civil procedure outline 2
TRANSCRIPT
CIVIL PROCEDURE—
PLEADING
Pay attention to who can do what and at what stage
Pay attention to the sufficiency of the complaint
Pay attention to the sufficiency of the answer
Seamless web: there are connections among all of the various issues—it can be hard to tell
where something begins and ends
Pleading—the first step in litigation—the documents that initiate litigation—the complaint.
It will tell you what the dispute is about.
The court can rule on the merits of the case based only on the pleading
LIBERAL PLEADING-LIBERAL DISCOVERY-->DECISION ON MERITS
Types of Pleadings—Rule 7(a)
’s complaint (and summons—service of process)—rule 3—filing a complaint, 4 (summons)
Gives the a reason why they are being sued and enough info to form a response
Revealing facts about dispute
Develops and focuses legal issues
Gives notice to the court to determine how to control litigation
’s response:
(1) Answer--&/or
o Deny, admit, lack of knowledge
(2) Pre-answer motion—Rule 12(b)—a way the can bring to the court’s attention
a defect with the complaint—lack of Jd etc.—an answer may not be needed
Why can’t the D ignore the complaint?—Once a complaint is filed, a private
matter becomes public—the state tells you that you have to respond. You can’t
ignore the state telling you that this has to be resolved—the system doesn’t work
if there is no response
Further pleadings, eg. answer to counter-claim, reply to answer
Other pleadings, eg Third party complaint
Amendments to pleadings—Rule 15
Motions and other papers—Rule 7(b); not = “pleadings”
The ’s complaint Rule 8(a) —Claim for relief
how specific or how non-specific the complaint?—tension
A pleading that states a claim for relief must contain:
(1) A short and plain statement of the grounds for the courts Jd.
(2) A short and plain statement of the claim showing that the pleader is entitled
to relief; and
(3) a demand for the relief sought
BUT TWOMBLY/IQBAL—suggests raising the pleading standard: “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a "probability requirement,"
State a claim that is plausible on its face
Two principles
o A court is not required to accept as true legal conclusions alleged:
“threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice”
o Only a complaint that states a plausible claim for relief survives a
motion to dismiss
o Context specific question that draws on the courts judicial experience and
common sense—can no longer be broad
Bills pending to return to Conley standard.
TWOMBLY/IQBAL—puts more burden on the to prove the claim ahead of time
—it requires the to put in so many more facts than they used to—reveals all the
cards
o Think of “SLIP and FALL” case
This is a “notice pleading” system – not a lot of facts needed—enough information to the
to form an answer or pre-answer motion
Anderson v Cryovak (“Civil Action” case)
Complaint: went far beyond the “short and plain statement” requirement—Specific goals
and audiences they were trying to reach
Media attention
Strategic—show all cards to push for settlement
Building a strong foundation for future stages of litigation
Trying to avoid a MTD
Risks of pleading this way:
The media attention could taint the jury pool
Showing the whole hand—revealing too much
The judge may not want to read the entire thing—turn off
They could be stuck with the facts that they claim
US v BOARD OF HARBOR COMMISIONERS —tension about what is required
’ are being sued by the govn’t for polluting the water. The ’s request a
Rule 12(e)—Motion for a More Definite Statement—(not a motion to dismiss)
“A party may move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.”
Can only be filed if you have to file a responsive pleading—once you answer you
can’t file a Rule 12(e) motion (obviously)
The ’s want to know more details about the claim—more specifics
Court says NO—12(e) is not designed to get more details. Only for claims that
just don’t make sense. This claim gives you fair notice. ’s misused this rule.
Satisfies 8(a)(2): violation of a Federal Statute. Strict Liability
Sup.Ct. would say:
o Look at Conley: A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to relief”
o Twombly—Changes view of Conley—“a plaintiffs responsibility is more
than speculation”
POLICY reasons for a minimalist pleading requirement?
“notice Pleading system”—not a lot of facts needed
Pros
o Favors the Plaintiff—liberal ethos—paves the way for discovery—the
defendants answer will have more information. The P has limited access to
the information—you can’t get access to the information until Discovery
o may need to keep the claim broad to account for subcontractors—they
may not know who did it or exactly how much.
o avoids fishing by D
Cons
o On the Defendants part—may not know exactly what you are being
accused of
o Burden on the Defendant—Litigation can be expensive, should it be so
easy to initiate?
o Allows for fishing for information—it is too easy to let the D do all of the
work to prove the case
o Could be a problem to ask P to have more info—Defendants can be more
careful about sharing
o Plaintiff will not always have access to info
Consistency is NOT required
8(d)(3) Inconsistent claims or defenses
a party may state as many separate claims or defenses as it has, regardless of
inconsistency–limits—must be in good faith
McCormick v Kopman
Policy concerns for inconsistent pleadings
Widow sues other driver and the tavern for wrongful death of her husband. Alleges that the
other driver was negligent and that her husband was over served. These are mutually
exclusive claims!
MTD denied—why does the court allow inconsistent pleadings
Consistency
Efficiency—airing the same facts
Fairness—disadvantage for ’s—may force settlement
Structure of Suit may drive decision to settle—bad for D’s
Applies to Defenses as well: “I never borrowed it, It was broken when I borrowed it, I
returned it in perfect condition”
Allowed because may have lack of knowledge, legal definitions “borrow”, may
need discovery to get to facts
SAFEGAURDS for this method of pleading:
Rule 11
(a) Signature requirement—every pleading, written motion and other paper—not
applicable to discovery.
(b) Representations made by presenting to the court (incl. later advocating) that
“to the best of the person’s knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances…”
the D cant just respond by saying “I didn’t do it”—you have an obligation to
investigate and prove that you didn’t do it.
Certification by signing (a) Signature requirement
11(a) signature requirement contains it’s own sanction
if you don’t sign it will be stricken
does not apply to discovery
11(b) Representations—made by presenting to the court (including later advocating)—that
“to the best of the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances
1) no improper purpose
2) Legal contentions--warranted
3) factual contentions—evidentiary support
4) denials--warranted
You have an affirmative duty to investigate before filing in a reasonable way
Objective standard applies to the reasonableness of the investigation to support the
allegations
ZUK v Eastern PA
Zuk wants his films—he thinks the copyright for his book covers the films because the
transcripts are in the book.
files a motion to dismiss and sanctions under Rule 11
Rule 11—does not require bad faith—only negligence
Factual and Legal contentions are not warranted or supported
11(b)(3) Factual contentions: should not allege facts unless you have
evidence OR if you identify the facts, you can say you will “likely” have the
support after discovery
o is this consistent with liberal pleading purpose?
Statute of Limitations—there is no evidence that the had actually rented out the
film during the 3 years prior to the filing of the complaint—the lawyer relied
almost entirely on Zuk’s opinion of what he thought was happening—the lawyer
didn’t check
o client could lie—self interest—biased recollection
o There are 2 sides to every story
11(b)(2)—problem with the legal contentions
o Ignorance of the law is a problem—he is an attorney and needs to know
the law
o Property issues: the idea of who the films belong to
o Zuk can raise this issue and this could be argued based upon existing law
—there is a question of ownership warranted by existing law
Rule 11(c) sanctions
o Law firm jointly responsible—not just the indv. attorney
attorney’s keep an eye on each other
o Procedure:
(2) by separate motion of a party—21-day “safe harbor”;
attorneys fees and expenses may be awarded
the party filing the motion has to give notice of filing first
and then the has 21 days to withdrawal the complaint—it
is a warning and then 21 days and then filing
timing of the notice is important—you are not suppose to
file the motion
(3) on the courts initiative—order to show cause; no safe harbor
—(only for bad faith)
o Nature of sanctions; limitations:
within courts discretion; not mandatory
purpose = deterrence (not compensation of other party)
o Sanctions may include:
non-monetary—public reprimand, paper stricken, disciplinary
committees
penalty paid into court
reasonable attorney’s fees and expenses paid to other party (if on
motion and warranted for deterrence)—must be justified
o If we are focusing on deterrence, what is a situation that would
warrant reasonable attorney’s fees?
if the sues only for the purpose of dragging the into litigation—
in this situation, attorneys fees are warranted
Another motion that can be filed in response to a pleading 12(b)(6)“failure of the
pleading to state a claim upon which relief can be granted…”
A favored defense—available at any point in litigation
Diff from Rule 11:
two general situations:
Legal theory asserted is not cognizable; or
o even if everything says it true it does not arise to a claim
o or the jd. doesn’t recognize relief for that claim
facts alleged do not support a cognizable legal theory
o attacking factual sufficiency or not enough facts at all
Legal sufficiency
These arguments can be raised immediately after the complaint or at a later point under
rule 12(c)—motion to rule on the pleadings
rule 56—motion for summary judgment after discovery or at trial
Under rule 12(f)—similar motion for a plaintiff—not for facts but for pleadings
o motion to strike an affirmative defense
Substantive sufficiency—attack on 12(b)(6) MTD—the only part that is relevant is
the face of the complaint itself—a pre-answer motion—or can be included in the
answer
Rule 12(b)(6)—is a final judgment on the merits—the claim is precluded from
being re-filed
Rule 11—it can result in the paper being stricken—not a judgment on the merits
Because the outcome is serious, the rule 12(b)(6) motion is not always granted
o this is not about proof, it is about pleading
o courts take a range of approaches to decide these motions
o not all that easy to win
why ’s file the MTD even though they are not easy to win:
o there may be a chance to avoid expensive discovery
o it could be an easier way than answering—you can make the arguments—
not that difficult to get what you want—but subject to rule 11 so you have
to have a basis for filing
o disrupts the momentum of the other side—you are buying time before
you have to answer and you are creating work for the other side—they
spend more money
o tactical reasons—they may want to settle
Even if the court grants the final judgment on the merits, they may grant the P a
chance to fix the complaint and come back
Mitchell v A&K—claim too specific
shot in the face in front of his family while parked on a street across from the warehouse.
The dock was full and the worker told him to park on the street and wait.
Problem with the complaint: He was located on a public street—not on the “premises” of
A&K – complaint was too specific—demonstrated no duty existed
if it was broad and said “on the premises” there would have been a problem – a
lot of research and discovery and expansion of the law
The 12(b)(6) was appropriate because they did not state a claim by saying on the
“street” and not “on the premise” the ’s did not state a claim.
Rule 9(b) Heightened requirements for specificity
This is NOT an exception to rule 8, but special matters that require more
(b) Fraud or Mistake; Condition of Mind.
In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's
mind may be alleged generally.
PROS for heightened standards
protect ’s reputation
reduce nuisance “in terrorem” value—case with no merit
Higher hurdle for discovery
Curb perceived frivolous litigation
greater notice—complicated cases
CONS of increasing the standards
imbalance in resources—increasing burdens on ’s already at a disadvantage
’s likely have exclusive control of the information—if no discovery, then how can
get enough info to file claim
ripple effects—reduces access to justice—Background: for antitrust you can
get triple damages—why? deterrence—also incentive for lawyers to pick up the
case—a check on antitrust enforcement
the check goes away—it encourages the bad behavior
NOT a ’s claim—the must plead this way
Swierkiewicz v Sorema--2002
The court rejects the lower courts attempts to raise the pleading standard for employment
discrimination.
In the absence of a special law or rule, we obey the simple notice pleading standard and the
“no set of facts” from Conley
the court draws a big distinction between pleading and Proof
the lower courts got it wrong—they want the pleading to lay out a prima facie
case pg 176—that is a standard for evidence—not for pleading
Bell atlantic v Twombly—2007
Rejection of Conely—“no set of facts” language is retired. Pg 184
The pleading standard requires more than labels and conclusions, and a formulistic
recitation of elements
Iqbal—2009—suggests raising the pleading standard
State a claim that is plausible on its face
Two principles
a court is not required to accept as true legal conclusions alleged: “threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”
Only a complaint that states a plausible claim for relief survives a motion to
dismiss
Context specific question that draws on the courts judicial experience and
common sense—can no longer be broad
Bills pending to return to Conley standard.
THINK about who the ’a and ’s in each case.
TWIQBAL—puts more burden on the P to prove the claim ahead of time—it requires the to
put in so many more facts than they used to—reveals all the cards—Think of SLIP and FALL
case
DEFENDANT’S RESPONSE
answer or
pre answer motions—reveals a defect 12(b)(6)
Pre-answer motion addresses the complaint itself
These motions all focus on the complaint itself
Not mandatory, but can buy you some time before you have to file an answer to
slow things down.
If the motion is granted it may prevent the from having to answer at all—mostly
procedural
If you do file a Pre-answer motion, you have to do it all it once
Rule 12(g)(2) Limitations on Further motions joining motions Except as
provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must
not make another motion under this rule raising a defense or objection that was
available to the party but omitted from its earlier motion. (objective)
Rule 12(h) Waiving and preserving Certain defenses
12(h)(1)—Disfavored defenses—use it or lose it
o lost if you don’t raise them by pre-answer(or first time you address
the court)
Lack of PJ
Improper Venue
Insufficient process
insufficient service of process
o Why do we want these raised in the beginning—mostly procedural—we
don’t care if there is a defect—the harm is to the parties that should have
raised them—doesn’t have to do with the legitimacy of the claim—obvious
from the beginning—efficiency concerns
12(h)(2)—Favored defenses—not lost, but can be raised in a later
pleading, a motion for judgment on the pleadings (R12(C)) or even at
trial—you don’t waive them by not putting them in a pre-answ.
o Failure to state a claim
o Failure to join a party under Rule 19
o failure to state a legal defense to a claim (cf. 12(b)(6), 12(f))
why do we favor these types of defenses—some of them take
discovery to get to—you can’t often raise them before you have
more info
Often the does have enough info in the beginning—you can sit on
these—why would a do that?
make things more costly for the --they may drain there
resources
they want to see the ’s hand—let the play out
You don’t want to point out the defects in the ’s case
because they could fix it
IF you know there is a party that should be joined—you want
to wait and bide your time so that they can’t join the party
Why do we let defendants do this?
the burden of proof is on the Plaintiff—these speak to the
substance of the claim—it puts pressure on the Plaintiff to
get it right
12(h)(3)—Most Favored defense—can be raised at any time
o Lack of SMJ
Why can this be raised at anytime?
does this court have the power to entertain the dispute—if
not then we want it out whenever.
3 functions of the Answer:
Raise defects in complaint, IF no pre-answer motion is filed (but see 12(h)(2))
narrow the issues in dispute
raise new matters – affirmative defenses; ’s claims (counter claims)
These are subject to rule 11 sanctions
denials must be warranted on the evidence or (identified) are reasonably based
on belief or lack of information
Rule 8(d)(3)
Inconsistent Claims or defenses. A party may state as many separate claims or defenses
as it has, regardless of consistency
Rule 8(b)
in response to the averments of the complaint, the may:
admit—establishes it as true
deny or
assert a lack of “knowledge or information sufficient to form a belief about the
truth of an allegation”—treated as a denial
Types of Denials
General
Simply denying each and every allegation that the plaintiff is making.
Federal Rules don't like this one. The only time that a general denial works is if
you legitimately deny everything. This isn't very often because usually one can't
use a general denial in good faith.
Qualified - General
Generally denying everything but you are going to identify specifically the things
that you don't deny.
Specific
I deny these specific things and I admit everything else
Conditional Denial
Says that I don't know enough to actually assert a denial nor do I want to admit to
an admission.
This has to be used carefully because if you use this improperly you can be
deemed to have admitted the allegation.
o Context matters here. Courts don't always do this. It matters on the facts
of the case. (David v. Crompton & Knowles Corp.)
8(c) Affirmative defenses—not the same as denial!
Claim preclusion is an affirmative defense R. 8(c)— must raise it
“Yes, but” or “Even if” defenses—different than other defenses
bears the burden of pleading
Examples in Rule 8(c)(1): eg
contributory negligence, duress, estoppel, failure of consideration, fraud,
illegality, payment, release, res judicata, statute of frauds, statute of limitations,
waiver—often an issue of state law—not an exhaustive list
the Gomez case—qualified immunity (defense)—cop sues superintendent—
failed to plead bad faith
even if a right has been violated, if the official acted in good faith, this may be a
qualified immunity
What is an affirmative Defense
statutory language
o Bd of Harbor case pg 128
“except where an owner can prove…”
Historical/traditional treatment/analogy to Rule 8(c)—affirmative defenses
Policy—favor/disfavor party/claim
Fairness—access to information
The Plaintiff’s answer or reply
court can order a reply to an answer (and sometimes this is used to get more
specificity from P) but a reply is not automatically required
NOT needed in response to affirmative defense—will be deemed denied 8(b)(6)
NEEDED in response to a counter-claim Rule 7(a)(3)
Admitting or denying the allegation
narrow the issue in dispute—rule 8(b)
admitting—if admits or tries to deny and does so improperly—the is bound to
obligations regardless of whether its true
o why would they admit to anything?
sometimes it’s not worth fighting—efficiency
they stated the facts more favorably than they are
if you have an affirmative defense then if doesn’t matter
under rule 11—you have to be honest in response
o Why would you admit to something that is not favorable?
afraid of discovery—if it is a point in contention, then they are
entitled to discovery
denying—different ways to deny allegations
o general—see 8(b)(3)
I deny everything—courts don’t like this—efficiency
Can only do this if you truly intend to contest every
allegation—responsibility to define positions—efficiency
concerns—we want the parties to think about how to
develop each case
also, you may be stuck with something that isn’t true if you
don’t properly deny issues—the court may treat them as
admissions why?—prejudicial to the plaintiff to let the
amend the denials—parties have to rely on the pleadings to
build the case
o qualified general—I admit some and deny the rest
o specific—I deny only specific allegations and admit to the rest
asserting lack of knowledge—conditional denial—not committing to a position,
but you are saying that you don’t enough yes—a tentative denial—keeping it in
dispute—can be used improperly
David case—pg202 and 223
It is about what you SHOULD have known, not what you actually know—
constructive knowledge
Court breaks it into 2 issues:
o was ’s assertion of lack of knowledge improper—should it be treated as
an admission rather than denial (yes)
o Should they be allowed to amend the answer? (no)
knew that it was hunter’s machine but didn’t know that they were not
responsible
Subject to rule 11
AMEDMENTS TO PLEADINGS
Rule 15(a)
What are the circumstances under which you are allowed to amend your pleading 15(a)
(1) Once “as a matter of course” – you can do it one time without permission because
nothing has happened yet—within 21 days within service if there is no responsive pleading
required
(2) With the courts permission
It is not a free for all—arguments against granting leave to amend:
o 1) Undue delay—it is not reasonable for the party to have waited this
long—most courts discuss undue delay in conjunction to prejudice to
another party
o 2) Prejudice to the other party—we don’t want to focus on the
substance of the litigation becoming more difficult.
o 3) Futility—
Repeated failure to cure deficiencies—the files a complaint
and files a 12(b)(6)—if motion granted, then grants leave to
amend to --if that happens once and then another MTD is granted,
that is it. Efficiency interest
Legal futility— the amendment they want to make is not
cognizable or amend an answer to assert a defense that is not
recognized in the law—this is a common reason—judges can decide
if the law recognizes the claims—the judge is equip to handle this—
efficiency
Factual futility—the party opposing a fact doesn’t think they can
turn up evidence to prove a fact—not really a good reason to deny
leave to amend—the judge is not in a position to know if the party
will be able to prove the facts or not—the parties may not have
access to all info—in order to determine if it is likely that a party
will be able to turn up evidence the judge may have to have a
hearing—no efficient
(3) With the opposing party’s written consent
Rule 15(b) allow for an amendment to a pleading once the trial is over
Record clear
Preclusion
The outcome of the litigation has effects into the future
Might help an appellate court have a clean record
Rule 15(c)—relation back—remember this is for amendments
In some situations, if the SOL has run before the amendment, the court will allow the party
to “relate back” the amendment to the time the complaint was filed—so it would count
“before” the SOL
Limited situations that courts allow relation back 15(c):
(1)(A) permitted by the law that provides applicable SOL—specific to state
regulation OR
(1)(B) claim or defense added arose out of the “conduct, transaction, or
occurrence” set out (or attempted to be set out) in the original pleading
o EX: sues for products liability breach of warrantee then wants to file a
tort claim for negligence after SOL court will allow if it came out of “same
t/o” (same event, accident or episode)
o Why is this allowed:
the same evidence will often be in play—it won’t necessarily go
stale
the already knows he is being sued—already on notice for one
action
(1)(C) changes party or naming of party against whom claim is asserted
o IF (1)(B) satisfied and w/in specified period party brought in
(i) had notice/won’t be prejudiced and
(ii) knew/should have known action would have been brought
against it, but for a mistake concerning the proper party’s identity
KRUPSKI V. COSTA CROCIERE
Woman sues the wrong
The sup ct grants cert to determine if the mistake was reasonable on the part of the and if
she should have known who she should have been suing.
What counts as a mistake under 15(c)(1)(C)(ii)?
“the reasonableness of the mistake is not itself at issue…That kind of deliberate
but mistaken choice does not foreclose a finding that Rule 15 has been satisfied”
Poor strategy—NO
Misnomer/typo—YES
Lack of understanding of party’s status—at issue here—sup court says YES this is
mistake
“Doe” defendant—NO—no “placeholder defendants”
PRECLUSION
ALWAYS LOOK FOR CLAIM PRECLUSION FIRST
With issue preclusion—pay attention to the details of the claims in the
first action!
Preclusive Effects of Judgments
Concerns effects of earlier decisions of litigation on future ability to litigate
Preclusion policies
finality
efficiency
certainty
consistency
two doctrines:
Res Judicata = “claim preclusion”—blunt instrument
if applicable, bars litigation of both
o issues actually raised and
o issues that should have been raised in prior litigation
collateral Estoppel = “issue preclusion”—more precise
If applicable, bars litigation of only issues actually decided in prior litigation
RES JUDICATA: CLAIM PRECLUSION
THE TEST:
1st and 2nd action involves same parties
1st and 2nd action involve same claim
1st action resulted in final judgment
judgment was on the merits
TO DETERMINE “SAME CLAIM”: does this new claim arise out of the same transaction or
occurrence?
The transaction test: What the factual grouping constitutes a “transaction” [is]
to be determined pragmatically, giving weight to such considerations as
o whether the facts are related in time, space, origin, or motivation,
o whether they form a convenient trial unit, and
o whether their treatment as a unit conforms to the parties’ expectations or
business understanding or usage.
1st action: AB
2nd action: AB for same claim—NO
The court in the second action decides whether claim preclusion applies
Claim preclusion is an affirmative defense R. 8(c)— must raise it
MANEGO CASE
1st action
v Selectmen, Bank, Willard
violation of federal and state civil rights laws—race discrimination
fails on outcome of the race discrimination
2nd action
v Bd. of Trade, Bank, Willard
violation of anti trust law—anti competitive conspiracy
Res Judicata does not apply to Bd. of Trade – they were not in the first suit
Rule 60(b)(2)—new evidence can re-open a judgment
Could have appealed the decision—the court wants all of these taken care of directly in the
first action—but the reality is that the court can still deny the motions to amend etc.
Exceptions to rule against bringing the claim again
Examples(not exhaustive)
“simple justice” –NOT OK—MOITE
Multiple lawsuits consolidated into one action 7’s
claims dismissed by lower court—5 ’s appeal and won
2’s did not appeal and sued again raising similar arguments
o 9th circuit said not barred based on “simple justice” because the other ’s
won the appeal—unfair to stick them with that result.
Sup court says NO—this exception does not work—why?
o The proper procedure is to appeal—the other 2 could have taken
advantage of the appeals process too
Jurisdictional competence exception
the court in the 1st action can’t hear all of the claims
the court in the 2nd action has jd. to hear that one
Statute allows it—landlord tenant law
one procedure to evict and another to re-coop money
Parties agree that the action can be split
Others:
limited policy exceptions—rare: the court has to find significant policy reasons
for the exception—a series of asbethos cases—claim was not barred because the
’s had no idea what kinds of illness they would develop. it was a rare case that
involved particular issues
court in 1st action reserves a parties right
1st judgment based on fraud—if defendant concealed facts
TO DETERMINE A FINAL JUDGMENT ON THE MERITS:
Rule 41 (a)(1)(A)—Plaintiff gets one chance to dismiss without prejudice—not final
judgment
Rule 41(a)(1)(B)—voluntary dismissal—if you’ve done it already then the second will be
final judgment on the merits
Rule 41(b) involuntary Dismissal; Effect
If the fails to prosecute or to comply with these rules or a court order, a
DEFENDANT may move to dismiss the action Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any dismissal not under this
rule operates as an adjudication on the merits EXCEPT:
o the dismissal order states otherwise—dismissed without prejudice—
plaintiff can re-file
o except one for lack of personal Jd., improper venue, or failure to join a
party under Rule 19—not a final judgment on the merits
What if the case ends in a settlement:
1st action: P D—they settle (R-41(a) voluntary dismissal)
2nd action: P D for same claim—NOT barred by Res Judicata
BUT based on a consent degree—the judge enters an order that a settlement has
occurred—the claim would be barred
Collateral Estopple Issue Preclusion: if applicable, bars litigation of ONLY issues actually
decided in prior litigation (THE SHEILD AND SWORD)
THE TEST:
issue identical in 1st and 2nd action
issue actually litigated in 1st action
o had to have been part of an adversarial conflict
o not to issues that were conceded or stipulated or default judgment
issue decided in 1st action
decision on issue in 1st action was necessary to the outcome
o cause for the way in which the litigation was terminated
Both parties can use issue preclusion because it focuses on particular issues. It can be raised
at different times during litigation—it can be an affirmative defense but it can also be
waived. It must be raised.
If the court does not have a transcript of the trial then you don’t know what issues where
litigated.
Contrast to res judicata—does not require the same criteria
does not require the same claim, same parties, or final judgment in 1st action
it can be used by a party not involved in first action but it cannot be used againt a
party that wasn’t in the first action
why: it would be unfair and violate due process
Issue preclusion (collateral Estopple)
does NOT require same claim, same parties, or final judgment in 1st action
does require:
o issue identical in 1st and 2nd action
o issue actually litigated in 1st action
o issue decided in 1st action
o decision on issue 1 was necessary to the outcome
Government policies shift the Issue preclusion—consistency over all taxpayer
IRS v SUNNEN –look for CLAIM preclusion first—not in this case because every tax year is
different
No estopple even with respect to 1928 K where “legal climate” has changed—mixed
question of law of fact—the law is applied to his set of facts
why is the court doing this? The court is concerned with creating vested rights in
decisions that have become obsolete or erroneous with time.
Usually a mixed issue of law and fact will be precluded, but the interests of the
government make this different.
The fourth requirement: decision on issue 1 was necessary to the outcome
HALPERN
Will give preclusive effects to independent grounds if:
the issues were appealed and upheld or
look back to 1st action a see if each issue was given full effect – room for
interpretation—inefficient Middle ground is having the court go back and look at
the first action—not very final or efficient
Parties bound by judgment—for both ip and cp
who do we consider to be the same party for 1st and 2nd action?
even though IP can be used to benefit a party that was not in the first action, it may only be
used against a party that was in the first action.
Does it have to be the same entity or individual in the action?
o sometimes no—sometimes we will consider a party to be in the first action
even if they were not
o Starting Principle: Ordinarliy a person is not bound by the outcome of the
litigation if that person did not have an opportunity to control the outcome
—did not participate
o Non-party preclusion—person’s in privity—someone with such a close
relationship to the litigation that they are bound by the judgment – no real
clear test for determining privity but some common categories where a
non-party will be considered in privity:
those who had legally appointed representative in 1st action—
executor of the estate—the estate is treated as party
trustee of a trust
minors
Class Members
Successors in interest
if you aquire a property interest from someone else—if there
was earlier litigation that decided the rights of property—
grantee is treated as grantor
estate—can be treated as the same person
a corporation that aquires the rights of a company
a contract right of someone else—assignees
Person’s who controlled the litigation even if they were not named
in the litigation
insurance companies—they control the litigation when
someone is sued
a Parent Corp. that is in charge of the subsidiary corp.
litigation—not just sharing a lawyer
DEFENSIVE non-mutual estopple—the shield—same in both actions
the P was the same in both actions and the new wants to use the ’s loss in the
1st issue to prevent the litigation on that issue
this is OK—its efficient and creates good incentives for the parties to consolidate
litigation
OFFENSIVE non-mutual estopple—the sword – same in both actions
the is new in the second action and wants to use an issue on which the D lost in
the first action
this is more controversial—efficient but it creates the “wait and see” situation.
the opposite incentive
PARKLANE: what were the incentives here? Unfair and create bad incentives? case by case
incentives on the Ps side—could they have easily joined in earlier litigation?
o would the application of c.e. be unfair to the
not have incentive to litigate “fully and vigorously” in prior action?
judgment in prior action inconsistent w/ other judgments?
procedural opportunities available to here that were unavailable in prior action?
Parklane Hosiery
“The general rule should be that in cases where a could easily have joined in the earlier
action…” We will NOT allow the new to re-litigate the same
Factors to consider in determining whether to permit non-mutual, Offensive use
of collateral estoppel:
could the easily have joined in the earlier litigation?
o what does this mean? how easy does it have to be?
o or is it talking about practical concerns—one plaintiff chooses a form not
convenient to
not have incentive to litigate “fully and vigorously” in prior action?
judgment in prior action inconsistent w/ other judgments?
Procedural opportunities available to here that were unavailable in prior action?
o discovery more available in 2nd action
o choice of forum—access to witnesses
JOINDER
ALWAYS THINK ABOUT SUPP JD!
THINK ABOUT WHO CAN USE WHAT RULE AND TO DO WHAT
Types of Joinder for CLAIMS: Overview
adding claims: claim for K and also for tort (rule 18)
counter claim and (rule 13(a),(b))
cross-claim: sues 2 ’s to begin with suing a party on the same side of the v
(Rule 13(g))
Impleader: derivative liability 3p (Rule 14)
Policies for joinder
avoiding confusion and prejudice
rational procedures
fair procedures
efficiency
ALWAYS THINK ABOUT Supplemental Jd.
Evolved from the Constitution Article 3 and was codified by statute
§1367
JOINDER OF CLAIMS
Rule 18(a) General—BRING OUT YOUR CLAIMS! used with others
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.—
NOTE—rule is permissive—BUT
there are consequences to not bringing certain claims—res judicata may apply to
claims that involve the same t/o (Menego)
ALSO just because the claim can be brought—the court still needs SMJ—Supp Jd.
may apply
COUNTERCLAIMS Rules 13(a) and 13(b)—used by ’s and parties in position—
think about PRECLUSION!
13(a) Compulsory Counterclaim
arises out of the “transaction or occurrence that is the subject matter of the
opposing party’s claim”
“must” be brought—preclusive effect of failure to do so
NOTE—applies to Parties—not just plaintiffs
EXCEPTIONS:
13(a)(1): the pleader does not have the claim at the time of serving the pleading
13(a)(1)(B): would require adding a party over whom court cannot acquire jd.
13(a)(2)(A): when the action was commenced the subject of another action
13(a)(2)(B) the opposing party sued on its claim by attachment or other process
that did not establish personal jurisdiction over the pleader on that claim
13(b) Permissive Counterclaims.—not arising out of same t/o
A pleading may state as a counterclaim against an opposing party any claim that
is not compulsory.
MUST have an independent basis for JD.(because it won’t pass 1367(a))
This rule is written in an open ended way—can apply to multiple situations—cross claims,
counter claims
implications in regard to SMJ of the counterclaim
If the counterclaim is compulsory counterclaim
court may exercise Supplemental Jd
If the counterclaim is Permissive Counterclaim
Must have independent basis for Jd.--?? recent split in courts
Be aware of the 2nd circuit’s “loose factual connection” issue—very minority view—
highlights a question of should we have the same standard—the concept of same t/o—the is
part of the analysis of SUPP jd. “Case or Controversy”
WIGGLESWORTH
To figure out the same T/O for the purpose of 13(a):
logical relationship test—do the two claims logically relate
OR—the same evidence test—is there evidentiary overlap
Cross claims: sues 2 and one sues a co-
13(g): parties on the same side of the “v”
this could be a claim between co-’s or [a co- sues another (doesn’t happen
often—some courts have said this is not allowed, unless the has asserted a
counterclaim and the cross refers to the counter) ]
must arise out of the same t/o as the original action or a counterclaim [or relate
to property that is the subject matter of the original action]
permissive (but preclusion law may apply if bought, then has to bring all claims or
preclusion will apply)
may include claim that co-party is/may be liable to cross-claimant for all or part of
claim asserted against cross-claimant (indemnification)
Why do we limit co-’s to the same t/o and why permissive
sometimes the ’s don’t want to fight it out in the P’s suit
why the same t/o?—it would not satisfy the policies of the rules—too much
evidence and confusion for the jury and unfair to
Problems applying 13(g) Bertha and Caleb hit Abe on a bike
Q: if A sues B and C can B sue C in the same action for damages to her car arising from the
accident?
YES—same t/o
If A sues B and C, can C sue B in the same action for trespass based upon B’s installing a
fence that encroaches upon C’s property?
NO—not the same t/o
BUT! the rules work together—it is possible to use one rule to enable you to use
another rule—how can C sue B based upon an unrelated incident?
o C can sue B for damages to the car (13a) and then can assert a cross
claim for the trespass (18a)—once a proper cross claim is brought then all
the claims can be brought
If we start with B suing C then C can bring in the counter claim
If B sues C for damages, then C must bring counter claim
Jurisdictional competence exception to res judicata—if you bring multiple
counterclaims and the court does not have Jd over the state claims you are not
barred from bringing the claim in a second action
JOINDER OF PARTIES
Questions to consider with Joinder
Is joinder permitted? that is:
o Do the Rules allow this structure—ie can THIS PARTY assert this claim/join
that party?
o Can the Federal court hear the claims as structured? (SMJ/supp. jd)
Is joinder required? that is:
o Do the rules mandate or make joinder complulsory?
o What consequences attach to failure to join? (could include preclusive
effect, dismissal)
Rule 20(a) permissive joinder of parties—only for ’s
permits to join others as ’s or to join multiple persons as ’s if:
o (1) the claims or liability they contend arise from the same t/o or series of
t/o AND
o (2) “any question of law or fact common to all. . .will arise in the action”
why both requirements?—to reinforce the point the there has to be
significant commonality between the parties—analyze both
BUT: persons joined need not “be interested in obtaining or defending against all
the relief demanded”
you don’t want to make it so easy to bring new people into law suit
Rule 13(h) joining additional Parties
rules 19 and 20 govern the addition of person as a party to a counterclaim or cross-claim
The court still has the power to separate the claims if needed even if joinder is proper R.21
can sever if needed—management tools
Inappropriate for parties
Avoiding confusion: hard for jury to keep this straight because the plaintiffs are all
individuals who were each alleged victim of some individual police officer; that is
a lot of stories
Compressed timeframe: this is just one factor but what we need to ask is "what is
the connection."
Avoid prejudice to parties: the outrageous stories would taint the cases against
police officers that didn't do things wrong at all or were less extreme
Rational procedures: Court would have a hard time managing this case because
of volume
Efficiency: at some point you reach point of diminishing returns, and it becomes
inefficient because people are waiting to testify, present a whole bunch of
evidence that just extends the process
Good to allow for joinder:
Hard for lone individual to go up against a police officer so incentive to file suit
might not be there if they couldn't join
Limited resources
Might not be able to get full story out based on what you're alleging if you can't
show what else is happening in department
Individual basis may not be illegal, but pattern would be unlawful
Discovery: right to discover information from the other party, but you're only
allowed to discover information to claims that have arisen in the action
There may be evidence that you can't get to in one on one lawsuits that you
could have access to if you have multiple parties alleging this pattern/practice
Impleader Rule 14a
A defending party may, as a third party plaintiff, join a nonparty who is or may be liable to
it for all or part of the claim against it
It allows defendant to bring in a new party
D is saying that if he is responsible to P, there might be someone out there who is
liable to D
D is taking on the role of a Plaintiff (third party plaintiff) bringing in a third party D
Notes
This is something that a defendant initiates by acting like a plaintiff: file complaint against
3D
This is permissive : D can choose to do this or not
May choose to sue this party separately if they lose
Two procedural notes
May be used without permission if filed within 14 days of serving the answer;
otherwise, must seek leave of court
Any party may move to strike the impleader, or to sever it, or to request separate
trials (or oppose the request for leave to implead)
Only appropriate in certain circumstances: Derivative Liability
If D is liable to P
THEN 3D is liable to 3P
(NOT for D to ask for it's own damages...for reimbursement to P that D owes)
Why would a P want to do this
Once a party has been properly impleaded:
(1) TP must assert defenses and 13(a) counter-claims against /TP; may assert
13(b) counterclaims against /TP 14(a)(2)(B)
(2) TP may assert cross-claims against other TP’s (14(a)(B)) (if impleaded 2
TP’s
(3) TP may assert against any defense the /TP has to the ’s claim (14(a)
(C))
(4) TP may assert claims against that arise out of same t/o as ’s claim
against /TP
(5) may assert any claims against TP that arises out of same t/o as ’s claim
against /TP (& TP must assert defense(rule 12) and 13(a), can bring 13(b), can
13(g))
o if the does not assert a claim against the TP then it cannot get any
relief from them directly Rule 14(a)(3)
(6) TP may implead another (FP) – 14(a)(5)
o must still be derivative
(7) if counterclaim is asserted against , may implead another --but must be
derivative —FRCP 14(b)
(8) /TP may assert additional claims against TP --FRCP18(a)
you need a legal basis for Derivitive liability:
right to contribution—J/S liability
indemnification
statute allows for it explicitly
Why is this only permissive and not mandatory?
gives the ’s the choice to focus on one claim at a time—they may win against
the P and then not need to implead
the might want to become a Plaintiff and choose the forum for his own suit
similar to crossclaims—we don’t want to force the to have to litigate against
someone else
FRCP 14(a) Impleader
(1) “a defending party may, as a third-party plaintiff, [join] a nonparty who is or may be
liable to it for all or part of the claim against it. . .”
(b) When a Plaintiff May Bring in a Third Party.
When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule
would allow a defendant to do so.
EX—impleader may not be used
plaintiffs are sueing employer for age discrim under state and fed law
suing employer, but the managers etc are the tortfeasors
Under Federal ADEA—the Employer is responsible for the employees—so even if
the CEO did not do anything he is still responsible for the acts of employees—fed
statute does not allow indemnity to the employer
BUT what if there is a state law tort claim? the tort claim allows for joint and
several liability—so the TP can be impleaded because it allows for a right to
contribution
BUT in a comparative negligence state—then no impleader because there is no
basis for bringing in the joint tortfeasor
New Joinder rule—Compulsory joinder Rule 19—not used very much
19(a) Persons Required to Be Joined if Feasible.— uses this
(1) Required Party. A person who is subject to service of process and whose
joinder will not deprive the court of subject-matter jurisdiction must be joined as a
party if:
o (A) in that person's absence, the court cannot accord complete relief
among existing parties; or—usually ignored
o (B) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to
protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of
the interest.
is the master of the claim—“autonomy” R.20—bring in what and who you want
Rule 19—mulitistep inquiry
(a) Necessary?—if not, proceed without
o if necessary, should be joined “if feasible” and court may be able to order
joinder
(b) indispensable?
o if should be joined but can’t (not feasible), court must decide whether to
proceed w/o that party or to dismiss the action
To determine if the party is necessary the court looks at 3 questions:
(A) in that person's absence, the court cannot accord complete relief among
existing parties
o this focuses on the
or (B) that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person's absence may:
o (i) as a practical matter impair or impede the ABSENT person's ability to
protect the interest; or
o (ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
The in TEMPLE could have joined the hospital under rule 20, but chose not too. Should we
force the P to do so under rule 19? what are the justifications for this?
protecting the
19(a)(1)(B)(i): disposing of the action without that person may as a practical matter impair
or impede the ABSENT person’s ability to protect interet:
EXAMPLES:
P suing for possession of an item that the absent person may have an interest
item—if the wins then it will not get the opportunity to claim the item
limited fund available—pot of money to be used for a certain purpose-- claims
the fund but there are others that state a claim to that fund, but the court may
award to and the absent parties will not have a chance to fight for the cash
If one neighbor sues a restaurant for an injunction because of customer’s parking
in front of house, all the neighbors should be joined because the other neighbors
need to protect their interests (ie not parking in front of their houses)
(ii) Would the existing party be subject to risk of inconsistent obligations?
EX: the painting situation—we are also concerned that the may be ordered by
one court to give the painting to x and another court will order the painting to y
EX: the restaurant situation—more than one court can order the cars to be parked
in different places—inconsistent obligations
(b) “indispensible”? Comparing the harms that would be caused by the two different
situations
“in equity and good conscience” should matter proceed without party or be
dismissed?
(b) When Joinder Is Not Feasible.—court rarely gets to this point
If a person who is required to be joined if feasible cannot be joined, the court must
determine whether, in equity and good conscience, the action should proceed among the
existing parties or should be dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person's absence might
prejudice that person or the existing parties;
(2) ability to lessen or avoid prejudice
(3) whether a judgment rendered in the person's absence would be adequate;
and
(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder. (eg sue in state court)
HELZBERG DIAMOND CASE—ON TWEN
why did the court think that Lords was a necessary party? Because they are concerned
about LORDS—they would not be able to run their business—so they should have to be
there.
(ii) may be ordered to breach the contract with LORDS and then LORDS could sue
them for breach—even LORDS won’t be bound by the judgment and could sue the
landlord.
The court looks to prejudicing the existing parties—but doesn’t think that the suit
should be dismissed because the landlord should not have entered into two
leases for the same thing
O LORDS told the landlord one thing and ran the store differently—there is
no inherent problem here—there is no inconsistency that rises the level of
dismissal
lords could try to join themselves under Rule 24
WHAT ABOUT SUPP JD?
if the anchor is a federal question then look only to 1367(a)
if the anchor is diversity look to 1367(b)
DIFF between rule 19 and rule 20 – second with a lower $ amount joined under
rule 20 – Exxon says this is ok, BUT if that plaintiff is a rule 19 plaintiff then not
allowed—that’s why the dissent in Exxon was so mad—the statute doesn’t make
sense.
o could result in getting the entire case thrown out. D could join a necessary
P under 19 but the claim would not meet diversity
INTERPLEADER – VERY LIMITED RULE
R.22 AND/OR 28 USC §1335
allows a stakeholder to require all claimants into one suit
Stakeholder does not have to wait to be sued
Stakeholder
claimants
initiated by stakeholder:
o (1) as --whether or not has already been sued; “pre-emptive strike”
o (2) as -- and can join additional claimants
ALSO: stakeholder can be a claimant
The stakeholder can also be asserting that they are the ones that are entitled.
Think of the painting—uncle says it is his, but kids both think that it is theirs
Two stages
(1) REQUEST FOR INTERPLEADER
stakeholder show existence of “adverse claims”
(2) determination of merits of claims—not really focus on this
claimants fight it out
When is interpleader appropriate
22(a) Grounds.
(1) By a Plaintiff.
o Persons with claims that may expose a plaintiff to double or multiple
liability may be joined as defendants and required to interplead. Joinder for
interpleader is proper even though:
o (A) the claims of the several claimants, or the titles on which their claims
depend, lack a common origin or are adverse and independent rather than
identical; or
o (B) the plaintiff denies liability in whole or in part to any or all of the
claimants.
(2) By a Defendant.
o A defendant exposed to similar liability may seek interpleader through a
crossclaim or counterclaim.
(b) Relation to Other Rules and Statutes.
This rule supplements — and does not limit — the joinder of parties allowed by Rule 20. The
remedy this rule provides is in addition to — and does not supersede or limit — the remedy
provided by 28 U.S.C. §§ 1335, 1397, and 2361. An action under those statutes must be
conducted under these rules.
Rule 22—“multiple liability”
28 USC §1335—“adverse”
With truly adverse claimants, one claimants entitlement negates the other claimants
entitlement.
STATE FARM CASE—statutory interpleader
Bus crash with car. Car’s insurance company wants to interplead all possible D’s because
there is a limited amount of money (20K)
this is a limited fund case. There is only 20K
Without interpleader, this would be a “race to judgment”—the first to get to
court could get all of the money.
Interpleader allows all of the claimants to get in on one suit so that they can each
get a share
The stakeholder benefits because they only have to fight in one action
In the state farm case the claimants are not truly adverse because they can split the money,
but courts allow it in a limited fund case—not in an unlimited fund case
Another benefit to statutory interpleader (NOT rule 22)
can be used in conjunction with §2361—allows the court the authority to stop other actions
that have been start regarding the same event until the action has been resolved.
When to use the Rule or the statute—sometimes you can use both, but sometimes you can
only use one or the other. The courts have interpreted “multiple liability” and “adverse” the
same way
Parties without limited funds cannot use it—so the personal liability of the driver and the bus
company cannot use interpleader.
Why don’t we allow any to do this?—PLAINTIFF AUTONOMY—we don’t want all ’s to be
able to choose the forum and the composition of the suit.
Rule 20—the main rule, BUT
Limited circumstances where someone else can bring in a party
Rule 14(a)
Rule 19
Rule 13(h) – only for counter or cross claim
Rule 22/§1335—single stake or limited fund
Interpleader is similar to 19(a)(1)(B) necessary party—common theme
Interpleader and SMJ
Rule 22 vs. 28 USC §1335
Rule 22 interpleader must meet the standard requirements for federal Q (not
likely) or diversity SMJ under §1332
o Usually these types of claims are state claims—you likely have to use
diversity to get into fed court because fed question doesn’t usually come
up. You have to have 75k claim
§1335 provides SMJ in case of minimal diversity: “two or more adverse
claimants, of diverse citizenship”—And--$500 stake
o AND stakeholder’s citizenship may be considered, if S claims an interest in
the stake
o YES this is OK
o NO this is NOT OK
o YES this is OK
o YES this is OK
NOTES ON INTERPLEADER
really particular—only appropriate for a stakeholder situation
Someone who is worried and has a reasonable basis to believe two or more adverse parties
will be able to come after them
Whether rule or statutory is designed to protect the stake holder
as a the stakeholder initiates the suit and acts like a plaintiff
OR
as a the stakeholder is sued by one person and brings in another
Diff between RULE and STATUTORY=SMJ requirements are different
The rule interpeader will have to satisfy 1332
1335 provides SMJ in case of minimal diversity and a $500 stake
Why use one over the other?
would depend on the diversity of the claimants and the size of the stake
DIFF between interpleader(Rule 22) and Rule 19
only certain parties can use certain rules
o 19(a)(1)(i)—impair or impede absent person’s ability to protect interest
o (ii)—existing party may have inconsistent obligations
Intervention is similar too 24(a)(2)
Similar to rule 23 class actions
THE DIFFERENCE between 19,22,23,24
The STAKEHOLDER is allowed to use this rule and no one else
19—a can use to ask court force a to join someone
24—an OUTSIDER uses this to get into the action
23—so many class members that other devises are no good
Intervention Rule 24 and supp. jd.
An outsider wants to join in—outsider is not invited
intervention of right (our focus)
outsider has asserted a strong enough interest in the litigation that court thinks
interest is sufficient enough.
rule 24(a)(2)—the court has to decide it the outsiders interests are strong enough
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene
who:
(1) is given an unconditional right to intervene by a federal statute; or—NOT
IMPORTANT NOW
(2) claims an interest relating to the property or transaction that is the subject of
the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect its interest, unless
existing parties adequately represent that interest.
Requirements 24(a)(2)
(1) timely motion
(2) movant claims an interest relating to the property or transaction that is the
subject of the action
(3) disposition of action may impair or impede movant’s ability to protect its
interest
(4) existing parties not adequately represent that interest
Courts often think about 2 & 3 together.
Courts sometimes take a broad approach to focusing on the interest and then
narrow down the focus by using the 3rd element
Compare to 19(a)(1)(B)(i) (compulsory party)–the language is almost the same –this is about
the outsider being injured
But there are additional phrases—it seems like it would be harder to intervene
Dismissal of the case is possible under 19(a), but under 24(a) the outsider not coming in
doesn’t effect the case. Courts interpret 24(a) more broadly than written
Even though the two rules use almost the same words, they are very different a rule 19
party doesn’t want to be in the litigation but has to. A rule 24 party actually wants to be in
the litigation.
NRDC case:
Synopsis of Rule of Law. In order to intervene under FRCP Rule 24, a movant need not
have a direct interest in the outcome of the lawsuit. Instead a genuine threat to the movant
to a substantial degree is a sufficient interest to satisfy FRCP Rule 24.
What about SUPP JD?
28 USC 1367: this is based on a fed claim—fed question gives original jd. and it covers
additional parties
BUT if based on diversity then have to look at 1367(b)
Some courts ignore this language and allow it anyway.
IF YOU SEE INTERVENTION: MAKE SURE YOU CHECK TO SEE IF THE ORIGINAL CLAIM IS FED
QUESTION OR DIVERSITY
RULE 23 CLASS ACTION
Class Actions – very different joinder device
only basic concepts for this class
Class members—not parties but are BOUND by outcome
Class representative(s)—named = a party
Benefits to class actions:
you don’t have to pay for the litigation
A lot of parties—not feasible to join all as parties
individual claims are small but together will right a wrong
efficiency
Cons to class action:
will the representative really represent the interest of all of the clients and lose
day in court
The rep may not be truly representative of the class
What situations will the courts allow for a class action?
What are the problems of representation>
HANSBERRY v LEE 1940’s
Brief Fact Summary. Lee (Plaintiff) sought to enjoin the sale of land to Hansberry
(Defendants) on the ground that the sale violated a racially restrictive covenant.
Synopsis of Rule of Law. There must be adequate representation of the members of a
class action in order for the judgment to be binding on the parties not adequately
represented.
Are the Hansberry’s bound by the judgment of the 1st action? – normally no because they
were not parties to the 1st acton, but could be considered in Privity—their Grantor was a
member of the class in the fist action they could have privity as class members or of
successors in interest (the ownership interests in the property were transferd to the
Hansberry’s)
Rule 23(a) standards for certification
(1)Court made rule: identifiable class—not stated in the rule but implied
o this doesn’t mean you have to define all possible members but you have
to give a description of who may qualify as a class member – if you don’t
do this then you can’t send notice to potential members
(2) Court made rule: representative must be a member of the class—implied rule
(3) 23(a)(1)—Numerosity—in the rule—not appropriate unless joinder of all parties
would be impractical. – how many does it take to satisfy this?—no magic number.
Context matters in determining how many is too much
o EX: a lot of plaintiffs but they could all be joined (CIVIL ACTION CASE)—35
named plaintiffs—it was convenient to join them all.
o EX: Case where the same number of P could create an impractical
situation for class action—35 ’s that are geographically dispersed
o EX: transient population—litigation of conditions in a jail—transient class
members, so better to make them a class
(4) 23(a)(2)—commonality—not quantitative requirement—issues of law or fact
common to the class—qualitative requirement
o common issues don’t have to dominate—just enough common issues that
make it fair efficient and convenient to litigate as a class
(5) 23(a)(3)—Typicality—the claims or defenses of the representative parties are
typical of the claims or defenses of the class – not an outlier—looking out for the
common interests of the class
o “negative value” suit—the individual claims are small—but the person who
reps the class has to have a similarly small claim—we want to have similar
stakes—the relief should be similar because we want the incentives for
fighting for the class
(6) 23(a)(4)—adequacy of representation – make sure the lawyer is ok to rep
class
o Due processed concerns
o see also 23(c)(1)(B) ; Rule 23(g) (Class Counsel) factors in appointing
counsel – experienced in the area of law
Rule 23(b) types of class actions—harm could come without class
(1) prosecuting separate actions by or against individual class members would
create a risk of:
o (A) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for the
party opposing the class; or (similar to interpleader)
ex: limited fund
o (B) adjudications with respect to individual class members that, as a
practical matter, would dispose of the interests of non-parties to the
individual adjudications or would substantially impair or impede their
ability to protect their interests; (similar to Rule 19 compulsory joinder)
ex: could have sued separately
(2) the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole—not about $$
o this is the “Classic” class action type—usually civil rights actions—you
want change in a government action—most convincing case for a class
action
o Why do government actors appose certification of classes in this
situation?: Bad PR
o absent class action, majority of people won’t be able to bring the suit—
divide and conquer would be better for them.
(3) MOST CONTROVERSIAL— the court finds that the questions of law or fact
common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy. The matters pertinent to
these findings include:
o (A) the class members' interests in individually controlling the prosecution
or defense of separate actions;
o (B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
o (C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
o (D) the likely difficulties in managing a class action.
o more burdensome fro attorneys—it requires notice
23(b)(3) is considered a “catch all” category for actions for damages
you really have to convince the court that this is the SUPERIOR method of
litigation and the common issues outweigh any individual issues—high standard
Not mandatory: notice required; “opt-out” permitted—if you opt out you are not
bound
you could enter an appearance if you want
OR you could get involved by intervention (rule 24) to oppose the class
ways to protect a class
the notice requirement under 23(b)(3)—the best notice possible and the cost of the
notice can’t be shifted to the D—it would have been 200k to send the notice
if appropriate to use the class—why would the court let the action fail because of
the notice requirement?
notice is important—party autonomy and control—the plaintiffs have to have notice and
they have to have the chance to opt out
Rule 23(c)(4): may maintain class action w/ respect to particular issues—class action with
respect to certain issues
Rule 23(c)(5): may divide class into subclasses that are each treated as a class
SUPPLEMENTAL JD:
if a federal question is involved (B2 and B3 actions) all you have to do is show
that the same case or controversy is involved
If you are talking about a diversity action it is different—under 1332 the court
ONLY uses the citizenship of the class representative—amount in controversy—
aggregation is not allowed—BUT as long as one class rep has a claim that
meets the amount in cont. the rest of the class can come in, but if there is a wide
disparity between the rep and the class members then prob won’t get here.
BIG Class action in the news: Wal-mart, Inc v. Dukes et al
Cert granted on two questions:
o Whether claims for monetary relief can be included in a 23(b)(2)—which
by its terms is limited to injunctive or corresponding declaratory relief—
and if so, under what circumstances (refers to claims for back-pay—usually
considered equitable relief)
Tuesday 4/19 more on class action
General requirmentsrule 23
23(b)(1): prosecuting separate actions would create risk of:--similar to joinder, interpleader,
intervention
limited fund case
D concerned about conflicting court orders
a substantive problem that a class action could address
23(b)(2): the classic example—generally going against a large company
trying to change the policy
like prisoners in a jail
23(b)(3) situations are more controversial:
designed primarily for efficiency and convenience “catch all” for actions for
damages
you could procede as individuals without hurting anyone else—just a better way
of proceeding
You have to convince the court of commonality, but that the common questions
PREDOMINATE
And the class action is a superior method
not mandatory—class members can “opt-out”, notice required
Question from email: 23(b)(3)
common Q’s predominate?
class action superior?
Antitrust(price fixing)—federal statutes claims
securities(fraud)—common situation for a 23(b)(3) why?—federal statute claims
o commonality easy to show that it predominates over individual—stock in
the company as a whole—so the complaint would be common across the
board
o public statements of failure to disclose info—likely to be the same for
every shareholder
o easy to calculate the damages
o Would the litigation be brought by individuals—SMJ may paly a role—
amount in controversy, diversity would only be for rep. so smaller claims
could
o Private “AG” notion—people wouldn’t sue on their own – efficiency and
consistency
o questions of law and fact will predominate
mass tort (accident? product liability?)—Castano case—court says no class
status –’s proposed class definition: SEE SLIDES
o not always well suited for class action why?
o Predominance of common questions?
variations in state law
phased trial
novelty of legal claim/theory
information on which certification decision is based
o Superiority of class action
pressure on defendants to settle—why are we concerned about
this?
What is it about the class action device that troubles the
court—how is this different than anti-trust?
There is a lot of money at stake here—no need to
certify the class because individual litigation may be
superior
The source of the pressure is the class action—not the
merits of the case—it makes the lawsuit look big and scary
and maybe itself responsible for how things turn out rather
than the merits of the claim
the “field of dreams” problem—if you build it they will come
“negative value” suits—not much incentive to sue, but we want the
class to promote the litigation – different than castano
o Look at 23(a):
class members—hard to identify “all nicotine dependent users”—
hard to determine
commonality—the issues would not predominate—to what degree
did they each rely on the misrepresentation
commonality on the D’s side—
the individual damages claims not certified—too much variation
even with regard to the core liability and punitive damages ration—
no class
the individual tobacco companies—it can be hard to sort out
who is liable to whom—who what when and where they
were selling
different law will apply to the different claim—tort law are state law
claims, choice of law etc. not subject to uniform law—variation in
the laws of states
variations in state law—the federal judge can’t just do a mash up of
all the state laws—there is no federal common law—overstepping
the bounds of the court
the bifurcated trial—would make it so that the court in one phase
has to evaluate the jury decisions of other phases—the common
questions may come up in the part on the damages and then 2
juries would be deciding the same facts
adequacy of representation may be an issue
consumer(misrepresentation)
Izen—anti-trust case—6 million class members for small claim
certified as a class, but they don’t go forward as a class
the notice requirement under 23(b)(3)—the best notice possible and the cost of
the notice can’t be shifted to the D—it would have been 200k to send the notice
if appropriate to use the class—why would the court let the action fail because of
the notice requirement?
o notice is important—party autonomy and control—the plaintiffs have to
have notice and they have to have the chance to opt out
Supplemental Jd.
Supplemental Jd. 1367(a) –can the court hear this claim?
To figure out if Supp Jd:
*Is joinder proper under any Rule?
*Can the court hear the case as structured?
Does the court have original SMJ over at least one claim
o diversity or Fed ?
Does the court have original SMJ over all the claims?
IF original SMJ. over 1 but not all, THEN
o which claim can serve as anchor?
o does 1367 allow for the other claim?
1367 analysis
*28 USC §1367—analysis
1. § 1367(a): one “constitutional case or controversy”—(as the anchor claim) –the is the
CONSTITUTIONAL AUTHORITY for the claim
same t/o—common nucleus of fact/evidentiary overlap
“loose factual connections”—2nd circuit only
“Such supplemental jurisdiction shall include claims that involve the joinder or
intervention of additional parties.”
2. Statutory Authority for supp jd?
1367(a) provides it, UNLESS § 1367(b) applies (or another fed stat)
1367(b): “founded solely on [diversity]
o complete diversity
o $75k
IF BOTH const and stat power, court CAN exercise supp jd.
If based on solely on Diversity go to 1367(b)
3. 1367(c) but SHOULD court do it? Discretionary factors
1367(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. Such supplemental jurisdiction
shall include claims that involve the joinder or intervention of additional parties.
extension of Gibbs—the last sentence—new parties added are covered as well—
not just joinder of claim situations
Except as provided in subsections (b) and (c) or as expressly provided otherwise
by Federal statute
(b) In any civil action of which the district courts have original jurisdiction founded solely on
section 1332 (diversity) of this title, the district courts shall not have supplemental
jurisdiction under subsection (a) over claims by plaintiffs against persons made parties
under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by
persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to
intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction
over such claims would be inconsistent with the jurisdictional requirements of section
1332 (diversity) .
only takes away SMJ if you are in fed court for diversity claim
BOTH requirements MUST be met!
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
These look very similar to the factors from GIBBS
why does the statute treat the factors differently?
o “may decline if”--STATUTE
o “discretion not of right”—GIBBS
o The statute is not giving an open ended list of discretion—it cuts of the list
of factors that the court may consider
EXXON: held that a federal court has supplemental jurisdiction over claims of other
plaintiffs who do not meet the jurisdictional amount for a diversity action, when at least one
plaintiff in the action does satisfy the jurisdictional amount.
EXXON case—said that a party joined under rule 20 as a for less than 75K is OK –based
on EXXON’s interpretation of the statute this is OK
Summary Judgment
SUMMARY JUDGMENT—Rule 56—used by or
even though the rule says it can be at anytime, but this is the typical pattern
o a 12(b)(6) motion will likely come first—a ’s motion
o if it survives to discovery, the can bring it up to say there is not enough
to convince a jury—rule 56-- or can use this
o after the opportunity to air all of the evidence-- presents at trial— can
move for R 50(a)(1) judgment as a matter of law— or can use this – but
can only do it after the has been heard
Clarification—the is moving for SJ
o what about when a moves for summary j. saying that the can’t
establish an essential part of its case.
if this were at trial, the could win without doing anything
the could present enough to get to the jury and the could take
its chances
The only situation at trial that a has to present evidence—if the
presents such compelling evidence(all the way to the other end
zone)
o It is hard for a court to determine what the has to show to move for sum.
j.
middle ground to satisfy as the moving party
I have enough evidence to create a jury question
the does not have enough
o If the moves for sum. J and shows it has enough or the doesn’t have
enough
what does the non-moving party have to do?
the has to show that it DOES have enough to get to a jury
as the non-moving party
o So what is enough?—some evidence—not just arguments
o
What is the burden on the D that moves for summary judgment?
This is a harder question—the D at trail has an easier time than the P
A D at trial can just see what the P puts on and decide not to put on any
evidence—it is only when the P gets to the other end-zone that the D has to put
on a defense.
D does not have the initial burden of production at trial—can wait and see and
take a risk
But for Summary Judgment—before trial—if a D moves, the D is “going first”
Three possibilities:
o one extreme: just like a P, a D moving for SJ has to shift the burden onto
the other side—traditional approach—but this has been rejected because it
is virtually useless because it requires so much proof that you may as well
go to trial—in this context it requires more on the D than at trial—not a
good standard in keeping with the purpose of SJ
o another extreme: At trial a D may not have to do anything at all, so let’s
not require them to do anything at SJ also—what problems does this
create?—makes it too easy to move for SJ and makes the P produce more
evidence. If no burden than it is too easy
o Middle ground: just have to get to the middle—then the has to
show that they have enough to overcome
would need objective facts that show issues of credibility or actual witness
issue with the ’s issues—ie. witness has a financial motive or something.
Adikes case: Took the traditional route—the first extreme—people thought that was the
standard
It made the D’s burden high and they did not foreclose the possibility...
A D has to show enough to foreclose other possibilities...But Celetex changes this
Celetex: asbestos case
D moves for SJ because P did not show evidence that his product was involved
Court says it is not enough to prove that the P did not have exposure to the
product
says requires affirmative evidence that the dead guy didn’t ever have exposure
“to forclose the possibility”—this requires too much knowledge of the dead guy
on the part of the D—this would make SJ impossible—they have to prove a
negative—too much burden
The Sup Ct. says there are 2 ways for a D to meet the burden on SJ
o (1) do not have produce evidence showing the absence
o (2)(a) do have to show that there is enough to show an absence of
evidence to support the non-moving parties case.
o (2)(b) or show enough that you have enough to get to a jury and let the P
respond and see if they have enough to go to the jury—if the P does not
have enough then SJ is appropriate
pg 446—dissent explains how the rule applies
Initial burden—you have enough in your motion to convince the court of your side
—how do you respond with enough to avoid summary judgment
o how much should the court be open
Arnstein case: claim that cole porter violated his copyright
even if the story is crazy, you never know, a jury could believe him
“summary judgment was, then, proper if indubitably D did not have access to the
compositions...Although part of the P’s testimony on the deposition so seem
fantastic, yet P’s credibility, even as to those improbabilities, should be left to jury
“slightest doubt” test—NOT USED ANYMORE
If the P can come forward with objective fact that it can put forth to counter what D alleges
in motion for SJ then SJ is not appropriate
“credibility” point—even if all I have is my own word, no witnesses, and the other side has a
bunch of witnesses—credibility is a question for the jury—it should be enough—COURTS
GENERALLY REJECT THIS
If credibility is an issue then SJ would never work—you could always make it an
issue
Witness might change story—this is too speculative—it is on the off chance that a witness
might break down—COURTS GENERALLY REFJECT THIS—UNLESS the P can provide objective
facts that could reasonably predict that the witness is not credible for some reasons
RULES HOTSHEET 3/29/11 8:11 PM
3- complaint
4- summons
7- Pleadings
7(a)- types of pleading allowed
7(b)- motions & other papers brought by D
8- Rules for Pleading
8(a)- claim for relief
o 8(a)(2)- short & plain statement
8(b)- defenses; admissions & denials
8(c)- affirmative defenses
8(d)(3)- inconsistent claims/defenses are OK
9- Pleading special matters
9(b)- fraud or mistake
11- representations, signatures, sanctions
12- Defenses & Objections
12(b)- D’s pre-answer motion
o 12(b)(6)- motion to dismiss for failure to state a claim for which relief can
be granted
12(c)- motion for judgment on the pleadings
12(e)- motion for more definite statement
12(f)- motion to strike
12(g)- joining motions
12(h)- waiving & preserving certain defenses
o 12(h)(1)- disfavored defenses
o 12(h)(2)- favored defenses
o 12(h)(3)- most favored defenses
13- Counterclaim & Crossclaim
13(a)- compulsory counterclaim
13(b)- permissive counterclaim
13(c)- relief sought in a counterclaim
13(g)- crossclaim against a co-party
13(h)- joining additional parties
14- Third-party practice
14(a)- when a defending party may bring in a 3rd party
14(b)- when a Plaintiff may bring in a 3rd party
15- Amended & supplemental pleadings
15(a)- Amendments
15(b)- Amendments during & after trial
15(c)- Relation back of amendments
18- Joinder of claims
19- Required joinder of parties
20- Permissive joinder of parties
21- Misjoinder & Non-joinder of parties
22- Interpleader (requires fed Q standards or §1332 standards)
23- Class actions
23(a)- requirements (must be met)
23(b)- types
24- Intervention
24(a)(2)- Intervention of right
24(b)- Permissive Intervention
41- Dismissal of actions
50(a)(1)- Judgment as Matter of Law
56- Summary Judgment
§1332- Diversity
§1335- Statutory Interpleader (requires minimal diversity)
§1367- Supplemental JD