civil procedure - master outline - at

8/3/2019 Civil Procedure - Master Outline - At

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Anant TamirisaCiv Pro II

RichmanFall 2011

The Anatomy of a LawsuitThe Complaintinitial pleading in a lawsuit and is filed by the plaintiffcomplaint is commenced by filing with the courtRule 8(a)(1) - Pleading Jurisdictiona pleading that states a claim for relief must contain a short and

plain statement of the grounds for the

court's jurisdiction, unless the courtalready has jurisdiction and the claimneeds no new jurisdictional support

Rule 8(a)(2) - short and plain statement of the claim showing thatthe pleader is entitled to relief

Rule 8(a)(3) - a demand for the relief soughtcan be money damages, injections, or declaratory judgmentthree elements of the complaint in Rule 8(a) need to be satisfied

for counterclaims, third party claims, and cross-

claimsfederal district courts do have the right to dismiss a claim for

failing to satisfy Rule 8(a) if taking all thecomplaint's factual allegations as true, the courtcannot plausibly infer that the defendant is liable

pleader must state the basic facts of his claim and may not recitelegal conclusions that relief should be granted

Rule 9 - Pleading Special Matterscertain special matters must be pleaded with particularity if they

are to be raised at trialtypically claims that adversary will not be expecting unless

attention is specifically called to them:denials of legal capacity to be suedfraud or mistakeany denial of the performance or occurrence of a condition

precedent


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existence of official documentsmaterial facts of time and placespecial damagescertain aspects of admiralty and maritime jurisdiction

Rule 8(d)(2) - Alternative and Inconsistent Allegationsa party may set out two or more statements of a claim or defensealternatively or hypothetically either in asingle count or defense or in separate ones

if party makes alternative statements, the pleading is sufficient ifany one of them is sufficient

Rule 11 - Provisions to Insure Truthful Allegationsevery pleading, written motion, and other paper must be signed

by at least one attorney or representative ofthe party

especially useful in discovery under Rule 26attorney certifies to the best of the person's knowledge that a

reasonable inquiry was made into the filingand certification

certification must be made "to the best of the person'sknowledge, information and belief, formedafter inquiry reasonable under thecircumstances

filer certifies that factual contentions have evidentiary support or

will likely to have evidentiary support after areasonable opportunity for furtherinvestigation or discovery

certifies not to present pleading for any improper purpose(harass, cause unnecessary delay, orincrease cost of litigation)

claims, defenses, and other contentions are warranted by existinglaw or by a non frivolous argument forestablishing new law

factual contentions have evidentiary support or will haveevidentiary support after investigationor discovery

denials of factual contentions are warranted on the evidence orare reasonably based on belief or lack ofinformation

Rule 11 - Sanctions


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if court determines that attorney, law firm, etc. has violated Rule11(b) then court may imposeappropriate sanctions

types of sanctions:

monetary sanctionscensureadditional CLE course requirementsgoal is to deterno monetary sanctions imposed on a party for mistake made my

attorney or legal repRule 11(2) - Motion for Sanctionsmotion for sanctions must be made separate from any other

motion and must describe the specificconduct that violated Rule 11(b)

motion must be served in accordance with Rule 5 but must not befiled with the court until 21 days afteradverse party has been served

"safe harbor provision" - do not file motion with court until21 days after service of motion toadversary in order to give time tocorrect the error

must allow adverse party to correct particular conduct orwithdraw it (discourage satellite

litigation)Rule 8(a)(3) - Prayer for Reliefpleading which states a claim for reliefmust state a demand

for relief soughtif demand for relief was inappropriate, the court must grant the

relief to which the party is entitled evenif the party has not demanded that reliefin its pleadings

Rule 54(c) - Demand for Judgment; Relief to be Granteda default judgment must not differ in kind from or exceed in

amount what is demanded in thepleadings

a judgement by default shall not be different in kind from orexceed in amount that prayed for in thedemand for judgment

Responses to the Complaint


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motion: is an application to the court for an ordermust state with particularity the grounds upon which it reliessubject to requirements of Rule 11many jurisdictions allow defendant to file a motion in lieu of an

answerpre-answer motion may be use for "dilatory defenses"Rule 12 - Defenses and Objections: When and How Presented;

Motion for Judgment on the Pleadings; ConsolidatingMotions; Waiving Defenses; Pretrial Hearing

defendant must serve answer within 21 days of receivingcomplaint; or

if it has waived timely service under Rule 4(b) within 60 days afterthe waiver was sent

Rule 12(b) - How to Present Defenses

defenses to a claim for a relief may be stated in responsivepleading, but can also be made by motion:

(b)(1) - lack of subject matter jurisdiction(b)(2) - lack of personal jurisdiction(b)(3) - improper venue(b)(4) - insufficient process(b)(5) - insufficient service of process(b)(6) - failure to state a claim for relief(b)(7) - failure to join a party under Rule 19

Attacking the Substantive Sufficiency of the ComplaintRule 12(b)(6) - failure to state a claim upon which relief can be

grantednot waived if not made in pre-answer motion or initial answerall well pleaded facts (not legal conclusions, rank opinion, or

speculation) are taken as true for purposes ofthe motion

questions the availability of justifying relief based on the givenfacts

doesn't test or determine the facts themselvesuse 12(f) motion to strike to attack defective counts in a

complaintRule 12(c) - Motion for Judgment on the Pleadingsafter pleadings are closed, but early enough not to delay trial, a

party may move for judgment on the


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pleadingssubstance is exactly the same as a 12(b)(6) motion but is made at

the closing of the pleadingsif evidence is introduced then 12(b)(6) and 12 motions are

transformed into Rule 56 - SummaryJudgment MotionAttacking Improper FormRules 12(e) - Motion for a More Definite Statementa party may move for a more definite statement of a pleading to

which a responsive pleading is allowed butwhich is so vague or ambiguous the partycannot reasonably prepare a response

motion must be made before filing a responsive pleadingmust point out defects complained of and the defects desired

if motion granted and order is not obeyed within 14 days, courtmay strike pleading or issue any otherappropriate order S&R 8.07[2][a]

Rule 12(f) - Motion to Strikecourt may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, orscandalous matter

complaint can be unintelligible

12(f) may be a better vehicle than 12(b)(6) in order to attackspecific parts of the complaint

Timing and WaiverRule 12(g) - provides that 12(b)(2)-12(b)(5) defenses are waived

unless they are asserted in a pre-answer motion,or initial answer or reply (can be amended underRule 15)

Rule 12(h) - provides that party waives defenses in 12(b)(2)-(5) byomitting in circumstances in 12(g) AND

12(b)(6) and 12(b)(7) motion may be asserted at any time beforeverdict

if court determines that the court lacks subject matter jurisdiction(12(b)(1)), the court must dismiss the action

The Answerdefendant's response to the plaintiff's complaint is called an

answer


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answer must state in short and plain terms defenses to eachclaim asserted against him and admit or denyallegations asserted against him

Rules 8(b) - Defenses, Admissions, Denials

in responding to a pleading a party must:state in short and plain terms its defenses to each claim assertedagainst it; and

admit or deny allegations asserted against it by an opposing partydenial must fairly respond to the substance of the allegationfailure to deny an allegation in a required responsive pleading is

deemed an admissionwhen a defendant neither knows nor can learn whether an

averment in the complaint is true orfalse, most jurisdictions permit him to

say so in the answer with the effect of adenial

Rule 8(b)(5) - a party lacking knowledge or information sufficientto form a belief about the truth of anallegation must so state, and thestatement has the effect of a denial

Rule 8 - Affirmative Defenses and Allocating the Burden ofPleading

an excuse or justification for his action that would avoid plaintiff's

claim even if that claim is proven at trialdefendant may combine denials and affirmative defenses in his

answerburden of production of evidence is on the defendant in an

affirmative defenseaffirmative defenses make no claim against any party and seeks

no relief other than the defeat of theplaintiff's claim

failure to include an affirmative defense means it is waivedmight be able to add later by amendment (under Rule 15)

The Replyreply is only necessary if the answer contains a counterclaimplaintiff must serve reply to counterclaim within 21 days after

service of answerAmendmentsRule 15(a) - Amended and Supplemental Pleadings; Amendments


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Before Triala party may amend its pleading once as a matter of course within

21 days after serving it or 21 days afterservice of responsive pleading

sets forth an extremely liberal policy in the amendment of thepleadingsamendment of right is always allowed if it occurs within 21 days

after the pleader served the originalpleading

21 days after the service of an answer or motion under the rule12(b),(e),(f)

21 days after it is servedafter the time for amendment as a matter of course has passed,

amendment of a pleading is

permitted only by leave ofcourt or written consent ofadverse parties

court should grant leave freely when justice requiresRule 15(b) - Amendments During and After Trialif a party objects that evidence is not within the issues raised in

the pleadings, the court may permit thepleadings to be amended

if proponent offers evidence on a new issue, the opponent may

object, the judge will rule, and may grant acontinuance

Rule 15 - Amendments and the Statute of Limitationspermits an amendment of a pleading after the statute of

limitations has run if it sets forth a claim thatarises out of the same transaction as thepleading to be amended

Rule 15(1) - permits amendment changing parties after thestatute of limitations has run if:

if item 1 is satisfied ANDduring the appropriate period the party to be brought in received

notice of the action and knew he wasthe proper party

the lawRule 15(d) - Supplemental Pleadingson motion and reasonable notice the court may permit a party to


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serve a supplemental pleading setting outany transaction, occurrence, or event thathappened after the date of the pleadingto be supplemented

may permit supplementation even though the original pleading isdefective in stating a claim or defensehappens after filing of the complaintalways need the courts permission to fileDiscoveryIntroductionpreservation of relevant information that might not be available

at trialtestimony of witnesses who are aged or ill, etc.ascertain and isolate issues that actually are in controversy

between the partiesfind out what testimony and other evidence is available on each

of the disputed factual issuesRule 26(a) Required Disclosures:party must without awaiting a discovery request provide:name, address, telephone number of each individual likely to

have discoverable informationcopy of all documents and tangible things that the disclosing

party has in its possession and may

use to support its claims ordefenses

computation of each category of damages claimed by disclosingparty

any insurance agreementsRule 26(a)(2) - Disclosure of Expert Testimonyparty must disclose to other parties the identity of any witness it

may use at trial to present evidenceRule 26 (a)(2)(B) - if witness is retained to provide expert

testimony the written report must alsocontain:

statement of all opinions the witness will expressdata considered in witness forming opinionsany exhibits that will be used towitness's qualificationsall cases witness has testified as expert in for past 4 years


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compensation paid to expertRule 26 (a)(2) - Time to Disclose Expert Testimonyat least 90 days before the date set for trialScope of Discovery - Rule 26(b) - parties may obtain discovery

regarding any non privileged matter that isrelevant to any party's claim or defenseincluding existence, description, nature, custody, condition and

location of any documents or other tangiblethings and the identity and locations ofperson who know of any discoverable matter

The Work Product Rule Rule 26(b)(3) - Trial Preparation:Materials

certain immunity from discovery is given to materials prepared bycounsel for trial purposes and to

the opinions of experts thatcounsel has consulted for trialpreparation

a party may not discover documents and tangible things that areprepared in anticipation oflitigation or for trial by or foranother party or its representative

party may be able to obtain work product material if they canshow a substantial need for

the materials to prepare itscase

qualified immunity: documents prepared for litigationpurposes by a party (i.e.notes taken on whatprospective witnessessaid when interviewed)are given qualifiedimmunity

immunity may be overcome by a strong showing that thediscovering partyhas substantialneed for thematerials and thatthey are not able toget information


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through othermeans

absolute immunity: documents containing subjective thoughts(legal theories,

conclusions, opinions,mental impressions) of aparty's lawyer are givenabsolute immunity fromdiscovery

this immunity is impossible to overcomeTrial Preparation: Experts - Rule 26(b)(4)a party may depose any person who has been identified as an

expert whose opinions may be presented attrial

Mechanics of the Discovery DevicesRule 30 - Depositions by Oral Examinationsa party may by oral questions depose any person, including a

party, without leave of courtnotify other side of intention and subpoena other side of notice to

appearexaminations/cross examinationsproceeds as they would at trial under Fed Rules of Evidenceobjections are noted on record but examination still proceeds

preserve testimony if witness is going to expire, etc.Rule 31 - Depositions by Written Questionsa party may by written questions depose any person without

leave of courtafter the beginning of an action any party may take oral

responses to questions written prior tothe deposition of any person thought tohave discoverable information

main usage of Rule 31 depositions is for deposing distant non-party witnesses who cannot be servedwith Rule 33 interrogatories

Rule 33 - Interrogatories to Partiesset of written questions to be answered in writing by the person

to whom they are addressedonly may be addressed to a partyare expensive to answer


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answers to interrogatories are made under oath by the party andare signed by the party usually in closeconsultation with counsel

Rule 34 - Discovery and Production of Property

party may require other party to produce documents,electronically stored information, andtangible things

allows party to demand right to inspect, photograph, and surveyland within the control of another party

material must not be privileged and has to be relevant to thesubject matter of the pending action

Rule 35 - Physical and Mental Examinationswhen mental or physical condition of a party is in controversy,

the court may order the party to submit

to a physical or mental examinationmust only be made on motiongood cause must be shownand notice must be givenif parties agree by themselves to allow a physical examination

then Rule 35 does not comeinto play

Rule 36 - Requests for Admissionsa party may serve on any other party a written request to admit,

for purposes of the pending action only,the truth of any matters within thescope of Rule 26(b)(1)

not used primarily to obtain information but to narrow thedisputed issues and remove thenecessity of proving at trial the factwhose admission is sought

if party does not answer the request to admit at all within 30 daysafter service, the matter is taken asadmitted

Sanctions, Controls and Abuse Rules 26(c), (f), (g), 37Rule 26 - Protective Orderparty or other person against whom discovery is sought may

instead of raising a particular objectionmay see a protective order

deals with a much broader range of material than a simple


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objectionprotective order may prohibit an entire line of questioning, the

use of a particular form ofdiscovery, or the examination of a

particular witnessorder to protect party from annoyance, embarrassment,oppression, or undue burden orexpense

Rule 26(f) - Conference of the Parties; Planning for Discoveryparties must confer as soon as practicable and at least 21 days

before a scheduling conference is to beheld

parties must consider the nature and basis of their claims anddefenses and the possibilities of settling

or resolving the casemake or arrange for disclosures required by Rule 26(a)(1)discuss any issues about preserving discoverable informationdevelop a proposed discovery planRule 26(g) - Signing Disclosures and Discovery Requests,

Responses, and Objectionsevery disclosure under RUle 26(a)(1) or (a)(3) and every discovery

request, response, or objection must besigned by at least one attorney of record

in the attorney's own nameby signing attorney certifies that to the best of knowledge,

information, and believe formed after areasonable inquiry (similar to Rule 11)

court may impose sanctions on party for improper certificationRule 37 - Failure to Make Disclosures or to Cooperate in

Discovery; SanctionsRule 37(a) - party seeking discovery may seek an order

compelling discoveryused when discovered refuses in first instance to divulge

requested informationmay be granted if discoveree fails to do the following:answer written or oral deposition question under Rule 30 or 31answer interrogatory under Rule 33allow a request for inspection or a request to produce documents

under Rule 34


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Rule 37(b) - Sanctions for Failure to Comply During Discoveryfinancial sanctions - depending on how Rule 37(a) is ruled

sanctions may be imposed ondiscoveree or discoveror

if party makes a Rule 37(a) motion, is granted the motion anddiscoveree persists in refusal thenRule 37(b)(2) allows court to:

barre certain claims or defenses or prevent from introducingcertain matters in evidence

dismiss the action or enter, strike any portion of pleadings, orenter default judgment

hold party in contempt of courtmandatory sanction if party does not apply with automatic

early disclosures under Rule

26(a)Adjudication Without TrialSummary Judgment -Rule 56if one party can show that no genuine dispute as to any material

fact exists in a lawsuit he is entitled to judgmentas a matter of law

wins case without going to trialcourt will "go behind pleadings" and can grant summary

judgement motions if disputed factual issues

presented in the pleadings are illusorymovant bears initial burden of production on the issuecan show through affidavits or discovery materialsmay be entitled to summary judgmentD can make motion for summary judgement without producing

evidence is P has not produced anyevidence to state a claim for relief

differs from 12(b)(6) and 12 motion because movant cansupply proof

occurs before trial begins rather than before or afterRule 55 - Default Judgmentwhen affirmative relief is sought against a party and that party

fails to respond, a default entry must beentered

Rule 41(a) - Voluntary Dismissal of Actionsplaintiff may dismiss action without a court order by filing a notice


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of dismissal before opposing party serveseither an answer or motion for summary

judgmentor a stipulation of dismissal signed by all parties who have

appeareddismissal is without prejudice (may bring the suit again)if after answer or motion, then voluntary dismissal may only be

granted with the court's approval

Pre-Trial Conference & Pre-Trial OrderRule 16 - Pretrial Conferences

Judge will use a pretrial conference to simplify the issues in thecase, keep case moving, identify witnesses to bepresented at trial, and facilitate a settlement

scheduling order issued by judge 120 days after filing thecomplaint

sets time limits for joinder, amendment of pleadings, filingmotions, and completion of discovery

pretrial order entered by judge reciting actions taken inconference is binding during litigationunless court modifies it

if party fails to participate in pretrial conference then sanctionsmay be imposed

TrialThe Order of Trialjury selection - performed by the clerk's office according to

statutory proceduresvoid dire - questioning of potential jurorsintended to expose biases or interests of jurors that would

disqualify themopening statements - used to tell jury the story of a party's casepresentation of plaintiff's case-in-chief - parties proceed with their

proofmid-trial motion for directed verdict, involuntary dismissal, or

judgment of a matter of lawdefendant may test plaintiff's case by moving for judgment as a

matter of lawif plaintiff fails to satisfy burden of evidence no point in submitting

the case to jury


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if plaintiff has met his burden then defendant's motion should bedenied without prejudice to defendant's case

presentation of additional evidence - if defendant's mid-trialmotion is denied, then defendant presents

evidence to rebutmotions at the close of all the evidence - at close of all evidenceeither party can make a motion for judgment as amatter of law

motions tests the sufficiency of the opponent's evidence tosupport a jury verdict

closing argument - gives each party an opportunity to putevidence admitted in the case in the best possiblelight

instructions to the jury - judge instructs the jury after closing

argumentsjury deliberation and verdictchallenges to verdict and entry of judgment - party can make a

motion for judgment not withstanding the verdict(judgment n.o.v)

Trial by JuryConstitutional Right to Jury TrialU.S. Const., Amend VII (Supp. p. 268-269)the right of trial by jury should be preserved

Rule 38 - Right to a Jury Trial; Demandright of trial by jury as declared by the 7th Amendment to the

Constitutionparty demands jury trial by serving the other parties with a

written demandRule 39 - Trial by Jury or by the Courtwhen jury trial has been demanded under Rule 38 the action must

be designated on the docket as a juryaction

Casebook pp. 999-1016, 1026-1035 c. Demand and WaiverRules 38 and 39

Casebook pp. 1045-1047d. Instructions and Verdicts

S&R 12.083. Burden of Proof

Casebook pp. 986-988 S&R 12.04


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Motion for Judgment as a Matter of LawRule 50 - Judgment as a Matter of Law in a Jury Trialeither party may move for a directed verdict which takes the case

away from the jury and determines the outcome

as a matter of lawdefendant may move for a directed verdict at the close ofplaintiff's case

either party may move for directed verdict after both sides haverested

Standards for Granting:court has power to direct a verdict if evidence is such that

reasonable persons could not differ as to theresult

if a party has been fully heard on an issue during a jury trial and

the court finds that a reasonable jury wouldnot have a legally sufficient evidentiary basisto find for the party on that issue

Motion for a New TrialRule 59 - New Trial; Altering or Amending a Judgmentthe court may on motion grant a new trial on all or some of the

issuesjudge may order a new trial for any reason in which a new trial

had been granted in an action at law

judge empales a new jury and the case is retriedconstitutional under the Reexamination Clausenew trial granted if the verdict is against the clear weight of the

evidence and would result in amiscarriage of justice

additur: court's denial of P's new trial motion on condition that Dconsent to an increase in the amount ofdamages

additur has been held to violate the reexamination clauseremittitur: court's denial of D's new trial motion on the condition

that P consent to a reduction in the amountof damages

Rule 60 - Relief From a Judgment or OrderRule 60(a) court may correct a clerical mistake or a mistake

arising from oversight or omission when one isfound in judgment


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Rule 60(b) on motion or just terms the court may relieve a partyor legal reps from a final judgment, order, orproceedings

Addition of Claims to the Lawsuit

Rule 18 - Joinder of Claimsparty asserting a claim, counterclaim, cross claim, or third partyclaim many join, as independent or alternativeclaims, as many claims as it has against anopposing party

once P has a valid claim against a particular D, he can add asmany additional claims as he wishes against thatdefendant

Counterclaims - Rule 13compulsory counterclaim - Rule 13(a)

parties that have them must either plead or forfeit thempleading must state as a counterclaim any claim that at the time

of service the pleader has against anopposing party if the claim:

arises out of the same transaction or occurrence that is thesubject matter of the opposing party'sclaim AND

does not require adding another party over whom the courtcannot acquire jurisdiction

except:claim was subject of another pending action when action

commencedPermissive Counterclaim - Rule 13(b)pleading may state as a counterclaim against an opposing party

any claim that is not compulsoryCrossclaims - Rule 13(g)(h)Rule 13(g) - allows a party in certain situations a claim against a

co-party (co-defendant or co-plaintiff)made only against a party who is on the same side of an already-

existing claimcross claims fall under federal court's supplemental jurisdiction28 U.S.C. 1367:district courts shall have supplemental jurisdiction over all other

claims that are so related to claims inthe action within such original


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jurisdiction that they form part of thesame case or controversy under ArticleIII of the United States Constitution.

two requirements before it can be a cross-claim:

must have arisen out of the same transaction or occurrence thatis the subject matter of the originalaction or of a counterclaim therein

must ask for actual relief from the co-party against whom it isdirected

The most typical supplemental jurisdiction problem occurs when Pis diverse from D, thus satisfying 28 USC1332, but D is not diverse from 3PD. 28 USC1367 permits excersing supplemental

jurisdiction over the impleader claim

Joinder of Parties Needed for Just AdjudicationRule 19 - RequiredJoinder of Partiespersons required to be joined if feasible if joinder will not disrupt

subject matter jurisdictionraised by a 12(b)(7) motion to dismiss for failure to join a party

under Rule 19(b)Rule 19(a) feasible (necessary): must be joined when possible

but can go on without themmust meet one of the following two tests:

incomplete relief: in that person's absence, the court cannotaccord complete relief amongexisting parties

impaired interest: judgment in the person's absence will impairan interest the person has ORimpose on some of the existingparties double payments

if one of these tests are met then court must determine if theparty is not feasible

Rule 19(b) not feasible (indispensable parties): action mustbe dismissed if cannot be joined

P-FAR is what the court should considerPrejudice: the extent of prejudice to the absentee, or to those

already partiesFraming of judgment: possibility of framing the judgment so

as to mitigate such prejudice


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Adequacy of remedy: adequacy of remedy can be granted inhis absence

Result of dismissal: whether plaintiff will have an adequateremedy if the action is dismissed

Permissive Joinder of PartiesRule 20 - Permissive Joinder of PartiesRule 20(a)(1)Plaintiff's may be joined in one action if:single transaction or occurrence: they arise out of the same,

transaction, occurrence, or seriesof transactions or occurrences

common question: must be a question of law or fact common toall plaintiffs which will arise in theaction

party can only become a co-plaintiff if he agreescompletely at option of the plaintiff whether to use this device or

notRule 20(a)(2) Defendants may bejoined in one action if:single transaction or occurrence: arise out of the same

transaction, occurrence, or seriesof transactions or occurrences

common question: any question of law or fact common to alldefendants will arise in the action

Rule 21 - Misjoindermisjoinder of parties is not a ground for dismissing an actionImpleader - Rule 14defending party may, as a third-party plaintiff, serve a summons

and complaint on a nonparty who is or may beliable to it for all or party of the claim against it

a defendant alleging that a third person is liable to him "for all orpart of the plaintiff's claim against the defendant"may implead such a person as a third-partydefendant

purpose of impleader is to assert claims for indemnification,subrogation, contribution, and breach ofwarranty

indemnification: if required to pay damages and contracted withthird-party to pay damages for you, youare indemnified


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Interpleader - Rule 22bears no resemblance to impleaderallows all plaintiffs to litigate amongst themselves for

appropriation of damages so that defendant will

not have to double paytechnique whereby a party who owes something to one of two ormore other persons but isn't sure which, may forcethem to argue out their claims among themselvesbefore coming to sue him

designed to prevent party from being made to pay the sameclaim twice

Class ActionsRule 23mega-joinder of too many parties for each to be separately

representedin multi-party action (20+) bringing everyone together and only

representation by one team of legalcounsel

must have prerequisites - Rule 23(a)numerosity - minimum number of parties is usually 25 or higher.

class is so numerous that joinder ofall members is impracticable

common question of law or fact - questions of law or fact common

to the classtypicality - claims or defenses of the representative parties are

typical of the claims or defenses ofthe class

adequate representation - representative parties will fairly andadequately protect the interests ofthe class

do the lawyers have enough money, sophistication, knowledge,incentive, etc to represent theteam effectively

Types of Class Actions: Rule 23(b)(1)Prejudice Class Actions: prosecuting separate actions by or

against an individual class memberwould create risk of:

23(b)(1)(A) to opposing party: inconsistent or incompatiblestandards of conduct


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23(b)(1)(B) to class members: class action preferred if separateactions would exhaustopponent's funds or insurance

few people get paid entire fund whereas the rest won't get

compensatedInjunction - Rule 23(b)(2)party opposing the class has acted or refused to act on grounds

that apply generally to theclass, so final injunctive reliefor corresponding declaratoryrelief is appropriaterespecting the class as awhole

i.e. race/gender issues

geared toward legislative actionCommon Question - Rule 23(b)(3)court finds that questions of law or fact common to class

members predominates overany questions affectingindividual members and classaction is a superior method tohandle the dispute

set of facts determining whether class action is better than

individual actionCertification Order - Rule 23(1)23(1)(A) - court must determine whether to certify the action as

a class action23(1)(B) - prejudice or injunctive class - parties are more likely

to know they is a class action goingon and they are appropriatemembers of the class. commonquestion class action - if notnotified by mail etc. then hard toknow that rights are at stake for aclass action

23(2)(B) - court must direct class members the best notice thatis practicable under thecircumstances so that all membersaffected can be identified by a


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reasonable effortindividual will lose chance to fight claim if class action is

adjudicated properindividuals have right to opt out of the suit - only works with 23(b)

(3) class actions, not with23(b)(1) or 23(b)(2)notice must be paid for by the representative of the class action

plaintiffs23(e) - settlements, voluntary dismissal, compromisesettlements must be approved by the court

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