Civil Procedure II

1/10/11 Class Notes

(no class. Fili was in a car accident)

Assignment:Read p. 10-52Read Rules: 8D, 13, 14, 18, 19, 20, 21, 42

1/12/11 Class Notes

18(a) 19(a)(b) 20 42

Joinder involves the question: How big can a lawsuit be and how small must it be? Joinder of parties

o Rule 19 (Required) a) [join somebody if it is feasible]

Anybody who would be effected by a judgment must be joined if feasible

b) [if a party cannot be joined for some reason, the court must decide if justice can be preserved when proceeding without him. If the party is indispensible, the court may dismiss. If a different court could compel their presence, this court may dismiss in order for the case to be tried in the other court. If justice could be preserved, the court may proceed and try to minimize the effect on the party that is not joined.]

o Rule 20 (Permissive) a 1&2) 3 criteria needed to bring a case involving multiple Ps and/or Ds

A) the right to relief must be joint, several, or in the alternative A) the claims must arise out of the same transaction, occurrence, or

series of transactions or occurrenceso This is the most difficult criteria to satisfy

B) all claims by or against the joined parties must share a common question of law or fact

o (purpose of Rule 20: encourage judicial efficiency by reducing the extent to which the same issue is litigated in separate lawsuits)

o Remember, the claiming party may join additional parties (plaintiffs and defendants)

(ex. 3 car accident. If A and B think C is liable, A and B may join together to sue C. But they don’t need to join. They could each sue separately)

a3) Just because parties are joined, they may be awarded (or liable for) different things.

b) court can utilize rule 42o Rule 42

a) [court can decide to consolidate many actions into one trial] b) [court can separate a trial]

Joinder of claimso Multiple claims

Rule 18 a) you may join as many claims as you want

o however, facts may not support it, attorney may not want to make things confusing by joining other claims, court may think it is too complex (Rule 42)

o Res judicata (not an official rule) (1 of 3 mandatory rules) 11th commandment: Thou shalt not split thy cause of action

When a claimant brings a complaint against a particular D, he must bring all his claims arising out of the incident (blow his guts)

Once a P brings a claim, he must bring all the claims you have. (ex. you sue for personal injuries from a car accident. You cannot

later sue for property damages because both claims came from the same cause of action against the D)

Must give all theories of recovery and amounts of damage Similarly, the D must defend the claim with all they have

o D can’t lose, then say, “wait, I have another defense” Ex. 3 car accident. P sues D1. He can still sue D2 separately if he wants.

Res judicata implies only to claim against a particular D. Where do claims come from?

o (think of parties as claiming party and a defending party) Complaint, counterclaim, crossclaim, third party complaint

o A suit could involve every person in the world. However… Facts won’t support it The attorneys would not choose to include so many claims (why make

more complicated that necessary?) Discretion vested in trial court (The trial court, via Rule 42, would prevent

a case from becoming too complicated)

Chapter 2 (Basic Joinder of Claims and Parties)

IntroReasons for joinder = efficiency and to avoid inconsistent judgments

A) Multiple Plaintiffs and Defendants

Federal Rule 20

Apache County v. Superior Court (p. 13) Facts: Samaritan (hospital) filed a 294 count complaint against 11

different counties (seeking reimbursement for providing medical service to poor people). One of the counties (Apache) claimed that joining the 17 claims against it with those against the other counties was improper.

Conc: Court held for the county (joinder was improper) None of the counts arose out of the same transaction or series of

transactions (no common thread running between the claims). Each of the 294 transactions w/ the hospital were separate, not a

series of transactions. There was no systematic conspiracy between all the counties not to pay.

Alexander v. Fulton County (p. 15) Facts: 19 white police officers brought discrimination claims against the

department and the sheriff. The trial court held for the Ps. The Ds appealed by claiming that the joinder of all the Ps’ claims was improper.

Conclusion: held that joining all the claims was proper Ps satisfied both requirements for joinder. 1) All of the Ps’ claims

stem from the same core allegation that they were subject to a systemic pattern or practice of race-based discrimination. 2) D’s discriminatory conduct indicates a common question of law and fact.

D claimed she would be unfairly prejudiced by trying all claims together; however, the court concluded that the potential for prejudice was minimized b/c of the core similarities in all the Ps’ claims. The claims all center around the core allegation of a systemic pattern of race-based discrimination.

Given the common core of allegations, the substantial overlap of the particular claims, and the logical interconnection of several of the different forms the alleged discrimination took, we are satisfied that the district court did not abuse its discretion in finding that the efficiency of a consolidated trial outweighed the potential for unfair prejudice or jury confusion.

o Rule 20 Both A and B were satisfied

A) all claims stemmed from the same core allegation (discrimination within the same time frame by the same sheriff)

B) while the types of discrimination differed between claims, they all stemmed from the same policy of discrimination.

o Rule 42(b) [the court may order separate trials for convenience, to avoid prejudice, or

to expedite and economize] Here, D claimed the volume of all 19 plaintiffs would unjustly

prejudice her with the jury at trial. The court disagrees

o Rule 20(a) allows multiple parties to be joined; however it does not guarantee such joinder. Rule 42(b) allows a judge to dissect a case into separate trials.

(end 1/19/11. Through p. 18)

1/24/11

Rule 42 13(a)(b)(g) 14 18(a) (Res Judicata).

Rule 42o (a) Consolidation. If actions before the court involve a common question of law

or fact, the court may: 1) join for hearing or trial any or all matters at issue in the actions; 2) consolidate the actions; or 3) issue any other orders to avoid unnecessary cost or delay.

Q: what is the difference between 42(a) and 20

B) Counterclaimso Rule 13 allows a defending party to assert a claim back against the P

Rule 13(a)(b)o a) Compulsory (mandatory) (1 of the 3 mandatory rules)

arising out of the same transaction/occurrence as the original claim (the D cannot prevail in a case, then turn around and sue P for a

related matter) (ex. If D thinks the crash was P’s fault, he must counterclaim, or he

loses his ability to sue)o b) Permissive

When the counterclaim does not relate to the same transaction (ex. D is allowed to bring a totally unrelated suit (breach of K))

Simmons v. Simmons (p. 22)o 2 separate suits (divorce and assault/battery)o Issue: Having litigated the divorce case, was it compulsory to litigate the battery

claim?o Court: this is not the type of claim that should be joined (most courts take a

common sense approach…the assault and battery claim is not sufficiently related to the divorce case)

Notes and questionso 6) If D brings a permissive counter claim against P, P may then be required to

pursue a compulsory claim back against the original D if he has a related claim.

C) Cross-Claims

o Cross-claims arise out of the same transaction or occurrence as the main claim. It is a claim asserted by one party against a co-party. These are not compulsory (the claiming party may bring the action in a separate suite if he wants)

Rule 13(g) Rainbow Management Group, LTD. v. Atlantis Submarines Hawaii, L.P. (p. 29)

o Once a party brings a cross claim against a co-party under Rule 13(g), that co-party is now required to bring a compulsory counter claim under 13(a) (counterclaim rules still apply to cross-claiming parties)

P sues D1 and D2 D1 cross claims against D2 D2 attempted to bring separate, yet related, suit against D1

o Court says D2 needed to counterclaim in the original suit (compulsory)

Notes and questionso After D1 makes a related cross claim against D2, D1 may also bring any other

unrelated claims against D2 per Rule 18(a)

D) Adding Third Parties: Impleader Rule 14

o Only way a party can be a 3rd party P (must be a defending party) Third party practice = impleader

A defending party drags in a 3rd party D (liable to D1 if D1 is found liable to the original claiming party)

The only basis for impleader: You are liable to me if I am liable to him

o No such thing as compulsory impleader But if you do implead, you must blow your guts under 11th commandment

o Now, it is compulsory for the 3rd party D to counterclaim against D1 if he has any related claims against him

Lopez de Robinson v. United States (p. 33)o P sues a veteran’s hospital (H1) for not admitting a patient (negligence). Later,

the patient was admitted to another hospital (H2) and ended up dying (maybe they acted negligent in causing his death).

o More than one possible negligence charge is possible.o P sues the first hospital

H1 attempts to bring in H2 (If I’m liable to P, you’re liable to me) Court: this is not proper third party practice

Only basis: “you are liable to me if I am liable to original claiming party”

Here, H1 said “you sued the wrong guy”o Not appropriate basis for third party practice

Notes and questionso (did not discuss)

E) Multiple Claims Rule 18(a)

o a) a party seeking relief from an opposing party may join with his original claim ANY additional claims he has against that opposing party (even if unrelated).

McCoy v. Like (p. 40)o (did not discuss)

Notes and questionso (did not discuss)

Problemso (in class Fili suggested doing the problems on p. 43)

F) Making Optional Claims Compulsory: An Overview of Merger and Baro Res Judicata (claim preclusion)

Fili’s 11’s commandment This is a court created doctrine

Issue: Under what circumstances will a party lose a claim by failing to assert it in a case?

A party may sometimes lose a claim by failing to bring it in the first action.

o Collateral Estoppel (issue preclusion) Huffy v. Lea (p. 46)

Issue: Whether Res Judicata (claim preclusion) prevents an action for tortious interference with a bequest when the action is not brought with the underlying will contest.

History: The TC and COA held that the failure to join the tort action with the will contest bars a later action

Conc.: Reversedo Analysis: In a will contest, the testator’s intent or mental state is the key issue. In

an intentional interference case, the wrongdoer’s unlawful intent to prevent another from receiving an inheritance is the key issue. Because of the differences in proof, the actions are not the same nor will the same evidence necessarily support both actions. These are separate claims and res judicata does not apply (they need not be brought together).

o R2d Judgments (once you start making claims against a particular D on a particular issue,

you must make all your claims).

(end chapter 2)

(end 1/24/11)

Chapter 6 (Advanced Joinder)

1/26/11

A) Intervention Intro

o Dealing w/ 3rd party not part of the litigation who comes before the court wanting to be included (“I want part of the action”)

Can intervene as the claiming party or the defending party (more common to want to intervene on the claiming party’s side (nobody wants to be a defendant))

o Mandatory intervention If you show you are a 19(a) type (you would be affected by the judgment),

you can demand to be part of the actiono Permissive intervention

If you have an interest in the transaction (but would not inevitably be affected by the judgment)

(ex. airplane goes down. Everybody dies. A group of families sues the airline together. Some other families, not in the group, may seek permissive intervention (want to join the Ps))

Of course, under 42(a), the court may already plan to join the claims.

o Rule 24 limits intervention to people who are genuinely interested in the outcome of the case. If the person can convince the court that her interest is genuine, and that there is an overlap between her case and the one before the court, she may be able to intervene by permission under 24(b). In some situations, however, a person’s interest is so directly threatened that she can intervene of right under 24(a). If a person satisfied 24(a), she can join the case even if the parties and the court all agree that they would prefer not to have her as a party.

Rule 24(a)(b) Chiles v. Thornsburgh (p. 395)

o (I was called on for this case) Notes and Questions

o When a judge has discretion on what to do (ex. whether to allow permissive intervention), an appellate court, on appeal, will generally find that the Trial judge’s discretion was correct unless there was an obvious abuse of discretion (glaring mistake).

o It is only when the court refuses permission that the distinction between 24(a) and 24(b) becomes important. If the movant meets the 24(a) standard for intervention of right, the court abuses its authority if it denies the motion to intervene.

o In practice, timeliness is more likely to be a disputed issue in a case of intervention of right. A judge dealing with a request for permissive intervention has discretion to deny intervention for reasons other than timeliness. In intervention by right, by contrast, timeliness is the only issue on which the judge may exercise any meaningful discretion in denying intervention.

Problems

B) Necessary Parties Intro

o One of the three mandatory rules (others: 11th commandment, rule 13 compulsory counter claim)

o We don’t deprive people of life, liberty, or property without due process of law. Therefore, if somebody would be affected by a judgment, he must be joined.

Rule 19 (1 of the 3 mandatory rules)o a) [parties must be joined if it is feasible]

Anybody who would be effected by a judgment must be joined if feasibleo b) [if a party cannot be joined for some reason, the court must decide if justice can

be preserved when proceeding without him. If the party is indispensible, the court may dismiss. If a different court could compel their presence, this court may dismiss in order for the case to be tried in the other court. If justice could be preserved, the court may proceed and try to minimize the effect on the party that is not joined.]

Class: parties must be joined if feasible. If not feasible, see 19(b). How indispensible is the party? If another court could compel more 19(a) types, this court will dismiss. If not, this court will proceed and try its best to minimize the effect on the parties not joined.

Dawavendewa v. Salt River Project Agric. Improvement & Power Dist.…(p. 409)

o An indispensible party was not joined, so the court dismissed. Notes and Questions

o 19(a) uses similar language to 24(a)(2) Rule 23(a and b1) is also similar. It lists various situations in which a

cause may be certified as a class action. It allows for the use of the class action device when the case involves so many necessary parties that joinder of all of them as individual parties is impracticable.

o Rule 19 specifically deals with venue. If the addition of the necessary party destroys venue, and the necessary party thereby objects, 19(a)(3) provides that the court will dismiss the party from the action; however, b/c the necessary party is not in the case, the court must then turn to the third part of the analysis, and determine whether to keep the remainder of the case.

Problems

(end 1/26/11 through p. 420)

1/31/11

C) Interpleader Intro

o (ex. dad has life insurance policy. He dies. Many parties want a piece of the pie. Insurance company pays wife #3. Wife #2 sues the insurance company saying she should have gotten the money. Jury finds Wife #2 should have been paid.

Wife #1 also sues and jury finds she deserves the money. The insurance company ends up paying three times.)

Instead, the insurance party acts as a P and sues all the possible claimants. If you join all the parties as defendants, they are compelled to interplead among themselves (this way, insurance company only pays once and all the parties get their day in court)

o Idea: If you are a stakeholder who is fearful of double or triple liability, let the interested parties interplead amongst themselves. Judge and jury will then determine who gets what.

Classo Interpleader is based on equity, not lawo Most common situation: many people fighting over the same insurance claim.o Parties

Stakeholder (plaintiff…ex. insurance company) Claimants (defendants…ex. those seeking a piece of the pie)

o Interpleader can arise in a counterclaim (was said in class, I don’t understand it) Rules

o Federal Rule 22o 28 USC

1335 1397 2361

Star Insurance Co. v. Cedar Valley Express LLC (2002) (p. 421)o P insurance company is willing to pay a $10k claim on a particular policy;

however, 35 parties all want the $10k.o P insurance company seeks to interplead all the adverse parties.o 2 stages of interpleader

1) determine if the P has met the statutory prerequisites to use the interpleader remedy

Under statutory interpleader, this includeso 1) P has custody of the disputed property w/ value

exceeding $500.o 2) P must deposit the disputed property into the registry of

the courto 3) there must be 2 or more adverse claimants with diverse

citizenship that claim or may claim the disputed property. 2) Determine the respective rights of the claimants to the disputed

property (I think Fili said things will be divided pro rata unless a party proves he has a superior interest)

o Because interpleader is based in equity, a court may not accept/exercise jurisdiction even if all the jurisdictional requirements are established. A court, at its discretion, may dismiss interpleader actions for lack of equity because an adequate remedy at law exists.

o Similarly, at the beginning of an interpleader action, the court permits the P stakeholder to proceed pursuant to USC 1335 on a provisional basis. After all the

parties have been named, the court will make a final determination if all the jurisdictional requirements of USC 1335 are met.

o Preliminary injunction A plaintiff may seek an injunction to prevent any other parties from

making claims on the property outside of the action at hand. On behalf of the stakeholder, a court may

Enjoin parties from starting new lawsuits Enjoin from further proceedings in existing lawsuits

o (Courts enjoin the parties to prevent them for continuing. Courts do not enjoin other courts from continuing)

Injunctions are first offered on a provisional basis and will remain in effect only until jurisdictional questions are resolved. At that point, the injunction’s continued operation will be revisited.

o Rationale behind interpleader remedy Prevent a “race to judgment”

Where claimants race to try to be the first one to receive a judgment. An earlier claimant may take all the pie and leave nothing for later claimants.

Protect the stakeholder from the expense of defending multiple suits Protect the stakeholder from double liability Prevents inconsistent results in numerous autonomous claims Appropriate where a stakeholder is exposed to multiple claims on a single

obligation, and wishes to obtain adjudication of such claims and its obligation in a single proceeding (orderly distribution of a limited fund)

o Conc.: The P insurance company has satisfied all the statutory requirements and may proceed with its interpleader action.

Overview of interpleadero Intro

Interpleader is designed to deal w/ situations where more than one person claims the same “thing,” but by law only one (or at least fewer than all) of those people is entitled to receive that thing.

Historically, the stakeholder could not use interpleader if he also claimed any interest in the stake

Now, the stakeholder can claim that none of the claimants are entitled to the stake and that he should be able to keep it (or a portion of it).

If a stakeholder is not a claimant, he may drop out of the suit and let the claimants fight among themselves for the stake (“wave goodbye to the judge”)

However, if the stakeholder is a claimant, he will remain in the suit 2 Types (both only available in federal court)

Statutory interpleadero USC 1335, 1397, 2361o Stakeholders enjoy special jurisdiction and venue rules

created to make interpleader easier. (more common than Rule interpleader)

o 1335 (subject matter jurisdiction) $500+ stake, adverse claimants (competing for the

same fund not large enough to satisfy all), minimal diversity, P/stakeholder must deposit stake to the court.

o 1397 (venue) Statutory interpleader actions may be brought in the

district in which one or more of the claimants resideo 2361 (personal jurisdiction and enjoining)

See below for enjoining Nationwide service of process (a court can compel

all interested parties to show up) (minimum contacts not required)

Rule interpleadero Rule 22o Subject to the usual rules governing jurisdiction and venue

o 1) When a party may use interpleader Indianapolis Colts v. Baltimore (example case)

There must be adverse claimants to a particular fund (the claimants must be claiming the same thing) (All claimants must be after the same “pie”. If claimants are after different “things”, interpleader is not available).

First Interstate Bank v. Hoyt (example case) Interpleader is to be granted in instances where a stakeholder faces

a legitimate fear of multiple litigation, irrespective of the merits of the competing claims (ex. if there are 3 parties after $100k and a law exists that clearly states that party A is entitled to the money, the stakeholder may still be able to interplead. Even though B and C have no legal right to the money, they may still try to file suit in an attempt to get it. The stakeholder is allowed to interplead the three parties in order to avoid multiple litigation)

Notes and questions 2) Rex is in no position to seek interpleader because he is not a

stakeholder (the claimants can keep chasing him). However, the insurance company could seek interpleader because it is a stakeholder (it has a limited stake that the claimants seek).

A stakeholder who wants to use interpleader does not need to wait until all the claimants have actually filed suit (as long as the stakeholder has a reasonable apprehension of multiple suits, he may use interpleader)

o 2) Jurisdiction and VenueAttribute Rule interpleader Statutory interpleader

determining diversity complete diversity between the stakeholder and all claimants

minimal diversity among claimants; satisfied if any one claimant is diverse from any other claimant

amount in controversy greater than $75,000 at least $500

(value of stake)personal jurisdiction all claimants must have

minimum contacts w/ state, and state must allow service

nationwide service (§ 2361), not bound by state limits (Rule 4(k)(1)(c))

venue based on residence

where all defendants reside where any claimant resides

American Family Mutual v. Roche (example case) Facts: all 4 claimants from IL. Tortfeasor from WI. Insurance

company from MI.o No minimal diversity exists between all the injured

claimants. But what if the stakeholder is also a claimant? A stakeholder who is also a claimant is sufficient for minimal

diversity purposes. Notes and questions

For purposes of determining diversity under 1335, a stakeholder who has a claim to the stake is also treated as a claimant.

o 3) Enjoining other litigation Other proceedings may be in progress that may affect the stakeholder’s

liability concerning the stake (various claimants may have lawsuits pending against the stakeholder, or may be considering such suits). The stakeholder needs a mechanism to stop all other courts from proceeding further.

To accomplish this, the interpleader court may enjoin the filing or continued prosecution of other parallel litigation.

§ 2361 [In statutory interpleader cases, a district court may restrain all

claimants from beginning or continuing any proceeding in any state or federal court that affects the stake involved in the interpleader action. After hearing the interpleader case, the judge may discharge the stakeholder/plaintiff from further liability and make the injunction against other proceedings permanent.]

In Rule interpleader cases, courts may also allow injunctionso 4) The subsequent proceeding

How does the court distribute limited funds? Most courts distribute the funds pro rata However, if one creditor would have a priority under state law, courts will

respect that priority.

D) Class Actions Rule 23 Intro

o There are pros and cons to class actionso Class actions are different than joining numerous plaintiffs under Rule 20

In ordinary joinder (Rule 20), everybody looks out for his own interest

In a class action, one or a few of the interested parties represents the rights of everyone.

Representational litigation 1) Problems with Representational Litigation

o Hansberry v. Lee (1940) (p. 439) (Rule 23 was framed in response to this case) Fili told us to understand this case I think the main point of Hansberry is that he was not adequately

represented. Later, in creating Rule 23, the rule was written to ensure that members of the class are adequately represented.

Res judicata may not bind a subsequent plaintiff who had no opportunity to be represented in the earlier civil action. The facts of the case dealt with a racially restrictive covenant that barred African Americans from purchasing or leasing land in a Chicago neighborhood. The covenant had been upheld in a prior class action lawsuit, which had included Lee, along with other neighborhood landowners, as members of the class. Lee in the present case argued that Hansberry could not contest the covenant because it had already been deemed valid by the courts in the prior lawsuit. The U.S. Supreme Court disagreed and held that, since it was shown that some of the neighborhood landowners (46%) comprising the class of the prior lawsuit did not support the restrictive covenant, the previous decision that the covenant was valid could not apply to each and every member of that class. In other words, it was erroneous to allow the 54% of neighborhood landowners who had supported the restrictive covenant to represent the interests of the 46% who were against it. Therefore, the Supreme Court held that the restrictive covenant could be contested in court again, even though some of the parties involved may have been included in the prior class of neighborhood landowners.

In general, one is not bound by a judgment in litigation in which he is not designated as a party. There is an exception in class actions, however. People who were not parties to a class action may be bound by its decision (the assumption is that the party in the class action is representing the interests of all others). Ultimately, the SC held that Burke was not a class action suit b/c many of the homeowners disagreed with the covenant (46%). The homeowners did not have a sole and common interest. B/c Lee and Burke were only representing the parties that agreed with them, their representation was not binding on nonparties to the litigation. Therefore Hensberry could challenge the discriminatory covenant (He was not bound by the earlier Burke decision)

Because the Hansberrys’ seller had signed the covenant, the TC court found that he was a member of this class. Thus, b/c the Hansberrys would be successors in interest to their seller, they too were bound by the judgment in Burke.

Members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present…

However, Burke was not a class action, so the Hansberrys are not bound.

o Notes and Questions 4) Suppose A sues his city based on public nuisance for building a

baseball stadium and using public funds to do so. For damages, he asks for the decrease in property value of his house. He ends up losing.

B, C, and D also don’t want the stadium. Are they now bound by the decision? What if they would have sued for a different reason or asked for a different remedy?

What if A wins? Can the others take advantage of the victory? This is the problem with representational litigation.

6) Most class actions involve a class of plaintiffs suing one or more named Ds; however, “defendant class actions” are also possible.

(end 1/31/11 through p. 445)

2/7/11

Understand Hansberry and then read Rule 23

2) The Protection Afforded by Rule 23o Intro

In class, we red through much of Rule 23o Szabo v. Bridgeport Machines, Inc. (p. 445)

Facts: P Szabo was a machine shop that purchased a machine from D Bridgeport. Apparently, the machine was faulty and did not meet the specs that Bridgeport advertised. P sought to initiate a class action against D b/c all purchasers of the machine probably experienced similar problems.

This case basically walks us through the process of certifying a class action suit.

Certification was sought under Rule 23(a) and 23(b)(3) The case went step by step through each of the elements

o 23(a): commonality, predominance, typicality, or adequacy of representation.

o 23(b)(3): the four factors were considered as to why a class action suit was more appropriate than other options.

Choice of law If there are many class members and state “choice of law”

problems exist (state laws conflict), a court may decide not to certify a class action.

Conc.: The court held that P Szabo met all the requirements needed to have a class action lawsuit.

o Notes and Questions Rule 23 requires a party to move to certify the case as a class action

Usually done by the plaintiff seeking to be class representative

However, a D could desire a class action (probably so he will only have to defend once against everybody)

If a court certifies the case, the D will have a great incentive to settle. If the court denies certification, the P will usually dismiss rather than go at it alone.

3 steps of certification 1) 23(a) factors 2) does the case fit any of the 3 allowable categories of 23(b)? 3) the court considers whether the class members receive notice

and the right to “opt out.” 23(a) Prerequisites

1) Numerosityo (No specific minimum number. ~ 40. Less than that and

joinder would be better)o P does not need to know all class members by name.

Discovery may turn up more possible plaintiffs. 2) Commonality

o Whether the claims to be joined in the class share common issues of law or fact (must be at least 1 common question)

4) Adequate representationo This issue can be revisited at any time during litigation. If

at any time, the judge feels all the members are not being adequately represented, he will stop the action.

3) Typicalityo (similar to “Adequate representation”) Representative’s

claims/defenses must be typical of the claims/defenses of the class.

23(b) (Three types of class actions) 1)

o (similar to Rule 19 (necessary parties) and 24(a) (intervention of right))

o A class action is right when the dispute involves many people who should be in the case b/c their interests will likely be affected, or b/c their claims expose one of the existing parties to a risk of inconsistent judgments.

o (so many 19(a) types that class action is necessary) 2)

o Allows the P to spread the costs of obtaining the injunction among all the parties who will benefit.

o (when injunctive relief is sought by (and will benefit) many people)

3) (most complex and controversial) (classic consumer case) Rationale: potential savings due to economies of scale.

o Predominance Common issues of law and fact must predominate

over individual issues

o Superiority Class action must be superior to other methods.

(it is possible for the 3 types to overlap (could go more than one way)

23(c) When a court certifies a class action, the judge does not always

have all the information about whether a class action is appropriate.

o A court may decertify a class action after it learns more information about the case.

If certification granted:o Define the classo Court must appoint an attorney (class counsel)

23(g): courts have a great deal of discretion in appointing the class counsel

o Under 23(b)(1) and (b)(2), notification of class members MAY be required

o Under 23(b)(3), notification MUST be given to class members

The class representative or the class counsel bears the cost of paying for giving notice to all the members (reimbursed if the class wins)

A party may not feel the representative will adequately represent his rights (he may “opt out” of (b)(3) class actions)

Damages may differ for each class member (ex. plane crash. Damages will be more for the estate of a victim who was a doctor with 5 kids than a single senior citizen)

23(d) 2) (once the action is commenced, required “discovery” will allow

parties to learn the strength of their case and their opponent’s case. Such discovery will motivate parties to settle)

23(e) The court needs to approve any settlement b/c the rights of the

absent members must be protected 23(f)

If you disagree with the court’s decision to grant or deny a class action certification, the court MAY grant an appeal.

(normally, only final judgments are appealable. However, under class actions, there is room to appeal the certification of a class)

Judges don’t like class actions b/c they have to guarantee the rights of the absent members of the class

Certification order; Notice and opt-out

3) Other issues in class actionso a) Personal Jurisdiction

class action decisions are binding (even on parties w/ no minimum contacts with the forum state)

o b) Federal Subject Matter Jurisdiction If controversy exceeds $5M, class action plaintiffs can aggregate their

claims to meet the amount in controversy requirement ($75k). Only minimum diversity is required (only one member from plaintiff class

needs to be diverse from any one defendant) 1) Diversity 2) Supplemental Jurisdiction

Exxon Mobile caseo Before Exxon, every class member needed to have an

amount in controversy in excess of $75ko Now, only the representative member’s amount needs to

exceed $75k (the other members can ride the coattails via supplemental jurisdiction)

o c) Resolving the Class Action Most are settled 23(e)

Court must approve any settlement (make sure it doesn’t only benefit the representative)

Class members may challenge the settlement if they don’t like it

(end 2/7/11 through p. 463)

Chapter 7 (Discovery)

2/9/11

In class, we went very fast through all the discovery rules (he said we’d go more in depth later) Rule 16

o Pretrial conferences Judges will often try to pressure parties to settle

Rule 27o Perpetuate testimony if a witness is old and near death.

Rule 28 Rule 29

o Parties can agree to more or less discovery Rule 30

o Depositions by oral examinationso Witness is sworn ino Before stenographer or recorded

Rule 31o Deposition by written question

If a witness is far away Written questions are sent to the stenographer

Stenographer reads the questions and writes down answerso Not ideal because you can’t do follow up questions

Rule 32 Rule 33

o Interrogatories Only between parties Questions. Submit to opposing attorney who sits down with party to

frame the answer. Rule 34

o Producing documents Only can be used between parties Electronic… (c) however, nonparties may be compelled to produce documents or

permit inspection. Rule 35

o Physical and mental examinations If P sues D for physical injuries, a court can tell the injured plaintiff to

show up at doctor’s to be examined to verify injury.o (if P’s attorney has sent P out to many doctors to find a favorable one, he only has

to disclose info about the last one)o (however, if P requests D’s doctor’s report, P has to disclose the report from all

the doctors) Therefore, if I am P’s attorney and I have sent P to many doctors, don’t

ask for D’s doctor’s report. Rule 36

o Request for admission Now, after a lot of discovery, parties are sometimes willing to admit

things. Once something has been admitted, it no longer needs to be proven at trial

Rule 37o Individual seeking discovery must first attempt to get the infoo If other party refuses to be discovered, he can be compelled by rule 37o Flip side

Seek protection from discovery under 26(c) Rule 45

o To depose a witness who is not a party, you will have to use a subpoena. Under rule 45, if you serve a subpoena on him, he must show up to be deposed. Rule 45 allows you to compel witnesses to show up.

Case of average complexity (common order of discovery steps)o Some things are automatically required for discoveryo Then, start with interrogatorieso Then, motions to produce and medical examinationso Then, depositionso Then, request to admit

(Reading combined w/ some class notes)Intro

Discovery rules help parties prepare for trial Other purposes

o To narrow the issues, so that it may be unnecessary to produce evidence at trial for issues that are not disputed

o To obtain evidence for use at trialo To learn about the existence of evidence that can be used at trial and to learn

where that evidence can be foundo To promote negotiated settlements by allowing each side to assess the value of its

caseo To further trial verdicts based on accurate presentations instead of surpriseso To provide an economical method of resolving disputeso **In discovery, parties may seek information that helps/hurts them and info that

helps/hurts their adversary Find strengths and weaknesses of both parties (encourages settlement(

A) The Scope of Discovery

1) Mandatory Disclosure (EE) (p. 465)

Rule 26(a)o 1) Initial disclosures (Requires automatic, initial disclosure without the need for a

request) (Following a discovery meeting (26(f)), the parties must make broad initial disclosures)

A) In general (4 categories of info) i) names of witnesses that disclosing party may use to support its

claims or defenses (and the subject of the information)o “here are witnesses I may use at trial to help prove my

case”o (does not mean you must disclose the people that your

adversary would find helpful) ii) copies of things in the possession of the disclosing party which

the disclosing party may use in support of its claims or defenseso “here are things I may use at trial to help prove my case”o (does not mean you must disclose known material that your

adversary would find helpful) iii) damage computations of the disclosing party (nature and extent

of injuries)o claiming party tells what he wants for damages

iv) all insurance policies that may provide coverage for a judgment.

o Any insurance that may cover your liability. If claiming party knows an insurance company is

standing behind the D and for how much, he may be more willing to settle.

B) (not important) C) initial disclosure must occur w/in 14 days of 26(f) conference. D) joined parties must disclose w/in 30 days of being joined E) If you have the information, you must disclose it

o 2) 90 days before trial, parties must disclose info about expert testimony (that will be used at trial)

Identity of any expert witness A written report from each expert witness

o 3) 30 days before trial, parties must make specific pretrial disclosures Identity of each witness Deposition testimony and exhibits that may be used at trial

2) Discovery of Relevant and Non-Privileged Information (EE) (p. 467)

Rule 26(b)o b)

1) Scope: Relevant and Non-privilegedo Any information that is relevant, but not privileged is

discoverable Discovery is appropriate when it is reasonably calculated to lead to

the discovery of admissible evidence. As long as info is relevant, you can get it even if it is inadmissible at trial (as long as it may lead to admissible matter, it is discoverable)

2) (omit)

Thompson v. Department of Housing and Urban Devel. (p. 468)o The court encouraged the parties to get along. If you can’t work discovery out

between yourselves, then come to the court for help.o The court returned the discovery dispute to the parties and dismissed the motion

to compel discovery. This is more efficient for the courts.o When confronted with a difficult scope of discovery dispute, the parties

themselves should confer, and discuss the burden/benefit factors of Rule 26(b)(2) in a good faith effort to reach an acceptable compromise, or narrow the scope of their disagreement.

Magistrate Judge Fili called him a “mini judge.” Magistrates are less expensive than

federal judges. They do not have lifetime appointments or require large staffs. They do ministerial things (such as deal with discovery disputes). This way, the real judges can hear trials. Magistrates can try cases (act as judges) if both parties consent.

Notes and Questions

(end 2/9/11 through p. 477)

2/14/11

3) Discovery of Attorney Work Product (EE) Rule 26(b)(3)

o b) 3) Trial Preparation: Materials

A) Court wants to protect trial preparationo Attorney work product created in anticipation of trial

Work product is Protected/Private (not privileged don’t confuse terminology)

Privileged things are not discoverable. Protected things may be discoverable in limited circumstances

o Can pierce this veil of privacy if you have good cause (ex. attorney interviewed a witness that is

now far away and can’t be re-questioned by the opposing side)

B) Can’t get into the mind of adversarial counsel C) a witness is entitled to copies of their previous statements

4) Trial Prep: Experts B) If your adversary does not intend to call a particular expert as a

witness at trial, you probably can’t find out who that is.o (Non-testifying experts fall under 26(b)(4)(B))o (Their identity and opinion is treated like work product

(subject to discovery only in exceptional circumstances))o f) Requires parties early on to get together and sit down.

The parties will plan how they will proceed with discovery. (goal: after all this discovery, the parties will probably decide to settle)

Hickman v. Taylor (1947) (p. 477) Facts: A tugboat sank and a bunch of crew members died. The tug boat

owners hired a law firm to investigate and defend against future claims. One of the lawyers, Fortenbaugh, interviewed the four survivors and took statements. He also interviewed others.

The P’s counsel in a wrongful death case, sought discovery of defense counsel’s notes of interviews w/ the witnesses. He also requested the substance of other interviews that Fortenbaugh had conducted but had not written down (write out his memory)

Hist.: TC ordered discovery. COA reversed (see E&E p. 413-414)

o Class: adversary wants a copy of the interviews with witnesses. Court: work product is not privileged, it is private. The only way to pierce that veil of privacy is to make a good cause showing

(ex. attorney interviews 5 witnesses. If one of those witnesses now lives overseas. Here, the court may find good cause to allow the other party to get the work product)

o Fortenbaugh claimed that allowing such discovery would improperly interfere w/ the privacy of his trial preparation.

o Conc: Affirmed for D Fortenbaugh (no need to disclose)

Notes and Questionso Class: Not just attorney work product. Other work product is also

protected/private.o Cannot ever get the mental impressions of opposing counsel

Gutshall v. New Prime, Inc. (2000) (p. 484) Facts: P was a truck driver who was rear ended by D, also a truck driver.

In P’s interrogatory, D denied conducting surveillance on P (apparently to catch him behaving as if he is not as injured as he claims). At that time, D had not conducted any surveillance. However, it began shortly after responding “no”.

It appears that P wants D to produce the surveillance that it has taken, but D claims it is work product.

o Class: D is seeking damages for physical injuries. Interrogatories asked if Defense had conducted surveillance.

Are such surveillance trial preparation? Court: If D has pictures of P being active, the case is much more

likely to be settled. Therefore, judges will usually allow discovery of such surveillance. Judges usually side on more discovery.

o Issue: whether surveillance evidence conducted by D in a personal injury case is discoverable if the D only intends to use the evidence for impeachment purposes. Whether the evidence is protected by the attorney work product doctrine.

o Conc.: Yes, such evidence is discoverable. Problems

4) Discovery About Experts (EE)

Introo Recall, 26(a)(2) requires mandatory pretrial disclosure of expert witnesses whose

opinions may be presented at trial (must disclose name and written report w/in 90 days of trial) Such testifying experts may be deposed

Rule 26(b)(4)o b)

4) Trial Prep: Experts

A) If your adversary intends to call an expert as a witness (testifying expert), you may depose him

B) If your adversary does not intend to call a particular expert as a witness at trial (merely using the expert for trial prep), you probably can’t find out who that is.

o But there are 2 ways to pierce this veil 1) (exceptional circumstances) (very difficult) 2) snooker rule

Lehan v. Ambassador Programs, Inc. (p. 489) Facts: P Lehan sued his former employer D for allegedly firing him due to

his age (violation of the Age Discrimination in Employment Act). Defense hired an independent doctor to examine P’s mental state (Dr. Klein).

It appears that defense never gave P the written report required in 26(a)(2)(B) for testifying experts. Defense claims that Dr. Klein is not a testifying witness, therefore such report is not required.

o Class: is it appropriate for a party to list their adverse party’s expert as their expert also? (can a party get info from the other party’s non-testifying witness

Only in exceptional circumstances (if the same information could not be discovered by other means)

Notes and Questionso Testifying experts’ deposition may be taken before trial but after the preparation

of the expert’s report has been provided to opposing counsel.o Non-testifying experts fall under 26(b)(4)(B)

Their identity and opinion is treated like work product (subject to discovery only in exceptional circumstances)

The identity and opinion of experts who are not formally consulted is protected

o Class: any party can probably find a helpful expert if he looks hard enough. He intends to call this witness, but does not intend to call the others.

Snooker rule P is entitled to a copy of that report, but if you take it, you must

show us who you called but don’t intend to use. (we will discuss this more later)

Problems

(other info discussed in class) Rule 26(b)(4)

o b) 5) if a party withholds information otherwise discoverable b/c he claims

the info is privileged or protected, he must tell his adversary at least enough information about the nature of the document he is withholding so the adversary knows whether to give up or to bring a motion to compel you to give the info.

o c)

A party can request protection from discovery Courts prefer parties to work things out themselves Prior to seeking a protective order, a party must in good faith

confer or attempt to confer w/ the other party to try to resolve the discovery dispute w/o the court’s intervention.

(ex. if discovery will cost the party that needs to give the info too much, the requesting party may require the discovering party to pay for some of the cost of production)

o d) Prevents parties from petty bickering: “I won’t give you my info until you give me yours…”

o e) (you may disclose info to the other party, but then learn that the disclosure was incorrect.)

It must correct the information in a timely mannero f) pretrial conference required so parties can plan how discovery will work.o g) every discovery request and disclosure must be signed by a party (makes sure

you’re acting in good faith) A mini affidavit saying that you acted in good faith. If it turns out you

weren’t acting in good faith, court can punish you. Rule 29

o Permits the parties to agree to conduct discovery outside the rules **Should be in writing (so the other party can’t say, “I never agreed to

that”) (ex. parties may agree to more than 10 deposition)

B) Discovery Devices 1) Depositions (EE)

o Rule 30 Applies equally to parties and nonparties Limited to 10 depositions (subject to increase)

(You cannot discover your adversary to death) If you need more, you can make a Rule 29 stipulation with your

adversary to allow more. If he does not allow more, you can get a court order.

Time limit of 1 day 7 hours for each depositiono Depositions are hearsay and inadmissible because the statements are not in court

under oath Exception. If the statements were under oath and the other party had the

opportunity to cross-examine the deponent, the deposition is admissible. (ex. If a witness is unavailable to testify in court)

o Only type of discovery you can get against a nonparty is deposition (in general)

o Alexander v. F.B.I. (p. 496)

Class: when you depose an individual, it is simple (the party must show up). When you depose an organization, it is different.

Individualso Witnesses (nonparties) are not before the court (probably

need a subpoena to require them to show up)o Parties are before the court and do not require a subpoena

Entitieso You may not be sure who in the organization has the

informationo It is up to the entity to choose who to send. They determine

who has the knowledge. That party will speak on behalf of the entity.

Case: Court: the individual selected by the organization was sufficient. He was chosen in good faith and had sufficient knowledge to be satisfactorily deposed.

o Notes and Questions 1) Notice about deposition

A party must give reasonable written notice about the deposition to the deponent

A witness (non-party) is not required to travel more than 100 miles to be deposed (a Rule 45 subpoena won’t work)

o You may get a court in that witness’s area to order them to show up for a local deposition.

2) Methods for recording deposition Audio, audiovisual, stenographic Party taking the deposition must pay for it Party taking the deposition may request that the deponent bring

documents to the deposition 3) Deposing an organization

Specify the area of inquiry with particularity without naming a specific person. The organization is then responsible for designating a representative to appear.

4) What happens? Formalities at start: name, address… Most objections are reserved until the deposition testimony is

offered in evidence at trial. An attorney can instruct a witness not to answer only to

o 1) claim a privilegeo 2 & 3 (don’t seem important)

Otherwise, he must answer. 5) After deposition

Deponent has opportunity to review and correct a deposition transcript (in a timely manner).

6) Pre-filing discovery

If testimony is needed before a lawsuit is filed (maybe the deponent is old and is expected to die soon), 27(a) may allow it.

(end 2/14/11 through p. 503)

2/16/11

2) Interrogatorieso O’Connor v. Boeing North American, Inc. (p. 503)

Rule 33(d) (Option to produce business records) In response to an interrogatory, the answering party may open their

business records for the requesting party to examine (when it does not want to expend the resources necessary to find the info sought by the requesting party) (“here, come on down and see them”)

o However, wholesale dumping of all your documents on the requesting party is not allowed.

o If there is a ton of info, the answering party must organize it so the requesting party can find things.

Electronic documents Simple storage on a data device (ex. CD) is preferred.

A party is not allowed to game the system by giving his attorney discoverable documents in an attempt to make them undiscoverable via attorney/client privilege or work product protection.

If, after disclosing information, you learn more or get smarter, you must disclose the additional matter quickly.

It is important that the parties take care of discovery matters. The court does not have time to deal with discovery regularly. (parties must cooperate)

o Notes and Questions Interrogatories limited to 25 questions

But parties can stipulate through their conference or rule 29 to get more.

(terminology: each question is called an interrogatory; therefore, it is proper to say that 25 interrogatories are allowed to be sent.

You only have 30 days to respond to interrogatories Ultimately, it is the party’s (client) job to complete and respond.

However, the party’s counsel is usually very involved in drafting answers.

If you can’t do it w/ in 30 days, call the other side and ask for a rule 29 stipulation to get more time. If they agree, follow it up with a letter so you have proof.

--------------------------------------------------------------------------------------------- 3) Request for productions of documents

o Playboy Enterprises, Inc. v. Welles (p. 510)

Facts: P Playboy sued D (a former Playmate of the Year) because D used Playboy trademarks on her own website.

P requested production of documents D claims her business will suffer due to the 8 hour shutdown required to

recover information from her hard drive. D also claims that recovered e-mails between her and her attorneys are privileged.

Court: the court will appoint a computer expert who will go over the files w/ D’s attorney to decide what material is privileged or private. Then, D’s lawyer must disclose all requested documents by P. P will pay for the services of the specialist.

Playboy wanted to discover deleted emails Tax returns are discoverable

However, some material on the tax return is not discoverable. Here, judge will decide what parts are relevant and discoverable

o Notes and Questions Parties can request inspection of documents only from other parties under

34(a); however, 34(c) allows a party to compel a nonparty to divulge documents via subpoena (duces tecum)

When the requesting party asks for documents, he should define what he means by document (usually very broad definition…photos, electronic documents, tapes…)

A court may order a party not to delete computer documents (ex. some companies purge deleted emails after 3 weeks)

Request for admissionso Rule 36o Asea, Inc. v. Southern Pac. Transp. Co. (p. 516)

Facts: P distributer sued D railroad company for damaging its cargo (P had installed an impact recorder to measure the impact during transportation for this reason)

The parties engaged in extensive discovery for over one year. After this, P served a series of requests for admissions on D (all seemed to be reasonable requests

The D answered, “Cannot admit or deny. Investigation continues.” The trial court considered the non-answers as admissions. If a party fails

to admit or deny information that is known or readily obtainable, a court may consider it an admission.

(if a party acts in bad faith by not answering a request, the court may consider it an admission)

Physical and mental examinationso Rule 35o If P wants damages for psychological and physical damages, the adversary should

be permitted to discovery.o Ali v. Wang Laboratories, Inc. (p. 521)

The court granted D’s motion to compel physical and mental examinations of P.

The court was very specific about what type of exam is allowed.o Snooker provision

Rule 35(b) P (injured party) may request the medical report from D; however, if P

does, P must give up all the medical reports that they have gotten on their own (some of which may be harmful to P’s case (say that P is not badly injured)).

(moral: if you are a P and have experts you don’t want the other side to know about, don’t ask for the report)

Random Both motions to compel and motions to protect require both parties to try to work it out

between themselves.

(end 2/16/11 through p. 525)

2/23/11

C) Discovery Sanctions

Rule 37 (Sanctions)o 37 and 26(c) are mirror images

You have to certify that you tried to work out the problem w/o the court. 26(c) involves protection (avoiding discovery) 37 involves compelling discovery

o 37 2 step process

Motion to compel discoveryo If granted, individual is under a court ordero If they refuse to obey, they can be held in contempt (or be

liable for monetary sanctions) If the party does not respond adequately

o Immediate sanction Rule 35 physical or mental exam

If the court grants the motion, and the party refuses, the court can immediately move to sanction

The refusal to show up for a deposition (under subpoena) may result in immediate sanction

Whoever loses the motion to compel discovery may be stuck w/ attorney feels and other costs.

Lee v. Walters (p. 525)o 37

d) the court can impose sanctions against a party who fails:

o 1) to attend a duly noticed depositiono 2) to serve answers or objections to interrogatories properly

submitted under Rule 33o 3) to serve a written response to a request for inspection

properly submitted under Rule 34. The burden is on the party being sanction to prove he had a good

excuse for failing to do these things. Here, D violated 2 parts of 37(d)

o Failed to depositionso Despite repeated requests, Ds still have not submitted a

written response to P’s request to produce documents. A party may be sanctioned if it belatedly complies w/ the

discovery order. D’s only excuse was that Mr. Barnes (lawyer) was busy.

The decision to impose sanctions is left to the court’s discretion. In fixing the amount of the sanctions, the court may consider a party’s entire course of conduct during the proceedings.

Criteria for how a court decides what sanctions to impose (whether to dismiss the entire action…)

1) the public’s interest in expeditious resolution of litigation 2) the court’s need to manage its dockets 3) the risk of prejudice to the party seeking sanctions 4) the public policy favoring disposition of cases on their merits 5) the availability of less drastic sanctions Other considerations 1) whether the noncomplying party acted in good faith 2) the amount of prejudice its noncompliance caused its adversary 3) the need for deterrence of the particular sort of noncompliance 4) the effectiveness of less drastic sanctions.

Chapter 9 (Jury Trial)

Intro The jury has served as a populist check on government, offsetting the power of the

wealthier and elitist judges. The use of juries in civil cases has been decreasing in other Anglo-American legal

systems (the U.S. is the exception)

A) The Constitutional Right to a Jury Trial in Civil Cases

o 7th Amendment [In suits at common law, where the value in controversy exceeds

$20, the right of trial by jury shall be preserved, and no fact tried

by a jury shall be otherwise reexamined in any court except when common law rules say otherwise]

o Actions under law allow a juryo Actions under equity don’t allow a jury

Today, this is one of the only differences between actions at law and actions at equity.

Only applies to cases being tried in federal court. It is not imposed on the states; however, most states have their own constitutional provisions or statutes that give parties the right to a jury trial.

Attempt to analogize the new thing to something back in 1791 (hint: look at the type of relief is being sought) (damages – jury… injunction/extraordinary – no jury)

1) Applying the 7th Amendment: A historical analysiso Historically,

If remedy is under law (you seek compensatory damages) A jury is used

o Exceptions (the following specific remedies are also under law)

Ejectment (removing someone wrongfully occupying land)

Replevin (return of personal property to the rightful owner)

If an equitable remedy was sought (remedy at law was inadequate/nonexistent)

A jury is not used (judge decides)o Examples

*injunction Specific performance Profits from D’s wrongdoing Restitution Rescission of a K Reformation of a K

o Exceptions (cases where equity can award damages) Equity clean-up doctrine

In addition to awarding an injunction, the court may also award compensatory damages for the period of noncompliance before the injunction.

Problems (p. 588) We answered in class (answers written in book)

o Today, there is only one form of action, the civil action 2) Problems in applying the historical approach to a modern procedural system

o a) Statutory Claims City of Monterey v. Del Monte Dunes (1999) (p. 590)

To determine whether the right to a jury trial exists under the 7th Amendment, one must analyze history to determine if it should be tried at law.

o Would the case have been tried under law at the time of the 7th Amendment? If such a case did not exist 200 years ago, is the case at all similar/analogous to something from that time? If an analogous case was tried at law back then, the case at hand should be allowed to have a jury.

o If the cause of action “sounds in tort,” there exists the right to a jury trial under the 7th A.

o Court: this suit is an action at law b/c it sounds in tort. Were the particular issues, or analogous ones, decided by a judge

or jury at the time of the 7th A?o Actions at law are usually decided by a jury.

Notes and questions 8) The court considers whether the use of a jury trial is proper. It

is more likely to be proper if there is a history of having a jury decide analogous questions.

Ex. P sued D for damages for patent infringement. To recover, P had to show that D made something that fell w/in P’s rights under the patent. SC held that jury could determine damages, but a judge would determine the scope of the P’s patent rights (reason: In 1791, there was nothing analogous to the modern process of patent cases. That lack of historical tradition, coupled w/ the complexities of patent law, led the Court to conclude that it would not be proper for the jury to decide the scope of the patent.)

o Jury determines damages amount, but the judge determines the scope of the patent.

o b) Problems arising from the merger of law and equity. In the 1790s, while the federal system and many states did not

separate courts of Law and Equity, legal and equitable claims must be presented in separate cases. Even if a person’s legal and equitable claims arose from the same event, they had to be tried in different proceedings (one w/ a jury and one w/o).

Today, most systems have merged (1938) Law and Equity and allow legal and equitable cases to be tried together.

Marseilles Hydro Power v. Marseilles Land and Water (2002) (p. 600) Court: The TC blew it. The TC should have allowed D’s request

for a jury trial b/c D demanded a jury w/in 10 days of the last pleading.

Notes and questions 3) Beacon Theatres case

o Prior to this case (1959), a court would attempt to determine whether the case, as a whole, was essentially legal or equitable, and would either grant or deny a jury for the entire case accordingly. The Court rejects this all or

nothing approach, and instead requires the court to divide the case into its various claims. Therefore, a jury will decide all issues relating to the legal claims, while the judge will decide the equitable issues. This works well except when the legal and equitable claims share factual issues. When this happens, the court will be bound by the jury’s finding of fact.

(ex. in a contract action that contains both legal and equitable claims, if the jury finds that a K never existed, the judge must accept that finding and will be unable to enforce any equitable remedy under the K)

5) In declaratory judgment actions, the court considers the future case when determining law or equity.

7) Rule 39(c) allows a federal court to use an “advisory jury” to decide claims that cannot be tried as of right to a jury. The jury’s findings on equitable issues are merely recommendations that the judge can accept or reject as he sees fit.

Rule 38o a) the 7th Amendment right to a jury is not imposed upon states (however, most

states have constitutions or statutes that require jury trials)o b) a party may demand a jury trial if a jury trial is allowed for such a case (legal,

not equitable). A party must demand a jury trial within 14 days after the last pleading is

served. (in criminal cases, if D wants to waive his right to a jury trial, the court

will make absolutely sure that he knowingly waived this right. In civil trials, waiving the right to a jury is easy. A party simply doesn’t do anything. To get a jury, he must demand it)

o d) if a party demands a jury, but then changes its mind. It must get approval from the other party before it can waive the jury.

Rule 39o c) for actions where parties do not have the right to a jury, the court (on its own,

or by motion), may empanel an advisory jury. (the jury’s findings are merely recommendations)

(end 2/23/11 through p. 604)(read rule 48 & 49)

2/28/11

o c) The effect of the Federal Rules on Historically Equitable Claims Ross v. Bernhard (1970) (p. 604)

Ps broght a shareholders derivatives suit (a shareholder demands a corporation to go after board members. If the corporation refuses, the shareholders can bring the suit)

o Historically, a party who needed to use discovery, or who wanted to file the case as a class action or interpleader case, could only find relief in equity b/c those procedures were not available in Law.

o The Federal Rules, however, borrowed many of the more useful features of Equity practice and made them available in all cases.

Actions are no longer brought as actions at law or suits in equity. Under the Rules of Civil Procedure, there is only one action – a “civil action” – in which all claims may be joined and all remedies are available. Purely procedural impediments to the presentation of any issue by any party, based on the difference between law and equity, were destroyed.

Court: a jury will be available in a class action asserting a legal claim, even though class actions were traditionally available only in Equity.

o It is no longer necessary to distinguish between equitable and legal procedural devices b/c the Federal Rules make those procedural devices available in all types of cases.

Dairy Queen Inc. v. Wood (1962) (In text case, p. 606) P (owner of Dairy Queen trademark) sued some Dairy Queen

stores for using the trademark “Dairy Queen.” (the stores had permission, but stopped paying royalties). P sought 2 injunctions and an accounting to determine how much revenue the stores had earned as a result of breaching the contract (using the DQ name)

Although all 3 of P’s claims were on their face equitable, DQ demanded a jury. TC denied the jury request. DQ brought a writ of mandamus against the TC judge. COA denied the writ. DQ appealed to SC. SC held that a jury should have been empanelled to hear the accounting claim

o I think this is because the accounting of revenue would then be used to calculate monetary damages (a remedy at law)

o Now that a jury is involved for 1 of the claims, the judge is bound by the jury’s findings when he rules on the 2 remaining equitable claims.

o d) Public Rights Intro

The 7th A does not require a jury in a case brought against the US or a federal official. Such actions are not considered “suits at common law” because of the historic principle of sovereign immunity.

o The ability to sue the US is not a right, it is a privilege granted by the US when it wants to (via statute)

When a person sues the US or a federal official today, the case will be tried by a jury only if the statute creating the claim also provides for jury trials.

o Similarly, a suit against a foreign government or official does not qualify for a jury under the 7th A.

Atlas Roofing v. Occupational Safety (1977) (In text case, p. 610)o OSHA fined D for violating a code. D challenged the fine,

but the commission did not use a jury. D appealed to the OSHA commission because it did not use a jury.

o D wanted the case to be heard by a jury (had it been tried in federal court, D would be entitled to a jury).

o Court: Where “public rights” are being litigated (when Government sues in its sovereign capacity to enforce public rights created by statutes) the 7th A does not prohibit Congress from assigning the fact-finding function and adjudication to an administrative forum without a jury (not a court w/ a jury).

Granfinanceria, S.A. v. Nordberg (1989) (p. 611) A company filed for bankruptcy. It was suspected that the

company fraudulently conveyed assets to D Granfinanciera (bankrupt company liked D more than his other creditors and reimbursed D and left nothing to reimburse other creditors).

P Nordberg (bankruptcy trustee: an official in charge of overseeing the bankruptcy to make sure creditors receive a fair amount)

Since we have joined law and equity, under the combined system, the court looks at the underlying claim (the nature of the claim) to see if a jury will be used.

Bankruptcy judges are not Article 3 judges (not appointed for life). Therefore, no jury is used before a bankruptcy judge.

o D is mad that a jury is not used The only time a jury is not available for causes of action under law

is when “public rights” are involved.o Other claims (tort, contract, property…) all still decided w/

a jury. Court: held for D. the 7th A entitles Ds to a jury.

Notes and Questions The issue in the past 2 cases: The extent to which Congress may

assign adjudication of cases to tribunals that do not have the same protections (life appointments…).

Even if Congress may assign a particular dispute to an agency, it is not clear that an agency has the authority to conduct a jury trial. If it does not, Congress would have to assign the case in which a jury trial is required to a normal Article 3 court.

3) The Reexamination Clauseo Intro

7th A “no fact tried by a jury, shall be otherwise reexamined in any Court

of the US, than according to the rules of the common law”o This Reexamination clause prevents judges from

undercutting the right to a jury trial by letting the jury decide the case, but then overturning the jury verdict.

o At common law, judges have some (but limited) authority to take a case away from the jury (as long as the providence of the jury is not invaded)

Court may order a dismissal However, the reasons are not based on the

merits of the case. (ex. lack of subject matter jurisdiction)

Motion for summary judgment (when there is no issue of material fact) (nothing for the jury to decide)

A judge may grant a new trial if the jury’s verdict was against the great weight of evidence.

o Problems

B) Demanding a Jury Trial

o Rule 38 (Right to a Jury Trial; Demand) Read in class (short)

o Rule 39 (Trial by Jury of by the Court) Read in class

Marseilles Hydro Power v. Marseilles Land and Water Company (2002) (p. 619)o Already did this case (p. 600)o The trial court blew it. It should have granted the demand for a jury because the

request was made w/in 14 days of the last pleading Notes and Questions

o 6) In cases filed in state court, the rules governing availability of and demand for a jury may differ significantly. What happens when a case is removed from state to federal court? A party has at least 14 days following removal to demand a jury.

C) Selecting a group of prospective jurors

Rule 47 (Selecting Jurors) (Voir dire)o juror candidates may be unfit (due to relation to a party involved, or some other

bias) a) Examining Jurors: the court may permit the parties or their attorneys to

examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.

b) “Peremptory challenges”

3 per side (challenge may be based on anything (except race/gender))

c) Excusing a Juror: “During trial or deliberation, the court may excuse a juror for good cause”

good cause = sudden illness, learning about the case on the news… Challenge for cause (a request that a prospective juror be dismissed

because there is a specific and forceful reason to believe the person cannot be fair…). If the court agrees, the court will excuse the juror. (unlimited number available to the parties)

Introo In federal courts, the Jury Selection and Service Act of 1968 provides a uniform

method for selecting jurors in federal civil cases.o Any US citizen who is 18+, who has resided one year w/in the judicial district,

and is able to read, write, speak, and understand English is qualified unless he is incapable (mental/physical infirmity or has been convicted/charged w/ a felony and civil rights have not yet been restored)

Floyd v. Garrison (1993) (p. 622)o P Floyd, a black woman, brought this civil rights action alleging a white police

officer used unreasonable force when he shot a relative of hers.o She challenged the array (challenged the entire jury pool) b/c only one of the 40

prospective jurors was black. She based the challenge on 2 things: 1) the Jury Selection and Service Act of 1968 and 2) the Fifth Amendment.

1) The Act requires that jury pools be chosen at random from a fair cross section of the community. P must prove 3 elements to demonstrate a violation of the Act:

P fails to prove the third element: that the underrepresentation of blacks in the jury pool is the result of systematic exclusion of blacks in the jury selection process.

2) To prove a violation of the 5th A, P must prove 3 elements. P fails to prove the third element that there was a discriminatory

purpose in the jury selection process.o This case illustrates how difficult it is to challenge the jury array

Rule 48o a) Number of Jurors

Between 6-12 (must begin w/ at least 6) The court may empanel extras in case others are excused (Interesting thought: It may be harder to convince a jury of 12 to

be unanimous)o b) Verdict

the verdict must be unanimous, returned by a jury of at least 6 (some states don’t require unanimity)

o c) Polling After a verdict is returned, but before the jury is discharged, the court

must, on a party’s request, or may on its own, poll the jurors individually

(To see if the poll reveals a lack of unanimity. One of the jurors may have been reluctant to agree to the verdict. If so, they must deliberate further)

D) Challenging Individual Prospective Jurors

Introo Under Rule 47(a), the trial court has broad discretion to conduct the examination

of prospective jurors or to permit the parties to ask questions. If the court conducts the voir dire exclusively, the parties may submit proposed questions, which the court may ask if it deems the questions to be proper.

o Goal of voir dire: to find jurors who are blank slateso The test is not whether a juror agrees w/ the law when it is presented; it is

whether, after having heard all the evidence, he can adjust his views to the requirements of the law and render a fair and impartial verdict.

Thompson v. Altheimer & Gray (2001) (p. 627)o An employee sues employer accusing it of racial discrimination

P loses and argues to COA that one of the jurors should have been excused COA agrees

One of the jurors had said she was an owner of a business and, as an employer, her judgment may be swayed. After more questioning, she said she brings a lot of background to the case, but will try to be as fair as she can.

Court: the TC judge should have inquired further after these responses. The judge should have pushed harder to determine of the juror could relinquish her prior beliefs.

The court cites Martinez-Salazar. There, in a similar circumstance, the judge had erred in not allowing the challenge for cause.

o When a prospective juror manifests a prior belief that is both material and contestable, it is the judge’s duty to determine whether the juror is capable of suspending that belief for the duration of the trial.

Notes and Questionso 2) “Challenge for cause” refers to both a juror who fails to meet one or more of

the statutory qualifications for jury duty as well as a juror who is biased as between the parties or as to the substance of the dispute. Challenges for cause are determined by the trial judge who exercises considerable discretion in ruling on such challenges. The challenger has the burden of persuading the judge that the prospective juror is not impartial.

There is no limit to the number of jurors who may be struck for cause.o 5) If a juror gives false information during voir dire, a trial court has the discretion

to decide whether a post-verdict hearing is necessary to determine juror bias or whether such bias is to be inferred. It must be proved both that the juror failed to answer honestly a material question on voir dire, and that a correct answer would have provided a valid basis for a challenge for cause.

Exerciseo 1) Knowledge and opinions

Ordinarily, the court will ask prospective jurors whether they have any prior knowledge or opinions about the case.

o 2) Relationships and Associations Normally, the court will identify the parties and will ask the prospective

jurors whether they are related by blood or marriage to either of them. The court usually identifies counsel for the parties at the same time and inquires whether the jurors have had any prior associations with counsel.

o 3) Attitudes and Prejudices Jurors who know nothing about the case or the persons involved in it may

nevertheless have fixed attitudes or strong prejudices which would seriously affect their ability to render a fair and impartial verdict. Courts generally permit the exploration of attitudes and prejudices which bear some reasonable relationship to the issues to be decided by the jury.

o 4) The Juror’s Background In addition to matters specifically related to the case to be tried, the

prospective jurors may have various items in their backgrounds which could have some bearing on their decision in the case.

It is relevant to establish whether a person has sat as a juror in a similar case. However, should the juror’s deliberative process be explored? Even an inquiry into the verdict in an earlier case may be misleading. A juror who held out for a verdict in a previous case may have been waiting for years for a second chance to correct that error. Similarly, one who found someone liable may have had second thoughts about the verdict, resulting in reluctance to return another plaintiff’s verdict.

Can a D game the system by intentionally preserving a biased juror (in hopes of appealing on this basis if the court rules against D) by failing to use his peremptory challenge to remove the biased juror?

o The failure to use a peremptory challenge might be viewed as a self-inflicted error. If so, D will not be allowed to appeal

o However, in dicta, a SC decision suggests that doing this is permitted.

Review Goal: to find a clean slate. If a party believes a juror should be relieved, the party can challenge for cause (must

convince the court that the juror is not a clean slate)o If the court agrees, it will excuse the juror.o Challenges are often made outside the hearing of the jury

Peremptory challengeso Used to be for any reason you wanted (didn’t need a reason)o In 1986, can no longer use peremptory challenge in a racially prejudiced way

(Batson v. Kentucky)o 1994, cannot use them in a gender prejudiced way (J.E.B. v. Alabama)

(end 2/28/11 through p. 637)(finish ch 9)

3/2/11

Alverio v. Sam’s Warehouse Club, Inc. (2001) (p. 637) P female employee filed a sexual harassment suit against her employer. D used peremptory challenges to strike all the potential female jurors. On review of her sexual harassment claim, plaintiff argued that

peremptory challenges were used by defendant to exclude females from the jury panel.

o Under Batson, allegations of discriminatory peremptory challenges are evaluated via a 3-prat mini-hearing

1) the opponent of the strike must make a prima facie showing that the striking party exercised the challenge b/c of a discriminatory reason,

2) the striking party must next proceed to articulate a gender-neutral reason for the challenge, and

3) the court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination.

(overall, the burden lies with the opponent of the strike)o The circuit court found that the trial judge did not err in allowing defendant to

strike female jurors from the pool, since defense counsel had gender-neutral reasons for striking those jurors

(one was unemployed, one had been a plaintiff in a lawsuit, one worked with insurance companies)

o Any neutral reason, no matter how implausible or fantastic, even if it is silly or superstitious, is sufficient to rebut a prima facie case of discrimination.

Therefore, it is very difficult to successfully bring a Batson challenge.o Conc.: Affirmed in favor of D

Exercise (discussed in class) (643)o Jury selection rules differ between states. Some topics that may differ:

Does the judge allow counsel to address the jurors personally? Does the court select extra jurors (alternates)? Do the alternates know

they are alternates? How may peremptory challenges does each side get? Must the jury verdict be unanimous? (or a simple or supermajority) After the verdict is announced, may the jury be polled?

E) Jury Instructions and Jury Verdicts

1) Requesting and Objecting to Jury Instructionso Intro.

Most instructions occur after arguments. Then court will instruct the jury as to the law that the jury is sworn to apply.

How do we get the instructions? There are volumes of standard jury instructions The court will usually determine what the standard jury

instructions will be

Court will determine requests to chargeo Parties may want specific instructions given to the juryo There will be a conference prior to the jury being charged.

Parties will have exchanged their special instructions

Courts will go through the requests to charges and decide if it will instruct the jury as drafted by the parties.

Before the judge gives the instructions You know the instructions the court will give

o You may be mad b/c they will give a bad charge or failed to give a requested charge.

If a party feels aggrieved by the charges given, the parties should put its objections on the record right away (right after the jury has been charged)

“perfecting the record” If you appeal later based on an instruction, you must have

perfected your recordo Rule 51

(read in class)o Jarvis v. Ford Motor Co. (2002) (p. 644)

Facts: P driver sued D Ford for unintended/sudden acceleration. D Ford failed to perfect its record at the correct time.

According to Rule 51(b & c), at the latest, objections to instructions must occur at the conclusion of the charge (the last chance to perfect is right after the jury instructions have been given to the jury).

If a party fails to object at this time, he waives his right. Policy:

A party could “sandbag” (Intentionally plant/ignore a minor error. The party would ignore the error if it wins, but would use it as grounds for an appeal if it loses)

o Notes and Questions 2) Rule 48 states that a verdict must be unanimous; however, in many

states, the minimum number of jurors who must agree to a verdict is less than unanimity. (ex. 9 of 12 or 5 of 6…)

2) Jury Verdictso Rule 49

(read in class) In most jury cases, the court requests that the jury give a general verdict

A single statement reflects the jury’s conclusion about which party wins the case (ex. “We find in favor of the P/D”)

2 other options Special verdict

o The jury returns a special written finding on each issue of fact.

From the special verdict answers, the judge constructs the equivalent of a general verdict.

o The jury answers primarily factual questions for the benefit of the trial court which then applies the law to those answers.

General verdict with interrogatories (answers to written questions about particular issues of the case)

o The jury makes written findings of fact and enters a general verdict.

o After being instructed, the jury answers the interrogatories, renders a general verdict, and the trial court enters judgment on the jury’s verdict

disadvantages the answers may be inconstant w/ each other

and w/ the general verdict In a general verdict, parties don’t know how the jury came up with its

verdict. (ex. Parties don’t know why D won. A party may ask the court for

a general verdict with special interrogatories (this will allow the party to see why the jury found the way it did))

o Lavoie v. Pacific Press & Shear Co. (1992) (p. 649) (not much to learn from this case)

(end 3/3/11 through p. 655)(begin ch 10, read rules 12, 41, 55, 56, 50)

3/14/11

Chapter 10 (Dispositive and Post-Trial Motions)(I have not quoted the Rules, read them from rule book)

A) Dismissalso Rule 41(a)-(b)

Rule 41(a) deals with voluntary dismissals (a plaintiff’s remedy) (ex. If a P decides that, upon further reflection, he does not want his claim to go forward, he may have the case dismissed by the trial court)

Rule 41(b) concerns involuntary dismissals (a defendant’s remedy). The involuntary dismissal may occur as a result of the P’s failure to comply w/ rules (like 12(b)(6)) or a failure to move the case fast enough).

1) Voluntary Dismissalso Marques v. Federal Reserve Bank of Chicago (2002) (p. 657)

41(a)(1) Facts: P brings a bazar claim for billions of dollars. He claims that he

possessed old bearer bonds that the bank issued in 1934. It is clear that P is a wacko with no genuine case.

The P has the absolute right to voluntarily dismiss the suit via 41(a)(1) as long as the D has not yet served an answer or a Motion for Summary Judgment. If P dismisses in time, the dismissal is without prejudice (the P could reinstate the same action at a later time). D may not want P to dismiss the claim

Here, P filed his notice to dismiss on the same day that D filed his 12(b)(6) Motion for Summary Judgment. P seems to be trying to reserve his ability to try the suit again at a later date.

The court determines that “ties” favor the claiming party (P). Conc.: The courts finds in favor of P (P filed his notice to dismiss

“before” the D served his answer to P’s complaint and before P serves a MSJ; therefore, the suit is dismissed w/o prejudice under 41(a)(1))

Notes and Questions Rule 41(a)(1) provides two methods by which a P has an “absolute

right” to dismiss a claim w/o needing the consent of the court.o i) prior to service of an answer or a MSJ, P merely has to

file a notice that informs the court and all parties that he is dismissing the claim.

o ii) A case may be dismissed at any time by a signed agreement of all the parties (presumed to be w/o prejudice unless specified otherwise)

(If you are a D, you may agree to allow P to dismiss as long as P agrees to dismissal w/ prejudice; so P can’t bring the action again)

A plaintiff cannot voluntarily dismiss a class action via Rule 41. Two dismissal rule. The first voluntary dismissal is w/o prejudice

to brining the claim again. However, if the P has already dismissed the claim once before, the second time he brings the claim, it will be dismissed w/ prejudice.

Termo Adjudication on the merits = With prejudice

o Hifin Realty Corp. Pittston Co. (2002) (p. 660) 41(a)(2)

If a P is unsuccessful under 41(a)(1), P must file a motion to obtain the court’s consent to dismiss.

Purpose of requiring a court’s consent: To prevent voluntary dismissals which unfairly affect the opposing party.

A court may allow a P’s dismissal, but attach conditions (ex. court will require P to pay D’s attorney’s fees if D seeks to dismiss without prejudice (could bring the action again), but the court will not impose such fees if P agrees to dismiss with prejudice (so it cannot bring the case again))

o P can decline the dismissal if it doesn’t like the conditions imposed by the court.

What if P seeks voluntary dismissal from the court after the D has already filed a counterclaim?

o The court will only allow P’s action to be dismissed against the wishes of the D if D’s counterclaim can stand on its own two feet

Facts: P wanted to voluntarily dismiss the claim, but D didn’t want to allow them. D wanted P to pay its attorney’s fees for the trouble.

Factors to consider whether a court will allow P to voluntarily dismiss a claim under 41(a)(2)

1) the P’s diligence in bringing the motion 2) any “undue vexatiousness” on the P’s part 3) the extent to which the suit has progressed (including D’s

expenses in preparing for trial) 4) the duplicative expense of re-litigation 5) the adequacy of the P’s explanation for a need to dismiss

Conc.: The court will allow the P to dismiss, but the court will make P pay D’s attorney fees if P wants a dismissal w/o prejudice. If P agrees to a dismissal w/ prejudice, it will impose no attorney fees.

2) Involuntary Dismissals 41(b)

If P takes too long (failure to prosecute) or disobeys a court order, a court may dismiss at the request of D.

Such a dismissal is considered an “adjudication on the merits” (= with prejudice) (cannot bring again)

(if you’re a P and in danger of having your action involuntarily dismissed, you may request that the court dismisses “without prejudice” (so you can retry later) (the court may not do so, but at least you tried).

o Aura Lamd & Lighting Inc. v. International Trading Corp. (2003) (p. 665) Facts: P sued D for breach of K and patent issues. P failed to meet rule

deadlines and deadlines set by the court. Finally, the court got fed up w/ P’s delays.

Conc.: Court dismissed the case for P’s lack of prosecution (proceeding with the case).

B) Default Judgments Intro

o Rule 55(a)-(b) (2 steps) a) Entering a Default

when the requirements are satisfied, an entry of default is made by the court clerk w/o any action by the court.

b) Entering a Default Judgment 1) By the Clerk

o If the amount is certain (or easily calculated) and the defaulting party (D) has not made any appearance in the case, the clerk may enter Default Judgment.

o Only when D has clearly defaulted by showing no interest in participating in the case.

2) By the Courto Catch all if 55(b)(1) doesn’t apply. (ex. if D has filed a

procedural or legal challenge to the complaint that does not address the merits of P’s claim)

o Must be examined by a judge.o If D has shown up at all OR if the amount of damages is

uncertain, you need a judge. c) Default or a Default Judgment may be set aside if the D had good cause

for not answering on time… Provides relief from either an entry of default or a default

judgment. See Rule 60(b) for examples. The trial judge will often require the party in default to show a

meritorious defense to the claim as a prerequisite to vacating the judgment.

o A Defendant may intentionally be in default The amount of damages that P seeks is so small that D doesn’t want to

waste his time If the court that enters default does not have jurisdiction over the D (risky)

KPS & Associates, Inc. v. Designs by FMC, Inc. (2003) (p. 672)o Facts: P sued to collect labor commissions. D did not respond. P requested an

entry of default. The clerk entered the notice of default. Then, P filed a request for the entry of default judgment (copy was served on D). Now D responds and tells the court that his timely answer got lost in the mail.

o TC Judge accuses D of lying and stonewalling. The court denies D’s motion to set aside the entry of default (55(c))

o D appeals on the grounds that he had good cause for not answering and that TC should have set aside the entry of default.

o A court may consider the following factors to determine if it should set aside a default

1) whether the default was willful 2) whether setting it aside would prejudice the adversary 3) whether a meritorious defense is presented (If D has no case anyway,

there is no point to set aside the default) 4) the nature of the D’s explanation for the default 5) the good faith of the parties 6) the amount of money involved 7) the timing of the motion to set aside entry of default

o Here, P lied and his failure to respond was not done in good faith.o Conc.: Affirmed in part for P (TC correctly refused to set aside D’s default;

however, the court should decide what the appropriate default damages should be. TC improperly granted P’s requested damages when they were not certain. TC should not have taken P’s word on the damage amount.)

C) Resolving the case based on the pleadings alone Rule 12(b)(6)…(a defense motion attacking a claim)

o D may raise a motion for failure to state a claim upon which relief can be granted A 12(b)(6) dismissal operates as an adjudication on the merits, preventing

the P from suing again on the same claim. Rule 12(c)…(a judgment motion attacking the pleadings)

o Motion for Judgment on the Pleadings This is a way for the court to decide the case on the pleadings alone, (may

grant judgment to the P for the relief requested) The court looks at all the pleadings. If they, taken together, indicate that

one party should prevail, the court can grant judgment w/o considering the actual evidence.

Rule 12(d)o (I don’t know the significance of talking about this one)

(end 3/14/2011 through p. 682_(begin p. 683)

3/16/11

D) Summary Judgment

Introo Rule 56

(Basically, when there is no issue of material fact. The judge may rule on a matter of law)

Motions for Summary Judgments are usually brought by a defending party (it is less common for a P to bring a MSJ)

It is easier for a D to prove that P is missing one necessary element.

It is harder for a P to prove that he has satisfied every element and that there can be no argument otherwise.

o The device of summary judgment gives a court a limited opportunity to look beyond the pleadings themselves and determine whether a factual dispute that appears in the pleadings is actually supported by evidence.

Celotex Corp. v. Catretto Prior to this case, as long as the party opposing the SJ could direct the court’s

attention to even the smallest evidence, the courts would deny SJ (courts were careful b/c they could be denying a party a jury)

o This case changes this. Now, if there no genuine issue of material fact, there is nothing for a jury

to do, therefore a judge can decide.o Facts

P’s husband died of asbestos Estate sued numerous companies (shotgun suit) Everybody agrees he died from asbestos; the only question was whose

asbestos?

All Ds moved for summary judgment (no evidence that the dead guy was exposed to their product)

Hist.: TC granted all the motions for SJ (now all Ds are off the hook) P appealed (there is a little evidence that P was exposed to Celotex’s

product; therefore it appealed the SJ for Celotex only.) COA reversed in favor of P (SJ for D was improper). Reason: D

failed to correctly support its MSJ at the TC level (D made no effort to provide any evidence (via affidavit) to support its motion)

o However, nothing in the rule (56(c)) says that D needs to file an affidavito Conc.: Reversed for D

Dissent Rule 56 puts the burden on the moving party to make a prima facie

showing that it is entitled to SJ.o If the moving party will bear the burden of persuasion at

trial, that party must support its motion w/ credible evidence.

o If the burden of persuasion is on the nonmoving party, the party moving for SJ may satisfy Rule 56’s burden of production in either of two ways

The moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim.

The moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.

The nonmoving party may defeat a MSJ that asserts that the nonmoving party has no evidence by calling the court’s attention to supporting evidence already in the record that was overlooked or ignored by the moving party.

Here, dissent claims that because D chose to base its motion on the argument that there was no evidence in the record to support P’s claim, D was not free to ignore evidence that the record clearly contained. D was required to attack the adequacy of this evidence. B/c failed to do this, SJ was improper.

o Notes and Questions The burden of proof is made up of three separate burdens (summary

judgment is most concerned w/ the burden of production): Burden of Pleading

o Determines who is responsible for bringing up an issue in his pleadings.

Burden of Productiono Applies after the pleading stage. This burden controls who

bears the onus of offering evidence on a particular issue.

The party w/ the burden must offer enough evidence that a reasonable jury could find for that party.

o In the past, courts applied the scintilla standard. However, cases like Celotex indicate that more is required to defeat summary judgment.

Burden of Persuasiono Only applies in cases that reach trial. It is the standard that

the jury considers when deciding the case. A presumption shifts the burden of production to the other side.

(If P sues D and P wants to prove he sent D a letter. You can infer that if P sent it, D got it. Now, D has the burden to prove he did not receive the letter)

Celotex makes it clear that the party moving for SJ has an initial burden of showing that the “no genuine issue of material fact” standard of Rule 56 is satisfied.

(end 3/16/11 through p. 695)(read rule 50)

3/21/11 (My notes from this day aren’t very easy to understand. It was a confusing class)

Jorgensen v. Epic/Sony Recordso Involves an artist (P) who sues two music publishers for copyright infringement (a

couple songs that had become popular were similar to P’s). Both Ds move for summary judgment and it was granted. Issue: Was the TC correct in granting SJ for both Ds? (Yes for one, no for

the other)o Presumption

(ex. If A proves he mailed a letter to B. Circumstantial evidence suggests that B received the mail (inference). The court may presume that the letter was received.)

(ex. as long as a child was born during a marriage or w/in 9 months of the marriage, a child is presumed to be from the husband.)

Shifts the burden on the adverse party. Burden of production is now on the adverse party

Adverse party may attack the basic facts (no, child was born after 9 months after the divorce).

Adverse party may attack the presumed fact (the alleged father may give DNA evidence or prove that he was away at war…)

o Is it a irrebuttable or rebuttable presumption? If irrebuttable presumption: the evidence is

inadmissible If rebuttable: the adverse party may attack the basic

and presumed facts.o Copyright law background

The mere fact that a something looks like a copyright, is not enough.

To prevail, P must show the wrongful conduct of the songwriters.o Copyright presumption

If songwriter had access to P’s work and the work of the D has sufficient similarity to P’s work, then there is a presumption of copying.

D can attack basic facts (access and similarity) and presumed fact (I didn’t copy the song).

o Publisher A Moved for SJ. P claimed he said he sent songs to D, but D had had no contact w/ the

songwriters Therefore, there was no access (a necessary element) Therefore, TC was correct in granting SJ

o Publisher B Evidence of access was the same (P sent songs to D). D sent the song to

somebody else. That department did work closely w/ the songwriters. Therefore, the COA said the TC moved too far. There was enough

evidence to suggest an inference that songwriters had access. Reversed SJ. The court needs more discovery to see if the inference is

supported.o For a case to go to the jury, there must be evidence sufficient to sustain a finding.

Notes and Questionso Difference between presumption and inference.

A presumption switches the burden of production. If a court allows an inference, there is no change in the burden. Allowing

the inference only means that the issue goes to the jury. Problems

o 1) It is 12c b/c it can be decided strictly on the pleadings (D got the law wrong).o 2) We are looking at the fact of who owns the property. This is outside the

pleadings. MSJ is appropriateo 3) Not 12b6 (not attacking a claim). 12c is appropriate (just look at the pleadings.

This requires writing under SoF)

E) Judgment as a Matter of Law (p. 704) Intro

o Rule 50 If a case survives SJ and makes it to trial, each party is entitled to

present evidence to the fact finder. If the evidence presented makes it clear that one side will prevail, a

party may move for “judgment as a matter of law.” A court will grant the motion if a reasonable jury would not have a legally sufficient evidentiary basis to find for the opposing party.

A court may grant the motion either before the case is submitted to the jury, or after the jury returns w/ a verdict.

o Old language for pre-jury decision = Directed Verdicto Old language for post-jury verdict decision = NJOV

(judgment notwithstanding the verdict).

a) (pre-verdict judgment as a matter of law) If there is not enough evidence sufficient to sustain a finding (similar to summary judgment)

1) (if one of five elements is missing, there is nothing for the jury to decide)

2) D may move at the end of P’s case, or after the entire case is complete, but before it is submitted to the jury.

b) (post-judgment verdict as a matter of law) (judges usually deny 50(a) because the jury will probably find correctly anyway.) However, if the jury blew it, the movant may file a new motion.

Kinserlow v. CMI Corp., Bid-Well Div. P was injured when he fell of the “workbridge” of a machine while

working on an overpass. Issue: Did D actually build the workbridge? History: TC jury held for D (granted D’s motion for judgment as a

matter of law On appeal, the COA Affirmed.

There was not enough evidence sufficient to sustain a finding.o Notes and Questions

Similar to summary judgment, when the party without the burden moves for judgment as matter of law (D moving for judgment on P’s claim), it can prevail by merely shooting down one of P’s necessary elements.

It is possible for the party w/ the burden (usually the P) to win on a motion for judgment as a matter of law, but it is more difficult and less common.

Before a party can file a post-verdict motion for judgment as a matter of law (50(b)), it must first have moved for (and been denied) a pre-verdict judgment as a matter of law.

Reason: To get around the 7th A. If a judge denies a pre-verdict motion, Rule 50 states that the denial is considered to be a decision to delay the ruling. Then, if the party again reasserts its motion after the jury verdict, the judge can then make a delayed ruling.

Problems

(end 3/21/11 through p. 714)(begin p. 714)

4/4/11

F) New Trial Rule 59

o a) 1) A court may grant a new trial on all or some of the issues:

A) after a jury trial, for any reason that a past court has granted a new trial.

B) after a nonjury trial, for any reason that a past court has granted a rehearing.

2)

o b) Motion must be brought w/in 28 days after the entry of judgmento d) the court, on its own, may order a new trial (without needing a party to file a

motion) (ex. if a judge thinks an damage award is too low) Michigan courts give specific examples of grounds for a new trial

o Irregularity in proceedings of court, jury or prevailing party (court messed up)o Misconduct of the juryo Excessive or inadequate damages influenced by passion/prejudiceo Verdict is against the great weight of the evidence or contrary to law.o Material evidence has been newly discovered and it was unavailable earlier.

Introo Courts have the authority and duty to order a new trial when it is necessary to

prevent injusticeo Typical grounds for granting a new trial include procedural errors at trial that

tainted the jury’s decision making process (ex. improper admission of evidence or improper jury instructions)

o The court may order a new trial if the jury verdict was against the great weight of the evidence.

Piesco v. Koch (1993) (p. 716) Facts: P (public employee) was fired by D employer. P claims she was

fired in retaliation for free speech (she had gone behind her bosses’ backs and had even sworn at them). Still, D lost on its motion for SJ.

The TC jury held for the P and awarded her a ton of money.o After the verdict in favor of P, the trial judge admitted that he would have reached

a different result. However, he believed that, to grant a new trial, the jury’s verdict must be

“egregious” (in light of the evidence). Therefore, he did not grant a new trial.

o Here, the Appellate Court said the TC judge applied the wrong standard. It should have used a standard of “seriously erroneous” (a lower standard)

o Conc.: The TC judge improperly denied D’s request for a new trial (used the wrong standard). Remanded to TC to use the correct standard to see if a new trial is warranted.

Noteso 1) Rule 59(a) allows a party to obtain a new trial on all issues (but also allows a

new trial on some of the issues). It is more common for new trials to be on all the issues.

(an example of when the scope of the new trial may be for only one issue: If a P wins, but doesn’t get awarded as much as he thinks he deserves, he may seek a new trial, but only on the issue of damage amount)

o 3) Remittitur When a trial court determines that a jury award is excessive, it may offer

the verdict-winner a reduction (remittitur) in exchange for the court’s denial of a motion for a new trial.

The court will award the highest amount a reasonable jury would find w/o being excessive

o 4) Additure When a trial court finds that a jury award is inadequate, the court, on a

motion for a new trial, will grant the new trial unless the D will agree to give more money (additure).

It should be the smallest amount a reasonable jury would find. Federal courts do not permit additure (the only option is to grant a new

trial) While federal courts don’t permit additure, many states do.

o 6) Newly discovered evidence Courts have the authority to grant a new trial based on newly discovered

evidence. However, this is uncommon b/c a party must file a motion for new trial w/in 28 days after the original entry of judgment (not much time for new evidence to turn up).

o 8) Often, a party that files a motion for judgment as a matter of law, under Rule 50, will join a motion for a new trial, under Rule 59, at the same time.

This is helpful b/c, if a party appeals a TC’s judgment as a matter of law, the appellate court can also review the TC’s ruling on the new trial motion.

o 9) A party can only appeal a final judgment. An order granting a new trial is not immediately appealable b/c there is no final judgment from which to appeal. The ruling granting the new trial can only be appealed after the new trial.

If a court does not grant a new trial or judgment as a matter of law, now the case is completed and it may be appealed. But if it does grant a motion for new trial, it is not a final judgment.

G) Relief from Judgment Rule 60 (Relief from a judgment or order)

o a) Courts may correct clerical mistakes whenever one is found. (ex. “slip of the pen”)

o b) Grounds for relief from a final judgment, order, or proceeding 1) mistake, inadvertence, surprise, or excusable neglect

(ex. when a D fails to respond to P’s complaint in a timely manner and a court enters default judgment against D. D must have good reason for making the mistake)

o (Tate v. Riverboat Services) 2) newly discovered evidence that was unavailable for the trial

(the evidence must be such that it will likely affect the outcome of the case)

o (Jones v. Lincoln Electric) 3) fraud, misrepresentation, or misconduct by an opposing party

(ex. nondisclosure by a party) 4) the judgment is void

(a judgment is void if the court lacked jurisdiction over the subject matter or over the parties.)

5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable (would not be fair).

o (Horne v. Flores) 6) any other reason that justifies relief.

o c) A rule 60 motion must be made within a reasonable time for motions under 60(b)(1,2, or 3), motions must be made w/in 1 year after

the original entry of judgment (remember, a reasonable time may be less than 1 year. 1 year is simply the max.). There is no time limit under 4 & 5 (however, it must still be reasonable).

Introo Courts rarely allow relief under Rule 60 (final judgments are respected).

However, it is most often used as a device for setting aside default judgments under Rule 55(c).

Tate v. riverboat Services, Inc. (2004) (p. 725) Facts: P sued D for overtime wages. P sought $1M in damages. Because

there were numerous claims and actions existing between the parties, things were confusing. D neglected to file a timely answer to P’s complaint. The court entered default judgment for P.

Now, D filed a motion to vacate the entry of default judgment under Rule 60(b). D claimed he acted w/ excusable negligence.

o To determine if D’s “neglect” is excusable, the court must consider all relevant circumstances

D’s reason for failing to meet deadline Potential impact of D’s neglect on the proceedings The danger of prejudice to P if D’s neglect is excused Whether D acted in good faith.

o Conc.: Under rule 60, the court considered the totality of circumstances and determined that this was excusable neglect. The court granted D’s Motion to Vacate Entry of Default Judgment.

There were many cases going on between the parties (suggests that D simply overlooked the new complaint).

Jones v. Lincoln Elec. Co. (1999) (p. 731) Facts: P sued the makers of welding rods and claimed that he received

neurological injuries from being exposed to the rods. The TC jury held for D. P filed a motion for a new trial and for relief from final judgment

P claimed it had newly discovered evidence that would hurt the credibility of P’s witness.

The TC denied these motions P appeals

o Rule To grant a new trial based on the discovery of new evidence, 5

prerequisites: 1) the evidence was discovered following the trial

2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred.

3) the evidence is not merely cumulative or impeaching 4) the evidence is material 5) the evidence is such that a new trial would probably procure a

new resulto Here, P failed to prove that the newly discovered evidence would change the

outcome of the case.o Conc.: Affirmed for D. (P is not awarded a new trial or relief from final

judgment)

Horne v. Flores (2009) (Supplement case p. 31) (prof said we can’t learn much from this case)

Facts: A group of English-Language-Learner students sued the state of Arizona and its school superintendent. Ps claimed that the state was violating the Equal Educational Opportunities Act b/c it did not fund schools to teach English.

TC held for Ps Ds filed a motion for relief from final judgment for P

Ds claimed that increases in state funding, changes in the management of the school district involved, and passage of the No Child Left Behind Act sufficiently altered the foundations of the district court's original ruling and therefore relief was warranted.

o Court: The lower courts erred in their analysis under Rule 60(b)(5). The TC failed to make up-to-date factual findings. New circumstances exist that suggest that D is no longer in violation of the Act and is taking action to remove language barriers. If this is true, continued enforcement of the TC’s original order is inequitable (unfair) under Rule 60(b)(5).

Notes and Questionso (I implemented the notes into the Rule above)

(end 4/4/11 through p. 738)

4/6/11

Chapter 11 The Effect of a Judgment

A) Enforcing a Judgment Equitable decree (is a court order. Most common = injunction). If the court enters an

order of specific performance (or another equitable remedy) the P does not need to do anything. An equitable order is a direct command to the D to do or refrain from doing something.

If the judgment is for money damages, an adjudication of damages is not an order to the D to pay (all P gets is a declaration) (it simply represents finding by the court that D owes P money.)

o P can enlist the power of the government to help collect the debto 3 main methods

Execution Involves a state official (sheriff) seizing certain property of the D

and selling it at a judicial sale. Garnishment

Similar to execution, but the property being seized is not tangible. Rather, the property is a debt owed to the D.

o Ex. D’s wages, bank accounts… Judgment lien

Gives the judgment victor an interest similar to a mortgage in the property.

o “Suit on a judgment”: If you get a judgment from a Michigan court and the D has all his assets in CA. You need a CA judgment. You have to commence a suit on the judgment in a CA court. P doesn’t need to retry the case.

o If you get a judgment from a federal court in MI, you don’t have to start a suit on the judgment, you simply need to register the MI judgment in the proper CA federal court.

B) Preclusive Effect of a Judgment: An Overview If a question decided in one case is presented again in a later case, the court hearing the

second case will give some deference to the earlier decision (rationale: efficiency and consistency)

o Numerous doctrines Stare Decisis Claim Preclusion (formerly called Res Judicata)

Broader A party may be barred from presenting claims or defenses that

were, or should have been, litigated by that party in an earlier case. Issue Preclusion (formerly called Collateral Estoppel)

Narrower Prevents the re-litigation, not of entire claims, but of particular

issues that were actually decided by the court in the prior case. Deals only w/ issues that may be raised in a subsequent action

o (ex. P sues D for breach of K. D claims he was a minor at the time. D loses on this issue. D is liable to P. Now, P hopes to sue D once again on a different breach of K. If this K was raised later than the first one, D cannot raise the defense that he was a minor).

o Reason we have these 2 doctrines: Judicial efficiency Consistency Provide finality (courts are looking out for each other)

o Federal rules do not deal w/ these two doctrines (they are common law doctrines)

C) Claim Preclusion (Res Judicata) 1) The Basics of Claim Preclusion

o Prevents a party from litigating a claim that was or should have been litigated in a prior case.

Need the same claim the same parties Must be a valid, final judgment on the merits of the claim (not a

dismissal for improper venue or service of process…)o Rodgers v. St. Mary’s Hospital (1992) (p. 743)

P’s wife gave birth and died. P sues the hospital, obstetrician, and radiologist for medical malpractice (he doesn’t know everything about the transaction, so he sues many people). The hospital was granted SJ. The jury held against the obstetrician ($1.2M damages against obstetrician) and held in favor of the radiologist.

The obstetrician appealed and the parties ended up settling for $800k.

P still wants to collect from the hospital, so P brings a second suit against hospital. “You violated a state statute that requires you to maintain x-ray records.”

Issue: Whether the 2 causes of action against the hospital are the same for claim preclusion (res judicata) purposes.

2 Testso Same evidence test

Claim preclusion bars a second suit if the evidence needed to sustain the second suit would have sustained the first, or if the same facts were essential to maintain both actions.

o Transactional approach (Majority) Considers whether both suits arise from the same

transaction, incident, or factual situation (the assertion of different theories of relief still constitutes a single cause of action if a single group of operative facts give rise to the assertion of relief)

Court: we are dealing w/ a separate claim (the first one was for medical malpractice; the second one is for lost evidence). The same evidence will not sustain both verdicts; plus, the facts essential to each suit did not arise from the same transactions or incidents. Therefore, claim preclusion does not apply.

o Notes 5) Splitting

The main goal of claim preclusion is to prevent a P from splitting a single dispute into multiple claims and litigating those claims in two or more cases.

8) Series of Transactions Rule of accumulated breaches

o Ex. B has contracted to pay C every month. B has failed to pay in January and February. If C sues for the missed January payment in March, C may not later sue for February, too (because C should have brought both actions at once). However, C would be able to sue separately for additional payments that came due after it filed its case.

11) A single P may sue 2 Ds for the same injury, but P may only collect once.

2) Precluding Counterclaims, cross-claims, and defenseso Counterclaims

Ex. P sues D on auto accident. D claims 1) he was not negligent, and 2) that it was P’s fault (P owed him damages)

D has a compulsory counterclaim If D fails to file a compulsory counterclaim in the prior case, he is

barred by claim preclusion.o Cross-claims

Cross-claims are optional. A party is free to assert a claim in Case 2 even if he could have asserted it as a cross-claim in Case 1.

Ex. If P1 and P2 sue D in Case 1, P1 is free to sue P2 in a separate case, even though the case arises from the same transaction or occurrence as Case 1.

Claim preclusion only applies if, for example, P2 files a cross-claim against P1 and a compulsory counter claim arises. P1 must file this counterclaim or else it will be barred by claim preclusion.

o Pure defenses A defense is not a claim. Pure defenses are never barred by claim

preclusion. Ex. L sues T for failing to pay rent in Jan. T defends by arguing

that he paid the rent. L wins. Now L sues T for failure to pay Feb. rent. T now defends by arguing that the lease is invalid b/c L lied about the premises. Even though allowing T to prevail on that defense creates a risk of logical inconsistency, T is free to assert the defense in Case 2.

3) Final Judgment on the Meritso A court ruling is not entitled to claim preclusion effect unless it constitutes a final

judgment on the merits.o A judgment is on the merits if it is based on the substance of P’s claim and any

defenses (rather than on a procedural ground). Ex. A dismissal for lack of Subject Matter Jurisdiction, personal

jurisdiction, or venue is not a judgment on the merits. 4) Exceptions to Claim Preclusion

o Under an exception, a party may be able to allege a claim in Case 2 even if it arises from the same transaction as the claim in Case 1.

o Example If the parties agree or the court in Case 1 expressly states that P may sue

again, claim preclusion does not apply.

D) Issue Preclusion (Collateral Estoppel) Intro

o Issue preclusion is narrower in scope than claim preclusion. When claim preclusion does not apply, a party still may be barred from litigating one or more issues involved in a case via issue preclusion.

o When analyzing, treat issue preclusion as a backup to claim preclusion (Analyze under claim preclusion first. If the claim is not precluded, then analyze under issue preclusion)

o Need The 2 cases must involve the same issue Same parties (or parties in privity) The issue must be actually litigated and actually decided in Case 1

(differs from claim preclusion which deals what was raised and what should have been raised)

That issue must be necessary to the judgment rendered in Case 1 Ex. P sues D (contrib. state). D defends 1) not negligent 2) P was

contributorily negligent.o If P loses in a jury trial w/ a general verdict, we may not

know for which reason D won.o Neither issue was necessary to the judgment (one was

necessary). If it was merely dicta, you don’t have issue preclusion.

o Ex. P sues D for breach of K. D defends saying he was a minor at the time he entered the K. D loses (therefore, he was an adult at the time contract 1 was signed). Now, P sues D on a separate K. That K was subsequent in time to the first K. If D attempts to defend based on being a minor, issue preclusion applies.

This defense is no longer available to D. 1) Same Issue

o Williams v. City of Jacksonville Police Dept. (2004) (p. 755) The state court should have granted SJ in favor of Ds due to issue

preclusion. Certain essential elements of P’s claims for false arrest and assault were already raised, litigated, and ruled upon in the US District Court.

2) Actually Litigatedo The issue must actually have been raised and litigated in Case 1.

This differs from claim preclusiono A default judgment or involuntary dismissal will never have issue preclusion

effect, even though they may have a claim preclusion effect. 3) Actually Decided

o When general jury verdicts decide the outcome of a case, the parties are sometimes unsure why the jury ruled the way it did (ex. Did the jury rule for D because of his first defense or his second defense?). Therefore, in later litigation, a court cannot none of the issues from Case 1 can be barred via issue preclusion.

4) Necessary to the Judgment

o If there were two alternative bases for a court’s decision, there is no issue preclusion b/c neither issue was necessary (if it weren’t for one, the other would have evoked the same result).

o Stemler v. Florence (2003) (p. 764) (confusing) Issue preclusion does not apply b/c this particular issue (that she was never

in custody…or that she was ever in custody) was not necessary to the judgment. All that was necessary was whether she was in custody when the accident occurred.

o Notes and Questions If a jury verdict in Case 1 is based on determinations of two issues, either

of which standing independently would be sufficient to support the result, the judgment is not conclusive w/ respect the either issue standing alone (we don’t know which issue the jury used to make their decision). Therefore, neither issue was necessary to the judgment.

Therefore, issue preclusion won’t apply in Case 2 if the same issue or issues are raised (even though we know that one of them has been decided on in Case 1).

(end 4/6/11 through p. 772)

4/11/11

E) Parties affected by claim and issue preclusion

Introo Does claim preclusion or issue preclusion apply when at least one of the parties

has changed? The analysis differs depending on whether the non-party in Case 1 is the

person to be bound by preclusion, or whether that non-party is trying to take advantage of a victory in Case 1.

1) Who is bound by an adverse judgment?o Richards v. Jefferson County (1996) (p. 773)

A group of Ps (private employees in the county) are mad that they are subject to a local tax. They sue the county claiming the tax is unconstitutional.

The D county claims that claim preclusion (res judicata) should apply precluding/barring their action b/c a previous case had already addressed that issue already (in that case, the court held for the county). Therefore, P county claims that the Ps, here, are bound by that previous decision (same facts).

Court: No. (ex. Consider a car that crashes into a bus. 10 people are injured

on the bus. Passenger 1 sues the driver of the car. Depending on that outcome, are the other passengers bound by the decision? No. We all have Due Process of law. No matter the outcome of Passenger 1’s case, there is no claim preclusion (res judicata))

Rule In general, a person is not bound by a judgment where he was not a

designated party (everyone should have his own day in court (Due Process)).

Exception When there is “privity” between a party in case 1 and a party in

case 2, the party in case 2 is bound by the earlier judgment in case 1.

Privity (if privity, claim preclusion (res judicata) applies) Traditional view

o Privity is only recognized when the party in Case 2 is litigating essentially the same legal right as was litigated in Case 1. At a minimum, there must be a legal relationship between the parties (contract or guardianship…). However, not all legal relationships will satisfy the test. Two people are in privity under the traditional approach only if they have mutual or successive interests in the same legal right.

Functional view (modern)o Unlike the traditional view, which asks whether the “same

legal right” is at stake in both cases, the functional view asks if the rights of the non-party were “fully and fairly represented” in Case 1.

o Federal courts have deemed several relationships sufficiently close to justify a finding of “privity” and, therefore, preclusion under claim preclusion (res judicata) (parties in privity are considered identical parties for purposes of claim preclusion (res judicata))

1) a non-party who has succeeded to a party’s interest in property is bound by any prior judgment against the party

(ex. An owner of land sues X for trespass and loses. The owner then sells the land to owner 2. Now, owner 2 sues X for the same trespass. Owner 2 is in privity w/ owner 1 b/c he is a successor in interest. Owner 2 is bound by the earlier litigation)

2) a non-party who controlled the original suit will be bound by the resulting judgment

3) Federal courts will bind a non-party whose interests were represented adequately by a party in the original suit. (similar to class action)

4) where the non-party is so closely aligned w/ the party that the non-party practically represents the party.

5) when there is an express or implied legal relationship by which parties to the first suit are accountable to non-parties who file a subsequent suit w/ identical issues.

2) Who can take advantage of a judgment? (offensive use of issue preclusion/collateral estoppel) Intro

o The Due Process Clause often prevents a winning party (usually a D) from precluding a non-party from later litigating a claim or issue. However, does anything preclude a non-party from taking advantage of a favorable ruling in an earlier case?

o Bus example. If Passenger 1 wins, may Passenger 2 ride on his coattails? Parklane Hosiery Co. Inc. v. Shore (1979) (p. 781)

Shareholders files a derivatives suit against company for alleged fraud. The SEC also sued the company for fraud (there are 2 separate lawsuits). The SEC’s case was decided first.

The SEC won. Court: Yes, there was fraud. Now, the shareholders from the other case want the court to recognize

issue preclusion so that the D company could not claim that there was no fraud.

Bus example. P 1 prevails and the court holds that the car driver was negligent. P 2 might seek issue preclusion (collateral estoppel) (“driver, you lost as to the issue in the other case”). P 2 wants to stop the driver from denying negligence.

o Under the old mutuality rule, P2 could not do thiso Doctrine of mutuality of parties (old rule)

Neither party can use a prior judgment as an estoppel against the other unless both parties were bound by the judgment.

o Modern approach Federal courts have decided not to preclude the use of offensive collateral

estoppel, but grant trial courts broad discretion to determine when it should be applied. In cases where a P could easily have joined in the earlier action or where the application of offensive estoppel would be unfair to a D, a trial judge should not allow the use of offensive collateral estoppel.

When offensive collateral estoppel should not be used:o Subsequent P may take a wait and see attitude (he could

have joined the first lawsuit). If he wins, he can use collateral estoppel, but if he loses, the second P can still sue and try again.

o Ex. A car accident. The first suit is for minor property damage. D will not spend much money to defending a minor suit. P 1 wins $2k. Now, P 2 claims personal injuries. This is a huge suit. D would have defended this much harder.

Moral: Courts may apply offensive collateral estoppel (claim preclusion), just not if it is being abused.

Notes and Questionso 5) Most states (including MI) apply the modern rule established in Parklaneo 6) Non-mutual issue preclusion may not be used against the United States (no

good reason)

F) Applying preclusion across state lines Intro problem

o X contracts to sell siding to Y in Y’s home state of MI. Y felt pressured to buy and regrets his contract. Y refuses to pay X. X sues Y in X’s home state of OH. OH incorrectly applies OH law. The OH court holds for X. Because Y has no assets in OH, X will need a judgment in MI. Is Y precluded from re-litigating the issues in the case in the MI court?

Issue: What happens if Case 1 and Case 2 are in different states?o The “Full Faith and Credit Clause” in C gives a certain degree of preclusive effect

to sister-state judgments.o If you have a legal judgment for a sum certain in state A. State B must give full

faith and credit to that judgment. Once P gets his judgment for a certain amount, the amount is firm However, this is not the case for equitable decisions (judgments may be

changed) (ex. Child support: Low when father is unemployed, but will increase if he gets a job)

Sentinel Acceptance LTD., L.P. v. Hodson Auto Sales & Leasing, Inc. (2001) (p. 788) P prevailed in a CA court (got a legal judgment for a sum certain). P went

to MO (where D’s assets were) to get a MO judgment. D doesn’t want to comply w/ the CA court’s judgment.

o There are only a few recognized exceptions to the long-standing Constitutional requirement of according full faith and credit to judgments of sister states

State X must give full faith and credit to a judgment of State Y unless that judgment is void for lack of jurisdiction over the person or subject matter (or is obtained by fraud).

o When the party litigates the issue of jurisdiction in the initial court proceedings, that court’s determination on the issue, whether right or wrong, is conclusive upon that party and entitled to full faith and credit.

Here, the MO court MUST give full faith and credit to the CA court’s decision b/c the CA court had heard and decided the issue of jurisdiction.

Notes and Questionso 1) Historically, the only way for P to collect D’s assets in State 2 from a judgment

in State 1 was to bring a new action in the courts of State 2. Today, most states have enacted the Uniform Enforcement of Foreign

Judgments Act. Now, the judgment from State 1 can be effective in State 2 w/o needing a new action.

o 9) 28 U.S.C. § 1783 extends the Full Faith and Credit Clause to the federal courts.

Durfee v. Duke (1963) (p. 795) (I don’t understand the purpose of this case)

Background: a quiet title action in property law is a suit that adjudicates the rights of everyone in the world to a given parcel of property. The suit will name everyone who has a known claim to the property. However, the judgment binds everyone, even those parties whose claim or identity is unknown.

o Issue: Is a certain parcel of property in NE or MO? Sometimes, river channels change due to avulsion or accretion

Avulsion = sudden changeo The boundary retains its former division

Accretion = slow changeo The boundary remains in the middle of the river

o Facts Durfee sues Duke saying property is in NE. NE court found that it was in

NE. Duke wants a MO court to determine the property is in MO. The COA in MO holds that DC did not need to give full faith and

credit the NE judgmento Rule

A judgment is entitled to full faith and credit (even as to questions of jurisdiction) when Court 2’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in Court 1.

State 2 can challenge State 1’s jurisdiction unless State 1 has addressed the issue of jurisdiction in its ruling.

Notes and questionso 7) Equitable judgments (not legal judgments) and cases involving child custody

and child support are subject to modification. Therefore, although they are entitled to full faith and credit, State 2 retains the ability to modify the order to reflect changed conditions. (ex. Father gets a higher paying job. Court in State 2 may increase child support w/o violating the full faith and credit of the court in State 1.)

Full faith and credit usually applies to legal judgments, not equitable ones.

G) Doctrines similar to preclusion Two other doctrines (in addition to claim and issue preclusion) establish that what

happens in one case may bind parties in later litigation. Intro problem

P won against D (D claimed P was partly responsible for the crash b/c P did not repair his brakes). Court believed P that there was nothing wrong w/ his brakes.

Now, P wants to sue his mechanic claiming that there WAS something wrong with his brakes.

Is P prevented from arguing two contradictory things?o 1) Law of the Case

While a ruling cannot bind a higher court, it binds the court that rendered it and all lower courts.

A judge may blow it and make a mistake. However, whether right or wrong, the judgment binds the parties until it is appealed.

o 2) Judicial estoppel New Hampshire v. Maine (2001) (p. 801)

NH claimed that the river that runs between the states belongs to NH (NH had previously argued that the boundary was in the middle). Maine claims the border is in the middle of the river.

ME filed a motion to dismiss based on two prior proceedings that fix the boundary in the middle of the river.

Holding Where a party assumes a certain position in a legal proceeding, and

succeeds in maintaining that position, he may not then, simply b/c his interests have changed, assume a contrary position.

Factors to consider (whether to apply judicial estoppel) Party’s later position must be clearly inconsistent w/ its earlier

position. Whether the party succeeded in persuading a court to accept that

party’s earlier position (such that acceptance of the new position would suggest that one of the courts was misled)

o (a party may raise a contradiction position if he failed in raising the first position)

Whether the party seeking to assert an inconsistent position would derive an unfair advantage.

Here, Judicial estoppel applies b/c NH had first convinced the court to adopt the “middle of the river” boundary, but now seeks a contradictory position. NH may not do this (is estopped from making the contradictory claim).

(end 4/11/11 through p. 805)(next class: read 28 USC 1291, 1292(a&b), 1254, 1257, Rule 54(b))

4/13/11 and 4/18/11

Chapter 12 (Appeals) (p. 807)

A) Who may appeal? Intro

o The appealing party is the party that is aggrieved by the final judgment (usually the losing party) (However, the winner may feel aggrieved by the award.)

In Re Des Litigation (1993) (p. 808) P/woman sued many Ds (manufacturers of a drug) in a market share action

(she didn’t know whose drug injured her). One particular D contended that it didn’t have any business in NY and filed a motion for summary judgment.

TC denied D’s motion for SJ b/c the court held that NY’s long arm statute reached the D.

When the trial began, P did not bring any evidence against D (P failed to prosecute) (P decided not to go after D) because P had settled w/ numerous other Ds and didn’t want to bother with the action.

Therefore, the TC dismissed the complaint against D. However, D appealed even though he “won” (D appealed the denial of

summary judgment. D challenged that NY had jurisdiction over it).o Ordinarily, the prevailing party cannot appeal from a district court judgment in its

favor. 2 exceptions

When the prevailing party is aggrieved by the collateral estoppel effect of the TC’s ruling.

o (It appears D didn’t like the TC’s ruling that NY had jurisdiction over it. The judgment may hurt it in other cases in NY)

When the prevailing party can show that it is aggrieved by some aspect of the TC’s judgment.

o Conc.: Ultimately, the court dismissed this appeal under the rule that prevailing parties cannot appeal. This didn’t fall w/in an accepted exception.

B) The timing of an appeal – the “Final Decision” Rule 1) the basic rule

There are many court orders that are not final orders. Courts want to avoid a ping pong match between trial and appellate courts. This is why 1291 and 54(b) exist.

o § 1291 The courts of appeal shall have jurisdiction of appeals from all final

decisions of the district courts of the United States.o A final decision is one which ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment. When the court enters a judgment and cleanses its hands of the case.

o The purpose of § 1291 is to prevent “piecemeal appeals.”o Interlocutory appeal

An appeal of a decision that does not qualify as “final” under § 1291.o In general, you can only appeal a final judgment. Other orders are interlocutory

and not appealable (1291). 54(b) establishes another kind of final order. Interlocutory orders are appealable (but rare…1292).

o Examples Is NOT a final judgment

The grant of a motion for a new trial based on the weight of the evidence

The grant or denial of a motion to certify a case as a class action The denial of a motion to intervene in a case as of right Dismissal of fewer than all claims in a case, regardless of the

reason for dismissal If two cases are consolidated under 42(a), and the court disposes of

all claims in one of the original cases.

Is a final judgment The denial of a motion for a new trial based on a procedural error Dismissal of all claims in a case for lack of subject matter

jurisdiction If after summary judgment is entered against a party on one claim,

that party dismisses all remaining claims. 2) Limitations on and Exceptions to the Rule

o Piecemeal appeals are generally undesirable, but there are situations where allowing immediate appeal of a crucial ruling could be highly beneficial.

A) Federal Rule 54(b) “When an action presents more than on claim for relief (whether a

claim, counterclaim, crossclaim, or third party claim) or when multiple parties are involved, the court MAY direct entry of a final judgment as to one or more (but fewer than all) claims or parties only if the court expressly determines that there is no just reason for delay.

o The trial judge may allow an immediate appeal. B) § 1292(a)

The courts of appeals shall have jurisdiction of appeals from Interlocutory orders of the district courts or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.

o (This allows immediate appeals of orders involving injunctions. Rationale for the exception: An injunction by its very nature changes the status quo ante, and can in some cases cause significant hardship. The exception also applies when injunctive relief is denied)

o Applies to permanent injunctions (granted at the end of a case) and preliminary injunctions (issued at an early stage in the proceedings).

Injunctions are immediately appealable The court considers the probability of success on

the merits.o However, a grant or denial of a temporary restraining order

(TRO) is not appealable b/c TROs have a built in review process.

C) § 1292(b) (rare) [When a district judge makes an order that is not normally

appealable, he may want the order appealed if there could be a difference of opinion as to the matter of law. If an immediate appeal may expedite the process, he may allow the order to be appealed. The CoA has discretion to hear such an appeal.]

o The trial judge may allow an immediate appeal.o You must ask the CoA to permit the appeal.

Double discretion

o The trial judge must allow the appealo The CoA must agree to hear the appeal.

E) Mandamus and Prohibition If none of the above situations work for you, there is one more

optiono You can sue the trial judge (if he is nuts)o Petition for a writ of mandamus. Or a writ of prohibition.

This is not an appeal, it is a new lawsuit. F) The Collateral Order Doctrine

The collateral order doctrine relaxes the strict standard of finality by permitting the court to entertain appeals from certain orders that would not otherwise be appealable final decisions.

The order sought to be appealed must:o 1) conclusively determine the disputed questiono 2) resolve an important issue completely separate from the

merits of the action, ando 3) be effectively unreviewable on appeal from a final

judgment. It is a court developed doctrine If the doctrine applies, it becomes a final order under 1291

o This permits what would otherwise be interlocutory to become final

C) Scope of Appellate Review Intro

o 2 main issues arise in appellate review. 1) The appellate court cannot necessarily review all issues that were

adjudicated by the TC. For many issues, appellate review is possible only if the appealing party raised the issue at trial.

2) Even when an issue was properly raised below, the CoA usually does not try the issue anew. Instead, the CoA will give a certain degree of deference to the TC’s decision.

1) Need to raise the issue belowo CoA will generally not hear arguments that did not form part of the TC’s decisiono Exceptions:

Subject matter jurisdiction In federal court, a party can raise SMJ at any time, even for the

first time on appeal. A prevailing party may ask the CoA to affirm on ANY ground, even if the

TC did not rely on that ground as a basis for its judgmento Contemporaneous Objection Rule

To preserve the right to appeal based on a supposed error that occurred at trial, the aggrieved party must object to the error in timely fashion.

Exceptions 1) there are limits on the requirement that a recurring objection

must be repeated.

2) if the trial judge makes a “clear error,” the party need not object at all. An error will be deemed clear only if it is so manifestly incorrect that it leads one to believe that the judge has a basic bias against the party.

o (aka the “malpractice rule.” If an attorney fails to object to something obvious)

o To proceed to an appeal, you must perfect the record at the trial level There is never a perfect trial record Even if you perfect the record, you will only be reversed on appeal if the

error affects a substantial right of the party. You must convince the court that there was an error and that the error was

substantial. (ex. If P needs to establish 5 elements and element #5 was

objected to as hearsay, but the evidence was let in and P wins. D may appeal if CoA agrees that the evidence is substantial. However, if there was a ton of evidence for element #5. Allowing it would not affect a substantial right of a party)

2) The Standard of Reviewo The amount of deference varied depending on the nature of the particular issue

being reviewed.o The standard of review turns on whether the issue is one of fact, law, or

something committed to the TC’s discretion Findings of fact

CoA gives a great deal of deference (assumes TC was correct unless it is clearly demonstrated otherwise). This is the “clearly erroneous standard” (Rule 52(a))

Questions of law CoA gives no deference. This is the “de novo” standard of review.

CoA can reverse merely if it disagrees w/ TC. Issues left to the discretion of the trial judge.

(ex. the decision whether to grant a new trial) CoA will overturn only if the trial judge’s decision was an “abuse

of discretion.” (this standard is even more deferential than the “clearly erroneous” standard).

D) United States Supreme Court Review 1) Supreme Court Review of the Federal Courts of Appeal

o A party can seek certiorari for any decision by the court of appeals as soon as it occurs (need not be a final judgment). However, it is rare for the SC to grant cert for an interlocutory ruling.

o A CoA may certify a question of law to the SC (if the law is unclear). The SC MAY issue a ruling clarifying the issue (double discretion).

2) Supreme Court Review of the States’ High Courtso It must be a final judgment from a state’s SC.o SC may only review issues of federal or constitutional law (not state law)o The “adequate and independent state ground” doctrine

The SC may grant cert on 3 issues, but may reverse due solely on issue #1 (and not address the other 2 issues).

The U.S. Supreme Court has the authority to review state court determinations of federal law, but lacks jurisdiction to review state court determinations of state law.

When a litigant petitions the U.S. Supreme Court to review the judgment of a state court which rests upon both federal and state law, the U.S. Supreme Court does not have jurisdiction over the case if the state ground is (1) “adequate” to support the judgment, and (2) “independent” of federal law.

If there is an adequate state law claim on the record, the federal question will be moot.

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Chapter 8 (Alternative dispute resolution and settlement)

A) Introduction 2 basic processes

o Arbitration A complete substitute for litigation

o Mediation Either a substitute dispute resolution method or a way to settle a filed case.

B) ADR Processes 1) Arbitration

o A neutral third party arbitrator (or arbitrators) decides the outcome of a dispute. The decision is usually final. The parties agree to be bound by the arbitrator.

o Benefits Quicker and less costly than litigation Can be kept private

o So long as an arbitrator’s decision is supportable, the court will enforce it. 2) Mediation

o A facilitated negotiationo The neutral mediator is not a decision maker. He only helps the parties settle.o The process is flexible

The mediator may even meet with each side separately.o If an agreement is not reached, the parties will terminate the mediation and

proceed to other methods (arbitration or litigation…) Often, discussions that occurred during mediation will not be allowed to

be used in court (this encourages parties to talk freely)o Mediated agreements may be enforced by the courtso A mediator

Is a catalyst Is an educator Is a translator

May expand resources available to the parties Often becomes the bearer of bad news Is an agent of reality Is a scapegoat (a losing party can claim to its constituents that the

settlement was forced upon it). Misc.

o Most judges try to get parties to settleo The knowledge of the existence of insurance is valuableo Only a few cases go to trialo Many local court rules mandate mediation/arbitration

Rule 68 (Offer of Judgment)o A) “consent judgment”

A D may offer to allow judgment on specified termso B) an unaccepted offer is considered withdrawno D) If the judgment that the offeree finally obtains is not more favorable than the

unaccepted offer, the offeree must pay the costs incurred after the offer was made (this encourages settlement).