1. P Files Complainta. FRCP 3. “A civil action is commenced by filing a complaint with the court”b. FRCP 8. “General Rules of Pleading”

(a) “Claims for Relief” must contain (1) “statement of the grounds for the court’s jurisdiction”(2) “statement… showing that the pleader is entitled to relief” and(3) “a demand for the relief sought”

o Twombly plausibility standard (change from Conley’s notice pleading standard) Entitlement to relief requires that plaintiffs include enough facts in their complaint to make it

plausible — not merely possible or conceivable — that they will be able to prove facts to support their claims

Class action suit against telecomm. companies for violating Sherman Act and conspiring. Inferred conspiracy through “parallel business conduct” (no factual context) not good enough

b. FRCP 15(a) Amending Complaint Before Trial(1)(A) can amend within 21 days after serving or (B) 21 days after responsive pleading service(2) If not satisfied by 1, then need opposing party’s written consent or court’s leave

c. FRCP 15(c) Relation Back of Amendments(1) Amendment relates back to original pleading date if (B) the amendment asserts claim/defense that arose out of the conduct/transaction/occurrence in original or (C) the amendment changes the party, 15d1B is satisfied, and within 120 days of serving complaint the party (received notice of action and will not be prejudiced and (ii) knew or should have known that action would been brought, but for a mistake concerning the proper party’s identity1. Statute of limitations (causes of action must be brought in within a certain number of years from

when the action occurred)o Krupski standard that “mistake concerning identity” depends on what the added party knew or

should have known, not on amending party’s knowledge of that party’s role or its timeliness in seeking to amend; does not apply only if P made fully informed decision (knowing D’s role and existence) to not include party Lawsuit for injury while on cruise ship. P moves to amend complaint to add a defendant by

relating back. Mistake concerning the proper party’s identity not a problem because P simply misunderstood the role of the first defendant (existence v. role)

d. FRCP 41 Dismissal of Actions(a)(1) Voluntary Dismissal by Plaintiff. P may dismiss an action without a court order by filing a notice of dismissal before D serves answer or motion for summary judgment or a stipulation of dismissal signed by all parties who have appeared. (without prejudice- can bring claim again)(b) Involuntary Dismissal. D may move to dismiss if P fails to comply with court order. (res judicata)(d) Costs of a Previously Dismissed Action. P refiling may need to pay costs of previous action

2. D Files Answer -or- Motion to Dismiss (if Motion to Dismiss fails, Answer must be filed)a. FRCP 12(b) Motion to Dismiss: need to include all plausible disfavored defenses

(1) lack of subject-matter jurisdiction; (federal/diversity) can be made at any time, even after trial and judgment

(2) lack of personal jurisdiction; (general; specific- long arm statute, minimum contacts) disfavored defense (must be stated in Answer and include all others)

(3) improper venue; disfavored defense

(4) insufficient process; disfavored defense

(5) insufficient service of process; disfavored defense

(6) failure to state a claim upon which relief can be granted; (Twombly; plausibility standard) and motion on basis of complaint alone

Civil Procedure

(7) failure to join a party under Rule 19; (necessary and indispensable) can be made at any time before end of trial

b. Answer process:1. Respond to each statement in complaint- e.g. P should lose because P is wrong2. 12(b) Defenses- need to include all plausible disfavored defenses3. Affirmative defenses- confession and avoidance; even if everything he says is true I still win4. 13 Counterclaims and Cross-claims- additional claim D may have against P

3. Discoverya. FRCP 26 Duty to Disclose

1. relevant to the claim/defense of any party (very expansive)2. not unreasonably cumulative or burdensome (duplicative protections), and 3. not privileged (attorney/client privilege)o Hickman v. Taylor “work product privilege”, no sufficient reason to reveal

Tug boat accident. Wants attorney’s notes of witness statements. Denied- “privileged” matter; readily able to get the information from the witnesses, witness’ identity well known and available, not dead/missing

b. FRCP 26(c) Protective Order- during discovery can get protective order to prevent annoyance, embarrassment, oppression, or undue burden or expense

c. FRCP 37 Compel Discovery (a) Motion to Compel, (b) Sanctions- court order to compel (upon proof that party has tried to confer with other party)

4. Motion for Summary Judgment (can file after first issue is completed if multi-issue)a. FRCP 56 Summary Judgment [motion on basis of pleadings, affidavits, discovery]

(a) no genuine dispute as to any material fact, judgment as matter of law1. Material fact = relevant to the particular issue2. Usually D claiming evidence is insufficient since P has production burden (enough facts to

potentially persuade a juror) and persuasion burden (persuade trier-of-fact that by a “preponderance of the evidence” each element is true)

If P wants to win at summary judgment, need to show that each element is satisfiedIf D wants to win at summary judgment, just need to show that one element is lacking; easier task

b. Trilogy of cases- expanded availability of Summary Judgment (judges are more proactive); “could a reasonable jury find for the nonmoving party”o Celotex- no need to provide affirmative evidence; shift burden to non-moving party

Lawsuit for asbestos exposure. Summary judgment given because no evidence provided by P shows that D’s particular asbestos caused death. Showed absence of evidence.

o Liberty Lobby- judge predict and weigh evidence and ask “could a fair-minded jury return a verdict for P on the evidence presented”; scintella of evidence standard gone Suit for libel against public figures. Summary judgment given. Standard for trial in this case is

“clear-and-convincing” so based on evidence, no. Dissent: essentially weighing evidence, difficult to apply, parties will come forward with all

evidence, will erode jury’s role; changes the role of summary judgment from raising a question of law to raising a question of fact

5. Triala. FRCP 50 Motion for Directed Verdict (after P finishes case, D can submit; can resubmit after D

finishes case) (not often given because there is a high chance of being a waste of time, if judge is wrong and appellate court doesn’t like, need retrial)o Galloway- directed verdicts with same standards as summary judgments

DV given because P army enlister only demonstrated speculative inference that mental disability began in 1919 and continued to 1930 (1 instance of disturbing fighting front, 1 instance of yelling the Germans were coming). Vague testimony of witness, 8 year gap.

Dissent: DV show preference for determination of fact by judges instead of by juries; majority comes very close in this case to weighing the credibility of a witness, something decided by jury; expert medical testimony offered evidence for that 8 year gap

6. After Triala. FRCP 50 Renewed Motion for Directed Verdict After Trial [JNOV] (need to have submitted for

50(a) to have JNOV available after verdict)(b) No later than 28 days after jury verdict, court can

(1) allow judgment on the verdict, if the jury returned a verdict;(2) order a new trial; or(3) direct the entry of judgment as a matter of law.

b. FRCP 59(a) Motion for New Trial- judge’s own initiative; mistakes in evidence admittance, charge to jury, reversible error, jury misunderstood duty, jury too biased, verdict unjust (against the weight of the evidence)

c. FRCP 60- Relief from Judgment or Order(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.

d. Permanent Injunction (equitable relief)1. Reserved for cases where money damages won’t work; can shift costs to private negotiations (less

time in court); not given in cases where injunction loss is too disproportionate to actual loss (negotiations will be difficult) or will require costly court oversight

o Walgreen v. Sara Creek Property- permanent injunction given to inspire negotiation D intends to breach contract to allow pharmacy in mall. Negative injunction given because

simple and low cost. No risk of huge negotiations after.e. Punitive Damages

Purpose: punishment, deterrence, public disapproval Problems: increasing frequency, amounts, and unpredictability; concern of judge corruption and

jury irrationality1. Guideposts on how high punitive damages should be:

1) How reprehensible is D’s conduct (can incorporate scope of harm but cannot explicitly tell jury to calculate)

2) Ratio of the award to the actual/potential harm3) Comparison of award to penalties that could be imposed for comparable misconduct

o BMW v. Gore- repainting; lowered because reprehensibility (only monetary loss, no harm to life)o State Farm v. Campbell- fraud; lowered because cannot look at nationwide conduct, can only be

in relation to the specific claim since not a class actiono Philip Morris USA v. Williams- deceit; lowered because included nonplaintiffs’ harm in damages

Civil Procedure

Constitutional Requirements for a Valid and Enforceable Judgment:1) Notice

Due Process- The Right to be Heard Mathews Framework (Due Process Test) Measure/Balance:

Private interest (Goldberg- livelihood of welfare recipients) Two prongs

1. The risk of erroneous deprivation of such interest (Jones- notice won’t reach P)2. The probable value of additional procedures (Goldberg- credibility of having hearing)

Gov interest in avoiding burdensome/expensive procedures (Hamdi- executive burden)

o Goldberg v. Kelly [high water mark- the most the Court has imposed] For welfare recipients, must have pre-termination hearing Written statement is not good enough because need chance for in-person hearing for this particular

group of people (lack the education); welfare citizens would suffer irreparable damages from waiting until after the benefits were taken away to have a hearing, and without benefits they would be scrambling for necessities of life that they would not be able to prepare and present a proper argument in court; need meaningful opportunity to be heard

o Mathews v. Eldridge [shows a pull back from Goldberg] For disability recipients, do not need pre-termination hearing Disabled citizens are not the same as welfare citizens (welfare given to persons on margin of

subsistence, disability is measured from easily documented and focused medical assessments; disabled have a lower degree of potential deprivation); already have effective processes in place to present their case

o Hamdi v. Rumsfeld Detainment as “enemy combatant” must allow fair opportunity to contest Citizens should be given: notice of facts (credible evidence), opportunity to rebut before a neutral

decisionmaker, tailored to lessen the burden on the executive- hearsay accepted, burden-shifting to the citizen

o Jones v. Flowers When the State is aware that its notice of a tax sale has failed prior to the taking, under the due

process clause it is constitutionally obliged to take additional reasonable steps Due process- gov must provide “notice reasonably calculated” “to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections” (e.g. regular mail, notice on door, mail to “occupant”, personal service); gov was aware and had knowledge of the “unclaimed” so triggers an obligation to take extra steps

Constitutional Requirements for a Valid and Enforceable Judgment:2) Personal Jurisdiction

1. Personal Jurisdiction [D’s contacts/connections with the Forum and D’s connections with P’s claim]a. Is there General Jurisdiction? If any then yes, if no go to “b.”

If person, citizenship/domicile If corporation, headquartered or incorporated Has D been tagged (Burnham- served with process while in state) Did D consent to jurisdiction- shows up and does not fight Did D have continuous and systematic contact with forum (Perkins- foreign business “at home” in

Ohio due to WWII; tremendous level of contact)o Goodyear v. Brown [“stream-of-commerce” cannot apply to general jurisdiction]

Bus accident in France from defective tire manufactured in foreign subsidiary (in Turkey) of Goodyear. Ds placed their tires into “stream of interstate commerce” without any limitation on the extent on where tires could be sold. P sues in NC. Inadequate basis for general jurisdiction; no continuous/systematic affiliation.

b. Is there Specific Jurisdiction? Need yes to bothi. Does the State “Long-Arm” statute allow for personal jurisdiction?

1. FRCP 4(k)(1)(A) Federal Courts constrained by local state’s “long-arm” statute FRCP 4(k)(2) Foreign non-resident jurisdiction if 1) P’s claim arises under federal law, 2)

D beyond the jurisdictional reach of any state court, and 3) jurisdiction does not violate D’s Constitutional rights (sufficient aggregate contacts)

ii. Does the Constitution allow (due process)? TEST- International Shoe Mantra: “Minimum Contacts” such that maintenance of the suit does not offend "traditional

notions of fair play and substantial justice"a. Minimum contact: Purposeful availment to privilege of conducting activities in the State

i. reaching out (Calder- targeting CA with libel article)ii. benefiting (International Shoe- selling shoes in forum; Burger King- franchise)

iii. passive/active (ALS Scan- passive ISP provider)o Zippo model: “sliding scale” between ‘knowing and repeated transmissions of web

info’ and ‘passive simple posting of web info’1. Directs electronic activity into the State2. Intent of engaging in business or other interactions within the State3. Activity creates in a person a potential cause of action cognizable in the State’s

courtsiv. stream of commerce- movement of goods from manufacturers through distributors to

consumerso “stream of commerce” is not a rule, only guideline (Nicastro- foreign corp. did not

purposefully avail itself)b. Minimum contact: Claim arises out of the activities directed at the Statec. Fair play: “Reasonable” to sue defendant

i. D’s conduct must allow him to reasonably anticipate being haled into court; degree of predictability

ii. D’s burden, State’s adjudicating interest, P’s convenience interest, interstate judicial system’s efficiency interest, States’ social policies interest

2. §1391 Venue- locales with connection to parties or events (statute overlay on top of personal jurisdiction)a. If all Ds are in same state, then can sue in district where any D residesb. Location of accident, events that give rise to claimc. If cannot satisfy either of the above, then whereever a D is subject to personal jurisdiction

i. If action where jurisdiction is not founded solely on diversity of citizenship, then it is any district which any D may be found

Civil Procedure

d. An alien may be sued in any district3. Forum Non Conveniens (common law doctrine overlay on top of personal jurisdiction)

What burden does this forum have on each party? What burden if forum was changed? Weigh public and private interest factors Proper to distinguish between citizen and foreign plaintiffs- when the home forum has been chosen,

it is reasonable to assume this choice is convenient and will have local interest §1404. Change of Venue- Transfer; codifies common law; court discretion

(a) For convenience of parties and witnesses(b) Upon motion, consent or stipulation of all parties Piper Aircraft v. Reyno [the possibility of a change in substantive law should not be given

substantial weight in a forum non conveniens inquiry] Choice of law should only be considered when the remedy in the alternative forum is totally

inadequate or when the alternative forum lacks subject matter jurisdiction. Crash in Scotland. P Scottish citizens. D plane manufacture in PA. P’s (foreign plaintiff)

choice of forum in US because forum more favorable. In Scotland P will only be able to sue for “loss of support and society” and cannot sue for strict liability in tort. Ds move to dismiss on ground of forum non conveniens. Private factors favored Scotland because the wreckage of the plane and witnesses were there. Public factors also favored Scotland because Scotland had a greater interesting in hearing a case that concerned Scottish citizens. The court also held that the fact that Scotland might have been less favorable to P did not provide a reason to dismiss D’s motion.

Old View of Specific Jurisdiction In personam- power of a court to enter money judgment against D; “full faith and credit” (valid

judgment applies to all other states) In rem- power of court to act regarding property within its borders; no obligation on D’s part to pay

P money; direct object is to reach and dispose of property owned by D Quasi in rem- presence of D’s property within the forum state and can enter money judgment not

exceeding the value of the property Pennoyer v. Neff

o Attorney wants fees, judgment entered for attorney, P’s property taken to pay for fees.o Not lawful: Timing Issue; the lower court didn't take the property and seize it at the start of the

case (lack of attachment) Hess v. Pawloski [stretches when “consent” is given; extends Pennoyer]

o Implicit consent: by operating a motor vehicle in forum state, you deem the registrar to be a proper service of process

o Motor vehicles are dangerous and non-residents are likely to be using the roads; it is easier for a non-resident to come into forum state, injure someone, and leave

o P gets benefits of using Mass highway, benefit of the police/fire, benefit of possibility that he could sue anyone he gets into an accident with, so he should also be available to be sued (with benefits comes obligations)

Modern View of Specific Jurisdiction International Shoe v. Washington [establishes the minimum contacts test]

o Minimum-contacts analysis- “presence”- intentional, directed at State, benefits, relationship between these contacts and the cause of action

o Jurisdiction because of solicitation by D’s agents plus additional activities in forum: 11-13 salesmen in forum state show samples, rent permanent and temporary sample rooms (State wants company to pay contributions to the state unemployment compensation fund)

World Wide Volkswagen Corp. v. Woodsono No jurisdiction from a single isolated car crash in state (no other connection)

Calder v. Jones [targeting the forum]o Jurisdiction over non-resident who writes article directed at residento Intentional conduct in FL calculated to cause injury to respondent in CA; P was the focus of D’s

(the primary participants- original writer and the president/editor) intentional activities, story concerned the CA activities of a CA resident; used CA sources in story and P suffered emotional distress and injury to reputation in CA

Burger King Corp. v. Rudzewiczo Jurisdiction over non-resident who made business franchise with resident; resident wants

paymento Purposefully directed his activities at forum, litigation arising out of activities; got benefits,

deliberate choice, long-term contract, continuous direct communications ALS Scan, Inc. v. Digital Service Consultants, Inc. [passivity]

o No jurisdiction over ISP providero ISP (D) has no contacts with the forum state, did not purposefully avail itself to state, the claim

(illegal photos by ISP buyer) does not arise out of any contacts ISP has with forum The only direct contact Digital had with Maryland was through the general publication of

its website, which is unrelated to the claim in this case (did not have any infringing photos)o Zippo model adoption: “sliding scale” between ‘knowing and repeated transmissions of web

info’ and ‘passive simple posting of web info’1. Directs electronic activity into the State2. Intent of engaging in business or other interactions within the State3. Activity creates in a person a potential cause of action cognizable in the State’s courts

J. McIntyre Machinery v. Nicastro **shaky ruling of only 4**o Asahi’s “stream-of-commerce” doctrine is a mere observation that D may be subject to

jurisdiction; still need purposeful availment, “targeting the forum”; a single sale of a product in a state is not adequate for asserting jurisdiction; no regular flow, regular course of sales; no “something more” such as state-related design, ads, etc. NJ suit of foreign corporation. Nicastro injured hand in NJ using a metal-shearing machine

manufactured by McIntyre Michinery (in England). Lower court claimed McIntyre distributed products nationwide, “stream-of-commerce” into any of the 50 states. Supreme Court reasoned no purposeful availment: D did not engage in conduct purposefully directed at NJ, no office, no taxes, no property, no advertisements, no employees sent, no single contact; no minimum contacts or presence

1. An independent company agreed to sell/distribute McIntyre’s machines in US; McIntyre permitted distributor to sell to anyone in America who is willing to buy them

2. Officials attended annual conventions / trade shows for scrap recycling in various states (never NJ) to advertise their machines alongside the distributor

3. No more than 4 machines ended up in NJ; record shows that only one machine was shipped to the NJ customer

o Concurrence (Alito and Breyer): Purposeful availment is too broad/absolute and needlessly protects corporate Ds. 

Allows manufacturers to escape liability if they use multiple chains/distributors to sell products.

What about other settings? (e.g. Amazon.com global market, Appalachian potter) Shaffer v. Heitner [abandonment of Quasi in Rem]

o Property/connections must relate back to the cause of action.o P filed motion to order sequestration of Delaware property to compel personal appearance of

nonresident. Sequestrator seized shares of stock and options. P attempted quasi in rem jurisdiction. Denied- stock was unrelated to the cause of action. The presence of property in a State does not automatically confer jurisdiction over the owner’s interest in that property.

Burnham v. Superior Court [physical presence in state counts for specific jurisdiction]

Civil Procedure

o Reaffirms in personam jurisdiction laid out in Pennoyer. Service of process counts as both establishing adjudicatory power and providing notice of the litigation.

o D filed divorce in NJ on grounds of “desertion”. P demands it be an “irreconcilable differences” divorce and brings suit in CA. While D visits his children in SF, P serves D with CA court summons.

Comments: o Serving in an airplane when over the proper State countso Solely serving corp agent does not count (for corps, must apply “min contacts” rule)o If D is tricked/induced or there to testify in another matter, serving him does not count

(immunity)

Constitutional Requirements for a Valid and Enforceable Judgment:3) Subject Matter Jurisdiction

Federal Subject Matter Jurisdiction (Constitution, Art III, §2)- the power of a court to hear a type of case; either fed question or diversity must be fulfilled at the time of complaint

§1331 Federal Question jurisdiction: fed court shall have jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States

The “well-pleaded complaint” rule: the claim itself must arise from federal law; cannot go into matters of defense or counter-claims to show Federal question would arise (Mottley- cause of action was not based on fed question; was only an anticipated defense, a counter to D’s claim)

Two interpretations of whether federal law is embedded:o Merrell Dow- drug Bendectin caused birth deformities, negligence and violation of FDA

regulations. Negligence is a state law claim, but turns entirely on federal law. Conclusion- cause of action was state law claim so state court. Not good enough to get into federal court

o Grable & Sons- property taken by IRS for not paying taxes, “quiet title” claim for IRS lack of proper service of notice for property taking; Conclusion- cause of action was federal issue (IRS seizure of property); state law claim turns on federal issue entirely, so should be in federal court

§1332 Federal Diversity jurisdiction: 1) need complete diversity (Ps cannot be of the same state of any Ds) and 2) need $75,000 amount in controversy (plausible request for relief at time of complaint)

Complete diversity requirement. No defendant is a citizen of the same state as any plaintiff. Purpose: to prevent bias of state forum, favoring of court toward its residents; therefore, it is

required for all parties. “Contamination theory”- any time you have a party who destroys complete diversity, the case

has become contaminated and no longer has a risk of bias; court cannot hear that case Domicile is made from the time the complaint is filed (Ochoa- D driver in car accident was

technically an LA resident at the time of filing and therefore defeated complete diversity because P was an LA resident; D’s driver’s license, no permanent employment in Texas, lived in LA all his life, forced to leave because hurricane destroyed home, family in LA, was “visiting family” in New Orleans when accident occurred) Factors for domicile: facts in pleadings, evidence, affidavits, testimony whether there is

permanent intention to stay Amount in controversy requirement. The reasonable matter in controversy exceeds $75,000.

Purpose: to ensure that a dispute is sufficiently important for federal court attention Only need 1 P to satisfy; a claim that falls short of the minimum amount does not reduce the

importance of the claims that do meet this requirement Exxon Mobil v. Allapattah- parents claims did not meet the min amt in controversy when

joined daughter’s Starkist suit for sliced finger on tuna can §1332(a)- For the purposes of this section and §1441, an alien admitted to the United States for

permanent residence shall be deemed a citizen of the State in which such alien is domiciled Is alien citizenship deemed exclusive to that state or dual between state and alien country?

o Singh v. Daimler-Benz 3rd Circuit Holding: exclusive citizenship to state domiciled; Legislative Intent: limit the

power of “aliens” and reduce federal diversity cases; unfair it was that “permanent resident alien v. citizen” = federal jurisdiction, but “citizen v. citizen” =/= federal jurisdiction

Problem with holding: this allows a suit solely between aliens to be heard in federal courto DC Circuit reads §1332(a) as dual citizenship; prevents alien only suits

Erie Analysis §1441 Removal

(a) If federal court has original jurisdiction, D can remove a case from state court to federal court.

Civil Procedure

(b) This right to remove is without regard to the citizenship or residence of the parties.(c) If a §1331 federal issue claim is joined with a non-removable claim, the entire case may be removed and the district court has discretion on the issues it hears.

o Burnett v. Birmingham Board The complaint filed in state court included three state-law claims and one federal law claim.

D removed to federal court. P motion to remand. Case remanded under §1441(c) because state law claims were dominant and there was no

nucleus of operative fact common to the state and federal claims. Purpose: P had initial choice of federal or state, this gives D an opportunity to choose if he feels bias. Purpose of 1441(c): concern for forum shopping; wants to allow federal court to avoid ruling on a case

that is essentially state-based Exception to removal: D cannot remove to federal court if P chooses D’s home state court because bias

(rational for diversity jurisdiction) is gone Exception to removal: Cases cannot be removed from federal to state court (one-way street)

Multi-Party LitigationFRCP 14 Third Party Impleader- Like a new case: D is now P, 3rd party is now D

(a) D can bring in 3rd party. (b) P can bring in 3rd party.(1) D must file 3rd party summons/complaint within 14 days after serving its original answer.(2) 3pD's Claims and Defenses.

(A) 3pD must assert defenses (FRCP 12), (B) counterclaims/crossclaim against D (FRCP 13)(C) 3pD may assert defenses against P, (D) claim against P arising out of transaction/occurrence that is the subject matter of PvD claim

(3) P may assert against 3pD any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(4) Any party can move to Strike, Sever, or Try Separately the third-party claim(5) 3pD can bring in new nonparties and continue the chain

Purpose: promote judicial efficiency, eliminate separate actions; benefits of settling matters in one suit must outweigh the potential prejudice to P and 3pDs

1) Bring in party who is not already a part of the suit2) D says: “If I am liable to P, then new D (“3pD”) is liable to me, either for all or part of the claim”3) D’s 3rd party claim must arise from the same determinative facts of P’s claim

Hanover- 3pD employee negligent in handling jewels, 3pD owner negligent in hiring employee; both contributed to theft; D insurance company impleads them for suit of stolen diamonds

4) 3rd party’s actual liability can be unclear (reason: done before discovery, cannot know)

FRCP 19 Necessary & Indispensable Parties (must pass FRCP19(a) to inquire FRCP19(b)) Purpose: Ds prefer FRCP 19 over 14 because suit can be dismissed under 19(a) Necessary

(A) without party, court cannot accord complete relief (Daynard- P was able to get full relief because asking for full amount from each D so not having one D was not crucial)(Hypo- a crucial party would be someone who has a physical item that P is specifically requesting the return of); or(B) failing to join would:

(i) prejudice the absentee (impair absentee’s ability to protect interest) (Daynard- persuasive precedent is not an overriding factor to show prejudice)(Hypo- subtenant is necessary party of landlord and tenant dispute over rented space because subtenant lives there; impairs his legally protectable interest if landlord takes property) or(ii) prejudice D (substantial risk of incurring double obligations because of interest)

(b) Indispensable (a subset of necessary)If a necessary person cannot be joined, court must determine whether action should proceed or be dismissed. Factors:(1) prejudice on absentee or the parties if judgment is made;(2) extent prejudice could be lessened by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures;(3) adequacy of judgment; and(4) adequacy of remedy if action were dismissed for nonjoinder. (is there an alternate forum, state ct)Other factors from Daynard

The outsider’s interest The D’s interest in avoiding multiple litigation or sole responsibility for a shared liability Court/public’s interest in complete, consistent, efficient settlement P’s interest in having a forum

FRCP 20 Permissive Party Joinder- [to join a party, need 1) to make sure FRCP allows, and 2) to make sure you have federal subject matter jurisdiction] [done at pre-discovery post-motion-to-dismiss stage]

(a) Persons Who May Join or Be Joined. (1) Ps and (2) Ds may join if:

Civil Procedure

(A) they assert/have asserted against them any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences; ando “Same transaction/occurrence” = whether there is sufficient overlap of facts/evidence and

whether the claims are logically related to each other (what evidence/witnesses would not have to be called for twice)

(B) any question of law or fact common to all Ps/Ds will arise in the action. o Question of law or fact is the easier question once you satisfy (A)

Mosley v. General Motorso Ps sued for unlawful employment practices in violation of Civil Rights Act (discrimination

against Negroes and women)o The suit with multiple claims of discrimination was valid under FRCP 20 because there was a

common question of fact (discriminatory policy threatens entire class) arising from same series of occurrences (all Ps injured by a general company-wide policy of discrimination)

(b) Protective Measures. The court has the option to separate parties/trials to protect the non-joining P/D against delay, expense, prejudice Purpose: promote trial convenience, expedite rulings, read very broadly, strongly encourage joinders

FRCP 24 Intervention- a third party (often public interest, ideological group) enters a lawsuit (P side, D side, or independent position adverse to both P and D) because has a personal stake in the outcome

(a)(2) Right to Intervene requires: 1) timely application, (threshold question, case-by-case) (Save the Dunes- timely even though it

occurred 4 yrs after initial suit because it was within 1 yr after learning action could impose interest)2) interest relating to the property or transaction which is the subject of the action, (interest must be

significant, direct, based on a right which belongs to the proposed intervenor rather than to an existing party) (Save the Dunes- environmental interest in land =/= legal interest in private property; only property owners can be in this case)

3) the disposition of the action may impair/impede his ability to protect that interest,4) interest is not adequately represented by existing partiesNote: Court also checks whether intervention would bring undue delay and prejudice to original parties

(b) Permissive Intervention. Attempt if cannot satisfy 24(a); under court discretion to let party in

Multi-Claim LitigationFRCP 18(a) Claim Joinder- P can include as many claims against a D as she wants, even if totally unrelated

Purpose: efficiency, reduce court costs; keep in mind res judicata- need to bring all potential causes of actions that arise from the same transaction at same time

FRCP 42- Consolidation and Separate Trials- Court’s discretion and choice(a) Consolidation. Court option to see overlapping issues and join(b) Separate Trials. Court option to separate claims; counters FRCP 18 Purpose: convenience, avoid prejudice, economy

Supplemental Subject Matter Jurisdiction- Stretching jurisdiction to include closely connected claims with claims already in court

Purpose: efficiency, overlap of evidence/witnesses/events Common Law

United Mine Workers v. Gibbs- state law claim of unlawful conspiracy interfering with employment contract was allowed in federal court because P also had federal claim for violations of federal Act which interfered with his contracto Court has discretion to hear a state claim along with a federal claim if:

Court has subject matter jurisdiction (federal or diversity) on the federal claim State and federal claims “derive from common nucleus of operative fact”, arising from

the same transaction or occurrence, or series of transaction/occurrence The claims ordinarily are expected to be tried in one proceeding If federal claims are dismissed before trial, state claims must be dismissed If state issues predominate, state claims may be dismissed and left for state court If likelihood of jury confusion, then can separate claims (FRCP 42(b))

Owen v. Kroger- is this about bringing in a state law claim? About 1332 issues? About impleading a 3pD?

28 U.S.C. §1367(a) If court has original jurisdiction, then has supplemental jurisdiction over all other related claims deemed part of the same case or controversy under Article III.

o aspects of “common nucleus of operative fact”o for diversity problems, check for contamination theory to see if destroys the original P’s

“original jurisdiction”; so there must be complete diversity(b) If diversity jurisdiction, no supplemental jurisdiction over cases that fail §1332 requirements:

if Ds were added under FRCP 14 (3pD), 19 (required joinder), 20 (permissive joinder), or 24 (intervention), or

if Ps were added under FRCP 19 (required joinder) or 24 (intervention)(c) Court discretion if:

(1) complex issue of State law,(2) claim substantially predominates over original claim,(3) court has dismissed all claims over which it has original jurisdiction, or(4) exceptional circumstances, compelling reasons

Civil Procedure

Finality and Preclusion Purpose: P already had full and fair opportunity to litigate; prevents harassment, vexatious litigation,

inconsistent results, jury searching; brings finality, efficiency, repose, legitimacy; promotes full preparation from parties the first time

Cons/Fears: unfair to bind, lack of accuracy, overlitigating the first case; due process concerns if claiming privity or offensive issue preclusion (must have opportunity to be heard)

Claim Preclusion- res judiciata- prevents a second litigation arising out of the same incident or transaction against the same party in one lawsuit from proceeding at all; can keep out issues that have not actually be litigated (summary judgment)

3 Elements:1) Prior suit had Final Judgment on the merits (easy prong)2) Present suit arises out of the Same Claim as the prior suit

Same transaction test (primary)- analysis of whether the cause of action arises out of a common nucleus of operative fact (underlying injury, time, space, origin, motivation, convenience, overlap of facts/witnesses; if substantial overlap, 2nd action precluded)o Car Carriers- Ps changed legal theory for 2nd suit but does not matter under same

transaction test (multiple legal theories does not create multiple transactions) Ps were car carriers for D Ford. 1st suit P claimed D conspired with other Ds in violation

of Sherman Act. Dismissed because P failed to suffer the type of harm anti-trust laws were designed to protect against. 2nd suit P claimed RICO violations. Barred because claims arose out of single core of operative facts.

Right-duty test- analysis of rights, duties, and injuries to see if they are materially different (Car Carriers- court rejects this test; test is only used if compelling circumstances and clear showing that substitution would not undermine the purpose of res judicata)

3) Same Parties or in Privity (close relationships, insurance companies, indemnitors, fiduciary relationship, familiar relationship)o Gonzalez- privity factors =

1) substantial control- involved in early stages, ability to “call the shots”, overlapping use of discovery materials, same attorney representing

2) virtual representation- 2nd Ps had actual or constructive notice of earlier litigation, 1st Ps are legally responsible or accountable to 2nd Ps, 2nd Ps consent to be bound by verdict of 1st suit

Note: court also measures fairness (P could not join) and due process concerns (P must have day in court)

1st suit. Rodriguez Ps were sold land by D unsuitable for development. Attempted to convert to class action but denied and did not allow additional Ps to intervene. 2nd suit. Gonzalez Ps filed similar suit against same D and added claims that had been neglected by 1st Ps. 1st suit lost but 2nd suit okay because not same parties or in privity.

Issue Preclusion- collateral estoppel- an identical issue already resolved between the same parties cannot be relitigated (partial summary judgment- 1 piece of the case should be settled; P still has left to prove others)

4 Elements:1) Issue had been Actually Litigated

o Jarosz- do not need evidentiary hearing/discovery; just need adversarial back-and-forth and parties did not just consent or stipulate; brief, hearing, judgment on the merits

2) Issue was the subject of a valid and final Judgment3) Issue was Essential to the judge’s decision (goes to fairness and accuracy)

o Jarosz- attorney-client relationship decision in 1st case was a collateral issue to the real suit (claim of conflict of interest to represent defendants failed but suit still moved forward)

4) Person cannot be precluded if they were not a party in the first case (due process)

Defensive- D benefits; “I have a strong defense because this has been prior litigated”; Courts are amenable to this even if parties are not the same (even if new D) because it meshes with the purpose of preclusion Example: Same P in multiple suits regarding a patent of a TV antenna. P v. D1- Court finds no

patent, D wins; P v. D2- D2 tells P they are precluded because of 1st case. P now has incentive to try to have all Ds in one suit (efficiency)

Offensive- P benefits; “I win because of this prior litigation” “I assert I should get the benefit”; Courts less happy with this because it does not promote judicial economy, instead might cause more litigation since potential Ps might not intervene due to the fact they might wait and see if first Ps do all the worko Parklane Hoisery v. Shore

1st suit- P1 won against D. 2nd suit- P2 sued D for same issue as P1 and moved for partial summary judgment. P2 wins because no real chance for P to join 1st suit and no unfairness to D (no new procedural opportunities, jury which was available in 2nd suit is neutral factor)

1) Did P have a chance to join 1st suit? If yes then cannot use offensive issue preclusion 2) Would this be unfair to D?

1. not foreseeable to D that ruling in 1st suit will be used again2. potential inconsistency with previous judgments3. differing procedural opportunities available to D (e.g. jury? Parklane judges disagree on this

being a factor, majority thinks jury is neutral)4. difference in value of two cases (e.g. nominal v. damages) (different judgment standards?

Like OJ Simpson where he had a criminal case, then civil action, then child custody [clear and convincing higher than preponderance])

Civil Procedure

Prejudgment Acts1. FRCP 65(a) Preliminary Injunction- court directs a party to halt specific conduct or perform

specific acts immediately before the court reaches the merits of the caseo Ajilon v. Kubicki factors test (sliding scale). Prelim injunction given if:

1) Likelihood of P prevailing (judges hesitant because no discovery has been done, do not want to make pronouncements of who is likely to win)2) Harm to P- irreparable harm (injury both “certain and great”, “actual not theoretical”)

Economic loss alone does not constitute irreparable harm (can get money damage remedies) unless threatened to be out of business

3) Harm to D if injunction granted4) Public Interest Ds left P legal staffing and recruiting services firm for one of its competitors. P preliminary

injunction to stop Ds from working together and prevent sharing of trade secrets to competitors. Economic loss alone so no irreparable harm. Considerable hardship to Ds- preventing them from working together would make them resign

from the company, unable to even gather for drinks, they worked together in the past and compose a self contained unit at new workplace; preventing them from soliciting business would interfere with the preexisting and ongoing relationships D has with firms

No public interest- essentially non-confidential information at stake (client lists); would bar Ds from approaching potential customers

2. FRCP 65(b) Temporary Restraining Order- time-sensitive situations; no notice required if (1)(A) worn statement of immediate irreparable harm such that there's no time to give notice and (1)(B) certification of attempt to give notice or reasons why attorney cannot give notice (2) expires after 14 days(c) Both 65(a) and 65(b) require moving party to post bond(d)(1) Contents of 65(a) and 65(b)- must state reasons and scope

3. FRCP 64 Seizing Person or Property- can cut off access to funds/wages, allows assurance that resources will be available to collect, pressures D to settle(a) Court can use any remedies under State Law for seizing person/property to secure satisfaction of the potential judgment.(b) Kinds of Remedies include arrest (seizure of person), attachment (property), garnishment (wages), replevin (goods), sequestration

2. Fuentes v. Shevin- seizure cannot violate due process; need notice and hearing prior to taking; state remedy must meet Constitutional standardsa. P seized gas stove and stereo based on state replevin laws. State laws violate due process- no

requirement to make a convincing showing, only need bare assertion/conclusory statement; provides no notice or opportunity for the owner to challenge the seizure. A temporary deprivation is still a deprivation in the terms of the 14th Amendment

b. Only time state can take property without notice is if important government or public interest and needs very prompt action

Comments: this case could drive up costs for sellers no longer able to secure their installment sales; the 14th Amendment is implicated only when a state has taken an action depriving a person of life, liberty, or property (e.g. self-help remedies of repossession are not held to 14 th Amendment; no involvement from the state)

Administrative Tasks

Maintaining the Integrity of the ProcessFRCP 11(b) Representations to the Court.

(1) proper purpose (2) sufficient basis in law (3) sufficient basis in fact (4) reasonably based on belief or a lack of information

FRCP 11(c) Sanctions. Purpose: punishment, compensate victims of violation, streamline court dockets, deter future abuse

(1) In General. (lack legal/factual basis)If the court determines that Rule 11(b) (Representations to the Court in pleading/motion/etc) has been violated (improper, frivolous, without evidentiary support, or unreasonable), the court may sanction any attorney, law firm, or party responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.(2) Motion for Sanctions.A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets (safe harbor rule). If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.(3) On the Court's Initiative.On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).o Difference between Court-sanctioning and party-sanctioning is that court-sanctioning does

not require the 21 day “safe harbor”(4) Nature of a Sanction.Monetary: Fees to reimburse court/movant for all trouble/time/money to put into the filing (attorney’s fees)Non-Monetary: send letter to all in law firm (public humiliation)

Chaplin v. Dupont Advance Fiber Systems [application of FRCP 11(c) Sanctions] o FRCP 11 is a punishment and should not be used unless bad faith or excessive (not intended to

chill enthusiasm)o Ps (wearers of Confederate symbol) filed complaint for employment discrimination (Title VII,

42 U.S.C.A. §2000) based on their 1) national origin, 2) religion, and 3) race. D filed Motion for Sanctions (FRCP 11) for claims not warranted by law and allegations without current or potential future evidentiary support. Court grants Sanctions for 11(b)(3) sufficient basis in fact as religion and race employment discrimination have no factual foundations.

Attorneys’ Fees (unstated engine behind litigation; decisions turn on fee structure (how is my opponent getting paid, how am I getting paid, what is the best decision))

FRCP 68- Offer of Judgment [encourage offers of settlement; if settlement offer is larger than the winnings then you must pay costs]

Each party pays for his/her own attorney; The losing party does not pay the prevailing party’s attorney’s fees; much lower risk to be a P in USA v. being P in England; more lawsuits are filed

Payment: Usually- hourly billing; Alternative- contingency fee (client pays % of any recovery won) Fee-shifting exception (1-way fee shift)- prevailing party can be compensated if other party acts in

“bad faith”, under frivolous arguments, or under Congress’ Civil Rights Attorney’s Fees Act (public interest)

Settlement Offer- losing party offers all injunctive relief for prevailing party if losing party does not pay for attorneys’ fees (circumvents Civil Rights Attorney’s Fees Act fee-shifting statute),

Civil Procedure

prevailing party should take; it is ethical to serve his clients loyally and competently and the settlement offers a more favorable outcome than what would be expected through further litigation

Jury 7th Amendment to Constitution- “In Suits at common law… the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

6-12 jurors, unanimous (by at least a jury of 6); attorney can poll after verdict to test unanimity Judge decides what the law is and instructs jury; jury’s job is to apply the facts to the law; jury

nullification allows juries to acquit Ds who are technically guilty, but who don’t deserve punishment, when a jury disregards the evidence and acquits an otherwise guilty D

Pro-jury: general community perspective; prevents judge arbitrariness; community governing; citizen education; juries are generally competent, just, fair, equitable; judge still present

Anti-jury: non-scientific approach to evidence; no training in law; more likely to grant punitive awards; more irrational and biased and overly emotional; cumbersome and unreliable

Anti-judge: older white men (demographics), out of touch with community, bias, heavy reliance on precedent/dated, less sympathetic, more suspicious than average juror, judge involved from the beginning of the case so sees inadmissible evidence and can grow bias toward party

3 debates about the jury Size- Jury of only 6 makes verdict more unpredictable, reduces likelihood of minority

representation, reduces ability for dissenting member to voice opinion, and reduces the collective memory/experience of the group

Unanimity- currently civil cases require unanimity, but possible Court will change; if only majority needed, might hurt deliberations (not as thorough with the law), participation by minorities, satisfaction by the members

Complexity- some argue juries should not hear complex cases (overwhelmed, frustrated, confused); some say if expertise needed would drastically limit jury pool, would make it less democratic (not your peers); juries have opportunity to ask judge and get clarity

Voir Dire questioning and 3 peremptory challenges (removal without “cause”)o 14th Amendment prevents government from removing juror based on raceo Policy: legitimating results (attorneys will feel more fairly treated), ability to strike outlierso Batson test (burden-shifting framework)-

1) require party opposing preemptory to establish on its face (prima facie) that there was discrimination

2) ask the other party for a race-neutral explanation (burden shifts to the party making the preemptory challenge [has more knowledge] to force disclosure of that knowledge and justify their reasoning)

3) party opposing must show pretext Concurring (Breyer)- burden-shifting framework does not solve the problem; can always come up with unpersuasive reason; difficulty in unconscious racial stereotyping (individuals will think it is race neutral but really it is stereotyping)

Missing The Common Law And Equity

Choice of Law (in §1332 and supplemental jurisdiction cases) Reminder: Purpose of diversity jurisdiction is to prevent bias against nonresidents; just “another tribunal,

not another body of law”

Old Law Swift v. Tyson

Federal courts did not need to adhere to state common law (no statutes, regulations, just judge-made rule), they had their own set of common law rules

Reasoning: 1) uniformity (believed in trickle-down effect, federal court will interpret and states will adopt our reasoning), 2) judge-made law is judge-made law, federal courts should be allowed to make law too

Erie Rule: Except in matters governed by the Constitution or Acts of Congress, federal courts must apply state law (statutes and common law) to any case

Purpose: 1) prevent forum shopping2) state sovereignty3) prevent discrimination against in-state residents4) uniformity of law within a state

Exceptions:Is there a direct conflict with an FRCP? (judicial interpretation of FRCP counts)a. Court tries to read FRCP narrowly to

avoid conflict (Walker)b. If yes, then apply Hanna test

i. Is the rule valid under the Rule Enabling Act? Is it procedural (does not abridge, modify, expand substantive rights)? (Hanna)

ii. Is the rule valid under the Constitution?

1. If yes to both, federal law governs

2. This has never been no; would mean Supreme Court and Congress were wrong

Unguided Erie ChoiceIs there a conflict with federal common law practice?a. If yes, then is the federal practice essential to the function of

the federal court? (Byrd- judge/jury) (change role of judge)i. If yes, federal practice will most likely govern (weighed

very heavily)

Regardless, still need to look at:1. Twin Aims of Erie (Hanna)

a. Forum shopping 1. Counter: forum shopping is inherent in the choice

between federal and state courtsb. Inequitable application

2. Is the federal law outcome-determinative? Substance v. procedure (York)

a. Substance = state lawi. Designed to regulate daily conduct, not just within

litigation world (Hanna concurrence)ii. State law bound up with rights or obligations of

state policy? (Byrd)b. Procedure = federal law

i. Does not change right to recoveryii. Does not change amount can recovery

3.

Civil Procedure

o York [outcome-determinative] (supports Erie’s pro-state stance) The outcome of the litigation in federal court should be substantially the same as it would be if tried in a

State court. Courts must abide by state’s statute of limitations. Purpose of statute of limitations: 1) establishes deadline for D to have peace of mind, and 2)

recognizes that after certain period of time it is unfair to force D to defend an old claim (evidence gets stale, witness memory fade, inaccurate results)

Ps brought class action in federal court (diversity) alleging state law claims of breach of trust. D won on summary judgment based on NY’s statute of limitations. Appeals court reversed because federal court could exercise its own judgment as to timeliness. Supreme Court upheld lower court decision.

o Byrd [essential function] (pushes back; pro-federal stance) State laws/statutes cannot alter the essential character or function of a federal court. Federal rules to

have jury decide will stay. The federal system has allocated functions between judges and juries and having a judge decide would change that essential function.

Judge would decide in state court. Jury would decide in federal law.

o Hanna [direct conflict with FRCP] (pushes back; pro-federal stance) Method of service of summons and complaint is not substantial, would have only altered the way in

which process was served; measure by purpose, timing, incorporation of discretion REA §2072: Supreme Court has power to prescribe rules and forms of practice and procedure of federal

courts in civil actions… such rules should not abridge, enlarge, or modify any substantive right P sued D for personal injuries resulting from car accident. P service of summons and complaint was

made by leaving copies with D’s wife. This matches FRCP 4(d)(1) but violates MA state law 197§9. Concurrence: Additional purpose of Erie: 3) prevent uncertainty (there should not be two conflicting

systems of law controlling the primary activity of citizens) Does the rule substantially affect those primary decisions respecting human conduct (daily life)

which our constitutional system leaves to state regulation or is it just a parcel of litigation

o Walker [coexistence] Hanna does not apply because FRCP 3 does not directly clash with state law; FRCP has no statement on

state statute of limitations; FRCP 3 and state law can exist together P carpenter suing D manufacturer for negligence (eye injuries). Service of process was not made until

+60 days. D filed motion to dismiss based on OK’s statute of limitations 12§97 (state law deems action commenced when service of summons). P claims he is timely under FRCP 3 (“action commences by filing a complaint with the court”).

o Gasperini [common law practice branch] P sued D for color transparencies he provided to them for videotape. Jury awarded $450k; excessive?

Federal appellate court vacated jury verdict and ordered new trial, using NY state law. NY state trial/appellate law: “deviates materially” from reasonable compensation Federal district trial court: “shocks the conscience” (JNOV or FRCP 59 new trial instances) Federal appellate court: “abuse of discretion” (reviews trial court decision)

Two Erie Problems1) Role of appellate judge differs between state and federal court (state appellate judge uses “deviates materially” standard, but federal appellate judge uses…?) Court: federal courts are not required to apply state law (essential function of court, no forum

shopping problem at appellate court, not outcome-determinative) District trial court to use “deviates materially” standard and appellate court looks at “deviates

materially” under the “abuse of discretion” review2) Standard of review of damages differs in state and federal court Court: state law applies due to policy concern (forum shopping, inequitable application, substantive

in changing role of jury)

Class Actions Pros: efficiency for P and D, equality/consistency in results, levels the playing field (David and Goliath),

deterrence, push D to change, can cover undiscovered Ps, can rally support/publicity for a good cause Cons: enormous time/expense/commitment, decreased accuracy (eliminates multiple decision-makers),

force unjust settlement (blackmail settlement pressure), encourages frivolous litigation, windfall to lawyers

FRCP 23- Class Actions [need all (a) and one (b)](a) Prerequisites. (broad court discretion)

(1) numerosity; joinder would be impracticable,(2) commonality; common questions of law/fact, suffer same injury, common contention, common answer

o Wal-Mart v. Dukes Court denies commonality, basing on the merits of Title VII. Similar to Twombly- questions the

merits very early on; do stats, anecdotes, expert = common law of discrimination. No, wanted smaller class, higher ratio of affidavits, promotion method other than supervisor discretion

P want to bring a nationwide class action suit against Wal-Mart for discrimination against all women employees. P’s claim of commonality: 1) statistical evidence about disparities in pay/promotion, 2) anecdotal reports from 120 employees, 3) sociologist expert testimony

Dissent: disagree over what is sufficient to find Title VII about whether combined corporate culture and statistics is okay; common question of law/fact; finds Majority hostile to aggregate litigation (1.5 million people)

(3) typicality; think Due Process, adequate representation and protection; and(4) representativeness; sufficient expertise, capacity, rep will fairly and adequately protect the interests

Purpose: efficiency, impossible to bring all interested parties in class suit, resolve interest of all people in that class at once

o Hansberry v. Lee Not typical or adequate representativeness (fail 3 and 4 from FRCP 23(a)); not same aims

and interests- Case #1 it was stipulated 95% signed, it was not contested; Ps interests were not represented because they wanted to challenge and no one in first lawsuit had that interest

Owners signed covenant preventing class from moving into area. Covenant doesn’t apply to P(b) Types.

Mandatory (members have no right to opt out, no notice required; preferred by lawyers to save money)(1)(A) Incompatible standards- absent class action, D could be subject to incompatible mandates for future conduct

Purpose: protects D from multiple/inconsistent obligations(1)(B) Limited fund- absent class action, Ds available assets insufficient to pay all claims; class action consolidates fund and distributes it fairly to all Ps

Purpose: protects nonparties, promotes equal treatment of all litigants(2) Equitable- homogeneous class (e.g. employment discrimination); when D has acted or refused to act on grounds generally applicable to the class, injunctive relief

Purpose: protects civil rights; problem is a class-wide problemo Wal-Mart v. Dukes monetary relief can it be decided with a non-class action]

Court denies class under 23(b)(2) because Ps want backpay, which is monetary individualized relief rather than injunctive indivisible nature. 23(b)(3) has procedural protection to make it more appropriate

P want to bring a nationwide class action suit against Wal-Mart for discrimination against all women employees.

Civil Procedure

(b) Types.Voluntary (members offered chance to opt out of the class, mandatory notice through reasonable effort)

Cons: high costs of notifying each P, difficult to obtain settlement if numerous members opt-out(3) Common question- (e.g. consumer rights)

Requirements: 1) common question of law/fact predominate, 2) particular interest of class members to control their own lawsuits, 3) the commencement of other relevant lawsuits, 4) desirability of single forum, 5) manageability of class (splintering problem)

(c)(4) Particular Issues Class- class action with respect to particular issueso In the Matter of Rhone-Poulenc Rorer

Decertified P class because irreparable harm from immense settlement pressure. “Blackmail settlement” just because of small chance they could end up bankrupt. Normally in federal court you cannot appeal until final judgment; once you settle you cannot appeal

Hemophiliacs infected by AIDS virus from using D’s drug products. D won 12/13 other cases tried. One of the 300 cases filed became certified as a class action FRCP 23(c)(4) for issue of negligence. This would allow individual suits later to use verdict with collateral estoppel to block relitigation on negligence issue.

Note: there are a bunch of cases that settled, D only goes to trial if they think they can win; Posner is a little disingenuous

(e) Dismissal- need court approval, settlement hearing; court oversight/judicial supervision Purpose: fairness, reasonableness, interests of individuals and unnamed Ps

(g) Class Counsel- court appoints based on experience, knowledge, resources (court leeway on bid system) Concerns in selecting: potential for abuse, D buying off P’s lawyers at the expense of the Ps; no

individual client oversight (they don’t have ability to reject settlement, don’t get to choose the attorney)o Bidding War

Lead attorney = most money, legal fee; Playing the Ds off of each other; 2 culpable people, separate and try to get best deal; find out who has deepest pockets, who has the most damning evidence

Sotheby’s and Christie’s (duopoly in rare art, books, antiques auction); anti-trust conspiracy (match policy of sellers’ nonnegotiable sliding-scale commissions) Collusion. Class action with everyone who sold or bought goods through Ds.

Auction for Lead roleo Usual: lowest % amount attorney fee gets representationo This case: set a number; you get nothing if you win less than that, you get % if you go over

Pros: great incentives for attorney to work hard, combat conflict-of-interest in class actions Cons: if attorney realizes miscalculation and that he cannot win, he might walk away; Ds

don’t know the cut-off number