law school outline: civil procedure

Civil Procedure

  1. Notes on Class & Professor

  1. Text: Pleading and Procedure, Seventh Edition, Hazard, Tait & Fletcher
  2. Exams are open book, open outline.
  3. Professor calls on people in class from his roster, expects detailed explanation of the day�s case (30 minutes in spotlight).
  4. Cumulative review at end of semester.

  1. Introduction

  1. Fairness = due process, common sense
  2. Procedure

  1. p files complaint, burden to show all elements in complaint exist
  2. D served (proper notice) with copy of complaint and summons
  3. Judgment

  1. Default if no response from D
  2. Crosses state lines because of full faith and credit clause

  1. Jurisdiction: Both territorial and subject matter must be met; limited by Constitution.
Territorial jurisdiction � Power of a court over a D person or D �s thing because of D �s connection with forum. Assumed over p by his filing of the suit in the jurisdiction�s court.

  1. Types

  1. In personam: Judgment personally binding on D in all 50 states.

  1. Any physical presence in forum = jurisdiction (Pennoyer).
  2. Acquired by service of process: Forum residents are subject to service of process in their home state, and are always amenable to service of process from non-residents.
  3. Absent D : Establishing jurisdiction = minimum contacts

  1. History: Pennoyer said presence ok for PJ. Shafer wanted to test for minimum contacts always, Burnham said presence is enough, but accidental presence needs min contacts. International Shoe applied min contacts to absent D (traditional notions of fair play and substantial justice � see Foreseeability Test).
  2. Minimum Contacts

  1. Types

  1. General: Claim unrelated to contacts.  Specific: Contacts with forum directly related to and create cause of action/litigation. D must purposely avail himself to the forum (Helecopteros). Contrast Perkins.

  1. Purposeful availment by D (not by p ) (Hanson). Continuous and systematic activities implies consent.
  2. Single act is enough for activity in forum to establish consent (McGee).
  3. Limited to personal tort or commercial activity (Kulko � also suits where there is no other forum for remedy).
  4. "Quacks like a duck" test.

  1. Knowledge D �s product will be in forum needs to be supplemented by forum interest and deep pocket (greater bargaining power) D . (WWVW, Buckeye Boiler),
  2. Court looks for fair warning of lawsuit (Burger King)
  3. Presence of corporate HQ (high profile in forum) can substitute for activities � Perkins. Contrast Helicopteros. Problem of when "substantial and continuous contacts" hits right level to kick in PJ.
  4. Negotiations and consequences to K (Helicopteros limits)
  5. Forum�s interest in protecting p - who is in better position to shoulder burden of litigation in foreign forum.
Reasonableness factors

  1. D �s burden (high burden may increase necessary contacts � Asahi)
  2. p �s interest in relief
  3. Forum�s interest, including in preventing conflicting judgments (Buckeye Boiler).
  4. Efficiency
  5. Public policy
p �s do not have to have minimum contacts. Class action p �s must have notice, opportunity to opt-out.Consenting

  1. Waiver if no objection.

  1. Default can be contested - lack of TJ
  2. Default upheld if TJ exists, no trial on merits.

  1. Filing response on merits or cross claim
  2. Appearance (unless special)
  3. K forum selection clauses (Case of the Bramen), unless (Carnival):

  1. Public policy
  2. Other court�s stronger interest
  3. D inconvenience
  4. Arbitrary or fundamentally unfair
  5. Action occurred somewhere else

  1. Special appearance (Insurance Corp): 12(b)(2) makes an objection within a reasonable time after p files suit, but must be before pleading on the merits (Rule 12 response - general appearance). Court�s decision is res judicada. Other states must give full faith and credit.
  2. 26 discovery used to find minimum contacts. TJ can be a sanction for failure to comply with discovery (37). D has burden because he has evidence.
In rem

  1. All claimants and all property in question are within jurisdiction of court
  2. Presence of D property in state usually establishes contact between D and forum. Used if LAS fails.
Quasi in rem:

  1. No jurisdiction over D , but over D �s property. Does not establish claim against person, only property. Claim for money damages via seizure of property (claim limited to property value; no residual judgment value under DP).

  1. Debt follows D , not forum of creation
  2. Minimum contacts required, unless D present (Shafer � likens to in personam)
  3. Now used only when D eludes a forum�s detailed long arm statute, but has property in forum (Banco Ambrosio).

  1. Property must be attached at outset of case.
  2. Type 1: Property is subject of dispute  Type 2: Property is not subject of dispute (Harris � also debt follows debtor). Overruled by Shafer (minimum contacts required for jurisdiction). Service of notice required, not service of process
Notice � FRCP 4

  1. State�s service of process rules limit TJ
  2. Notice required when proceeding may deprive beneficiaries of property. Use best notice possible: Reasonably calculated and reasonably certain, under the circumstances, to apprise interested parties of their pendency of the action and afford them an opportunity to present their objections within a reasonable time. (Buckeye Boiler)
Long Arm Statutes

  1. State � Covers purposeful and foreseeable actions (contacts) in forum (state statute LAS approved in Hess, but common law LAS ok; American Eutectic). Enumerated LAS can exclude some actions, so broad is better.  Federal

  1. Via state�s LAS or federal statute
  2. Nationwide service of process must be authorized under a statute (Omni)
  3. State�s law applies unless anti-trust, bankruptcy, securities, statutory interpleader
  4. Minimum contacts (aggregation ok if continuous and systematic) with forum necessary unless statute says otherwise
Subject matter jurisdiction � Power of a court over a particular type of suit.

  1. Intro

  1. Reserved to states: Probate, domestic relations.
  2. Reserved to federal: Anti-trust, admiralty, bankruptcy, patent and copyright, securities and exchange act. No SMJ test needed.
  3. Must attach when suit filed

  1. Objection can be raised at any time
  2. Non-waivable

  1. Federal courts are of limited power, granted by Constitution (A3�2) and statute. State courts are of general power.
  2. p can dispute under 12(b)(1)

  1. �1331: Arising under Constitution, federal laws, treaties, ambassadors, consults, admiralty, US a party. No $ requirements.

  1. Well pled complaint rule: Question of federal law which creates claim must appear in the complaint. Anticipation of federal defense insufficient, even if raised by p . Anticipation of federal claim (p ) ok for declaratory judgment. (Louisville v. Motley, Merrell Dow) Also covers entities created by federal government
�1332: Diversity

  1. Complete diversity of citizenship (state of domicile � presence + intent to stay or primary place of business) required between all p and all D at the time complaint is filed. No maneuvering (joinder, physical moving) to create diversity, can maneuver to defeat diversity.

  1. If no current citizenship exists, reverts back to last domicile. (Mas)
  2. Federal courts must follow state forum�s law (see Erie).

  1. Monetary requirement

  1. Initial good faith claim > $75k, excluding interest and costs.

  1. Aggregation ok, even if causes of action unrelated. Multiple p cannot aggregate claims (i.e. class action) unless undivided interest.

  1. Defeatable by a "legal certainty" that p cannot recover more than $75k.
�1367: Supplemental � Jurisdiction extends to all claims, federal or state, in a case that are so related to the cause of action that they form the same case or controversy. Kicks in only on cases covered by arising under or diversity (if diversity, must be brought by D - 1367b)

  1. Pendent jurisdiction: Attaches a state claim to an existing federal claim, both arising from same event. (United Mine Workers)

  1. Nondiverse
  2. Substantial federal claim
  3. Common nucleus of operative fact (same transaction or occurrence as claim with SMJ)
  4. Should be tried all in one judicial proceeding
Ancillary jurisdiction: Related claims brought by additional parties or by existing party joining new party.

  1. Counterclaims
  2. Impleader
  3. Cross claims (D v. D )
  4. Pendent party jurisdiction

  1. Intervention
  2. Necessary parties

  1. 14a: p can assert claim against 3rd party D . Must establish SMJ for new claim (Owen).
Removal (�1441)

  1. D can remove a state court case that could have originally been brought in a federal court. Subject matter jurisdiction must apply. (Caterpillar). All D �s must agree to remove.

  1. Preemption doctrine says if a federal law converts state complaint to federal complaint, even if not pled that way, federal courts can hear case based on federal preemptive statute.
  2. Case is removed to the federal court covering same district as state court.
  3. D must not be citizen of forum.
  4. Must remove within 1 year of filing.

  1. p cannot remove
  2. Removal is automatic. p can try and remand a case back to state courts (federal judge�s decision).
  3. p cannot disguise federal claim as a state claim to escape removal (artful pleading)
  4. Removal in �1332 diversity cases (�1441b)

  1. No D may be a resident of the state in which the federal court sits.
  2. p can defeat diversity removal by lowering amount below $75k

  1. Generally (�1391)

  1. Where all D �s reside
  2. Any district where substantial part of claim arose.
  3. If �1441 removal, proper venue is fed. court where action is pending.
  4. If 1-3 fail

  1. Diversity: Where all D �s are subject to TJ
  2. AU: Where any D is found

  1. Waived unless raised.
  2. Due process violated if court applies law to issue it has no interest in.
  3. p can challenge venue per 12(b)(3), remedy is transfer under �1406a
  4. Transfer of venue

  1. �1404a transfers to district having original venue (and TJ) for convenience or in interest of justice

  1. Only in diversity cases
  2. New district (transferee) follows old district�s laws (transferor) (objection to transfer venue can be made if substantial difference in substantive laws) (Ferens, Van Duzen, Deere [even if p xfers]).

  1. �1406a transfers or dismisses when defect in venue, lack of TJ
  2. �1631 transfers when defect in subject matter jurisdiction
  3. �1407 consolidation for pretrial proceedings of cases with same facts
Erie: (Swift had said that state statutory laws apply but not state common or procedural laws � "pure Erie"). In diversity cases, federal courts must apply the substantive (statutory/common) laws of the state in which the court sits and the procedural federal laws. Purpose is to discourage forum shopping and provide for equitable administration of the law.

  1. Lex loci: Law of transferor forum applies regardless of whether p or D removes (discourages forum shopping). If conflict between state substantive and federal procedural laws:

  1. Constitution: Always governs.  Federal statute: Governs if constitutional.  FRCP: Governs if arguably procedural (Hanna) and does not abridge, enlarge or modify a substantive right, including includes state procedural rules which are integral to substantive rules or the state cause of action, which would offend the rules enabling act (Palmer, Walker, Regan). Judge-made (common) federal law: Governs only if discourages forum shopping and provides for equitable administration of laws. Also when no other federal law on point, and application of state law would cause confusion. (Clearfield) Choice of law rules are always substantive (Clayton)  Tests

  1. Outcome determination test (Guaranty): Will applying federal procedural law significantly affect outcome of litigation? (statute of limitations � no) Goal is to discourage forum shopping and encourage equitable enforcement of the laws.  Balancing (Byrd):

  1. Relationship between state law and state right
  2. Countervailing interest of federal justice system
  3. Effect on outcome
Reverse-Erie NOT ON EXAM: Federal law applied in a state court when the issue presented is federal, and the majority of the statutes covering the issue are federal. (Dice)

  1. JNOV/Directed Verdict can be used, but judge cannot balance evidence (jury�s job). Can only see if there is enough evidence for a jury to find for the opposing party.
Forum non conveniens

  1. Federal forum non conveniens law supersedes states�
  2. Allows court to dismiss an otherwise valid case if the forum is grossly inconvenient to private party or interest of justice.
  3. Used only in cases where one party is international. Otherwise, transfer of venue is used.
  4. New forum applies its own laws (Piper).
  5. Disadvantage to p usually ignored

  1. Claim: Res judicada

  1. Cause of action merges into judgment on merits. If later claims arise, p is out of luck. Precludes claims which were litigated as well as those that should have been (mature compulsory counter-claims), arising from the same cause of action, between same p and D . (Sawyer)

  1. Merger: 1st judgment for p
  2. Bar: 1st judgment for D

  1. Types (Federated Dept. Store)

  1. Directed attack � final judgment has not been entered; case on appeal  Collateral attack � abandon 1st litigation/not appeal; but setting basically another, same claim. Second lawsuit based on same set of facts.
Breadth of preclusion measured by transaction (if claim arises from previously litigated transaction, preclusion applies). Same transaction or occurrence.Issue:

  1. Direct estoppel: Can�t refile based on an adjudicated claim already lost, regardless of jurisdictions. Can only appeal. (Federated Dept. Store)  Collateral estoppel: Invoked in lawsuits on different claim for matters actually litigated and determined in the first action and essential to judgment. Kicks in only when first case is done with all appeals. Issue must be carefully defined (very nit picky) in order to see if the issue is the same as previous decision. Issue has to be essential to first judgment.

  1. Test:

  1. Issue � same (negligence)
  2. Party (against whom the plea is asserted) � D both in case 1 and 2
  3. Financial judgment � made in case 1 already
Use of prior judgment:

  1. Defensive: p who sues D 1 is shown to have no injury. When he sues D 2, issue preclusion says p was not injured.  Offensive: p 1 sues D , shows D was negligent. When p 2 sues, issue preclusion says D is negligent. Only applies if fair. If the party using the prior judgment wasn�t a party to the prior action, it�s "non-mutual [offensive/defensive] CE" Non-mutual offensive only allowed if D had a full, fair opportunity to litigate in 1st case, D could foresee multiple suits, and p could not have easily joined in 1st case.
Persons precluded (Parklane)

  1. Primary parties are always bound by claim and issue preclusion
  2. Secondary parties bound if in privity (proprietary interest in litigation), or if represented by a primary party (Martin, Antrim)
  3. Applies across state lines because of Full Faith and Credit clause.
Requirements for preclusion:

  1. Person asserted against was a party to prior action
  2. Same issues
  3. Final judgment on merits

  1. Persuasion: p has burden of proving that a thing did/not happen.  Proof: How persuasive the party must be.

  1. Preponderance of evidence (civil)
  2. Clear and convincing evidence (fraud)
  3. Beyond a reasonable doubt (criminal)

  1. Initially on p to produce evidence
  2. Then shifts to D to defend

  1. Res Judicada: Final judgment on the merits involving the same claim and the same parties (or those in privity).
  2. Collateral Estoppel: Same issue actually litigated and decided that was necessary to the judgment.

  1. Minors and incompetents must have a guardian appointed to sue or be sued. Correctable at any stage via motion.  Aliens are treated as citizens of the state where they are domiciled. Guardian ad litum is treated as the citizen of the same state as the decedent, minor or incompetent.

  1. 1441 diversity analysis: 1332c2 says real party in interest is the principle, not the guardian ad litum, therefore guardian�s state is irrelevant.

  1. Corporations have citizenship of its shareholders, which is the state of incorporation. Also citizen of PPB. Individual members are not liable.  Unincorporated association: Each member is treated as independently liable and as independent p �s. Citizen of every state where a member resides. Some states protect associations as corporations.
Insured D is himself the D even though insurance company is often bound to defend.Pleadings (7)

  1. p �s Complaint

  1. Standing required

  1. Based on U.S. Constitution, Article III
  2. p must have personally suffered some actual or threatened injury as a result of the putatively illegal conduct of D , creating an actual or concrete injury beyond a generalized grievance, which is fairly redressible by the remedy sought.
  3. Rule 17a: Every action shall be prosecuted in the name of the real party in interest.

  1. Suit must be brought by a person who possesses the right to enforce the claim and who has a significant interest in the litigation. A party with an equitable or beneficial interest may sue in his own name without joining the party for whose benefit the action is brought.

  1. Purpose is to protect D against multiple suits.
  2. If 2 parties are joint owners of the suit, they must join as p �s.

  1. Partial subrogee should be joined under Rule 19a, but may not be possible under 19b tests.
  2. Either party can bring the suit. D can make a joinder motion to bring the other party in, but not solely to destroy diversity. Other party is precluded from subsequent action anyhow, regardless of joinder.
  3. Insurance suits: Insurance pays loss, becomes owner of claim. But that looks bad for insurance co. to sue D , so now insured permits suit to be brought in her name against D , and insured must repay loan out of proceeds of suit. Disguises insurer by insured.

  1. Notice pleading

  1. Contains

  1. "A short and plain statement of the claim showing that the pleader is entitled to relief." (8a2)

  1. Fraud, mistake, special damages require "particularity" (9)
  2. Inconsistent or alternative legal theories are fine, but must elect one consistent theory post-verdict, pre-judgment

  1. Allegations showing the ground(s) for SMJ (8a1)
  2. Demand for judgment (8a2)

  1. Default: Judgment cannot exceed prayer
  2. Contested: Not limited to prayer
  3. Specific amounts may be treated as binding admissions re: amount of damage sustained

  1. Insuficient pleading is grounds for 12b6 dismissal

  1. Rule 11 (continuing certification)

  1. Reasonable inquiry and with a belief that the pleading is well grounded in fact
  2. Facts and denials are supported by evidence, or likely to have evidence after discovery (must specifically identify)
  3. Warranted by law or good faith argument for change in law
  4. Suit is not for harassment, delay or increasing costs.
  5. Violation of Rule 11 has a 21 day safe-harbor for fixing pleadings to conform
Establishes prima facie case by preponderance of evidence.

  1. Based on statute
  2. Burden allocated by

  1. Policy (including type of case)
  2. Fairness: Who has the evidence?
  3. Probability: Who will be benefited by a departure from supposed norm?

  1. Successful establishment results in presumption for p .
D �s Response (within 20 days of service of complaint)

  1. Alternative pleading allowed under 8e2
  2. 12 A - Answer: Burden of production switches to D to explain or rebut prima facie case. Successful challenge or explanation removes presumption for p .

  1. Admit

  1. Material allegations not denied are deemed admitted (8d)

  1. Do not know: Acts as denial. Unavailable if information is within your control.
  2. Denial (8b): Destroys p �s cause of action.

  1. Denials should be made in disjunctive (using "or" not "and") and with "�or at any other [time/place]"
  2. Must address the elements of the issue p raises and be consistent with p �s case, otherwise affirmative defense.
  3. Can be based on lack of information, unless:

  1. Peculiarly within D control
  2. Public record
Affirmative defense (8c): Can be used as an "in the alternative" to a denial, based on issue not raised by p (otherwise denial).12 B � Motion to Dismiss (may be included in answer)

  1. 1: Lack of SMJ  2: Lack of PJ  3: Improper venue  4: Improper process  5: Improper service of process  6: Failure to state a claim or cause of action. Used if court finds that no set of facts in support of the claim would entitle p to relief. Does not look at evidence; looks at formal and legal sufficiency of complaint (assuming everything p claims was proved at trial, could he get a judgment?). p usually has leave to amend.  7: Failure to join an indispensable party (19 � Compulsory Joinder)
12 C: Motion for judgment on the pleadings  12 E: Motion for more definite statement, fixable by p discovery. Only used when pleading is so vague and ambiguous that it would be unreasonable to require a reply. Cannot be used as a predicate for a 12b6 motion.  12 F: Motion to strike  12 G: If a party makes a pre-answer motion under this rule, he must include in it any defense then available to him under 2-5 and E. Any of these defenses is waived if it was available and omitted from a pre-answer motion.  12 H: If D �s does not make a 2-5 pre-answer motion and omits them from his answer, they are waived. (12h1)

  1. 6 and 7 can be made in any pleading (12h2)
  2. 1 is never waived (12h3)
Amendment to pleadings (15)

  1. When:

  1. p can amend once before D answers
  2. D can amend once within 20 days of serving answer
  3. Permission is liberally granted prior to trial to amend by leave of court or by written consent of other party. Only exception is if some actual prejudice to the other party appears.
  4. Response to amended pleading must be served within 10 days after service of amended pleading.

  1. Scope

  1. State: Proposed amendment must be based on same general set of facts as original pleading  Federal: Amendment barred only if prejudice to opposing party. Changing theory of case, state a new claim, changing parties is fine. Amendment supersedes original pleadings, but original pleading can be used in evidence to show admission or inconsistent statement. Contradictory allegations without explanation of inconsistency can show pleading is a sham and can be stricken.  Statute of Limitations

  1. New claim (15c): Amendment relates back to date of original pleading if regarding same conduct, transaction or occurrence.  New D (15c3): Amendment relates back if

  1. Same conduct, transaction or occurrence;
  2. New party knew of action within 120 days of filing; and
  3. New party knew that but for a mistake, he would have been named.
State: Naming "Jane Doe" D �s permitted, real party can be inserted within three years of filing.Joinder of Claims

  1. All claims must have own SMJ. Check diversity and federal question first; supplemental jurisdiction available unless restricted in 1367b.
  2. By p

  1. p may join any other claims they have against an existing opposing party (18a). Aggregate $ in diversity cases

  1. By D

  1. CA consolidates all additional claims into Cross-Complaint
  2. Counterclaim (includes responses to cross-claims)

  1. Compulsory (13a): All claims which arise out of the same transaction or occurrence (broad) and do not require the presence of third parties. Test is for a close and logical relationship. Waived if not used.  Permissive (13b)

  1. Needs independent SMJ.
  2. Does not need to be related to existing claims.
  3. Must be stated in original pleading.
Counterclaimant can join additional party under 13h Presented with responsive pleading or with leave of court. If D counterclaims, p �s answer to that counterclaim is a "response" not an "answer"Cross-claims: Claims against an existing co-party (13g) or new party (13h) based on same transaction or occurrence (permissive, not compulsory).

  1. If original case is dismissed for lack of SMJ, cross-claims dependent upon supplementary jurisdiction dismissed as well. Otherwise cross-claims remain.
Consolidation (42a): Common for multiple actions in the same court that involve common issues to be consolidated for trial.  Splitting: Single claim cannot be split into separate parts (res judicada), but court can order separate trials for various claims joined (20b; 42b)Joinder of Parties

  1. All claims must have own SMJ. Check diversity and federal question first; supplemental jurisdiction available unless restricted in 1367b.
  2. Permissive

  1. Anyone may join as p or D (20a) on the basis of same transaction or occurence or similar question of law or fact.
  2. Once the party is joined, additional unrelated claims can be brought (18)

  1. Compulsory

  1. Joinder required for any person who has a material interest in the case and whose absence would result in substantial prejudice to the absentee or parties before the court.
  2. Test (19):

  1. Is the party necessary?

  1. Joinder needed for complete relief among parties; and
  2. The joinee claims an interest in the action and not joining him may

  1. Harm joinee�s interest
  2. Create multiple or inconsistent judgments for D

  1. If party is necessary but no PJ or SMJ, proceed wtihout joinee or dismiss proceeding? Test:

  1. Would proceeding be prejudicial to joinee or existing parties?
  2. Can that prejudice be lessened or avoided?
  3. Will judgment in joinee�s absence be adequate?
  4. Will p have an adequate remedy if dismissed? (try state court)

  1. D (14a) or p (14b) brings in D 3 (new) for indemnification (all) or contribution (part) of an existing or potential claim.

  1. Diversity and venue of original claim not affected by new D �s citizenship

  1. p can claim against D 3 and vice versa based on same transaction or occurrence or same question of law or fact.

  1. Independent SMJ needed for p to sue D 3 because of 1367b, creates possible conflict in case of compulsory cross claim � courts have not decided how to resolve.

  1. Jimenez: Once D 3 sues p , p can use 13a to counterclaim against D 3.

  1. Impleader claims are dismissed with original complaint. Additional unrelated claims tacked on (18a) after impleader are not dismissed.
Intervention (24): Nonparty can become a party in a lawsuit

  1. To protect his interests in that action if such interests are not already adequately represented; or

  1. Adequate for supplemental jurisdiction�s requirement of common interest

  1. At court�s discretion if at least one common question
Interpleader: Party with adverse has adverse claimants fight claim out amongst themselves.

  1. Rule interpleader (22)

  1. Stakeholder must be diverse from every claimant.
  2. Venue: Where any claimant resides (1397)
  3. All claimants must be attached to avoid multiple judgments (could be a problem if court lacks jurisdiction over a party because the state�s long arm statute isn�t long enough or diversity problems, if so, see 1335 below)
Statutory interpleader (1335)

  1. Used when claimants can�t be attached due to jurisdiction problems under Rule 22. Abandon Rule 22 suit and file a new suit under 1335 in federal court.
  2. Gives subject matter jurisdiction in cases over $500 for adverse claimants to district courts

  1. Diversity between any two adverse claimants.
  2. Venue (1397): Any district of any claimant.

  1. Personal Jurisdiction: 2361 gives nationwide service of process
If both 22 and 1335 fail, use a 1404(a) venue transfer to the jurisdiction where both claimants are amenable to juris (1391a controls where transfer can be made to) Federal Declaratory Judgment (2201): Court rules that D is not liable to anyone. Not as good as interpleader because burden is on D with 2201.Class Action (Rule 23)

  1. Res Judicada

  1. Judgment in a class action has binding effect on class as a whole

  1. Does not bind future p �s if class was improperly certified.
  2. Does not bind p �s who opted out of b3 actions
  3. Definition of what is barred/precluded is very narrow and specific. Example: Finding of no pattern or practice of classwide discrimination does not preclude individual discrimination claims.

  1. Rejection of a class claim does not mean that no member has a valid claim

  1. Requirements for certification (all must be met)

  1. Numerous parties such that joinder is impractical (a1)

  1. Test to certify small number (<50) of parties:

  1. Size of each member�s claim (<=likely for certification)
  2. Practical likelihood that individual suits will be brought (judicial economy).
  3. Public importance
  4. Geographic location of class members

  1. Manageability

  1. Notice requirement may necessitate individual notice

  1. Class must be ascertainable (mainly for damages, not for injunctive relief under b2)
  2. Double class action (class p vs. class D ) has no controversy between most of the parties, so not allowed.
Common question of fact (a2)

  1. Even if question of individual damages, may be common questions re: liability.
  2. Large numbers of significant individual questions on damages, liability and defenses mean class action is not a good choice. Happens a lot with mass accidents/product liability where each p should have the right to prosecute his own claim. Mass accident/product liability litigation should be maintained when:

  1. Action limited to question of liability
  2. Supported by class members
  3. Minimal choice of law problems because of common jurisdiction
  4. 23b3 superiority requirement met
Representative�s claims typical of those in the class (a3)

  1. If rep�s claim becomes moot, need to find new rep
  2. Each type of claim must have a representative. Makes proving liability under breach of warranty very difficult because each type of warranty or assurance each p received must have a representative p .
Adequacy of representation (a4)

  1. No actual or potential conflicts of interest. No interests adverse to members of the class.
  2. Absent class member can attack judgment on basis of inadequate representation of his interests.
  3. Measured prior to certification, after suit if D argues unnamed p bound by judgment
Grounds for class action (any one)

  1. Prejudice from separate actions (b1)

  1. Harm to D from multiple judgments
  2. Substantially impairing interests of other members of class

  1. Limited funds

  1. p �s in different jurisdictions have different standards of damage calculations

  1. Insolvent D
  2. Proper only when separate punitive damage claims will necessarily affect later claims
Equitable relief sought as to rights held in common (b2); Declaratory or injunctive relief would benefit class as a whole  Common predominant question (b3)

  1. Criteria: Superior to have class action than separate cases
  2. Notice: Best notice practicable under circumstances, including individual where possible (supplies PJ). Include instructions for opt-out. p must pay costs.

  1. SMJ

  1. Diversity: Only representative�s citizenship is examined; no aggregation of amounts. SMJ met via supplemental jurisdiction if representative�s claim > $75k.

  1. SC has not ruled on PJ for b1 & B2.
  2. PJ over absent p �s who did not opt out of a b3.
  3. Required for all D �s in D class.
Discovery (Rules 26-37)

  1. Functions

  1. Parties better informed re: facts
  2. Move towards settlement
  3. Foundation for motion for summary judgment
  4. Harassment of opponent
  5. Refresh litigant�s memory (unethical)

  1. Forms

  1. Informal: Prior to filing of a complaint

  1. Interviews
  2. Investigator
  3. Review of documents, visits to property

  1. Operation

  1. Minimal court involvement. Parties must at least attempt to meet and confer to resolve discovery problems.
  2. Discovery not barred by a 12b2 motion to dismiss.
  3. Responses must be supplemented if responding party later learns response is incorrect or incomplete.
  4. Broad in scope: Party can obtain "any matter, not privileged, which is relevant to the subject matter involved in the action" and likely to lead to evidence. (26b1). Includes material that is not admissible at trial.

  1. Limitations for bad faith, annoyance, embarrassment, oppression (30, 31), irrelevant or privileged domains (26b) (restrictions similar to Rule 11)

  1. Parties can stipulate variations from discovery rules (29)
  2. Objections not stated are waived. No timely response (30 days) deemed admission.

  1. Objections subject to court�s review and may be compelled to comply.
Initial Disclosure (26a): If required by local district, initial meet and confer, followed by:

  1. Initial disclosure (parties may stipulate not to):

  1. If disputed facts alleged with particularity in pleadings:

  1. Names and addresses of persons with relevant information (26a1a)
  2. Copies or descriptions of relevant documents and tangible evidence (26a1b)

  1. Computations of damages with supporting documentation (26a1c)
  2. Copies of insurance K�s covering the suit (26a1d)

  1. Identity, qualifications and reports of experts to be called at trial (26a2)
  2. Pretrial (26a3)

  1. Names of witnesses to be called at trial (26a3a)
  2. Documents and depositions each party expects to offer in evidence at trial. (26a3c)
Interrogatories (33)

  1. Who: Parties
  2. How: List of questions answered in writing, under oath. Answers usually drafted by opposing counsel.
  3. Notes: Often sent with request for production of documents. Limited to 25 (can be waivable) by each party. Duty to respond within 30 days and duty to investigate to provide facts within client/attorney�s control.
Deposition (30,31)

  1. Who: Anyone with relevant information. Usually all important unfriendly witnesses, usually not your own client or friendly witnesses, unless they won�t be at the trial. Nonparties supoenaed under Rule 45.
  2. How: Orally, without advance notice of questions. Under oath. Notice to opposing party.

  1. Objections

  1. Available for

  1. Preservation of privilege
  2. Enforcement of protective order
  3. Abusive behavior of deposer.
  4. Oppression/annoyance

  1. Questions objected to are answered, but objections noted for the court. If privileged information or harassment, bad faith, etc. no answer but objecting party may be compelled by the court to answer.
  2. Party should wait until their attorney has had a chance to evaluate whether or not to object to the question before they answer

  1. Notes: Danger of discovering unfavorable information. Deposition on written questions is available (31) � answers must be oral. Limited to 10 per side, one per witness (waivable).

  1. Deposition of expert witnesses takes place after their report is provided. Witness fee paid for by deposing party, using witness in support of own case results in having to reimburse fair portion of fees paid to expert by opposing party. Only includes experts to testify at trial.
  2. Deposition of corporation requires deposing party to state only matters on which deposition will take place, corporation must then furnish proper person, and is bound by that persons answers.
  3. Party can only be deposed once without prior agreement and leave of court.

  1. Use at trial (32): Deposition used only to contradict or impeach testimony given by that person as a witness at trial.
Production of documents and things (33,34)

  1. Who: Parties or nonparties
  2. How: Usually along with an interrogatory. Nonparty can quash or modify a subpoena based on undue burden, privilege or other grounds (45c). Description must be certain enough to enable person of ordinary intelligence to know what is sought.

  1. Must be organized either as they are kept in ordinary course of business or labeled per requests.
  2. Responding party can invite requesting party to conduct search themselves, but that is not a good tactical move.
Physical or mental examination of person (35)

  1. Who: Party
  2. How: By a qualified expert chosen and paid for by party seeking discovery.

  1. Report must go to both parties if requested.
  2. Counsel does not have an absolute right to be present.
  3. Requires court order.
  4. Condition that is subject of examination must be a controversy in the issue and with good cause (exam must be directly relevant to claim and essential to its fair resolution).

  1. One party�s unsubstantiated allegation cannot put the mental state of another into controversy.
  2. Party who puts his own mental/physical state in controversy opens himself up to examination.

  1. Party does not waive all privacy interests, but cannot make allegations without other party to test. Waiver is narrow.
  2. Doctor-patient privilege with regard to same condition waived by request for copy of report and in any PI case.
Request for admission (36)

  1. Who: Party
  2. How:
  3. Notes: Requests that opposing party admit certain facts are true or certain documents genuine.

  1. Sanctions for failure to admit when the truth or genuineness is later established at trial, unless party failing to admit had reasonable ground to believe they would prevail or other good reason (matter of opinion, ignorance, self-incrimination).
Protective orders, orders to compel, sanctions (37, 26c)

  1. Protective order available for confidential materials, inconvenient place of examination, unreasonable conduct of deposition, unduly burdensome discovery
  2. Good faith meet and confer required before court will compel.
  3. Partial failure

  1. Motion to compel
  2. Order to answer
  3. Sanctions, findings & costs
  4. Contempt

  1. Complete failure

  1. Sanctions, findings & costs

  1. Order to compel may be available to seek discovery from non-testifying expert if opposing counsel has "cornered the market."
Privileges (26b)

  1. Forms

  1. Work product (26b3)

  1. Documents and tangible things prepared in anticipation of litigation, can only be obtained in discovery if substantial need and unable to obtain without undue hardship.
  2. Mental impressions, conclusions, opinions, legal theories of an attorney are never disclosed.
Attorney-client privilege

  1. Communication between client and attorney without presence of strangers for the purpose of securing primarily either a legal opinion or advice, legal services, assistance in a legal proceeding, but not for the purpose of committing a crime or tort, and only when the privilege is claimed and not waived.
  2. Does not protect client from havin to disclose facts told to attorney
  3. Attorney may not facilitate perjury by allowing client to lie under oath.

  1. Only applies when attorney�s involvement took place with an eye towards litigation (anticipation of litigation)
  2. Claim must be made expressly and must describe the information or things withheld in a manner that will enable other party to assess applicability of privilege.

  1. Attorney is under a duty to invoke the privilege for the client
  2. Client can waive
  3. Opposing counsel can file motion to compell answer under 37a2.

  1. Applies when client is a corporation

  1. Control group test: Privilege limited to communications between lawyer and those persons who are the control group of the corporation
  2. Upjohn test: Matters within scope of employment re: information not available from higher management.

  1. Only protects disclosure of communication, not underlying facts.

  1. Trial by jury preserved in 7th Amendment in cases at law, but waived if not demanded. Does not apply to states.

  1. Preserved if right to jury trial existed in 1791 common law cases. New claim gets a jury if there is a common law similar claim.
  2. Cases at law = seeking money as damages.

  1. When monetary damages are inadequate, equity kicks in and supplies a remedy other than monetary damages.
  2. If case is mixed law & equity, each issue is separated. Issue with both law & equity requires jury. Jury issues must be tried first to guide equity judge.
Summary Judgment (56): Granted before trial if there is no admissible evidence that could support a jury�s finding in support of the claim.

  1. Admissible evidence can be demonstrated by inadmisible evidence (sworn statements).
  2. Moving party must sufficiently establish that their version of the facts is correct and that there is no issue of fact for the jury.

  1. D must address p �s allegations. p not compelled to counter motion unless D addresses that issue in motion (Atticus).
  2. Burden can also be met by moving D showing that non-moving p has insufficient evidence to support its burden of proof (Celotex).

  1. Then the burden shifts to the non-moving party to produce countervailing evidence against issues presented in motion, demonstrating a genuine issue of triable fact (56e). No weight given to amount or credibility of evidence � existence is enough.
  2. Motion viewed in light most favorable to non-moving party
  3. Very difficult for p to get summary judgment
Judgment as a matter of law (50; aka Directed Verdict) applies summary judgment standard (no evidence to support non-moving side�s prima facie case), but available after p rests and after D rests (50a).

  1. After jury returns a verdict for p , JAML (fka JNOV) available only if JAML requested and denied when D rested. (50b)

  1. JNOV comes with a new trial, only if the jury�s verdict goes against the great weight of the evidence.

  1. Rule 82 says FRCP doesn�t expand jurisdiction of courts, only Title 28 does.
  2. Supplemental Jurisdiction (1367; review of Ancillary Jurisdiction)

  1. Constitutional authority

  1. Original claim must be proper within the jurisdiction of the court (PJ); and
  2. 2nd claim must arise from same case or controversy (transaction or occurrence; broad) or have a common question of law or fact
  3. No independent basis of jurisdiction (federal question/diversity)

  1. Statutory authority: In a diversity case, 1367b excludes supplemental jurisduction for claims by p in the case of Rules 14, 19, 20 and 24.
  2. Courts retain discretionary rejection power in 1367c.

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