under increasing attack from commentators claiming that the system is expensive and slow and juries can’t understand the complex cases that comprise a large part of the court’s docket.

§  Burger’s problems with jury trials in civil cases

·         Are juries truly representative?

·         Cases can be too complex

·         Time-consuming

·         Capacity to understand and remember all the information described in a long trial.

·         Inconvenience to the jurors.

o   The Right to a Jury Trial

§  Nature of the Right Under the 7th Am of US Constitution. Preserved by Rule 38(a).

·         Constitution and most state constitutions don’t “create” a right to jury trial. They “preserve” the right as it existed at common law.

§  Effect of the Civ. Pro. Rule 2 (Single Form of Action) and Other Modern-Day Procedural Developments on the Right to Trial by Jury in Fed. Cts

·         Formal elimination under Rule 2 of separate actions in law and equity and other procedural innovations

§  Implementation of the Right to Jury Trial in Federal Courts

·         i) Maintenance of the Law-Equity Distinction

o   Cases at law carry the right to trial by jury in cases in federal courts, unlike equity cases which are decided by judges, although they have the discretion to use an advisory jury.

o   The difference btw equity and law is usually based on the remedy.

§  Relief at law is limited in general to compensatory damages along with the ejectment of Δ who wrongfully is in occupation of π’s land.

§  Equity provides remedies when the law does not, and includes injunctions, restitution, rescission, and reformation of Ks.

§  Π is able to control whether he has a jury trial by the remedy sought.

·         ii)  Cases involving Both Equitable and Legal Relief

o   Mergers complicate the application of the jury-trial b/c a party can enter a single court with both legal and equitable claim, and even if a π brings claims of only one type, a Δ by way of counterclaim, may introduce the other type.

§  Beacon Theatres, Inc. v. Westover (π):  Δ threatened to bring an antitrust action against π based on π’s K granting it exclusive rights to show first run-movies. Π brought a declaratory relief action against Δ. Δ counterclaimed, seeking treble damages and demanding a jury trial. 

·         Issue: Where a complaint alleges circumstances which traditionally have justified equity to take jurisdiction, in light of the Declaratory Judgment Act and the FRCP, would a court be justified in denying Δ a jury trial on all legal issues?

·         Holding: No. Judge had no authority to hear the equitable claim first. To allow it to do so might operate to either by way of res judicata or collateral estoppel so as to conclude both parties with respect [to issues involved in] the subsequent trial of the treble damage claim.

o   The right to a jury trial depends not so much on the form of the action as on the kind of relief sought. \ as long as the ultimate remedy is legal in nature, the right is recognized, even though the π has invoked an historically equitable procedural device.

o   The effect of the declaration of its rights sought by π would be to defeat (or establish) Δ’s claim for money damages.

·         Rule: Where there are both legal and equitable claims in the same case, the trial judge must ordinarily try the legal claim first, so as to ensue the right of jury trial as to those claims (unless there’s a waiver of the jury trial right)

-          Deciding whether a particular statutory claim is legal or equitable

o   Test:

§  Compare the statutory action to the 18th Century Actions brought in the courts of England prior to merger of courts of equity and law

§  Examine the remedy sought and determine whether it is legal or equitable in nature

·         This is more important.

o   Curtis v. Loether: Δs, whites, charged w/racial discrimination under the Civil Rights Act for failure to rent an apartment to π, a black woman. Π sought a jury trial under the 7th Am.

§  Issue: Are jury trials required under the 7th Am. in actions enforcing statutory rights, if the state creates legal rights and remedies enforceable in an action for damages in the ordinary courts of law?

§  Holding: Yes. Although from a review of the legislative history to Title VIII, the question of whether jury trials were intended can be susceptible to arguments for and against, if is clear that the 7th Am. entitled either party to demand a jury trial in an action for damages in the fed. courts under §812 of the 1968 Civil Rights act.

·         This action is a damage action, sounding in tort and enforcing legal rights. 

§  Rule: When congress provides for the civil enforcement of statutory rights involving rights and remedies of the sort typically enforced in actions at law, a jury trial must be available.

·         If a legal claim is joined with an equitable claim, the right to jury trial on the legal claim, including all issues common to both claims, remains intact and the right cannot be abridged by characterizing the legal claim as “incidental to the equitable relief sought.”

o   Pernell v. Southall Realty: action to evict a tenant for nonpayment is triable to a jury, even when legislation has substitute a statutory remedy for the old common law ejectment remedy.

o   Tull v. US: Gov’t sued in fed. ct to impose a statutory monetary penalty on Δ for violating the Clean Air Act. Δ wanted a jury trial, arguing that the action was like an history action in debt decided by the law cts.

§  Civil penalty was remedy enforced by the law courts and \ Δ entitled to trial by jury.

-          Decisions by Special Tribunals

o   Congress can create non-jury trials when the right to be enforced isn’t known at common law and practical considerations justify withholding the right to a jury in order to assure efficient disposition, esp if initial adjudication and enforcement of the right are assigned to a fed. administrative agency rather than an Art. III court.

o   Atlas Roofing Co. v. OSHA: 

§  When public rights are being litigated, 7th Am. doesn’t prohibit Congress from assigning the fact-finding function and initial adjudication to an administrative forum with which the jury would be incompatible. 

·         Public rights: cases in which the Gov’t sues in its sovereign capacity to enforce public rights created by statutes w/in the power of Congress to enact 

§  7th Am. wasn’t intended to establish the jury as an exclusive mechanism for factfinding in civil cases.

-          Tactical Considerations in Deciding Btw Trial by Judge or Jury

o   Trial by Jury may be waived

o   Factors

§  Institutional

·         Judge presided trial are faster

·         Preserving evidence. Ex. Injuries that are healed will not help in a jury trial.

·         Jury trials are more expensive.

o   Jury trials take longer

o   Atty’s fees

o   More extensive payments to experts.

·         Complexity of the case. Ex. Will the jurors be able to digest all the evidence?

§  Psychological

·         Πs, statistically speaking, win more often in trials before judges than juries.

·         Juries tend to award greater damages than judges

·         Juries are more likely to award punitive damages than judges, and award higher punitive damages

·         Context of the judge, witnesses, jurors, parties, passion of the trial, etc.

·         The effectiveness of atty in front of judge or jury.

o   Demand and Waiver of Trial by Jury

§  FRCP 39(b) Court can order a jury trial on any or all issues in a case in which the right has been waived.

§  Even when no right to a jury exists, the court may order a binding jury trial with the consent of both parties. Rule 39(c)

§  Bereslavsky v. Caffey: π wanted an injunction for patent infringement. π changed his mind and wanted money damages.

·         Π entitled to jury trial even though FRCP 38(b) time period had expired.

·         Even though the original complaint carried no right to jury trial, a later amendment changing the claim from equitable to legal relief renewed the right and gave π an add’t 10 days to demand a jury.

§  American Home Products Corp. v. Johnson & Johnson: No jury trial granted. By requesting only equitable relief in its initial complaint when it could have also asked for legal relief at that time, the π irrevocably waived the right to a jury trial.

§  Beckstrom v. Coastwise Line: Denied jury trial request b/c granting a jury trial inevitably results in further delay and further “denial of justice” to other litigants, who are presumed to have equally meritorious cases.

§  Batteast Construction Co. v. Henry County Bd of Commissioners: Permitted jury trial by looking at factors b/c

·         Case turned on witness credibility, something well suited for juries

·         Trial was set for nearly a year later and thus no scheduled would be disrupted

·         The opposing party could give no examples of how it would conduct litigation differently w/out a jury and why it would be prejudiced.

·         3-month delay in requesting a jury was not excessive.

o   Selection and Composition of the Jury

§  Size

·         Fed. jury must have 6 or more members participating in the verdict. Rule 48

o   If there are less than 6, a mistrial must be declared.

·         State trials varies in number of jurors.

·         Patton v. US (1930): Criminal case. Trial by jury means

o   Jury consists of 12 men

o   Trial should be in the presence and under the superintendence of a judge having the power to instruct them as to the law and advice them in respect of the facts, and

o   The verdict should be unanimous.

·         Williams v. FL(1970): State might constitutionally use a jury w/6 (or maybe less) members in a criminal case.

·         Duncan v. LA (1968):  6th Am. guarantee of jury trial in crim cases applies to the states through “incorporation” in the 14th Am. the result in Williams required the Court to recognize that such a jury would also satisfy the constitutional guarantee in fed. crim. cases

·         Since Williams, fed. courts used their Rule 83 power to promulgate local rules to provide that ordinary civil actions shall be tried by 6 member juries.

§  Colgrove v. Battin: π tried to empanel 12 person jury, instead of the 6 person jury required under local rules for all civil cases. Π said local rule violated the 7th Am.

·         S.ct. said local rule was not unconstitutional.

o   Framers didn’t intend to equate the constitutional and common-law characteristics of the jury.

o   There’s no discernable difference btw the results reached by the 2 different sized juries.

o   Empaneling the Jury

§  Jury selection is a two stage process

·         1) List of potential jurors (venire) is complied and assembled.

o   A number of them, equal to the number who will service, are then selected at random to sit as a tentative jury.

·         2) There tentative jurors are questioned by the judge and/or by the attys to determine whether each of them can fairly and appropriately decide the case. Questioning is called “voir dire.”

o   If one of them dismissed, that place is taken by another member of the venire, selected at random who is then questioned.

·         This process is continued until the final panel is in place.

§  Thiel v. Southern Pacific Co.: π moved to strike the jury panel b/c π claimed jurors were unfairly selected. All people who worked for daily wage were intentionally excluded from the jury b/c of financial hardships imposed by jury service.

·         Held: this practice isn’t justified w/out doing violence to the democratic nature of the jury system.

·         Although the judge can excuse individuals who whom jury service would be a financial hardship, that cannot justify the exclusion of all daily wage workers regardless of a hardship.

§  Galloway v. Superior Court: Blind juror shouldn’t be excused on the basis of his handicap. Court can provide reasonable accommodations so jurors can serve satisfactorily in most cases.

§  “Blue Ribbon” jury: Composed of people who are specially selected b/c of their above-average intelligence. An attempt to meet the contention that the ordinary juror is incompetent to deal with the complex problems of modern litigation.

·         Fay v. NY:  NY statute that gave trial court discretion to empanel a “blue ribbon” jury by party request constitutional.

o   Challenging Individual Jurors

§  Two types of Challenges:

·         For cause: permit a prospective juror to be rejected when partiality can be shown

·         Peremptory: permit rejection of jurors w/out any statement of reason and usually are based on an assumed partiality that may not be susceptible of proof.

o   Fed. civil trials, each party gets 3 peremptory challenges. §1870

§  Trial judges determine number of “for cause” challenges permitted by each party. Limited number of peremptory challenges per party depends on the state. Many federal judges ask all the question of prospective jurors.

§  Flowers (π) v. Flowers: Jurors told on voir dire examination that the evidence would show that π drank socially and occasionally drank to excess. Schmidt, a prospective juror, stated that she was against drinking of any kind. However in response to a leading question by the court, she said she would be able to decide the case on the facts submitted.

·         Disqualification for bias or prejudice extends not only to the parties personally, but also to the subject matter of the litigation. But to disqualify, it must appear that the state of mind of the juror leads to the natural inference that she will not or did not act with impartiality.

§  Edmonson v. Lessville Concrete Co. Inc: π, black, sued Δ for personal injury.  Δ used its peremptory challenges to excuse 2 black potential jurors. Jury’s award of total damages to π was substantially reduced b/c the jury found him 80% at fault. Π contended that use of peremptory challenges violated the 5th Am DP clause.

·         Race can’t be used as a basis for peremptory challenges in civil trials. Using race as a basis violates the EPC rights of both litigants and potential jurors.

·         Peremptory challenges exist only in the context of litigation, which is a gov’t function. The jury pool is selected by gov’t bodies. \ the state is sufficiently involved in peremptory challenges to constitute state action.

§  J.E.B. v. AL ex rel. T.B: EPC forbids the peremptory strikes to remove jurors on gender basis. 

o   Instructions to the Jury

§  Judge must instruct the jury as to the law relevant to their finding of fact and the manner in which it’s to reach a decision. Rule 51(b)(1). Jury decides disputed facts only.

§  Request for and Objections to Instructions

·         Should instructions come before or after the final arguments by counsel?

o   In most jurisdictions, judges make the decision.

·         Normally, the court requires the attorneys to submit proposed instructions, usually after the evidence has been completed or when court requires. Rule 51(a). The court then determines which of these instructions to give and which of its own to give.

o   Before counsel makes their arguments to the jury, they are entitled to be informed of the judge’s rulings on their requests for instruction. Rule 51(b)(1)

·         Objections: Each party must be given the opportunity to object to instructions proposed by his adversary. Failing to make objection before the jury retires is generally a waiver of any error not pointed out to the jury. Rule 51(c)(2)

§  Kennedy v. So.CA. Edison Co.: π proposed jury instructions on defective manufacturing that weren’t entirely correct; judge failed to instruct the jury properly.

·         Where an instruction would be beneficial to the jury’s proper determination of the case, the court may not merely refuse a requested instruction, but instead has a duty to frame the instruction properly and give it to the jury. Π had requested an instruction based on a new rule of state law that had not yet been interpreted or applied by any court. The D.ct’s failure to give a proper instruction was not HARMLESS ERROR.

§  Occasionally, a judge will reverse a case for faulty instructions in the absence of objections below. Many states now use pattern instructions.

o   Commenting on the Evidence by Judges

§  Majority rule: Judge allowed to comment on the quality of proof that bears on issues that the jury must decide, provided she informs the jury that it is the final decisionmaker.

·         Nunley v. Pettway Oil Co.: It is the right of a D.Ct. judge to comment on the evidence in a federal system. However, under the circumstances, the trial judge’s opinion was an opinion on the ultimate fact question peculiarly for jury consideration which amounted to an instructed verdict to Δ.

§  Minority rule: Some states don’t permit any comment on the evidence b/c judge’s comments are too likely to prejudice the jury.

o   Jury Misconduct and the Integrity of the Verdict

§  Jury isn’t allowed to receive any information that wasn’t presented at trial and made part of the record.

·         Sopp v. Smith: motion for a new trial based on affidavits of several jurors stating that during the trial they had visited the scene of the accident personally to check on driver visibility, road conditions, etc.

o   Held: Improper for jurors to conduct its own investigation of the facts

§  General rule (Mansfield Rule): jurors’ affidavits cannot be utilized to attack the verdict aka you can’t used jurors’ affidavits to impeach their verdict.

§  FR of Evidence 606(b) allows jurors to testify to any “extraneous prejudicial info” or outside influence that may have altered the verdict.

·         Follows the general rule. Jurors shouldn’t develop evidence on their own. That’s wild misconduct and a frequent source of reversal.

§  California Rule: if an extrinsic or overt act can be corroborated or disproved, such as access to improper matter or an illegal method of reaching a verdict, and intrinsic matters which “inhere in the verdict itself,” that should be excluded

·         People v. Hutchinson: some states are more permissive than federal courts. Any improper influence inside/outside jury room may be shown.

§  Ford Motor Credit Co. v. Amodt: Court refused to accept affidavits of 8 of 12 jurors to the effect that “no” rather than a “yes” answer had been improperly reported to a crucial interrogatory.


-          Setting the Case for Trial

o   Pleadings filed è discovery completed è settlement explored and rejected è all pretrial motions decided è Trial

§  However, one of the parties or the court must take affirmative action to put the trial on the court calendar

o   Even if the date it set, this date is at best tentative and likely to be moved a number of times.

-          Order of Trial

o   Jury Cases (Standard Practice – π goes first)

§  Π opening statement è Δ opening statement

§  Presentation of direct evidence by Π, w/cross-examination of each witness by Δ, followed by redirect and re-cross-examination è repeat with Δ

§  Π presentation of rebuttal evidence è Δ presentation of rebuttal evidence

§  Opening final argument by π to jury

§  Δ’s final argument to jury

§  Closing final argument by π to jury

§  Giving instruction to the jury by the judge

§  Verdict

o   Non-jury Cases

§  Usually handled the same way as a jury trial

§  Differences

·         Court will dispense w/opening statement and the closing argument

·         No need for jury instructions


-          Constitutional Issues

o   Galloway v. US (Δ): π sued for insurance benefits. Lower ct. granted the Δ’s motion for a direct verdict on the ground that the evidence introduced by π was legally insufficient to sustain a verdict in π’s favor.

§  Rule: The power of a judge to direct a verdict doesn’t violate the constitutional guarantee of “trial by jury.”

§  Holding: 7th Am guarantees the right of trial by jury “in suits at common law” but this right doesn’t prevent a court from relieving a jury of its function by directing it to return a verdict for one of the parties.

§  Rationale:

·         Courts have the power to direct a verdict for insufficiency of the evidence.

·         A judge can remove a case from jury consideration by demurrer or a motion for a new trial.

·         Standard for determining whether proof is suffiqcient to allow submission of the evidence to jury is that “mere speculation” can’t take the place of probative facts, after making allowances for all reasonable inferences in the favor of the party whose case is attacked.

-          DIRECTED VERDICT: Either party can move for a directed verdict after the presentation of the other party’s evidence and if the motion is denied, that party can still present his own evidence in rebuttal and the case will go to the jury. Rule 50(a)

o   This device is used to test the sufficiency of the other party’s evidence to prove COA and the judge must evaluate the evidence to see if it tends to prove the elements alleged by the party against whom the motion is made.

o   Directed verdict granted if there is an absence of evidence or a defect of proof of a crucial element of the challenged claim or defense.

§  TEST: no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Rule 50(a)(1)

-          Kircher v. Atchison, Topeka & Santa Fe:  π sued for loss of a hand

o   Even though the π couldn’t explain how his hand got run over by Δ’s train, it was inferred that his failure to explain his circumstances was b/c he was unconscious

o   Dissent (Traynor): Explanation from the π is extraordinary.

-          Rogers v. Missouri Pacific R. Co.: π injured while burning weeds in accordance with his employer’s instructions.

o   Rule: If evidence presented reasonably supports a verdict for either party, with either result equally probable, the evidence must be submitted to the jury.

§  Otherwise, Court is otherwise invading the function of the jury.

-          Daniel J. Hartwig Assoc. Inc. v. Kanner: Δ owed π money. Δ contended that π’s admissions of misrepresentations to him were sufficient to allow π’s K action against him to go to a jury.

o   A mere admission of misrepresentation by breach of K by π is not sufficient, standing alone, to allow the case to go to a jury.

o   Party alleging fraud has the burden of proving the elements by clear and convincing evidence.

-          JUDGMENT AS A MATTER OF LAW AFTER THE VERDICT (J.N.O.V.): Most judges reserve decision (judgment) on a directed verdict motion until after the jury has reached a verdict. If the jury decides against movant, judge can evaluate the legal sufficiency of the evidence on motion for JNOV

o   Result: Entry of judgment for the party who lost the verdict on the basis that the verdict had no sufficient legal basis.

o   No longer called JNOV under the Federal Rules. (Judgment “non obstante veredicto”)

o   Rationale: Judges do this b/c they don’t want to be overruled or have a new trial ordered.

o   Procedure

§  Moving part must specify the judgment sought and the law and the facts on which the moving party is entitled to judgment. Rule 50(a)(2)

§  Judge submits the case to jury and waits for the verdict.

§  If the verdict goes against the movant, movant must renew the motion after the verdict for the judge to reconsider the motion. Rule 50(b)

·         Motion must be made within 10 days after entry of judgment. Rule 50(b)

§  Judge agrees with the movant and overturn the jury’s verdict by granting the motion.

-          Constitutional justification

o   Slocum v. NY Life Insurance Co.(1913): Held that JNOV violated the right to jury trial.

o   Baltimore & Carolina Line, Inc. v. Redman (1935): Δ argued that the π’s evidence was insufficient and moved to dismiss the complaint.

o   Whether the evidence was sufficient or otherwise was a question of law to be resolved by the court. Court modified to permit a renewed motion on which the judge “reserved” ruling


-          Trial judge has power to order a new trial on all or part of the factual issues in dispute. Rule 59(a)(1)

o   New jury trial: where there has been a jury trial, judge may order a new trial for any of the reasons for which new trial have heretofore been granted in actions at law. Rule 59(a)(1)(A)

§  Prejudicial misconduct by party, witness or counsel

§  Judicial error

§  Newly discovered evidence

·         New proof must pertain to the facts in existence at the time of the trial

§  Improper evidence

§  Verdict contrary to law

§  Verdict against weight of the evidence (see Aetna case below)

o   New non-jury trial: Where the action was tried w/out jury, a new trial may be granted for any of the reasons an equity court would have granted a rehearing. Rule 59(a)(2). Grounds:

§  Newly discovered evidence

§  Erroneous findings of fact

§  Error in the conduct of the trial

o   Motion for new trial must be served with 10 days after entry of judgment. Rule 59(b)

o   Motion for relief from judgment or order must be made in a reasonable time but no more than a year after the entry of the judgment or order or the date of the proceeding. Rule 60(c)(1)

-          No new trial if there’s a harmless error: Court must disregard any error or defect in the proceeding that doesn’t affect the substantial rights of the parties. Rule 61

-          Aetna Casualty & Surety Co. v. Yeatts: Suit for indemnification of insurance policy.

o   Rule 59 allows a judge to set aside a verdict and grant a new trial to prevent a miscarriage of justice.

o   TEST: If judge thinks that the verdict is against the clear weight of the evidence, or is based on evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict, new trial must be ordered

o   The granting or denying of a new trial is not reviewable, except in the most exceptional circumstances.

§  Goes back to the Judiciary Act of 1789 §22 which said there should be “no reversal in either (Circuit or Supreme Ct) on writ of error for any error of fact; or

§  7th Am. says that “no fact tried by a jury, shall be otherwise reexamined in any court of the US than according ot the rules of the common law.’; or

-          The Power to Set Aside a Judgment on Grounds Discovered After it was Rendered

o   Mistake and Excusable Neglect

§  Briones v. Riviera Hotel & Casino: π sued former employer for unlawful discharge. Π moved for FRCP 60(b) motion to cure a failure to comply with court rules b/c the court didn’t tell him the deadline to filing his opposition to the motion to dismiss.

·         Four factors in deciding if neglect was “excusable”

o   Danger of prejudice to the opposing party

o   Length of the delay and its potential impact of the judicial proceedings,

o   The reason for the delay and

o   Whether the moving party acted in good faith.

§  Cases which negligence is held to be excusable are usually rare. When it happens, the party was prevented from obtaining any trial whatsoever, like a default judgment.

o   FRCP 60(b)(4-6) has no specific time limitation, but the motion must be made within a reasonable time.


-          General term referring to all of the ways in which one judgment will have a binding effect on another. Two discrete doctrines:

o   Res Judicata – Claim Preclusion

§  Valid final adjudication of a claim precludes a second action on that claim or any part of it, i.e. claim may be merged or barred by a party’s failure to raise the claim in the first action.

§  Primary purpose: preventing the split of a single claim into 2 separate suits.

o   Collateral Estoppel – Issue Preclusion

§  An issue of fact or law, actually litigated and resolved by a valid final judgment binds the parties in a subsequent action.

o   Doctrine of Form Adjudication – binding effect of prior judgments - Rationale

§  Party usually only gets one chance to litigate a claim

·         If a party litigations only a portion of a claim the first time, she risks losing the change to litigate the rest

§  A party ordinarily gets only one chance to litigate a factual or a legal “issue”, once litigated, she can’t ask a second court to decide it differently later

§  Party is entitled to at least one “Full and fair” chance to litigate before being precluded.

§  Preclusion may be waived unless it is claimed at an early stage of the litigation

-          Claim Preclusion requires three elements

o   Only judgments that are final, valid and on the merits have preclusive effect

o   Parties in the subsequent action must be identical to those in the first

o   Claim in the second suit must involve matters properly considered included in the first action.

-          Waiver: Party can waive claim preclusion by failing to raise it as an affirmative defense in the second suit.

-          Rush v. City of Maple Heights – (illustration of stare decisis):  Π won in an action for damages to her personal property against Δ and then commenced a second action against the City for personal injuries, claiming that the first action was res judicata on the issue of negligence.

o   Rule: When a person suffers both personal injuries and property damage stemming from the same tort, only one cause of action arises.

o   Rationale: Want to prevent multiplicity of suits, burdensome expense, conserves judicial resources, delays to πs, and vexatious litigation against Δs.  By presenting inconsistent decisions, it encourages reliance on adjudication.  

o   Three ways a prior adjudication involving the same parties and somehow related to the present action can affect a case:

§  1) Merger: π won in the first suit, his COA is merged in the court’s judgment and cannot be maintained again;

§  2) Res Judicata: π lost in the first suit, his COA is barred by judgment for the Δ and cannot be reasserted;

§  3) Estoppel by Judgment: Where the second action does not involved the same COA as the earlier one, issues litigated in the first case are settled and cannot be reargued in the later proceedings

-          Mathews v. NY Racing Assoc. Inc.

o   Π unsuccessfully sued employees of Thoroughbred in 1st action for assault. Π brought a 2nd suit on the same COA against Thoroughbred and the latter’s employer, NY Racing Assoc.

o   Rule: Res judicata operates as a bar to subsequent suits involving the same parties, or those in privity with them, based on a claim which has once reached a judgment on the merits.

o   Π can’t splinter his claim into a multiplicity of suits and try them piecemeal at his convenience. Having alleged operative facts which state a COA, the π doesn’t get yet another day in court by giving different reasons for the same invasion of rights than he gave in the first suit.

§  A judgment against an agent or employee may bind his principal or employer under the doctrine of respondeat superior.

§  Π had his day in court. Res judicata must take effect.

-          Situations exist in which considerations of justice and fairness dictate that prior judgments not be given preclusive effect.

o   When the prior judgment was obtained by use of fraud, court generally won’t consider it binding.

o   If there is a clear and fundamental jurisdictional defect that should have prevented the first court from hearing the suit, courts often will hold that the judgment has no preclusive effect.

§  Lack of jxdn, improper venue, failing to join an indispensable party. Rule 41(b)

-          Compulsory-counterclaim rules supersede the rules of preclusion in many contexts.

o   Compulsory counterclaims that aren’t raised under Rule 13(a) are barred from subsequent litigation.

o   Failing to plead a state-law compulsory counterclaim also is res judicata as to that claim in a subsequent action btw the parties.

o   In most situations, compulsory counterclaim preclusion makes its unnecessary to consider whether and how defense preclusion might apply.

ISSUE PRECLUSION – Collateral Estoppel

-          A party who seeks to relitigate one of the issues disposed of in this first trial is said to be collaterally estopped from doing so.

-          Difference btw Claim and Issue Preclusion

o   Claim preclusion applies only where the “claim” in the second action is the same as the one adjudicated in the first action. Completely bars the second suit.

§  Res judicata used to prevent double determinations of the same COA

o   Collateral estoppel applies as long as any issue is the same, even though the COA are different. Doesn’t prevent second suit, but compels court to make the same finding of fact on the identical issue as the first court.

§  Collateral estoppel operates to prevent double determinations of the same issue

o   However, there’s split as to whether default judgments and stipulated judgments operate as collateral estoppel.

-          Issue preclusion requires

o   1) A proceeding that involve identical issues as a previous suit

o   2) Issue must have been necessary to the judgment of the first suit.

§  Merits requirement doesn’t apply if the issue being precluded is exclusively a procedural one.

o   3) Issue raised in the second suit actually must have been fully and fairly litigated in the first action and decided by the first court.

o   Some courts require add’t showings like

§  Mutuality – the party invoking preclusion would have been bound by an unfavorable judgment in the first suit. Minority View.

-          Direct estoppel: when the two suits involved the same claim (COA)

-          Collateral estoppel: When the second suit involves a new claim or COA

-          Actually Litigated

o   Cromwell v. County of Sac

§  Π attempted to demand payment on bonds issued by Δ even though the issuance of the bonds had been declared fraudulent in a prior action.

§  Even though Smith was not a bona fide holder and wasn’t entitled to redemption, that’s not binding upon a separate claim made by π even though he was found to be a beneficiary and real party in interest in the Smith case. Π is entitled to a separate determination of his rights in this different set of bonds. He should be allowed to prove that he gave value for these bonds, i.e. a new claim.

§  Rule: A judgment estops further action not only as to every ground of recovery or defense actually presented in an action, but also as to every ground which might have been presented when the subsequent action involves the same demand or claim in controversy.  But where the subsequent action btw the same parties is instituted upon a different claim or demand, the prior judgment operates as an estoppel only as to matters actually controverted, the determination of which were essential to the final verdict.

-          Should a guilty plea have a preclusive effect?

o   Argument for preclusive effect unless the Δ can show that he lacked an adequate opportunity or incentive to litigate

o   Restatement contains no exception and concludes that issue preclusion doesn’t apply. However, it notes that guilty pleas are admissible into evidence in later civil suits.

o   Allen v. McCurry held that guilty plea had preclusive effect b/c the Δ had an evidentiary hearing regarding a motion to suppress.

-          Necessarily Decided

o   Rios (π) v. Davis

§  First action: 3rd Party (Popular Dry Goods) sued Δ for a car accident. Δ alleged contributory negligence and joined π as Δ.  Δ sought to recover from π the amount of damages to his car. The jury found the 3rd party, π and Δ guilty of negligence, but 3rd party couldn’t recover against Δ and Δ couldn’t recover against π.

§  Second action: π sued Δ for negligence involving the same accident. Δ defended by claiming that π was guilty of contributory negligence and that the jury’s findings in the first action were res judicata as to the second.

§  Rule: It is the judgment and not the jury verdict or conclusions of fact, filed by the trial court which constitutes the collateral estoppel. A finding of fact by a jury or a court which doesn’t become the basis or one of the grounds of the judgment rendered is not conclusive against either party to the suit.

§  Rationale: Because the judgment was entered in π’s favor, he had no right or opportunity to complain of or to appeal from the finding that he was guilty of such negligence, even if such finding had been without any support from the evidence – the right of appeal is from a judgment and not a finding.

§  When co-parties become adversaries in a subsequent suit, a judgment will not collaterally estop one party unless there is a claim for relief by one against the other. In the absence of an actual claim, it is immaterial that their interests conflict and they come out on opposite sides of each issue.  

-          Defining and Characterizing the Issue

o   US v. Moser:

§  First Action: π won ruling that serving as a naval academic cadet during the civil war constituted service.

§  Second & Third Action: π later won for later installments of his pay on the basis of res judicata even though the court changed its mind about interpreting the pensions statute.

§  Fourth Action: Court still awarded additional payments based on res judicata

§  S.Ct. affirmed and concluded that collateral estoppel applies.

·         Although collateral estoppel effect will not be given to “pure questions of law,” such effect will be given to the determination of a “right” even though the determination may have been reached by an erroneous application of law to fact.

§  It is unfair to the winning party and an unnecessary burden on the courts to allow repeated litigation of the same issue in what is essentially the same controversy, even if the issue is regarded as one of law.

o   Exceptions where conclusion of law shouldn’t be given collateral estoppel effect

§  Two actions involve “claims that are substantially unrelated; or

§  New determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise avoid inequitable administration of the laws.

-          The Required Quality of Judgment

§  Only judgments of a certain quality will give rise to preclusion.

§  Judgment must be valid, final and on the merits.

o   Judgments of Judicial Tribunals

§  Hanover Logansport Inc. v. Robert C. Anderson, Inc. (π)

·         Breach of lease by Δ. Π, in agreeing to a consent decree, unilaterally sought to preserve a COA for retrospective damages. Δ moved to dismiss, contending that the decree barred further litigation.

·         Issue: is a consent decree a contract or a court judgment?

·         Rule: A party who agrees to a consent decree may not unilaterally reserve a COA for further litigation. 

o   Consent degree: decree issued by a court of equity ratifying an agreement btw the parties to a lawsuit; an agreement by Δ to cease illegal activity.

·         Main purpose behind consent decrees is to encourage settlements. As a generally rule, parties enter consent decrees to end litigation so the contract approach is preferable. While a party may reserve a COA, it must be clear from the decree that both parties accept this. Δ did not assent to π’s attempted reservation and \attempted reservation was unassertable.

·         Most courts agree that consent decrees have res judicata effects. Collateral estoppel is must less accepted in this context. An element of collateral estoppel is actual litigation of the issue, and it isn’t clear that a consent decree actually embodies “Litigation” of an issue.

§  AZ v. CA:

·         Consent agreements are normally intended to preclude any further litigation on the issues presented. \ consent judgments ordinarily support claim preclusion but not on issue preclusion. General rule that issue preclusion attaches only “when an issue of fact or law is actually litigated and determined by valid and final judgment.” In the case of a confession, consent or a default, none of the issues is actually litigated.

§  Housing Authority for La Salle County v. YMCA of Ottawa (Δ):

·         Easements over property dispute. Title dispute btw Deenis and First Trust Co of Ottawa.

·         First Action: Deenis didn’t appear after being served with summons, resulting a default judgment in favor of First Trust.

·         Second Action: 50 years later, Deenis’ successor in interest sought an injunction against First Trust’s successor, Δ from building a parking lot. Δ asserted collateral estoppel with respect to the title of the property.

·         Holding: Court decided that the res judicata, not collateral estoppel, applied, but nonetheless held that the earlier judgment was conclusive as to the parties’ rights.

·         Rule: Default judgments are always res judicata on the ultimate claim or demand presented in the complaint.


-          The Traditional Model – Prohibiting a stranger from using collateral estoppel

o   Rule of Mutuality: A party not bound by an earlier judgment (b/c not a party to it) could not use that judgment to bind his adversary who had been a party to the former action (i.e. a judgment was binding only on parties and persons in privity with them, and a judgment could be invoked only by parties and their privities.)

§  Rationale: To do otherwise was a violation of the basic principles of fair play. If a litigant could not be burdened with the effect of a prior judgment, it seems inequitable to allow him to benefit from it.

o   Historical exception – Indemnification relations. Examples

§  Master-servant situation where M entitled to an indemnity from S, and T sued S, lost, and then tried to sue M, M (though not a party to the prior action, nor in privity – an indemnitor may be a privity, but not an indemnitee) could use estoppel against T.   

§  X corporation is a general contractor liable for the proper performance of an entire contract in which Y is a subcontractor. Z, the beneficiary of the contract, sues Y for incomplete performance and loses. If Z brings a suit against X that raises the same claim as the earlier suit, X will be able to invoke the preclusive effects of this prior judgment.

-          Decline of the Mutuality Rule

o   In both of the following cases, the party that was precluding in the second action was the party who had instituted the first action.

o   Bernhard v. Bank of America Nat. Trust & Savings Ass’n

§  Sather authorized Cook and Zeiler to draw upon her account to provide for her upkeep. Checks drawn were deposited by Cook and Zeiler in an account in Sather’s name in the National Bank of San Dimas. Cook later withdrew all of the balance from the Sather account and deposited it in anew account in his name in the San Dimas Bank. When Sather died, Cook became executor of the estate and at the instance of the probate court filed an accounting which made no mention of the money transferred by Sather to the San Dimas Bank.

§  First case: A probate hearing instigated by π, a beneficiary under Sather’s will, was brought, but the probate court declared that Sather made a gift to Cook of the account in the San Dimas Bank.

§  Second case: Π, who became an administratrix of Sather’s estate, sued Δ, successor to National Bank of San Dimas, seeking to recover the deposit on the ground the bank was indebted to the estate b/c Sather never authorized the withdrawal of the account. Δ pleaded as a defense that this fact was res judicata by virtue of the finding of the probate court. Trial court found in favor of the bank.

§  Holding: No satisfactory rationalization has been advanced for the requirement of mutuality.

§  Rule: In CA and a minority of jurisdictions, a judgment in the first action may be asserted as a defense in a later action by one who was neither a privity with a party not a party in the first suit, so long as the party against whom the judgment is raised was a party or privity with a party in the first suit.

§  Rationale: It is unjust for one who has already had his day in court to reopen his case by merely switching adversaries. In determining the validity of a peal of res judicata, 3 questions are pertinent:

·         1) Was the issues decided in the prior adjudication identical with the one presented in the action in question?

o   Yes, here, the ownership of the money

·         2) Was there a final judgment on the merits?

o   Yes, the order of the probate court settling the executor’s accounting

·         3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?

o   Yes, π represented all the legatees

·         \ Δ may raise the earlier judgment as a “shield” in the second account brought by π even though it was neither a party not a privity with a party to the probate hearing.

o   Defensive use of Collateral Estoppel

§  When Δ in the second action seeks to assert estoppel against the π. Estoppel is being used as “shield” rather than a “sword”

·         π has chosen the second forum and the adversary – he is likely to have had the prospect of the second lawsuit in mind at the time of the first lawsuit, and it is not terribly unjust to hold him to the findings of fact made in that suit.

§  Blonder-Tongue Lab, Inc. v. U of IL Foundation

·         Holding: In patent infringement suit, patentee is estopped to assert validity of patent that has been declared invalid in prior suit in federal court against a different defendant, unless patentee demonstrates that he did not have full and fair opportunity, procedurally, substantively, and evidentially, to litigate the validity of his patent in the prior suit.

o   Rationale:

§  Some litigants who haven’t appeared at the prior action may not be collaterally estopped from litigating the issue.

·         Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position.

§  Will save judicial time

§  Offensive use of collateral estoppel

·         Π in the second action seeks to assert the estoppel against the Δ (i.e. π seeks to preclude Δ from relitigating an issue which the Δ previously litigated and lost against a different π)

o   If Π in the second action is the Π in the first action, the arguments for collaterally estopping him are quite strong. If the π in the second action was the Δ in the first action, and is seeking to assert estoppel, this is still “offensive” estoppel, but the argument for estoppel are less compelling. Nonetheless, many courts would allow estoppel.

·         This marked the end of the mutuality rule.

·         Parklane v. Hosiery Co. (Δ) v. Shore (Shareholder)   

o   First case: Sec sued Δ on the grounds he issued a martially false and misleading proxy statement. No jury trial. SEC wins.

o   Second Case: Δ brought class action for damages and rescission of a merger, and costs. Argued collateral estoppel precluded Δ from relitigating the proxy statement issue. D.Ct held that imposition of collateral estoppel would deny Δ its constitutional right under the 7th Am. to a jury trial. Ct. of appeals reversed and applied collateral estoppel.

o   Holding: Collateral estoppel permitted, even though it was not only nonmutual but also offensive

§  Shouldn’t be allowed if the π could easily have joined the earlier action to where its application would be unfair to the Δ.

o   Arguments against Offensive Collateral Estoppel:

§  Offensive use of collateral estoppel doesn’t promote judicial economy

§  Unfair to Δ.

§  Creates a “wait and see” attitude for the π in the hope that the first action by another π will result in a favorable judgment.

o   Rationale: Difficulties should be resolved on a case-by-case analysis of the wisdom of allowing such use. Here, offensive use was reasonable. There was no evidence that π had an incentive to sit out the first litigation (he probably couldn’t have joined the SEC even if he wanted to). Also, Δ had every incentive to litigate the SEC case vigorously (particularly since Δ filed the case during the intial trial.)

·         Exception to Offensive Nonmutual Collateral Estoppel

o   US v. Mendoza: The doctrine of nonmutual offensive collateral estoppel, under which a nonparty to a prior lawsuit may make "offensive" use of collateral estoppel against a party to the prior suit, is limited to private litigants and does not apply against the Government.

§  Who Is Bound

·         All parties to the first action are bound by the finding on that issue & persons in privity (substantial legal relationship w/representative capacity arising out of the relationship) with parties to the first action

§  Binding Non-Parties

·         A person who is a complete stranger can NEVER be bound by collateral estoppel.

o   Fear of collusion and due process concerns

·         Martin (Δ) v. Wilks (White firefighters)

o   First case: Several black firefighters brought discrimination action against the City of Birmingham (Δ).  Suit settled through a consent decree which state certain affirmative action programs were mandated.

o   Second Case: Several white firefighters brought suit, contending that the affirmative action programs constituted reverse discrimination in violation off federal civil rights laws. D.Ct. dismissed, holding that the prior judgment had preclusive effect as to the validity of the programs. C. of appeals reversed.

o   Holding: City and the black firefighters should have joined all white firefighters as Rule 19 necessary parties in the original suit. But where the parties were not joined under Rule 19, the judgment can’t bind the white firefighters.

o   Rule: A consent decree mandating affirmative action doesn’t have preclusive effect upon a subsequent challenge to those programs brought by persons not parties to the prior action.

o   Rationale:

§  Everyone should have his own day in court.

§  Burden of joinder is on the original parties

·         The rule of this case was legislatively overruled by the Civil Rights Restoration Act in 1991.


-          Basic Rule: the Preclusion principles of the court system that rendered the judgment should be used to determine its preclusive effects.

o   State court judgments constitutionally entitled to effect in other state courts under Art. IV “Full Faith and Credit” Clause

o   State court judgments given effect in fed. & state court by statute 28 USC §1738

-          Hart v. American Airlines, Inc.

o   Plane crash. Relatives of victims sued Δ in various state and district courts. TX D.Ct. resulted in a judgment against Δ. Πs filed similar action in NY, asserting the doctrine of collateral estoppel should be conclusive on the issue of Δ’s liability. Δ filed a motion for a joint trial, arguing that application of the doctrine was inapplicable. Π filed a cross-motion for summary judgment on the issue of liability.

o   Holding: NY court gives non-mutual preclusive effect in circumstances in which the TX court would not have done so.

§  Giving greater effect to the first state’s judgment doesn’t violate the Full Faith and Credit clause since the clause merely requires that a court give to a sister court’s judgment at least the same effect it would have in the sister state, not that it be given no greater effect.  

o   Rule: Application of the doctrine of collateral estoppel requires:

§  1) an identity issue which has been decided in a prior action and is decisive of the present action; and

§  2) a full and fair opportunity to contest the decision now said to be controlling.

-          Thompson (Ex-husabnd π) v. Thompson

o   Δ took child to LA and obtained an order giving her custody. π remained in CA and obtained an order giving him custody. π filed an action in federal court, contending that, under the federal Parental Kidnapping Prevention Act, the CA order was valid as against the LA order. D.Ct. dismissed, holding that the Act did not create a private federal right of action.

o   Holding: B/c Congress’ chief aim in enacting the PKPA was to extend the requirements of FFC to custody determinations, the act is construed to furnish a rule of decision for courts to use in adjudicating custody disputes and not to create an entirely new c/a

o   Rationale: Act is naturally construed to furnish a rule of decision for courts to use in adjudicating custody disputes and not to create a new cause of action in Federal courts. Reinforcing this conclusion is the fact that the Act was codified at 28 USC §1738A, right next to §1738 which is the federal full faith and credit statute. It’s clear that the Act wasn’t designed to furnish a new right of action in federal courts.

o   In the context of custody disputes, a court can always reopen proceedings if it is in the best interests of the child. The ability to reopen the case then, is actually what is granted preclusive effect.

-          Parker v. Hoeffer

o   A judgment may be given preclusive affect per FFC even though the judgment would not be enforceable in the state where the 2nd suit is being litigated.

-          State-Federal Preclusion (State suit first, Federal suit second)

o   28 USC §1738 requires federal court to give FFC to state court decisions

§  However, b/c this is statutory and not constitutional, it’s subject to repeal

§  S.Ct. forbids Fed. court to give more effect to a state court judgment than is called for by the preclusion rules of that state.

o   Allen v. McCurry (π)

§  Π charged with illegal drug possession, unsuccessfully challenged the constitutionality of a police search & was convicted.  He later filed a civil rights action under 42 USC § 1983, alleging that the search improper. The d. court, holding that since the constitutionality of the search had already been litigated, it couldn’t be litigated again. Ct. of appeals reversed holding that collateral estoppel couldn’t be applied in a § 1983 action.

§  Rule: Federal courts will give preclusive effect to state court determinations of alleged constitutional violations in subsequent federal civil rights actions as long as litigant has a full and fair opportunity to litigate the issue in the prior proceeding.

§  Rationale: Nothing in the language of §1983 suggests that it is an exception to §1738. The only limitation the Court has put on the application of collateral estoppel has been that it may not be applied against one not having had a fair opportunity to litigate the issue in the first instance. This is not a constitutional limitation.

o   The logic of Allen was soon extended by the Supreme Court.  In Migra v. Warren City School District Bd of Ed., the Court found that a prior state-court adjudication precluded π from bringing a subsequent suit in federal court even though the first proceeding was based on constitutional issues that the π failed to raise, but could have raised in the earlier state action. Claim preclusion rules must similarly be applied in subsequent federal actions unless Congress has affirmatively indicated in creating the federal right that state bar and mergers rules are to be ignored.

§  Rationale: §1983 does not override state preclusion law and guarantee petitioner a right to proceed to judgment in state court on her state claims and then turn to federal court for adjudication of her federal claims.

-          Federal-State Preclusion (Federal suit first, State suit second)

o   Federal common law: fed. court judgments are entitled to preclusive effect

o   Semtek Int’l Inc. (π) v. Lockheed Martin Corp.

§  Π sued Δ in CA state court for breach of K & state tort law. B/c there was diversity, Δ removed to CA fed. district court. Federal court properly dismissed the suit on SOL grounds. Π filed the same claims in MD, which had a longer SOL. MD court dismissed on res judicata grounds and π appealed. MD court of special appeals affirmed.

§  Holding: 1) Claim-preclusive effects of the fed. diversity judgment are a matter of federal common law; and 2) Decided that the fed. common law should apply the preclusion law of the forum state i.e. the state where the federal court that issued the judgment sat (California)

§  Rule: if the first decision is by a federal court sitting in diversity, the state court in the second suit must give to the earlier federal judgment the same preclusive effect as such judgment would have been given by the courts of the state where the first (federal) court sat.

§  Rationale:

·         FRCP 41(b) doesn’t control. 41(b) is a default rule governing the federal system and not a rule that was ever intended to govern what claim-preclusive effect the dismissal would have in some other court, such as state court.

o   Δ’s interpretation would encourage forum shopping

·         Applying the law of the forum state applies

o   This wouldn’t create a single, nationwide rule, but that’s ok. State law was at issue, so there’s no need to a uniform federal rule.

o   Discourages forum shopping

o   Court can still decline to apply state rule where fed. interest are strong.

-          Summary

o   If Suit 1 is in federal court and Suit 2 is in state court

§  Diversity: Claim based on diversity, we know from Semtek, as a matter of federal common law, the federal courts choose to have their judgment have the same preclusive effect as it would have had if it had been rendered by the state court of the state where the federal court sits: if and only if the state court would give its judgment claim-preclusive effect, are other federal courts, and other state courts, required (or permitted) to do the same.

§  Federal Question: Where the claim is based on a federal question, pre-Semtek law makes it clear that here, too, the fed. courts apply federal common law to determine the preclusive effect that their judgment should have. But in this situation, there is no “forum state” court whose law should be applied. Instead, the fed. courts will develop their own case-by-case policies about when their judgment should have preclusive effects (and later state courts will be required to give the same preclusive effect if a case relating to that federal-questions claim is brought in state court.)


-          Provisional Remedies and the Due Process Clause

o   FRCP 64 and the Availability of State Provisional Remedies

§  Federal court may use the provisional remedies available to the courts of the state in which it is sitting to the extent that these state remedies are not inconsistent with any other federal rule or statute.

§  Provisional remedies are primarily created by statute and change from state to state.

·         Attachment

o   Prejudgment attachment is a security device that allows the π an opportunity to seize or limit another party’s use of property during trial to be assured of recovering some assets should a favorable judgment ultimately be entered

·         Garnishment

o   Procedure by which a π may ask a court to seize the property of a 3rd party that is owed to or being held for the Δ.

·         Preliminary Injunction

o   Equitable remedy that allows the π to stop a Δ from on going or threatened action that is likely to cause irreparable injury

·         TRO

o   Procedure that allows a π, typically ex parte and so w/out notice or a hearing, to stop Δ from engaging in ongoing or threatened action that is likely to cause irreparable injury.

·         Receivership

o   A receiver is a court appointed officer who administers property that is the current or likely subject of litigation; the receiver’s assignment is to manage and preserve the property in the same manner that the owner or possessor would be bound to

·         Lis Pendens (Notice of Pendency)

o   Procedure that allows π to protect herself against the transfer of contested property, so that prospective purchasers are advised of the on going litigation

·         Civil Arrest

o   Remedy that provide for the imprisonment of Δ who fails to satisfy an awarded judgment

o   Effect of the Due Process Clause

§  Provisional remedies are subject to Due Process, which requires notice and an opportunity to be heard before the taking or the limiting use of property.

§  Fuentes v. Shevin

·         State statute providing for the replevin of chattels w/out a prior opportunity to be heard is unconstitutional.

§  Mitchell v. W.T. Grant Co

·         State permitting creditor to obtain an ex parte application w/out giving the debtor either notice or a prior opportunity for a hearing upheld.

·         Rationale: Safeguards in place. The risk of a wrongful taking was minimized by creditor’s interest in the property prior to the lawsuit, the judicial authorization of the writ, and the immediate availability of a post-seizure hearing.

§  N. Georgia Finishing Inc v. Di-Chem Inc.

·         Applied Fuentes to invalidate garnishment statute that permitted the writ to be issued on the basis of conclusory allegations by π w/out providing Δ with an opportunity for an “early” hearing “or other safeguard against mistaken repossession”

§  CT v. Doehr:

·         CT statute allowing prejudgment attachment or property, w/out prior notice or hearing, merely on π’s assertion under oath that there is PC to sustain the validity of his claims is invalid.

·         There must be a preattachment hearing, a showing of exigent circumstances, or both before an order of attachment is issued.

-          Methods of Collecting and Enforcing the Judgment

o   Execution: traditional method of enforcing a money judgment and applies to personal & real property.

§  Griggs v. Miller (Δ)

·         Sheriff sold Δ’s farm at a public auction to π to satisfy judgments of $2K and $17K.  Sheriff didn’t advertise the farm for sale and Δ learned of the levies 30 minutes before the sale of the farm. The farm was worth $50K. Δ only wanted a portion of the farm sold. Π sued Δ for possession of the farm. Π was entitled to $2483 in damages. Δ appealed.

·         Rule: Execution isn’t leviable upon all the debtor’s property, but only upon sufficient property owned by the debtor to satisfy the debt, interest and costs, and failure to divide land and sell only enough to satisfy execution may be an abuse of discretion.

·         Rationale: Sherriff is the agent of the property owner and the judgment creditor, and has the duty to protect the interests of both and to see that the property is not sacrificed. There was no reason to not divide the farm. There’s no justification to sell a $50K farm for $20K to satisfy a $19K judgment.

o   FRCP 69 says that the procedures of the state in which the fed. court is sitting are to be followed in enforcing federal court judgments.

§  Exception to this rule provides that “any statute of the US governs to the extent that it is applicable.”

§  Fed. courts retain jxdn to enforce its own judgments even if the applicable state law seems to require that proceedings to enforce judgments be brought in a specified state court.

o   The usual purpose of exemptions is to relieve the person exempted from the pressure of claim hostile to his dependents’ essential needs as well as his own personal ones, not to relieve him of familial obligation and destroy what may be the family’s last and only security.

o   Homestead exemption: protects family house up to a certain dollar amount.