Civil Procedure II: Schwarzschild Outline 1
IMPLEADER – 3RD PARTY PRACTICE
MANDATORY DISCLOSURE AND THE DISCOVERY PLAN
PHYSICAL AND MENTAL EXAMINATIONS
SANCTIONS AND JUDICIAL SUPERVISION OF DISCOVERY
CLASS ACTIONS AND JURISDICTION
DISMISSAL FOR FAILURE TO PROSECUTE
NEW TRIAL BECAUSE THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE
ISSUE PRECLUSION – Collateral Estoppel
PERSONS BENEFITTED AND PERSONS BOUND BY PRECLUSION
-
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.
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.
-
NEVER COMPULSORY
-
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
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.
IMPLEADER – 3RD PARTY PRACTICE
-
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
·
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.
o
Greyhound bus
crash involving pick up truck in
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.
·
·
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
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
§
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
§
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
·
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.
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
§
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
MANDATORY DISCLOSURE AND THE DISCOVERY PLAN
-
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.
-
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
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
PHYSICAL AND MENTAL EXAMINATIONS
-
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.”
§
-
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.
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.
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.
SANCTIONS AND JUDICIAL SUPERVISION OF DISCOVERY
-
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
§
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
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”
CLASS ACTIONS AND JURISDICTION
-
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
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.
DISMISSAL FOR FAILURE TO PROSECUTE
-
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
o
Courts want to
avoid dismissing the case b/c of an atty’s actions.
-
GCIU v.
Employer Retirement Fund v.
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.
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
§
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.
·
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.
§
§
“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.
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 (
§
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.
§
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
§
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.
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.
-
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
NEW
TRIAL BECAUSE THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE
-
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
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
§
7th Am. says that
“no fact tried by a jury, shall be otherwise reexamined in any court of the
-
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
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.
§
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.
§
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
·
Easements over
property dispute. Title dispute btw Deenis and First Trust Co of
·
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.
PERSONS BENEFITTED AND PERSONS BOUND BY PRECLUSION
-
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
§
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
§
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.
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.
§
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
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.
§
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 (
§
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.
§
·
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
§
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