Advanced Civil Procedure

Seeking Relief: Pre-judgment, Final, ContemptI. Remedies and Stakes

Before decision is made to use civil process, it must be decided what remedies/relief can be attained through system

o Boddie v. Connecticut, 401 U.S. 371, (1971) o Facts: Welfare recipients challenged court fees that restricted their access to divorce.o Holding: Court fees deny good-faith divorce applicant meaningful opportunity to be

heard. o The due process clause of the 14th amendment prohibits a state from imposing a filing

fee upon an indigent litigant seeking a judicial dissolution of marriage. Due process requires at a minimum a meaningful opportunity to be heard

o Reasoning: State monopoly of means for legally dissolving marriage (fundamental human relationship).

Lassiter v. Department of Social Services Facts: Mom (Lassiter) was neglecting her son in 1975. Then she murdered someone in 1976 giving her 25 – 40 years in prison. Two more years pass and she doesn’t contact her son. The Department of Social Services files a petition to permanently terminate her parental rights. If this happens she would never see her son again. Problems with the trial: Lassiter foolishly chose not to have counsel. She didn’t stop the prosecution for submitting hearsay testimony. The cross-examination was a disaster because Lassiter did not actually ask questions.  Defendant’s appeals: Lassiter claimed that she was indigent and should have had a lawyer. She is claiming that the court violated her 14th Amendment due process right. She wants a retrial.  Holding: Lassiter is not given a retrial. Reasoning:

There is a pre-eminent generalization that everyone has the right to an attorney. It is only reserved for people in big trouble who risk the chance of losing personal liberty

Interest of the plaintiff: Huge! She doesn’t want to have her son taken away Interest of the government: they mostly care about time and money Concern for whether the trial will result in an erroneous decision and obstruct rights

o efficiencyo accuracyo fairness

        Every issue needs to be evaluated on a case-by-case circumstance        There is overwhelming evidence that regardless of what Lassiter says, she didn’t really care

about her son. Because of this, it wouldn’t matter if she had a lawyer or not

Specifically that the private interests, government interests and the risk that the procedures in place may provide erroneous outcomes be weighed to determine whether it would necessitate the assistance of counsel. But the Court will weight those factors case-by-case, and in this case there was reason to believe that Petitioner would have received little help from counsel and that there was no damage done in her lack of counsel. Dissent: Taking someone’s child is a unique kind of deprivation. Regardless of if the case would have come out the same whether Lassiter had a judge or not, it does not mean that due process should be denied. Correctly used Eldridge 3-factor test

1. believed family matters are a fundamental liberty interest2. liberty interests at stake in PT undeniably require procedural protection3. state’s interest can’t be greater than that of a person threatened by PT

Rule: There is no absolute right to an attorney. Every case needs to be looked at individually. Eldridge 3 factors

1. The interests of the individual in retaining their property, and the injury threatened by the official action

2. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;

3. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication

A. Provisional relief Equitable remedies: Can be attained before any decision is made on claim (no

juries for equitable claims) Invoked for two reasons:

o To secure a judgment (make sure plaintiff gets compensation awarded and could put pressure on someone to settle)

o To stop someone from continuing activity or to preserve the status quo

Rule 65 (Objective of maintaining status quo) o Preliminary Injunction

Notice to other side and hearing applies unless there is immediate irreparable harm

In ruling on preliminary injunction, court will consider: If injunction will harm other side If it’s in best public interest How likely P is to succeed on claims Irreparable harm suffered by P if there isn’t a preliminary

injunctiono Temporary Restraining Order

Filed at same time that preliminary injunction is filed Has a lifespan of no more than 10 days unless it is extended Notice and hearing applies unless P shows immediate and

irreparable injury that will occur if wait for hearing

P needs to make at least an informal attempt to notice D Rule 64: Seizure of Person or Property (Securing Judgment)

o If there is a suit with a possible settlement but P is worried that property will be gone by time she settles/wins suit, she can get:

o Attachment: real property is seized Writ of attachment: written order on land that says that if someone

buys land, it is not unburdened o Sequestration: Public official takes property to neutral locationo Garnishment: 3rd party has to turn over Ds property in his possession

(often wages) Fuentes v. Shevins (U.S. 1972): Due Process and Seizure of Property

o P filed suit claiming deprivation of due process under 14th Amendment after her goods (gas stove, stereo) were repossessed by sheriff when store obtained writ of replevin, saying P hadn’t made final payments. Goods were repossessed before P received summons to answer store’s complaint.

o Judgment based on private interest to P and interest of storeo Issue: Does P have right to be heard before Statue authorizes its agents to

seize property in possession of another upon request for replevin? P had possessor interest in property—had paid substantial amount

for it Notice and hearing requirements of due process apply even if

seizure is temporary (short deprivation still a deprivation) and even if property taken is not necessary for living (stereo, stove)

When property taken under replevin, there is a high risk of error because writ of replevin is issued on word of one party so post-seizure hearing is not good enough (except in emergency such as bank failure, wartime)

American Hospital Supply v. Hospital Products

Brief Fact Summary. Defendant, Hospital Products, Ltd., seeks to overturn a preliminary injunction granted by the district court that forces Defendant to follow their contract with Plaintiffs, American Hospital Supply Corp.

Synopsis of Rule of Law. When determining whether a preliminary injunction should be granted, a court should follow the formula P x Hp > (1-P) X Hd, wherein the probability of the plaintiff winning is multiplied by their potential hardship, and determining if it is greater than a defendant’s hardship multiplied by their probability of winning.

Facts. Plaintiff and Defendant had a contract in effect for three years that required Defendant supplier to use Plaintiff as their distributor. The contract would automatically renew each year, and either party could terminate the agreement by notifying the other party at least 90 days before the contract entered a new year of existence. Plaintiff contacted Defendant to ensure that the contract would be renewed, and Defendant waited until one day after the 90-day period expired to notify Plaintiff that they wanted to end the contract. Plaintiff was near bankruptcy and had been reliant on Plaintiff for cash infusion prior to the termination. Plaintiff brought an action

for breach of contract and successfully obtained a preliminary injunction against Defendant to enforce the contract.

Issue. The issue is whether the preliminary injunction granted to Plaintiff should be upheld.Held. The court implemented a formula, P x Hp > (1-P) X Hd, that basically restated the traditional balancing factors in a mathematical format. The court then affirmed the injunction and supported the decision by noting the high probability of Plaintiff’s success at trial and the lack of significant hardship to Defendant versus the hardship to Plaintiff. The court still applied hardship to the public (which was considered hardship for Defendant for the sake of the formula) and concluded that the left side of the equation was greater (favored Plaintiff’s side).

Dissent. The dissenting judge favors the traditional four-prong test for granting preliminary injunctions (irreparable harm and no other remedy as equitable; the irreparable harm outweighs the other party; likelihood of success; and no danger to public interest) rather than the proposed formula.

Walgreen Co. v. Sara Creek Property Co.Facts: - Walgreens in mall owned by Sara Creek

- lease stipulates no other pharmacy can have lease in mall- mall’s anchor tenant going out of business & Creek wants to bring in PharMor- Walgreens sued for breach of K; asked for injunction against Creek to least to PharMor

Rule: - Ordinarily money; this case money not appropriate b/c it’s impossible to calculate

- The burden is to show that damages are inadequate (for permanent injunction), not that the denial of the injunction will work irreparable harm (that’s for a preliminary injunction)Reasoning: Substituting injunction for damages is beneficial:

1. shifts burden of determining cost of D’s conduct from court to parties2. prices & costs are more accurately determined by market than gov’

2. Enforcement of equitable relief = use ct’s contempt powera. Civil contempt

- to compel to do something- used to impel the D to comply with the ct order- imprisonment as a result; comply to stay out of jail (e.g. pay child support)- fine would be strange since equitable relief made money damages not adequate- std of proof > preponderance of evidence

b. Criminal contempt- broke court order and willful about it- to punish (by fine and/or imprisonment)- serve your time- to give court respect (not so much relief for the P)- std of proof > beyond a reasonable doubt

3. Money damages1) nominal

- represent a token amount simply to signify the recognition that harm was done but where injury can’t be proven

*Provisional relief in Carpenter case:o A TRO and preliminary injunction so Randall Dee can’t sell houseo Preliminary injunction ordering Jeep not to be alteredo A sequestration of Jeep to put it under supervision of third party

*Provisional relief in Cleveland caseo preliminary injunction to stop hiring process

B. Final Relief Granted after decision is made on claim These can be either equitable or legal remedies (there are juries to determine

legal remedies) Equitable final relief

o Granted when money damages won’t be enough to compensate for losses o Permanent injunctiono Declarative relief: parties have declaration of their rights

Legal Reliefo Monetary damages

Punitive Compensatory Nominal: (unusual) when someone’s rights have been violated but

they have not suffered any right that can have monetary value attached to it

*Final Relief in Carpenter case:o Compensatory damages

lost income, lost household services, etc. o Punitive damages

Must show recklessness, willful or wanton misconduct o Judgment proof defendant:

D doesn’t have any money or assets so P can’t get damages from him

*Final relief in Cleveland case:o Final equitable relief

If final goal is a permanent injunction to restructure hiring process, Ps must show that there is no adequate legal remedy (money damages not enough for the Ds)

o Compensatory back pay

C. Contempt: When a party or lawyer disobeys a court order A party or lawyer can be held in contempt if he violates a court order or rule Parties sometime deliberately disobey a statue in order to protest/challenge a

rule they deem to be unjust

Collateral Bar Rule (Enforced in Walker v. Birmingham) o Procedural rule requiring obedience to a court order even if it is later

found to be unconstitutional o You cannot disobey a court order and then raise unconstitutionality of the

order as a defense. Instead, you must try to directly challenge order firsto Rule does not apply if court that issues injunction does not have

jurisdiction over the parties or if injunction is so obviously invalid on its face

o In enforcing collateral bar rule, was Supreme Court collaborating with injustice in Walker v. Birmingham?

o When is the collateral bar rule applied? o How can someone challenge injunction without running into collateral bar

rule?

A. Provisional relief = prejudgment reliefs = securing the judgment (tying up D’s property)1. Rule 64(b)

a. arrest- to keep the D from running away

b. attachment- seizing of person’s property to secure a judgment or to be sold in

satisfaction of a judgment (e.g. lien on property)c. replevin

- action for repossession of property wrongfully taken by D- P holds property until ct decides who owns it

d. sequestration- so it doesn’t go anywhere (e.g. a boat)- property is removed from possessor Advantages: - assures D’s resources will be there to collect if P wins

- tying up assets puts pressure on D to settlee. garnishment

- take money (e.g. wages, stimulus payment, bank accounts)- third party involvement

f. others

2. Rule 65(a) = Preliminary injunction- court directs a party to halt specific conduct or perform specified acts immediately- before ct reaches merits of case- requires notice to party- lasts for entire duration of case; becomes part of case- if extended, turns into permanent injunction

3. Ct’s test to determine provisional relief (preliminary injunction)whether $ damages would provide inadequate relief for P if wins; money won’t help irreparable harm will occur if not grantedlikelihood P will prevail on merits (most important factor)

scope & irreparability of harm D will suffer if relief is wrongly grantedextent to which granting an injunction would harm public interest

4. Rule 65(b) = TRO- maintaining the status quo- ex parte decision; does not require notice- irreparable harm must be argued; something bad is going to happen if the court doesn’t issue the restraining order (e.g. bodily harm, child custody, foreclosure)- immediate protection while wait for hearing on preliminary injunction- 10 days with extension > can turn into preliminary then permanent- e.g. butcher across my property line; he might kill it; so TRO

B. Final relief1. Equitable relief

- only granted when money damages would not be adequate- equitable relief awarded by judge; money damages usu. awarded by jurya. Rule 57 = Declaratory judgment

- ct’s clarification of the law as applied to the undisputed facts presented by litigants- issues an opinion declaring rights of parties involved

b. Rule = Consent decrees- parties decide on a solution, the ct monitors agreement, and can be dissolved by motion or sunset- e.g. prison litigation > not giving dental to prisoners- some ongoing for as long as 30 years; have to do it piece by piece- can arise out of violations of Constitutional rights, which supercede even legislation

c. Rule 65 = Permanent injunctionwhether $ damages would provide inadequate relief whether P has shown risk of irreparable injury scope & irreparability of harm D will suffer if relief is wrongly grantedextent to which granting an injunction would harm public interest

- inquiry leading to it doesn’t involve predicting likelihood of P’s success on merits b/c merits already decide; injunction granted on hearing on the merits

Carey v. Piphus (1978)Facts: - students suspended for violating school rules

- not given due process prior to suspension42 U.S.C. § 1983: a person who deprives someone of his rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at lawRule: - nominal damages are most that can be awarded in the absence of proof of injury

- must prove actual injury from denial of due process in order to obtain remedy- in order to receive punitive damages, the students needed to show that the officials acted with malicious intent

- mental & emotional distress are covered under § 1983, but w/o actually proving injury, it can’t be assumed that the injury is so great

Ruling: Due process wasn’t given, but damages weren’t proved, so here’s $1

2) compensatory- seek to return P to position enjoyed before the harm - e.g. medical bills, pain & suffering, loss of wages, fix property that was damaged Ex: Carpenter

3) punitive- further monetary relief seems appropriate to deter future wrongful conduct and to express public disapproval of injuring behavior*Guideposts to clarify what constitutes unconstitutional excessiveness in punitive damage awards:1- how reprehensible is the D’s conduct?2- ratio of the award to actual or potential harm inflicted3- a comparison of the award to civil or criminal penalties that could be imposed for comparable misconductEx: Carpenter

Enforcement of money damages:1. Secure a judgment2. Docket it with the clerk’s office

C. Settlement- a legally enforceable agreement, usually involving a payment from D to P, in which P agrees not to pursue the claim further

E. Contemptyou can violate an ordinance but not an orderyou can violate the statute or ordinance but NOT when the ct orders you not to

Walker v. City of Birmingham (1967)Facts: - violated injunction at marchCollateral Bar Rule = when violating a ct’s contempt order, you’re barred from challenging underlying statute

Finality and PreclusionII. Claim Preclusion/res judicata

Claim Preclusion prohibits P from splitting up claims that arise from common nucleus of operative fact

Elements:o (1) Final and valid judgment on the meritso (2) Second lawsuit arises out of same claim as first lawsuito (3) Parties are the same or are in privity

Policy:o To avoid wasting judicial resources

o So D doesn’t have to defend case againo So P cannot file same claim until she finds a sympathetic juryo To avoid inconsistent results

If claims involve different transactions, P doesn’t have to join claims (trying cases separately would not repetition of same facts and evidence)

Claim preclusion usually results in summary judgment Two moments in course of lawsuit to keep claim preclusion in mind:

o When constructing complaint: Need to make sure to include all issues that raise out of one claim to avoid preclusion later on

o If there’s a second lawsuit filed: D’s lawyer has to be aware of claim preclusion to raise it as a defense

Final and valid judgment on the meritso Dismissal for lack of jurisdiction, improper venue, non joinder, misjoinder

is not. Dismissal with prejudice is. (Rule 41(b)) o Other judgments, such as motion to dismiss for failure to state a claim

with prejudice, SJ, will be judgments that have preclusive effect Second lawsuit arises out of same claim as first lawsuit:

o Fundamental question, has the party had the opportunity for their day in court, to argue the merits of the case?

o Factors to consider when determining whether lawsuit arises out of same claim as first

Natural grouping of common nucleus of operative facts (considering time, space, origin, motivation, whether they form a convenient trial unit)

o When P comes upon new evidence: Rule 60 gives the court power to relieve a party of a judgment on a

number of grounds; one of these is new evidence. It is at judge’s discretion and you probably won’t win if judge finds that you should have originally found the evidence. There is also a 1 year time limit.

o Car Carriers, Inc. v. Ford Motor Company (F.2d, 7th Cir. 1989) Asserts that transaction, not legal claim or theory, matters when

determining claim preclusion (common nucleus of operative facts idea)

When new facts are found, court has right to presume that it P has done his legal and factual homework, could’ve taken advantage of amendment rules

FRCP are designed to allow these claims to be brought together (joinder +13) so claim preclusion provides motivation to join them

o Heacock v. Heacock (SJC 1998) Divorce action where Mrs. Heacock makes claims of violence Mr.

Heacock asserted against her in support of reasons for divorce Following divorce, Mrs. Heacock begins tort action for abuse When original jurisdiction did not have jurisdiction to hear a

subsequent claim, claim is not precluded.

Taylor v Sturgell, two dif parties litigated the same issue & were represented by the same attorneyThe court held that such “nonparty preclusion” runs up against the “deep-rooted historic tradition that everyone should have his own day in court.” Virtual representation should only be applied rarely and under certain exceptions to the general rule, none of which the Court found applicable in this case.Preclusive effect of prior ct judgment is based on federal common law – don’t look to state law to see if this is allowedAdequate representation – interest of a nonparty and representative must be aligned -ex: homeowner’s association could be litigating for or against homeowners Rule against nonparty preclusion is subject to the following exceptions (c.e is justified when:) (take a categorical approach)

1. A person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement (non party can agree to be bound by prior decision)

2. Justified based on a variety of pre-existing substantive legal relationships between the person to be bound and a party to the judgment (certain relationships where it makes sense to bind a nonparty to a prior judgment – like in property cases)

3. In certain limited circumstances, a nonparty may be bound by a judgment because she was adequately represented by someone with the same interests who was a party to the suit (nonparty was adequately represented by a party with the same interests in the prior lawsuit; ex: class action)

4. Bound if she assumed control over the litigation in which the judgment was rendered (not a formal party in the litigation but the nonparty controls the prior proceeding)

5. A party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication.

6. In certain circumstances a special statutory scheme may expressly foreclose successive litigation by nonlitigants if the scheme is otherwise consistent with due process. (ex: bankruptcy & probate proceedings)

Simplified(1) A nonparty may agree to be bound by a judgment(2) Privity may justify preclusion of a nonparty(3) Nonparty interests represented by party: class actions, trustees, guardians(4) Nonparty who’s assumed control over lawsuit(5) Nonparty litigated suit via proxy to avoid preclusion(6) Special statutory schemes: bankruptcy, other suits brought on behalf of public

Consider: A party’s representation of a nonparty is adequate for preclusion purposes only if, at a minimum: 1) the interests of the nonparty and her representative are aligned 2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty. Adequate representation sometimes requires

3) notice of the original suit to the persons alleged to have been representedReject a broad doctrine of virtual representation & an all-things-considered balancing approach b/c:Decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. Rejection rests on the limitations attending nonparty preclusion based on adequate representationWould likely create more headaches than it relieves. It could significantly complicate the task courts face with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under tests. And after the relevant facts are established, judges would be called upon to evaluate them under a standard that provides no firm guidance. CA follows the Restatement approach to collateral estoppel.“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”Note, claim preclusion (res judicata) is the whole ball of wax whereas collateral estoppel (issue preclusion) is just a part of the claim.Ex. “battery” is a claim; issues are intentional touching? intention of harm

Parties are the same, or in privity:o Privity – some sort of relationship that makes it appropriate to conclude

that that party has already had its day in court. Family relationship is not enough to imply privity

o Gonzalez v. Banco Central Corp. (1st Cir., 1994) Facts: Bank selling swampland in Fl. to people in Puerto Rico for

development. Rodriguez Ps file action first. Gonzalez Ps try to join claim later and are refused. Ps ultimately lose. Gonzalez Ps file lawsuit against same Ds, allegations are similar as Rodriguez Ps Ds claim that claim should be dismissed because of privity

Court: There was the same claim (arose common nucleus of operative facts) but parties were not in privity.

Court says that caution is needed when determining prvity so no one is denied their day in court (person against him preclusion is asserted because of privity should have already had day in court)

Privity based on Substantial Control or Virtual Representation: Substantial Control: P had opportunity to call the shots in

prior litigation (make strategic decisions) so that other party essentially had day in court. Must be from practical, not theoretical standpoint.

Virtual Representation: Equitable theory, determined on case by case basis.

(1) Identity of interest(2) Must have actual or constructive notice of the earlier

litigation.

(3) Must have some kind of relationship of accountability. (Trustee/Beneficiary, Corporate officers, Some familial relationships, such as in bankruptcy proceedings)

III. Issue Preclusion (Collateral Estoppel) Collateral estoppel/issue preclusion: Once issue has been adjudicated between

two adverse parties, that issue cannot be relitigated in another suit between same parties

Elements:o Are the issues the same?

Analogous to transaction/occurrence o Was issue actually litigated?o Did litigation go to final judgment?o Was issue on which preclusion was sought essential to final judgment?

Issue preclusion can be invoked even if one of the parties wasn’t bound by prior litigation

Mutuality o Federal and states have body of common law with respect to preclusion,

so issue of whether mutuality is required is matter of state law. o Trend is that mutuality is not required (including in federal court)

Issue preclusion usually results in partial summary judgment Policy: Efficiency, consistency David P. Hoult v. Jennifer Hoult (1998)

o Father convicted of sexually abusing his daughter. Her father later sues her for defamation because she reported rape. Daughter argues that issue preclusion should apply, saying that he cannot say that he did not rape her when jury implicitly found that he did.

o Issue: Should issue preclusion apply when there was no explicit finding that the father raped his daughter?

o Court: Issue preclusion can still apply if finding in first suit was central to the finding. (Central is party could have prevailed or lost because of the outcome of that issue)

o Can be determined by evidence, testimony Jarosz v. Palmer (Mass. 2002)

o Business relationship where former partner sues lawyer that the company used claiming breach of attorney-client privilege

o Court says that issue preclusion does not apply because issue wasn’t essential to underlying claim of original litigation on which judgment was entered

o Policy of requiring it to be central to judgment: May not have been fully litigated, may not have received full attention of court, etc.

Parklane Hoisery Co. v. Shore (U.S. 1979) o Deals with non-mutual, offensive issue preclusion: Can a litigant who was

not a party to a prior judgment use the previous judgment “offensively” to prevent D from re-litigating issues resolved in earlier proceeding?

o First action was seeking injunction decided by a bench trial. Second action was a damages action, so there was a right to a jury trial

o Issues: Can preclusion be used when Parklane would be prevented from

having jury trial with respect to 7th amendment? Mutuality: P wasn’t involved in first lawsuit, but is trying to use

issue preclusion against D who had issue decided against him in prior action. Should offensive use of issue preclusion be allowed?

o Offensive vs. Defensive issue preclusion: Supreme Court has already held that mutuality not needed for

defensive use of issue preclusion, as decided in Blonder-Tongue, but court should still be conscious of unfairness

Defensive can be routinely invoked without there being problems with denying anyone day in court

Court is hesitant to allow offensive, non-mutual issue preclusion Problems with offensive:

Wait and see problem: Would result in more litigation, as Ps would be able to wait and see what happens in earlier litigation because success of one P in earlier litigation would allow later Ps to piggyback off of decisions

Unfairness to Ds: There might be a lack of incentive to vigorously defend claim in earlier litigation; there might be more expansive discovery opportunities in second litigation

o In these cases, there is a tension between desire for efficiency and finality and respect for jury

o Rehnquist’s dissent: Says that it is unfair to apply doctrine of collateral estoppel where party who is sought to be estopped has not had an opportunity to have facts determined by a jury Focused on 7th amendment right to a jury

o Approaching non-mutual issue preclusion problems: Is action a defensive or offensive one? If offensive trial judge should use discretion, asking:

Would offensive be motivated by wait and see P? Could P have easily joined in first lawsuit? Would use of preclusion be unfair to Ds, considering additional

procedural opportunities, lack of incentive in first action? Inter-jurisdictional Preclusion

o Preclusion can operate between state and federal court, between criminal and civil, between state courts

o State to State: Full Faith and Credit Clause – Art. IV, Section 1 A subsequent court must ask itself what preclusive effect the

judgment would have in the state where the judgment was originally had.

o State to Federal:

Congress enacted statute that does same thing as the above FF&C clause does to states – section 1738.

Federal court must ask the same thing as the state court. o Federal to State:

Art. IV, Section 1738 don’t apply. This is an area where federal common law controls.

Supreme Court developed rule as to what effect federal courts rulings preclusive effect is. It depends on whether it is federal question or diversity.

Claim and Issue Preclusion Problems o *A and B have a contract. B agrees, every June, to clear timber on part of

A’s land. Contract is for five years. B performs in first year. Second year, he doesn’t perform A sues for breach of contract. B says that at time contract was made, he was a minor and therefore couldn’t enter into contract. Court says B was old enough to enter into enforceable contact judgment for A. Next year, B fails to perform again. A sues again and B raises same defense of minority. Does A have to relitigate this issue?

Resolution of decision was central to first judgment A can say that issue need not be re-litigated.

o Ms. Podros was driving Jeep and she makes a left turn, rolling onto Warren’s car. Warren finds out Podros illegally altered car, that Lowell police officers had stopped her and released her for driving under the influence. Podros was already found guilty of modifying her Jeep. Warren files personal injury action in federal court against Podros, Lowell police officers who stopped her, ultimate auto, and city of auto. Is there any ground to say that Warren is collaterally estopped from litigating this issue?

This is offensive, non-mutual issue preclusion Is there a wait and see P problem?

No—he couldn’t have been party to first suit Is there any unfairness to Do in asserting non-mutual issue preclusion?

State met its higher burden in criminal case, so there is no problem with that in allowing issue preclusion

Perhaps D didn’t litigate claim as furtively as possible o 1. No claim preclusion because different transaction.

New facts that gave rise to new claim. Other finality doctrines that might apply even though 2nd claim

wouldn’t be precluded? Issue preclusion might apply Stare Decis (if legal ruling about what law meant), precedent

would apply in second case) o 2. City of Cleveland Ps lost sex discrimination lawsuit. Can they bring a

second lawsuit alleging race discrimination? Claims came out of same nucleus of operative facts, selection

process they are claiming about is same. Parties are same. Race

discrimination claim could have and should have brought action in first they cannot bring second action

o 3. Ms. Burrell (owner of Jeep) files lawsuit against Randall Dee for property damage against Jeep and recovers for $2000—which is the maximum that can be recovered in small claims court. Three months later, she files in Superior Court for more substantial damages for physical injuries.

She had choice where to file first claim she should’ve brought in both claims in superior court

o 4. Carpenter filed in superior court against Lowell for failure of police officers to warn of modifications. Case dismissed because of statute that says that municipalities cannot be sued because not responsible for its employees. File judgment, no appeal. Later, statute overruled saying municipalities could be sued. Can she sue again?

No. There was a final judgment on the merits. It was decided under law at the time.

Rule 60(b): provides for relief from judgment under range of circumstances because of newly discovered evidence, among other reasons

If you got precluded, you can’t jump into someone else’s claim to get around it (Federated Dept. Stores v. Moitie, p. 1124)1. Better to stick around and appeal something than start the claim over in a different court which will use the preclusion

Federal courts must comply with state determinations of preclusion (Allen v. McCurry, p. 1192; Semtek v. Lockheed Martin, p. 1198)

1. Federal courts can’t be more preclusive than their state courts2. Look at how state court treats statute of limitations preclusions (Semtek)

Class Actions

I. CLASS ACTIONSA. CLASS CERTIFICATION

a. Rule 23: Class Action1. Requires PJ, SMJ, and venue like any other case2. 2005 Amendments: federal juris. will exist when there is minimal

diversity and when the total amount of the class members’ claims exceeds $5 million

3. 23(a) factors for certification:a. NUMEROSITY: class must be so numerous that joinder of

all members is impracticable (usually ~100 is the cut-off)b. COMMONALITY: questions of law or fact common to the

class (the rule requires common question, not the absence of individual ones!)

c. TYPICALITY: the claims or defenses of the representative parties are typical of the claims or defenses of the class

d. ADEQUACY OF REPRESENTATION: the representative parties will fairly and adequately protect the interests of the class, AND the attorney is qualified

4. 23(b) - type of classa. (b)(2) does not extend to cases in which the appropriate

final relief relates exclusively or predominantly to money damages (injunctive relief only!)

b. (b)(3) – questions of law or fact predominate over other claims AND class action is most efficient method of adjudicating the claims

i. Requires notice to all other members of the class and the ability to “opt-out”

ii. Four factors to consider in certifying a (b)(3) class:1. Interest of the members of the class in

individually controlling the litigation of separate actions

2. Extent and nature of any litigation already commenced by or against any members of the class

3. The desirability or undesirability of concentrating the litigation of the claims in the particular forum

4. The difficulties likely to be encountered in the management of a class action

b. Why have class action?1. Reasons to have class action:

a. Individual damages not big enough for any single Π to bring suit, but there is still a public interest in deterring the harm from continuing

b. Consistency - lots of small similar claims should be decided the same

c. Efficiency2. Reasons NOT to have class action:

a. Must more costly than regular litigationb. Πs in the class are risking res judicata w/o control over

litigationc. Is it really fair for so many Πs to gang up on Δ?d. Extremely complex and burdensome casese. It changes the incentives of the existing law (what’s at

stake becomes much greater financially)c. Communities for Equity v. Michigan High School Athletic Assn.

1. The class member who wishes to remain a victim of unlawful conduct does NOT have a legally cognizable conflict with the class representative

2. Class-based discrimination (where the remedy sought is injunction) is usually a 23(b)(2) class

d. Causey v. Pan American World Airways, Inc.: A “mass accident” resulting in injuries to numerous persons is usually NOT appropriate for class certification. A class action CAN be maintained when:

1. The class action is limited to the issue of liability (there is usually ONE cause of such a mass accident and no use in litigating it over and over)

2. The class members support the action3. The choice of law problems are minimized by the accident

occurring and/or substantially all Πs residing within the same jurisdiction

B. CONSTITUTIONAL CONSIDERATIONSa. Hansberry v. Lee

1. Members represented in a class action are bound by the decision (res judicata)

2. One is NOT bound by a judgment in personam in litigation in which he is not designated as a party or to which he has not been made a party by service of process, or when the representation is NOT ADEQUATE

3. Absent class members may collaterally attack the adequacy of representation they received in a prior class suit (usually doesn’t succeed, though!)

b. Phillips Petroleum v. Shutts1. A class action, once certified, may NOT be dismissed or

compromised without the approval of the court2. A forum State CAN exercise juris. over the claim of an absent

class-action Π, even though that Π may not possess the minimum contacts with the State, IF:

a. The Π must receive notice and an opportunity to be heard and participate in the litigation, whether it be in person or through counsel

b. The notice must be the best practicable, reasonably calculated to appraise parties of the pendency of the action and afford them an opportunity to present objections

c. The notice should describe the action and the Π’s rights in it

d. At a minimum, an absent Π must be provided with an opportunity to remove himself from the class (“opt-out” or “request for exclusion”)

e. The named Π at all times must adequately represent the interests of the absent class members

So we have Phillips Petroleum. Phillips spews forth oil. The leaseholds are owned by individuals such as Shutts. Phillips is trying to screw the little guys by paying them royalties on prices that are too low. Shutts wants to recover interest on the money that was withheld. There

are 33,000 people in Shutts’s position who get together to sue for the interest the oil company owes. Shutts sues in Kansas. None of these people have much interest. Each of them has a small amount of interest in their interest. This is a perfect example of class litigation bringing together small claims that are too small to litigate individually. Shutts provides the best possible notice. He sends out a letter to all of the class members telling them they can opt-out if they want. 28,100 are in, 3,400 opt out, and 1,500 were not found and excluded. Less than 1,000 of the plaintiffs are actually in Kansas, and a negligible part of the oil and gas leases are in Kansas. Phillips makes a personal jurisdiction argument that only the Kansas plaintiffs can sue. Phillips argues that there has to be an opt-in procedure.

Justice Rehnquist says we don’t need opt-in. Why? The issues of personal jurisdiction are not the same when you talk about a class of out-of-state plaintiffs than when you talk about out-of-state defendants. When you’re a class-action plaintiff, the state may exercise jurisdiction over the claim of an absent class-plaintiff, even though that plaintiff may not have minimum contacts. But the minimal requirements of due process must be met: there must be notice plus the opportunity to be heard and the ability to opt out. This later gets built in to Rule 23. The due process clause is not violated as to the absent Plaintiffs and if the court wants to bind an absent Plaintiff concerning a claim for money damages it must provide minimal procedural due process protection. Absent Plaintiffs must receive notice and be given an opportunity to be heard. In this situation, the absent class members did have that opportunity. An “opt in” provision would impede the class action and would require revisions of many lawsuits.

Erie Doctrine

IV. Erie Doctrine In federal diversity cases, there is a question of whether state or federal law

applies Vertical choice: between state and federal Horizontal choice: deciding which state law to apply Federal question cases: Easy to decide what law to apply because Article 6th

(supremacy clause of Constitution) makes it clear that even state courts have to apply federal law

Diversity Cases: What law does fed. court apply to decide diversity cases? Erie Railroad Co. v. Tomkins (U.S. 1938)

o Facts and Procedure: P was walking along pathway along railroad when freight train operated by Erie Railroad Co came by and hit him (open door or something). P filed suit in federal court for southern New York because Erie was incorporated in that state

o If state law applied, P might not be able to recover because of PA trespassing law

o Issue: Whether the federal court was free to disregard the alleged rule of Penn. common law

o Rules of Decision Act: Laws of several states shall be regarded as rules of decision in courts of US in cases where they apply unless Constitution, treaties, or statutes of U.S. say otherwise.

o Swift v. Tyson was precedent before this.

Interpreted Rules of Decision act to mean that only laws and not judicial decisions applied Courts exercising jurisdiction on ground of diversity of citizenship need not apply unwritten state law as declared by the highest court and that federal courts could decide what law is

Goal was to create uniform general law in federal court This allowed corporations to avail itself to federal law by

reincorporating in another state and generally introduced discrimination to in state Ds, promoted forum shopping

This conflicted with Constitutional rights of states to apply its law except in matters governed by federal Constitution or Acts of Congress. Constitution doesn’t give power to Congress to institute general tort laws or general contract law if not given to Congress, also not given to federal courts.

o Holding: Except in matters governed by constitution or acts of congress, the law to be applied in any case is the law of the state. Any source of law, whether by statute or common law, is state law. There is no general federal common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local or general, be they commercial law or a part of the law of torts. And no clause in the constitution purports to confer such a power upon federal courts.

o Twin aims of Erie: Prevent forum shopping and inequitable distribution of the law (by alleviating unfairness to instate Ps and Ds)

o Erie was decided in the same year that the FRCP were enacted. This resulted in conflict between state rule and FRCP

o How should a court decide if State Supreme Court hasn’t decided on an issue (trespassing, for example)?

Federal court has to predict how the state court would resolve an ambiguity in state law, using trial and appellate court decisions, relevant case law from other jurisdictions, etc.

Issue is how aggressive federal court should be in anticipating where state law is going

Guaranty Trust Co. v. York (U.S. 1945) o Considers whether federal court is required to apply the state statute of

limitations or the federal practice called “laches,” a flexible doctrine of limitations

o Says point of Erie was to ensure that in cases where federal court is exercising jurisdiction based on diversity of citizenship, outcome of litigation should be same as far as legal rules determine outcome if it were tried in State court

o Outcome Determination Test: If disregarding state rule would significantly affect outcome of federal court, state law should be applied (test determines if state law is rule of decision or just procedure)

o Court says consequences are what is important and not distinction between substance and procedure

Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (U.S. 1956)o Considers whether Outcome Determination test alone is an adequate test

in application of Erieo Issue: Should question of fact be sent to jury or should it be decided based

on SC state statute that says judge should decide it. o York would say that state law should apply because state law would/could

result in different result if state law applieso Court says if outcome were only determination – state rule may apply.

However, when there are countervailing considerations, a public interest in a federal system of allocating functions between judge and jury, then a state rule not bound up with rights and obligations (not substantive)can not always be followed.

o Court says furthermore, if outcome test is done, it’s not conclusive –this case stands for the proposition that outcome determination test is not alone enough to decide these cases

Hanna v. Plumer (U.S. 1965) o This case represents the current understanding of how the Erie Doctrine

workso Facts and Procedure: Auto accident involving Ohio woman and

Massachusetts man. Person who caused accident died so D is executor of estate. MA statute governs service of process against executors and FRCP governs service in federal court

o D says that P should’ve complied with MA statute (P followed federal procedures)

o If state rule applicable, suit should be dismissed since P didn’t comply. If federal rule applicable, suit should go on.

o Rules Enabling Act (1934) – “Supreme Court shall have power to prescribe, by general rules, the forms of process, writs, pleadings, and motions and the practice and procedure of district courts of US in civil actions… Such rules shall not abridge, enlarge, or modify any substantive right and shall preserve the right of trial by jury”

o Holding: When there is a conflict between state law and FRCP, if FRCP does not go beyond Constitutional powers or Congressional powers of Constitution (Rules Enabling Act), FRCP is good law and trumps state law

o Goes beyond Constitution if rule is too substantive and in an area of policy that is not governed by Constitution under Article 10

o Decision is important in that it maintains uniformity of FRCP, preserved rationale of Erie, and protects FRCP from being eaten up by outcome determination test of York

Erie doctrine cases in general: o Erie says that in diversity cases, courts apply federal procedural rules and

state substantive rules

o York says that rules of decision are determined by Outcome Determination Test. This would eventually corrode FRCP because, at some point, different rule is going to give different result

o Byrd and Hanna try to protect FRCP when there is a collision between state rule and FRCP

o Byrd is relevant in how it was used in Gasparani—accomodating state law interests while applying federal rule

o Walker applies outcome determination test in light of twin aims of Erie, referred to in Hanna

How to do Erie Problems:o First identify the source of the federal practice: (FRCP, Judicial Code

Provision, Judge made common law or practice, or a federal practice essential to character of federal litigation)

o Is there a direct collision between FRCP and the state statute/law? (no if they can coexist)

Yes Is the FRCP valid under the Rules Enabling Act and the Constitution? Constitution: Are the rules characterized as procedural? (i.e.

has Constitution given federal government the power to enact the kind of rule that is being evaluated. Congress has given power to court to do this)

Rules Enabling Act: It does not abridge, enlarge, or modify a substantive right.

Yes use FRCP over statute No The collision is between federal judicial practice or common

law and state law and an Erie-esque analysis applies. The state law applies if: Use of federal law would be outcome determinative at any

point in the litigation. It is outcome determinative if at least one of the twin aims of

Erie is implemented (forum shopping and inequitable distribution of the law)

o Should also do modified outcome determinative test when conflict is within a federal practice essential to character of federal litigation (countervailing considerations of Byrd)