my outline - analysis

8/2/2019 My Outline - Analysis

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I. Due process.

United States Constitution, Amendment 14, 1

nor shall any State deprive any person of life, liberty, or property, without due process of law.

Notice; Hearing; Neutral judge; Timeliness; Counsel.

Contaminated food, drugs.

directly necessary to secure an important governmental or general public interest.

a special need for every prompt action.

Kept strict control over its monopoly of legitimate force (government official under statutes).

National security.

Economic stability.

Examples:

Exceptions:

economic analysis says the process may pose extra burden.

Arguments

Foundational approach. Fuentes 1972.:

Cost-benefit analysis.

The private interest that will be affected by the official action.

Methods Good Bad

Bond Make sure P is certain.

Attorney's fee Make P more cautious.

Judicial authorization Less propensity to abuse power. Impractical. Judge won't do this.

Notice and hearing A chance. Expensive.May be ineffective.

May not show up.

Affidavit P fear to be sanctioned.

Counsel Effective Costly.

The risk of an error.

The probable value of additional or substitute procedural safeguards.

the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Quick action exigent?

Cost of more process?

Relevance of property in dispute.

Collect internal revenue.

Meet needs of a national war effort.

Protect against the econ disaster of a bank failure.

Protect from misbranded drugs, contaminated food.

Summary seizure allowed in the following situations:

Examples:

the government's interest, including

Balancing approach. Van Harken 1996.

Policy.

Predictable.

Clear from the start.

Notice and hearing best mechanism for

guarding against misapplication of state force.

Good:

Foundational approach

Cheap.

Efficient.

More adaptable.

Good:

Bad:

Balancing approach

Two approach for deciding the proper Due Process procedures:

AnalysisThursday, October 13, 2011

4:57 PM

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An intrinsic value in hearing, which is essential

to due process and our conception of civilized

society.

Can be costly.

Inefficient. load up process beyond that which

can be borne by the interest at stake.

Harder to adapt to new settings.

The exceptions can grow out of control.

Bad:

Unpredictable.

Unclear.

Inconsistent/Unfair.

It's scary if it allows no process.

II. Personal jurisdiction

Physical presence.

The intent to make the state a new permanent home.

To change to a new domicile:

A US citizen is a citizen of the state in which he domicile (only one at a time).

Alien is deemed citizen of state in which domiciled.

Definition of domicile.

Mas 1974:

Traditional basis for general jurisdiction: Defendant domiciled in the state.

Never disputed and still valid.

Pennoyer 1876.

Yes: General jurisdiction.

General. Domicile. Did D domicile in the state?

Compelled consent may be immune from Due Process Clause.

Forum non conveniens move to better forum if its more efficient.

Does the state demand consent for general jurisdiction from companies who want to do business there?

Volume of contacts; Foreseeability; Reciprocity; Agents in forum; Advertising.

Place of business? Bank account? License to do business? Regular commercial transactions?

Headquarter is enough. Place of incorporation is enough. Nerve center is enough.

Other indicia of permanence.

Purposeful availment test in more exacting manner.

The efficient considerations of the State.

General. Contact. Did D have continuous and systematic ties with the forum? Helicopteros 1984.

D has to make special appearance for state court or 12(b)(2) motion for federal court.

If D answer or argue on merits, D waive defense of lack of personal jurisdiction.

Specific. Consent. Did D consent to personal jurisdiction of the state? Pennoyer.

Diving in a state implies D consent to the law of the state and appoint the state agency as agent.

Agent serviced and D noticed by mail satisfies Pennoyer "served in state" traditional basis.

Did D agreed to a contract thus implied consented to forum selection clause?

Specific. Implied consent. Was there a recognized implied consent? Hess 1927. Carnival.

Notice the D.

Make sure P can be compensated.

Purpose:

Property need to be attached before trial.

In rem if the claims are related to the property.

Quasi in rem if claims are unrelated to the property.

Can only sue up to the value of the property. (Can sue for more in other states).

Pennoyer 1876:

Yes:

General. In rem. Was there property of D in the state?

Traditional basis for general jurisdiction: Defendant was served with process in the state.

Jurisdiction is a zero-sum game:

Policy:

2a. Pennoyer 1876.

Yes:

General. Service in state. Was the D served with process in the state? Pennoyer 1876:

Can we sue D in this state? Is there personal jurisdiction over D in the state?

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CA and OR diminish others sovereignty to the extent of keeping their own.

Pennoyer's traditional basis of presence for general jurisdiction is good on its own.

Int'l Shoe only applies when D is absent from the state.

Scalia's approach:

Int'l shoe should be applied in every case. Minimal contact and fairness.

Brennan's approach:

Economically counterproductive: ppl avoid travel.

Gamesmanship.

Policy:

2b. Burnham 1990.

Usually gives general statute based on traditional basis.

Every state has motor vehicle statute. specific jurisdiction.

Long-arm statute. Laundry list.

Optional. Before the constitutional inquiry. Does the state statute allow jurisdiction?

A transactional relationship?

Quality and nature of activity, volume of business.

Enjoy benefit of laws of state?

Regular and systematic solicitation of orders.

A continuous flow of product.

Continuous and systematic?

Claim asserted against the defendant is related to the defendant's activity in the forum?

Must first satisfy Minimum contact. (A positive example).

Reciprocity. Benefits vs. Burden.

Balances of conveniences b/w 2 parties.

Interest of the forum state in providing remedy to its citizens

Commercial benefit

Does not offend traditional notions of fair play and substantial justice (constitutional test).

Inconvenience to D.

Foreseeability.

Fair play and substantial justice.

Zero sum game. Extension of one state's power to outside its territory diminish other states' sovereignt

Policy:

Int'l Shoe 1945 (The structure of the analysis).

chattel-driven contact does not meet the minimum contact requirement.

Foreseeable that the chain is going to reach the forum.

Distinguished mere use of the product in the forum (in which case jurisdiction would be

unconstitutional) and a forum-state sale of the product (which would allow for jurisdiction).

Stream of commerce.

Channels for Customer service?

Advertisement?

engaged in any transactions?

physical presence?

reaped benefits?

Agents?

purpose availment. Marketing?

Foreseeability is defendant's foreseeability that it can be sued there.

Minimum contact limited (a negative example of minimum contact).

Didn't talk about state's interest.

Did not talk about FPSJ since minimum contact was not satisfied.

Focused on D's interests.

Did not take into account states' interest of regulating highway or protecting citizen.

Defendant's interest is not enough. We have to keep an eye on federalism.

foreseeability not well defined since no way to tell how to draw the line.

Policy:

Worldwide Volkswagen 1980. (The minimum contact standard refined to focus on D).

Small proportion of sales in state.

Keeton 1984. (The minimum contact standard refined).

Minimum contact:

Specific. Due Process Balancing. Does constitutional Due Process allow state to have specific jurisdiction?

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P has no contact with forum.

Continuous sale. Reaped benefits.

Concluded PJ did not offend traditional notions of FPSJ.

No reason to limit the forum for a libel case.

Percentage of sales is irrelevant here. substantial number of copies is enough.

One state sets standard for all.

Big burden on small business.

Policy:

No bad faith or fraud.

Saves litigation cost and unpredictability.

Genuine interest.

Not unconscionable.

Notice before arrival?

Most wouldn't notice (Dissent).

Satisfy Due Process.

A contract with forum selection clause can be valid (implied consent upheld) if:

Company's forum selection clause v. states' requiring general jurisdiction consent for doing business.

Policy:

Carnival 1991. A complication with contract.

Commercial websites purposefully avail themselves of everywhere. Zippo test conscious multiple

commercial contacts over the internet counts.

Completely passive websites dont purposefully avail themselves of anywhere this is where Ds websi

Unilateral acts of 3rd party pirates cant justify jurisdiction as per WWV.

Websites that are merely interactive without solicitation will be evaluated according to the nature of th

exchange and corresponding degree of purposeful availment.

Minimal contact:

Subjecting a website to suits all over the world.

Company to get compensated.

Comparable fault of plaintiff (causation).

Foreseeability.

FPSJ:

Pavlovich 2001. A complication with internet.

Did not sell machines to buyers except the distributor which is independent.

Although advertised generally in US, convention is not in NJ.

No more than four and probably only one sold in NJ.

Purposeful availment is in line with Pennoyer "a person submit to a State's authority."

Foreseeability is not enough.

Stream of commerce cannot displace purposeful availment.

FPSJ is a part of minimum contact analysis.

Kennedy (4):

Old cases have never found minimum contact by a single transaction.

One transaction is not enough for stream of commerce.

Abide by precedents is enough.

Not enough to address the modern question of globalization.

Breyer (2):

No entrenching of other state's power present.

Intended to sell as much as they can.

Service provided anywhere the purchaser is at.

NJ has more scrap metal than any other US state, de facto target.

Bad faith to set up a shell company.

If no jurisdiction, then it's never liable for even death.

Plaintiff's interest should be considered.

Reaped benefits - defend your products.

Fairness.

Ginsburg (3):

McIntyre (2011). An undecided exercise.

Is there a relevant contact between the defendant and the forum?

What the court is really doing through out the years is to establish a standard for minimal contact to satisfy the 1

amendment requirement "FPSJ". The factors been contemplated:

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Shoe.

Helicopteros.

WWVW.

Pavlovich.

McIntyre.

Purposeful availment to the benefits and obligations.

Shoe.

WWVW.

Pavlovich.

Foreseeable that D can be sued there (from D's view).

Helicopteros.

Shoe.

Keeton.

The level of activity of the defendant in the forum. (continuous and systematic, stream of commerce)

must be unconstitutionally unfair. Burger king.

Defendant's interest.

State's interest.

Plaintiff's interest.

Interest in efficiency.

Interstate interest in shared substantive policy.

Five factors:

Fairness. Fair play and substantial justice.

III. Subject matter jurisdiction.

Subject matter jurisdiction can be raised at any time and cannot be waived. Granted by Article III section 2 of constitut

The complete diversity rule.

No diversity if any plaintiff is a citizen of the same state as any defendant.

A US citizen is a citizen of the state in which he domicile (one at a time).

Physical presence.

The intent to make the state a new permanent home.

To change to a new domicile:

Total Activity Test where is the bulk of the corporate activity?

Nerve Center Test Where are the activities controlled and directed from (headquar

typically applies to corporations with far flung activities (airlines, etc.)

Locus of Operations Location of actual physical operations.

Corporate D are considered citizens of the state they are incorporated in and the state whe

has its principal place of business.

Citizenship.

Between citizens of different states.

To exclude inconsequential cases.

Looking at the claim.

Plaintiff's claim governs unless it is clear to a legal certainty that she cannot recover more than $7

Can add different claims for the same P, against for the same D.

A single P can aggregate claims against a single D to meet the amount requirement but not agains

multiple D.

The amount in controversy exceeds $75,000.

Required elements:

A third-party action must be viewed as a separate claim for purposes of determining subject matter jurisdictio

I: Diversity of citizenship at filing. Mas. section 1332.

1331: All civil action arising under the Constitution, law, or treaties of the United States.

Is the plaintiff enforcing a federal right?

Federal-question must be part of complaint itself;

NOT merely an anticipated defense.

Well pleaded complaint rule (Mottley).

The fundamental rule:

Three ways to get Federal question jurisdiction (Federal right of action) Merrell Dow:

II: Federal questionjurisdiction. 1331.

Every claim must have subject matter jurisdiction.

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federal law creates the cause of action and right to remedy ("you can sue").

Ex: Title VII (employment discrimination) allows individual to recover damages upon proving statu

been violated.

express right of action (Merrell Dow).

Do Ps fall within the special class of for whose benefit the statute was passed?

i.e. did Congress intent to create a right of action, but made mistake of oversight?

Does the legislative intent reveal a congressional purpose for right of action?

Does federal jurisdiction further the underlying legislative purpose?

(i.e. NOT tort, contracts, property)Is this cause of action NOT commonly reserved for states?

***If NO to all then NO RIGHT OF ACTION*** what if not all no?

Implied right of action. 4-part test (Merrell Dow).

claim really and substantively involves controversy/construction/effect of federal law.

the case necessarily raises a federal issue.

the federal issue is actually disputed and substantial.

Offend congressionally drawn boundaries between state and federal court?

Significance of the federal question.

The narrower the scope of litigation, the better chance that the suit will not offend

congressional boundaries

Practicality. Do not want the Fed ct. swamped.

Example of suit that do not offend congressional boundaries: patent or asbestos law

brought in federal court.

federal jurisdiction will not disturb "any congressionally approved balance of federal and st

judicial responsibilities.

Grable's three factors:

State law claim with a substantial Federal Ingredient. Brennan dissent Merrill Dow, Grable:

Policy: efficiency, convenience, and consistency of outcome.

the claims were sufficiently transactionally related so as to present "one constitutional case";

the federal claim was substantial enough to merit adjudication;

there was a common nucleus of operative facts between the claims;

state issues did not predominate;

the court, at its discretion, agreed to hear both claims.

The test:

Claim raises novel or sensitive issues of state law.

State claim predominates.

Whether Fed issues are resolved early in the case, leaving only a state law claim for decision.

Whether hearing the claims together might confuse the jury.

When to dismiss based on discretion even if qualified: 1367(c)

Codifying Gibbs any claim transactionally related to a claim with federal jurisdiction, is allowed through

supplemental jurisdiction. "same case or controversy". "out of the same transaction or occurrence." Granted

Article III, section 2 of constitution.

a)

1367(b) eliminates Kroger-cases, by saying that when federal jurisdiction is founded solely on 1332 (diversi

district courts shall not have supplemental jurisdiction over claims made by plaintiffs against persons made p

under rules 14, 19, 20, 24 (joinder rules) this still allows defendant to bring in through impleader, though, b/

wasnt the one picking the federal venue. Also eliminates claims by persons proposed to be joined as P under

or Rule 24 (no 20!).

b)

gives bounds to Gibbs test federal courts have discretion and arent obligated to take on additional state clacertain situations.

c)

III: Supplemental jurisdiction. 28 U.S.C. 1367

IV. Erie.

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"The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwi

require or provide, shall be regarded as rules of decision in civil actions in the courts on the United States, in cases where

apply."

Judiciary Act of 1789. 34 (Rules fo decision act)

In Swift, J. Story held that, while federal judges sitting in diversity were obligated to honor state law, state law would be

defined to mean only state statutes, but not state-common law; and in the absence of an express state statute on point,federal judges were charged with articulating a federal common law.

Ultimately, Swift v. Tyson resulted in arbitrariness, subjecting parties to two different standards of law depending upon t

citizenship of the parties and their resulting forum (see Black & White Taxicab v. Brown & Yellow Taxicab, p. 927).

Swift v. Tyson, p. 924 Swift (P) sued in federal court to enforce a bill of exchange signed by Tyson (D). The issue was whether

preexisting debt constituted consideration for endorsement of the bill; this issue turned on whether the applicable governing

was to be derived from state-statute law or federal-common law.

Brandeis, J Found that Section 34 of the Judiciary Act of 1789 must include state court rulings (judge-made common law

just legislative pronouncements.

Erie turns on a distinction between the Rule of Decision Act (RDA) and the Rules Enabling Act ( REA).

RDA: Federal courts must follow state substantive law in diversity cases.REA: Authorizes federal courts to develop their own procedural system now known as the F.R.Civ.P. and to utilize tho

rules in both diversity and federal

Erie R.R. Co., v. Tompkins, p. 925 Tompkins (P) was injured by a protruding door on a passing train as Tompkins was walking o

commonly used footpath on Ds property and alongside the train tracks. P brought suit in federal court. Under Pennsylvania s

law, P would have been deemed a trespasser to whom no legal duty was owed. Pennsylvania had no statute on point; federal co

was free to use its own common law and deemed P a licensee.

Erie Doctrine mandates that a federal court in diversity jurisdiction must apply state substantive law.

Byrd v. Blue Ridge Rural Elec. Cooperative Inc., p.935 Introduces a balancing test between the competing state and federal int

concerning which rule should be adopted.

Under F.R.Civ.P., the case was properly engaged; under state law, the case would have been dismissed for failure to propexecute service. In outcome determinative terms, the contrast was clear.

Warren, CJ When a Federal Rule of Civil Procedural is directly on point and conflicts with a states procedural rule, the F

Rule will trump: a federal court in diversity should always apply the Federal Rule pursuant to the REA.

Harlan, J When a Federal Rule is not directly on point and does not conflict with a states procedural rule, ask whether i

ex ante state of affairs, the choice of rule would influence a partys primary conduct in choosing forum. If so, state law w

apply so that there will not be an inequitable administration of the law.

Hanna v. Plumer, p. 953 Hanna (P, OH) was injured by Osgood (MA), since deceased, in an automobile accident in South Caro

Plumer (D) was executor of Osgoods estate. P filed suit and served process in-line with F.R.Civ.P. 4(d)(1), leaving notice of suit w

Ds wife at his residence. MGL 9, however, required in-hand service of process.

The Rules Enabling Act and Erie say roughly: Federal courts are to apply federal procedural law and the substantive law2 of the

in which they are situated.

V. Pleading.

Policy of civil procedure

prevent people from resorting to self-help.

the just, speedy, and inexpensive determination of every action.

P's Expected value (gain) = probability of winning X Award - Cost.

D's Expected value (loss) = probability of losing X Award + Cost.

The litigation process tries to bring together the expectations of the parties to facilitate settlement, or to clear doubts.

resolve the discrepancy about the applicable law.

resolve the discrepancy about the facts.

Two ways to clear doubts:

Stages of litigation

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Some claims survive, some dismissed.

End of stage one: claims are clear. Dispute of law is settled.

8(a)(2) pleading standard heightened by Twombly (Plausible).

9(b) fraud. PSLRA security fraud.

Motion to dismiss. What law do we apply?

Answer (counter claim, joinder of claims, joinder of parties, implead, intervene).

Expensive (may begins before motion to dismiss).

Deposition. Interrogatories. personal examinations, records.P has evidence about injuries; D has evidence about liabilities.

Discovery.

Burden of production: Could any reasonable jurors find for you?

Burden of persuasion: No jury could find against me.

Exclude factually deficient claims.

Summary judgment phase.

For example, evidence: Scope of discovery is broader than admissible evidence.

Pretrial motions.

Trial. (2%).

Stages of litigation. With each step the discrepancy between the parties are brought closer.

EV(P) = Prob (win) X Award - Cost.

EV(D) = Prob (lose) X Award + Cost.

Joint pool of award: Award - 2 X Cost.

The discrepancy between P and D when the probability estimation is the same creates incentive to settle.

The in terrorem effect:

This is why negative value suits are brought - because D still has incentive to settle.

If P really proves that D is fraudulent then insurance of P is out, thus the settlement is the goal.

Calculation of P's expected award and D's expected loss.

In terrorem effect and pleading for fraud.

Pleading

PRCP 82: FRCP shall not be construed to extend or limit the jurisdiction of the United States district courts.

FRCP 8(a)(1) grounds for the court's jurisdiction.

Conley standard: dismiss only if under "no set of facts" can P's claim can be true. Overruled by Twombly.

Iqbal interpreting Twombly: need to amplify a claim with some factual allegations to render the claim PLAUSI

FRCP 8(a)(2) claim showing that the pleader is entitled to relief. Mitchell p151. Twombly p179.

FRCP 8(a)(3) a demand for the relief sought.

PRCP 8(a) Claim for relief must have:

FRCP 8(e)(2) can plead in the alternative (complaint or defense). McCormick p133.

PRCP 8 General rules for pleading.

FRCP 12(b)(6) Motion to dismiss for failing to state a claim for which relief can be granted.

The key to a 12(b)(6) motion is the assertion that even if the facts are proven to be true, no relief may be

granted under governing substantive law. Court will consider the facts in the most favorable light to the

party opposing the motion.

Typically, dismissal under FRCP 12(b)(6) entitles a plaintiff an opportunity to amend the complaint (FRCP

15(a)) prior to the entry of dismissal.

Strategy: resolve the dispute of the law earlier in the litigation process to save money.

Mitchell v. Archibald & Kendall, Inc. (7th Cir. 1978) (p. 151) - P delivered to D and parked on public street

outside warehouse, following D's instruction. P robbed and shot. P plead arguing law be expanded to cover

non-premise street. D files motion to dismiss for no claim which relief can be granted. Motion allowed.

FRCP 8(a)(2) heightened pleading standard. Overruled Conley. CEOs statement cannot be read to

indicate that there was parallel conduct. Here, there must be evidence of an actual agreement of

collusion.

Must plead the claim with enough facts to move it from conceivable to plausible.

FRCP 12(b)(6) Motion to dismiss for failing to state a claim.

Bell Atlantic v. Twombly, 2007 p. 179 - Antitrust claim against phone companies for parallel conduct.

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Ct. worries about costly discovery and in terrorem effect.

Ev = P X Award +/- Cost. Award and cost are high - incentive to settle - frivolous suits decided based on

cost but not merits. Raising the pleading standard to bar some cases.

Stevens dissent: use other ways to limit frivolous like limited deposition (could be hard to limit).

FRCP 8(e)(2) - party may plead inconsistently. Implied good faith.

Purpose ofFRCP 8(e)(2): get information from the "least-cost provider".

P has information about damages. D has information of liability.

In fact, in cases where the key witness is deceased, pleading alternative sets of facts is often the only way

to proceed as only the decedent knows what actually happened.

The two Ds will build the case against each other and benefit P.

McCormick v. Kopmann (IL, 1959) (p. 133)-Woman filed suit for the death of her husband under two counts:

killed by the other drivers negligence, or owner of bar is liable for serving alcohol to him.

Much more detailed factual allegations.

State with particularity the circumstances constituting fraud or mistake.

Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

FRCP 9(b) Pleading Fraud or Mistake; Conditions of Mind. Insolia p247 (in parties).

Specify each misleading statement and why misleading.

a reasonable person must find scienter at least as compelling as opposing inference.State particular facts to support inference of defendant's scienter.

FRCP 9(b) + PSLRA: Pleading Security Fraud. Tellabs p159.

FRCP 9 Pleading special matters.

Securities Fraud (PLSRA Standard): For a case to proceed to trial, the inference of scienter must be at

least as likely as the inference of innocence.

PLSRA heightened FRCP 9(b).

Height of Pleading Standards: FRCP 8(a)(2) < FRCP 9(b) < PLSRA + FRCP 9(b) security fraud.

Assume all the facts.

reads complains collectively to compare scienter with other competitive inferences.

Dissent Scalia: should be more plausible than others.

"whether a reasonable person would find scienter at least as compelling as opposing inference.

Pleading process for security fraud under PSLRA + FRCP 9(b) P164:

Worried about in terrorem effect - high award, high cost, high incentive to settle - frivolous law suits. P

can very easily impose large cost on D.

Potential damaging effect to the D even proved innocent.

Counter: congress gave us the implied consent. And judge has to compare inferences often.

7th circuit's concern: violating 7th Amendment because judge is deciding facts.

Tellabs, Inc. v. Makor Issues & Rights, LTD (USC, 2007) (p. 159) - A class-action securities fraud lawsuit against

the defendant, a manufacturer of fiber optic equipment. The plaintiffs alleged that the defendant

misrepresented the strength of its products and earnings in order to conceal the declining value of the

company's stock.

state claims in numbered paragraphs, each limited to a single set of sentences. Zielinski Sp.9 (in answer).

FRCP 10(b): Form of pleading: Paragraphs; separate statements.

FRCP 12(b) Defense to a claim by motion (before pleading response).

(1) lack of subject-matter jurisdiction;

waived if not raised.

(2) lack of personal jurisdiction;


(3) improper venue;

waived in not raised.

(4) insufficient process;


(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; Mitchell p151. Twombly p179.

Advantage of Motion: Judge only deals with motions.

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Conley standard: dismiss only if under "no set of facts" can P's claim can be true. Overruled by Twombly.

Iqbal interpreting Twombly: need to amplify a claim with some factual allegations to render the claim PLAUSIBLE.

(7) failure to join a party under FRCP 19.

FRCP 12(c): Motion for judgment on the pleadings.

FRCP 12(e): For a more definite statement. Harbor Commissioner 1977. p128.

FRCP 12(h)(3): Lack of subject-matter jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, t

court must dismiss the action.

Balance interests. Here litigation will sort it out and justifies lenient standard of pleading

FRCP 12(e)'s purpose: allow the D to answer. Here D are trying to get information.

Cost-benefit analysis: when a large number of Ds involved the balance may shift because of:

insurance? record keeping? scope of litigation? cost of litigation? probability of guilty?

Board of Harbor Commissioners, 1977 p. 128 U.S. Government sued 12 on-shore facilities for discharging oil

into the Delaware River. 2 of Ds moves for a more definitive statement on the grounds that the complaint

against them is vague and ambiguous, pursuant to FRCP 12(e).

FRCP 15(a): Amendment before trial. Mitchell p151.

Defendant's answer

A denial must fairly respond to the substance of the allegation.

FRCP 8(b)(2) Denials.

A party that intends in good faith to deny all the allegations of a pleading - including the jurisdictional grounds - ma

by a general denial.

A party that does not intend to deny all the allegations must either specifically deny designated allegations or gene

deny all the except those specifically admitted.

FRCP 8(b)(3) General and specific Denials. Zielinski sup.9.

A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the r

FRCP 8(b)(4) Denying part of an Allegation. Zielinski sup.9.

A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so stat

the statement has the effect of a denial.

If, however, the information is within the control of the D and readily available to it, then a FRCP 8(b)(5) claim has t

effect of a admission.

FRCP 8(b)(5) Lacking knowledge or information. Crompton p208,223.

FRCP 8 (b) Defenses; Admissions and Denials (General rules of Pleading).

FRCP 8(b)(3) and FRCP 8(b)(4) requires specificity. Burden on D.

Zielinski was prejudiced, D was estopped from denying liability and held as if they owned the machine.

Policy: decide case on the merit but not technicality.

Insurance company in play trying to go off hook.

Zielinski is the least-cost provider.

Zielinski v. Philadelphia Piers, Inc. (PA, 1956) (sup. 9) - Plaintiff was injured in a forklift accident. The forklift

had the initials PPI. Plaintiff sued PPI; plaintiffs claim alleged that PPI owned, operated and controlled the

forklift. In reality, PPI was leasing the lift to another company, Carload Contractors, and was not operating or

controlling the forklift. PPI answered with a general denial and misled P till SoL ran.

FRCP 8(b)(5) A party that lacks knowledge can say so and treated as denial. A party who can get the

information will be treated as admission.

Had the amendment been allowed, P would have suffered prejudice because they would have been

unable to file suit against the correct defendant since SoL had run.

FRCP 15(a)(2) - A motion to amend is granted when "justice so requires." No here.

David v. Crompton & Knowles Crop. (EDPA, 1973) (p. 208, 223) - Plaintiff was involved in an accident with a

shredding machine and brought a products liability action against manufacturer (D). D argued that it was

without sufficient knowledge to admit or deny the allegation. Later, D determined that the machine was

designed by another company. D sought to amend former answer and deny that it designed, manufactured and

sold the machine.

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Least-cost Provider: Zielinski and Crompton were least cost providers of information; only they knew who

was actually liable.

Purpose of FRCP 8(b)(5): give D incentive to investigate and save cost.

Policy: To decide on merits and to decide it once and for all.

"logical relation test.""same evidence test."

FRCP 13(a)(1)(A): arise out of the transaction or occurrence that is the subject matter of the opposing party's claim

FRCP 13(a)(1)(B): does not require adding another party over whom the court cannot acquire jurisdiction.

A pleading must state as a counterclaim any claim that - at the time of its service - the pleader has against an opposing pa

the claim:

If it is a compulsory counterclaim, then we don't need subject matter jurisdiction, potentially because it automatically sat

supplemental jurisdiction.

Problem: systematic inefficiency as parties are forced to plead first, evaluate later.

FRCP 13(a)(1): compulsory counterclaim in general. Wigglesworth. p215.

the claim was the subject of another pending action.

if no personal jurisdiction of the sued party and the sued party did not bring any counterclaim.

FRCP 13(a)(2): Exceptions. The pleader need not state the claim if:

A pleading may states as a counterclaim against an opposing party any claim that is not compulsory.

FRCP 13(b): Permissive counterclaim.

Same transaction or occurrence; or relate to the property that is the subject matter of the original action.

FRCP 13(g): (always permissive) cross claim.

FRCP 39(h): Counterclaim can bring in joinder parties as long as satisfying 20(a)(2)(A) and 20(a)(2)(B).

**Arising out of the same transaction or occurrence automatically satisfy subject matter jurisdiction (supplemental jurisdicti

Permissive: Does not arise from same transaction.

Compulsory: Arises from the same transaction or occurrence.

There are two types of counterclaims: Permissive and compulsory.

same evidence test Will substantially the same evidence support orig. claims and counter-claims?

Orig. suit was brought in Federal Court; libel is a state issue; since Ds counterclaims did not arise out of

same transaction, counter-claims were dismissed pursuant to FRCP 12(b)(1).

efficiency - encourage raising compulsory claims.

don't want strategic consideration in the first trial in preparation of 2nd trial.

Policy: why compulsory:

If compulsory, then no need for subject matter jurisdiction.

Strategy: always want to raise counter claim just in case the later ct decides it's compulsory.

whether SoL tolls compulsory claim or not has an effect in deciding raising compulsory claims or not.

Wigglesworth, p. 215 - Plaintiff filed a complaint under the Labor Management Reporting Disclosures Act (Act)

alleging that the union and its president violated certain rights protected by the Act. Teamsters Local Union No.

592 (Defendants) filed a counterclaim for libel and slander against the Plaintiff. Plaintiff moved to have the

counterclaim dismissed for lack of subject matter jurisdiction: FRCP 12(b)(1).

FRCP 15(a)(1): a party may amend its pleading once as a matter of course at any time before being served with a responsive ple

(It could be pretty long if there's a motion)

a party may amend its pleading only with the opposing party's written consent or the court's leave. the court should free

leave when justice so requires.

Arguments: The thrust of Rule 15 is that cases should be tried on their merits rather than the technicalities of pleadings.

Experts, witnesses. discoveries. costly.

The later the worse. Burden to the other party: start from scratch to prepare a defense. Especially if could be raised

prejudice to the opposing party disfavor amendment.

If proof is the same, then favor amend. (no need for much extra efforts).

the other party knew then favor amend.

bad faith against amendment.

If had opportunity but didn't amend then against amendment.

Joinder of additional parties disfavors amendment.

Appellate court would give deference to lower court's on-the-spot feel and only reverse if there's "abuse of discreti

Counter arguments:

FRCP 15(a)(2): Other Amendments (before trial). Crompton p208,223.

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Basically, anything can be joined.

No need to arise from the common transaction or occurrence.

A pleader (not only Plaintiff).

FRCP 18 Joinder of claims.

FRCP 55(a): if a party has failed to plead of defend against the claims of another, default judgment. Shepard p198.

will P be prejudiced?

does D have a meritorious defense?

intent to thwart judicial proceedings.

reckless disregard of effect of conduct on proceedings.

contempt of court.

Willful failure.

did the culpable conduct of D lead to the default?

Three-part test:

FRCP 55(c): motion to set aside default judgment. Shepard p198.

FRCP 55(b)(2) motion to be made aware of the hearing.

Prejudice to P.

Does D have meritorious defense.

Culpable conduct by D. (Willful failure).

FRCP 55(c): setting aside default judgments (one two met, third not, setting aside)

Conduct is culpable when it is an attempt to disregard the system / prejudice P.

Policy: decide case on merit.

FRCP 60(b) is probably harder: setting aside final judgment.

Interlocutory appeal before final judgment.

Standard of review: only overrule if abused discretion - most deferential.

Efficiency consideration: if dismiss now probably need to hear again in malpractice suit.

Policy: decide cases on merits. Careful to dismiss cases.

Shepard Claims v. Williams Darrah (1986) - Ps lawyer failed to answer a pleading w/in the time limit required

and the P made a motion for entry of default judgment. D doesnt answer on time, argues confusion over

whether parties had jointly agreed on extension.

Parties

For equity and efficiency.

Policy:

"...the title of the complaint must name all the parties"

FRCP 10(a) Caption; Names of parties. SMU p240.

FRCP 10 Form of Pleadings.

Not very private. not "matters of a sensitive and highly personal nature"

Balanced cost of D, cost of P, cost to society. Interest of avoid vindication retaliation.

Notify D.

D can investigate.

Fairness. D's name is out.

Avoid credibility issue.

Purpose ofFRCP 10(a):

SMU p240. - Lawstudent organization sue employers for gender discrimination without disclosing names.

D may implead 3P who may be liable to D for all or part of the main action.

3P can defeat the original action and get off hook.

FRCP 14 Third-party practice. (Impleader). Clark p268.

FRCP 14(a)(2)(d): third party D may assert T/O claim against original P.

FRCP 14(a)(3): original P can claim against 3P.

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A court should allow Third-party Practice/Impleader unless it will result in some prejudice to the other

parties.

Strategy: didn't sue agents directly because remedy will be reduced if several liability only.

P's argument: jury confusion, my contract is with this company not with the agents.

Clark v. Associates Commercial Corp., p. 268 Clark sued Associates Commercial Corporation for damages to

his person and property due to Defendants repossession of a tractor that was collateral for a loan made to the

Plaintiff. Pursuant to FRCP 14(a), defendants filed a third party complaint seeking indemnity from its employees

and two parties that assisted in the repossession.

An action must be prosecuted in the name of the real party in interest.

who can sue without showing person of benefit: an executor; an administrator; a guardian; a bailee; a trustee

express trust; a party with whom or in whose name a contract has been made for another's benefit; and a par

authorized by statute.

FRCP 17(a)(1) Designation in General.

...after ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the

party in interest.

FRCP 17(a)(3) Joinder of the real party in interest.

FRCP 17(a) Real party in interest. Vepco Supp 31.

Policy: allow more parties to sue; facilitate resolution of related legal claims.

FRCP 17 Plaintiff and Defendant; Capacity; Public Officers.

Can be interpreted as "the party with the most interest" because VEPCO is a party in interest.

It does not mean any real party in interest must be here.

Ct. does not like it.

Under FRCP 17(a): "An action must be prosecuted in the name of the real party in interest."

Satisfied FRCP 19(a) because subrogatee must be joined.

Satisfied FRCP 19(b). Went through the official factors.

Strategy: Insurance didn't sue directly because want to share the risk. insurance doesn't get sympathy.

Fed personal jurisdiciton: same as state.

Proceed without joinder.

VEPCO v. Westinghouse Electric Corp. (4th Cir. 1973) (sup. 31) - VEPCO (P) operated a power generating station

built by Westinghouse (D). A failure occurred with the station. INA insured VEPCO against such risks and paid

VEPCO $1.9 million. VEPCO and INA settled for an additional $50,000. In consideration of the settlement, VEPCO

and INA agreed that INA would prosecute VEPCOs claims against Westinghouse for the remaining uninsured

loss. VEPCO brought action against Westinghouse for the remaining $150,000 (net deductible) and for $1.9

million for its insurer, INA.

FRCP 19(a)(1)(A) in that person's absence, the court cannot accord complete relief among existing parties; or

FRCP 19(a)(1)(B)(i) as a practical matter impair or impede the person's ability to protect the interest; o

FRCP 19(a)(1)(B)(ii) leave an existing party subject to a substantial risk of incurring double, multiple, orotherwise inconsistent obligations because of the interest.

FRCP 19(a)(1)(B) that person claims an interest relating to the subject of the action and is so situated that disp

of the action in the person's absence may:

FRCP 19(a)(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the

subject-matter jurisdiction must be joined as a party if:

FRCP 19(a) Persons required to be joined if feasible.

FRCP 19(b)(1): the extent to which a judgment rendered in the person's absence might prejudice that person or the

existing parties;

FRCP 19(b)(2)(A): protective provisions in the judgment;

FRCP 19(b)(2)(B): shaping the relief; or

FRCP 19(b)(2)(C): other measures;

FRCP 19(b)(2): the extent to which any prejudice could be lessened or avoided by:

FRCP 19(b)(3) whether a judgment rendered in the person's absence would be adequate; and

FRCP 19(b) When joinder is not feasible. If a person who is required to be joined if feasible cannot be joined, the court m

determine whether, in equity and good conscience, the action should proceed among the existing parties or should be

dismissed. The factors for the court to consider include:

FRCP 19 Required Joinder of Parties.

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FRCP 19(b)(4) whether the plaintiff would have an adequate remedy in the action were dismissed for nonjoinder.

prejudice to the absent persons.

whether relief can be shaped to avoid prejudice to absent persons.

the interest in obtaining an adequate judgment that achieves a complete resolution of the dispute between the pa

and the adequacy of the plaintiff's other remedies if the action is dismissed for nonjoinder.

FRCP 19(b) When joinder is not feasible. four-part test from Pulitzer. Use this one as well as the official one.

Pulitzer-Polster v. Pulitzer (4th Cir. 1986) (sup. 18) - Carol Pulitzer-Polsters (P) father and uncle, Samuel

Pulitzer (D), founded the predecessor of Wembley Industries. P alleges that between 1967 and 1984,

subsequent to her fathers death, D mismanaged the corporation and illegally attempted to exclude P andother beneficiaries from the trust. P and other beneficiaries filed suit in LA court. While the original suit was

1. Ps interest in federal forum;

2. Ds interest in avoiding multiple litigation;

3. Absentees interest in avoiding prejudice; and

4. Interest of courts and public in complete and consistent settlements

19(a)

Relief can be granted b/c only seeking remedy for herself. Not met.

Absent parties may be prejudiced b/c IP or negative precedent could impede their claims. Met.

may be prejudiced by being subject to multiple liabilities (to and to corporation) Met

19(b)

Absent parties would be harmed because of neg. precedent. (not likely but whatever)

could be subject to multiple liabilities to .

Policy dictates it should be dismissed b/c it is wasteful litigation.

will have adequate remedy b/c she still has the state court suit.

Since joinder would destroy diversity jurisdiction, but since the court cannot accord complete relief

among the parties without the joinder of the other beneficiaries, court must decide if case should be

dismissed or allowed to proceed. To answer, Four-factor test used in Provident Bank & Trust v. Patterson

(p. 266).

pending, P filed suit in federal court for the same dispute, but did not join other beneficiaries as that would

destroy diversity jurisdiction. D motioned for FRCP 12(b)(7) under FRCP 19(a). Dismissed under 19(b).

FRCP 20(a)(1) Plaintiffs. Insolia p247 (motion to sever)

FRCP 20(a)(1)(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising

the same transaction, occurrence, or series of transactions or occurrences; and

FRCP 20(a)(1)(B) any question of law or fact common to all plaintiffs will arise in the action.

Persons mayjoin in one action as plaintiffs if:

FRCP 20(a)(2) Defendants. Kedra p245 (motion to dismiss)

FRCP 20(a)(2)(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect

arising out of the same transaction, occurrence, or series of transactions or occurrences; and

FRCP 20(a)(2)(B) any question of law or fact common to all defendant will arise in the action.

Persons may be joined in one action as defendants if:

FRCP 20(a) Persons who may join or be joined.

Language: Rule 20(a)(1) allows it, so long as they are asserting claims arising out of the same transaction or occurrence an

claims will involve at least one common question of law or fact.

Language: there'll be little efficiency gained. This will produce inconsistent results.

FRCP 20 Permissive Joinder of Parties.

**Rule 20(a)(1) and 20(a)(2) speak specifically of "plaintiffs" and "defendants", while Rule 18(a) and Rule 13 are general.***

Misjoinder or parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just

add or drop a party. The court may also sever any claim against a party.

FRCP 21 Misjoinder and Nonjoinder of Parties.

Ds claim that parties were improperly joined because their claims did not arise from the same transaction: smoked diffe

brands; for different lengths of time; had different medical histories; etc.

Distinguishing Kedra:

Insolia v. Philip Morris, Inc., p. 247 Insolia, May, and Lovejoy (Plaintiffs), three former smokers and their spouses, brought a c

action against Philip Morris, Inc. and two tobacco industry trade organizations (Defendants) for fraud and civil conspiracy to com

fraud. Defendant filed a Motion to Sever the claims of the three Plaintiffs into three separate actions pursuant to FRCP 21; also

were improperly joined under FRCP 20(a) because claims did arise from the same transaction or series of transactions.

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Organizational structure may help illustrate whether claims arose from same transaction (Kenda, single police

department v. Insolia, independent tobacco companies).

more efficient trial in Kedra (here we are opening the gate to avalanche of litigations.

police behaved in a pattern but tobacco companies didn't.

Time frame more concise in Kedra.

D's related in Kedra, while P's not in Insolia.

prepare for class action; sympathetic Ps; expand period of time, area of coverage; getting precedents for the follow

suits/settlements.

Reason for joinder:

Ct: cannot let jury decide a theory and not liability.P's strategy: decide whether there's conspiracy, then whether individual P's detail fit in. The first can be precedent.

D challenges the properness of joinder under FRCP 20(a)(2)(A).

P: separation will allow each D to point at other Ds.

D: separation increase costs to both D and P, may push P to drop cases. May incur political costs to D itself.

Joined: Prejudice: prejudice the most guilty (all blame on him) or the least guilty (look more guilty); both possible.

Joined: Prejudice: tendency to find some guilty and not the others?

Balancing the interests:

Judge: case management: discovery on all police officers first, then decide if joinder is allowable.

Kedra v. City of Philadelphia 1978. - p245 - Allegations of harassment and brutality on the Kedra family by the police over 1.5 y

FRCP 24(a)(1) - is given an unconditional right to intervene by a federal statute; or

(1) a sufficient interest in the litigation; and

(2) a risk of impairment of that interest without intervention; and

(3) an inability of the original parties to the litigation to adequately represent their interests.

FRCP 24(a)(2) The court must permit anyone to intervene if the party can demonstrate:

FRCP 24(a) - Intervention of Right. On timely motion, the court must permit anyone to intervene who:

FRCP 24(b)(1)(A) - is given a conditional right to intervene by a federal statute; or

FRCP 24(b)(1)(B) - has a claim or defense that shares with the main action a common question of law or fact.

FRCP 24(b)(1) - In general. On timely motion, the court may permit anyone to intervene who:

FRCP 24(b)(3) - Delay or prejudice. In exercising its discretion, the court must consider whether the intervention wiunduly delay or prejudice the adjudication of the original parties' rights.

FRCP 24(b) - Permissive intervention.

Policy: when the dispute significantly involves social values affecting large numbers of ppl, larger chance to be bound.

FRCP 24. Intervention. NRDC p285.

Interests may appear similar, but even a minimal divergence may prove that the party already in the suit is not an

adequate representative of the other partys interests (holding in Trbovich v. United Mine Workers).

Whether or not to allow intervention will turn on whether a party already in the suit adequately represents the party

seeking to intervene; the burden to show that the party already in suit does not adequately represent their interests will

the party seeking intervention.

For intervention to be allowed, interest in the matter need not be direct; only significant.

Interest: met. need for a permit for business. Fear of preclusion (collateral estoppel) and precedent.

Impairment: met. lose permit if negative judgment.

representation: met. who has permit may not fully litigate. May want to damage competitors.

In determining whether intervention should be allowed, see three-part test above.

Intervention can be denied if not timely.

NRDC v. US NRC (10th Cir. 1978) (p. 285) - Kerr-McGee Nuclear Corporation and other uranium miners filed petitions to interve

an underlying action which sought injunctions to prohibit agencies from issuing licenses for the operation of uranium mills in Ne

Mexico without first preparing environmental impact statements. The district court denied the motions to intervene on the gro

that the interests of the uranium mills would be adequately represented by another intervenor, United Nuclear Corporation. Th

Kerr-McGee argued that any consequence of the underlying action would be felt by them as the largest holders of uranium

properties in New Mexico. Even though a decision would not be res judicata, still it would have a stare decisis effect. The court

reversed and allowed the intervention because the uranium mills did have an interest within the meaning of FRCP 24(a)(2).

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Summary judgment and burden shifting

A. Expanding the scope of Summary Judgement.

Made after discovery but before trial; court considers whether the opposing side has satisfied its burden of production -

whether issue should proceed to trial.

Motion for Summary Judgment

Made during trial and at the close of the opposing side's case; court considers whether opposing side has satisfied its bur

proof (burden of persuasion) - whether jury could reasonably find for the opposing side on the basis of the evidence pres

Judge decides: who must prove what at any given point.

Motion for Judgment as a Matter of Law

FRCP 56(a) - A party claiming relief may move, with or without (Celotex) supporting affidavits, for summary judgment on

part of the claim.

FRCP 56(b) - A party against whom relief is sought may move, with or without supporting affidavits, for summary judgme

FRCP 56(c)(2) - Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, a

affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a mat

law."

FRCP 56(e)(2) - When a motion for summary judgment is properly made and supported, and opposing party may not rely

on allegations or denials in its own pleading; rather, its response must - by affidavits or as otherwise provided in this rule

out specific facts showing a genuine issue for trial.

Policy: avoid irrational decision-making; avoids delay and expense of trying unprovable cases.

The material provided should show that the party will have admissible evidence at trial.

FRCP 56 Summary judgment.

Adickes v. S.H. Kress & Co. (US 1970) (p. 434) - A white schoolteacher from New York, Sandra Adickes (P), joined a group of bla

students in a lunch counter sit-in challenging the refusal of the S.H. Kress department store (D) to serve black patrons at its store

Hattiesburg, MS. P was arrested and sued D for violating her civil rights pursuant to 42 U.S.C. 1983; to prevail, P needed to pro

that D worked in concert with the arresting officers. The arresting officers, in sworn affidavits, asserted that D did not request t

be arrested; D also alleged that he never communicated with the officers. P used an unsworn statement from an employee of D

the one of the arresting officers had been in the store, and a hearsay statement from one of the students that they had

Summary Judgment denied because S.H. Kress failed to foreclose the possible inference of conspiracy by failing to showconclusively that there was no possible manner in which Kress officials might have communicated with the police.

Post-Adickes, summary judgment was rarely granted because movant had to prove with 100 percent certainty that there

no general issue/dispute of material fact. Foreclosure of any possible genuine dispute of facts.

Prof. Louis Movant must demonstrate absence of material fact first; verses

Prof. Currie Nonmovant must produce evidence to withstand motion for summary judgment; shifting burden to nonmo

to withstand motion for summary judgment. Initial burden of production close to 0 for movant.

Policy: strict summary judgment rule decrease efficiency and increase costs because of more frivolous cases.

seen an officer in the store. D filed for summary judgment pursuant FRCP 56(c)(2). T/C granted motion; S/C reversed.

Under Adickes holding, Celotex would have to establish conclusively that the decedent had never been exposed to a Celoasbestos fiber a near impossible task.

Celotex began process of invigorating summary judgment as an integral part of the F.R.Civ.P; Celotex court held that burd

defending movant was quite low.

A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its

motion; defendant/movant must recapitulate for the court those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, which it believes demonstrate the absence of a genuine issue of material fact.

Affidavits not needed can simply point to holes in the nonmovants evidence; courts have interpreted Celotex to allow

defendant/movant to satisfy initial burden of production by the motion itself.

Post-Celotex: upon defendants motion for summary judgment, nonmovant must establish her right to go to trial; shifts b

of production from movant to nonmovant. Has to meet the burden of proof as of at trial?

Celotex Corp. v. Catrett (US 1986) (p. 440) - Catrett (P), a widow of an industrial worker exposed to asbestos, sued Celotex (D) a

several other asbestos manufacturers claiming that her husbands death was caused by exposure to their products. D motioned

summary judgment on the grounds there was no evidence to prove that decedent had been exposed to their asbestos products

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B. Expanding the scope of judicial fact-finding

The existence of significant evidence on both sides would seemingly have precluded summary judgment because there w

disputed issues of material fact.

Court held that Zenith could not simply rely on the existence of a factual dispute to proceed to trial; rather Zenith must c

forward with more persuasive evidence to support its claim than would otherwise be necessary, because the claim was

that simple made no economic sense.

Court found support for its holding from a consensus among commentators that predatory pricing schemes are rarely tr

and even more rarely successful.

Matsushita v. Zenith Radio, p. 464 Zenith (P), the last remaining American manufacturer of televisions, claimed that Japanese

electronic companies were dumping televisions below cost (known as predatory pricing schemes) for the purpose of driving

American manufacturers out of business. T/C entered summary judgment against Zenith despite the fact that both parties pres

extensive factual support of their positions, including expert testimony.

Glannon: if the evidence offered on the summary judgment motion could give rise to two inferences, one of which would

support the opposing party's case, the court should assume that the jury would make that inference and deny summary

judgment.

Anderson v. Liberty Lobby, p.469 During a motion for summary judgment, the nonmovant can survive if and only if the evide

such that a reasonable jury could return a verdict for the nonmoving party. (i.e., granting summary judgment is based on the

substantive standard of proof)

Preclusion

Protect the finality.

Policy:

Res Judicata (claim preclusion) focuses on something relatively large - the scope of "cause of action."

Collateral Estoppel(issue preclusion) focuses on something relatively narrow - an issue that was litigated and determined

former case and that is relevant in a subsequent case.

Claim v. Issue preclusion

There must be a final judgment;

the judgment must be on the merits

same evidence (Rush)

Time, space, origin, motivation (Manego)

Equated to the "transaction or occurrence" test.

the claims must be the same in the first and second suits.

could be essentially the same (Manego has a new D).

the parties in the second action must be the same as those in the first (or have been represented by a party to the p

action).

4 elements from Glannon:

Only bars claims that could be asserted at the original trial. (counter: unable to rely on the final judgment).

Res Judicata Claim Preclusion

The basic proposition underlying res judicata is fairly straightforward: Once a discrete controversy between two parties halitigated to judgment, there is every reason to accord that judgment finality.

Even without FRCP 13, res judicata would require the counterclaims from the same T/O raised or lost.

While FRCP 18 purports to allow joinder of claims, the doctrine of res judicata requires that they either be raised or for

Res Judicata Once a finaljudgment on the merits has been rendered on a particular cause of action, the claimant is barred by

judicata from asserting the same cause of action in a later suit (on the merits does not include judgments based on lack of juris

improver venue, or failure to join an indispensible party involuntary dismissals)

**Exception** Where between the time of the first judgment and the second there has been an intervening decision or a ch

the law creating an altered situation, res judicata will not apply.

Policy: securing the benefit; efficiency; provide finality.

**Exception** - when there's a change in material fact.

Rush v. City of Maple Heights, sup. 15 P was injured while riding on a motorcycle in the City of Maple Heights; the city was

negligent in failing to keep the road in good repair. P filed an action to recover for personal injuries in the Court of Common Plea

Cuyahoga County. P won property damage case. P filed an action for damage to personal property in the Municipal Court of

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A single tort can be the basis of but one action.

Can use the same evidence test to decide whether arise from the same T/O (used in rule 13 too).

Transactional Test: If claims arise out of the same transaction, then the claims must be brought together (see also Maneg

Orleans Board of Trade, p. 1097).

Necessary to prevent (1) multiplicity of suits; (2) burdensome expense; (3) delays to plaintiffs; and (4) vexatious litigation

against defendants; (5) strategic behavior (lead with low value claim and then use the conclusion);

contradiction between: transactional efficiency v. tradition of precision in pleading.

Cleveland. D alleged that P should be precluded from filing another cause of action.

P COULD have alleged the second theory of liability in the first suit if he had properly used discovery.

Consideration as to whether the facts are related in time, space, origin, or motivation, whether they form a conven

trial unit, and whether their treatment as a unit conforms to the parties expectations or business understandings o

usage will determine whether the actions arise from the same T/O or series.

Court adopts the SRoJ 24 definition of same T/O:

Manego v. Orleans Board of Trade (1097) Court barred Ps claim on CP grounds. Original claim was against Bank VP, Bank, &

of Selectmen for conspiracy to deny him a license based on his race. Second claim was against Bank VP, Bank, & Board of Trade

conspiracy to deny him license in order to maintain monopoly. Court found the suit was against essentially the same people and

claim was simply a new motive for the same conduct. Rose from same T/O. Just new theory.

Barred after claim decided on summary judgment

(1) the interests of the parties are aligned; and

(2) the party understood they were acting in a representative capacity and took care to protect the interests of the

nonparty.

A partys representation of a nonparty is adequate only if:

Virtual Representation violates due process by denying someone the historic tradition that everyone should have thei

in court (see also Martin v. Wilks, sup. 78).

Similar to Swierkiewicz SC grants certiorari to remind courts that everyone should have

Taylor v. Sturgell, p. 1168 Herrick, owner of an F-45, filed a Freedom of Information Act request seeking the plans and specifi

for the aircraft from the Federal Aviation Administration. After the FAA refused to turn over the plans, Herrick filed suit against

FAA to recover the plans. T/C found for FAA; affirmed. Roughly a month later, Taylor, represented by Herrick's attorney, filed a

request seeking the same plans. When the request was denied, Taylor filed suit for violation of FOIA. T/C determined that Taylo

been virtually represented by Herrick in the first suit and could not pursue the second suit in federal court. Supreme Court re

the doctrine of virtual representation as a violation of the Due Process Clause.

The idea is that, once invoked, a court determination of fact is deemed conclusive.

If the second suit involved anyone other than the original parties, any factual dispute from the original suit could be

relitigated.

Collateral Estoppel - forecloses relitigation of issues that were already litigated and decided by courts.

Issue Preclusion

Examples of Collateral Estoppel Being Used as a Sword.

The preferable approach is not to preclude the use of offensive collateral estoppel but to grant courts broad discretion

determine when it should be applied.

Concerns about the wait-and-see plaintiff; a party who wishes to prosecute a case but awaits a ruling: 1) to gain advant

issue preclusion to estop D from raising a defense/making a claim; and 2) to gain wisdom about trial approaches and how

win.

After Parklane, defendant is at risk of winning one case or of losing a thousand.

Mutuality of Obligation old view; party should not benefit from offensive collateral estoppel unless they would have

been bound by an adverse holding.

A single case would escalate into a massive battle cuz the D risks losing a thousand.

A P may not estop a D from defending herself simply because the P won an issue in prior litigation with someone else.

Similarly, a victorious D cannot shield himself from future litigation from parties who might be able to do a superior job th

original P.

The modern focus is therefore on issue preclusion rather than on collateral estoppel, either offensive or defensive.

Parklane Hosiery Co. v. Shore, p. 1187 The government (SEC) prevailed against a defendant in a criminal anti-trust case. The

question then became whether the defendant could be bound to the litigated factual findings of the adverse judgment in a

subsequent private civil case arising out of the same course of conduct.

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Class Actions:

1. Class Actions: Perquisites

F.R.Civ.P. 23(a) The prerequisites for class certification are (1) the class is so numerous

that joinder of all members is impracticable; (2) there are questions of law or fact common to

the class; (3) the claims and defenses of the representative parties are typical of the claims or

defenses of the class; and (4) the representative parties will fairly and adequately protect the

interests of the class.

(1) numerosity; (2) commonality; (3) typicality; (4) adequacy of representation

F.R.Civ.P. 23(b) Once the prerequisite requirements of F.R.Civ.P. 23(b) have beensatisfied, must determine the type of class action:

o (1) Limited Fund Class Action Similar to plaintiff interpleader; typically

the plaintiffs have identical claims and joinder is compulsory to protect against (1)

divergent holdings; (2) prejudice to parties not presented (e.g., State Farm v.

Tashire if they hadnt interpleaded).

o (2) Injunctive Class Action Typically seeking injunctive relief from

government or companies charged with violating legal duty; relief cannot be

given to one without giving it to all (e.g., Holland v. Steele, sup. 50).

o (3) Judicial Economy/Damages Class Action Interests may not be

identical, but the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual members, and

that a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy2. Class Actions: Requirement of Notice

Mullane v. Central Hannover Bank & Trust Co, sup. 39 In 1946, Central Hannover Bank

established a common trust fund where a number of small trust estates were pooled into one.

CHB notified by mail each person whose name and address were known and were entitled to

share in the income generated by the trust. In 1947, CHB petitioned the court for settlement of

its account. The only notice given to the beneficiaries was by publication in a local

newspaper. Mullane brought suit alleging that notification in the newspaper was insufficient

(with respect to known present beneficiaries of a known place of residence) and did not

satisfy the requirements of due process of law.

Publication in newspaper may be an adequate supplement to actual notice (letter), but

it is rarely adequate standing alone; rather, notification must be reasonably

calculated to notify those affected.

Due process requires that notice be reasonably calculated, under all circumstances,

to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.

Checklist Civil Procedure w/ D. Webber Fall 2010

**Examples of Rule 23(b)(3): Mass Tort Class Actions**

Castano v. American Tobacco Co. (5th Cir 1996) (p. 318)

The District Court certified a class of smokers of American Tobaccos (Defendants) cigarettes

that were nicotine dependent. Defendant appealed arguing that the District Court did not

conduct a proper analysis under F.R.Civ.P Rule 23(b)(3) and F.R.Civ.P Rule 23(c)(4).

Castano illustrates the limits of Rule 23(b)(3) class action claims:

- Mass torts threaten our current class action rules because its hard to prove that

common issues or law or fact predominate.

- Its hard to show that someone got cancer from smoking; we know that this istrue in the aggregate, but how do you show that YOUR instance of cancer was

caused by smoking and not genetics?

- The problem is that when mass tort cases are dismissed in favor of individual

claims, those claim may never be brought as it is a negative value suit.

Rule 23(b)(3) doesnt require that a suit be a negative value suit; only that class

action be a superior form of adjudication than individual suits.

AmChem Products, Inc. v. Windsor (US 1997) (sup. 57)

The Judicial Panel on Multidistrict Litigation (MDL Panel) transferred all asbestos cases to the

Eastern District of Pennsylvania for pretrial proceedings. After consolidation, attorneys for Ps

and Ds began settlement negotiations to achieve a global settlement of current and future

asbestos-related claims. After reaching an agreement as to the existing claims, the lawyers

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attempted settle all future asbestos-related claims. District court certified class. Appellate

court reversed finding that the class did not meet the requirements of Rule 23(b)(3) nor the

adequacy of representation requirement of Rule 23(a)(4).

Similar to Castano Common issues of fact may not predominate; different

genetics, smoking habits, etc. likely play a crucial role in susceptibility.

Concerns for Rule 23(e)(2) If the proposal would bind class members, the court

may approve it only after finding that it is fair, reasonable, and adequate.

Concerns for Rule 23(a)(4) Cannot assume that the present members adequately

represent the needs and interests of future claimants (similar to Hansberry, p. 299).

Tension between Rule 23(a)(4) and Rule 23(e)(2):- Wanting to resolve pending litigation so that those with illnesses can receive

some recovery but also want to protect the interests of the absent parties.

Economics and fees

Under 42 U.S.C. section 1988. To induce publicly beneficial lawsuits in circumstances where the financial returns fro

litigation are insufficient, or simply not available.

Litigation fees are not recoverable. except

parties are less likely to litigate, but once in litigation, are more likely to accelerate expenditures.

loser-pays system:

a strictly limited procedure designed to take cases to trial within a short but reasonable timescale at a fixed cost.

Policy: prevent wealthy part to wear down the poor party; help predict the cost (no legal fee).

"Fast track" method (small claim courts):

A categorized tracking system in eastern district of Texas (P187 Issachroff) .

Attorney fees

Work-product privilege.

Attorney-client privilege.

Facilitated by:

Policy: allow individuals even culpable ones to navigate the shoals of the legal system.

professionalism, and fiduciary obligations, backed up by threats of discipline or malpractice.

Attorney-client relationship is a principal-agent relationship subject to:

faithful agents of clients.

May not destroy docs, suborn perjury, or facilitate unlawful conduct.

officers of the court.

Lawyer's role

Why litigate

Plaintiff's expected award: EV(P) = Prob (win) X Award - Cost(P).

Defendant's expected loss: EV(D) = Prob (lose) X Award + Cost(D).

Joint pool of award is diminishing as the suit goes on: Award - 2 X Cost.

The settlement Zone: C(P) + C(D). the question is how parties want to divide up the litigation fee.

The rules of civ pro help bring parities into consensus.

FRCP 1: to foster the just, speedy and inexpensive resolution of disputes.

If the P and D agrees about Probability and Award, then they will settle.

Common law cases.

FRCO 12(b)(6) motion to dismiss.

Resolve the uncertainty about law:

notice pleading and liberal discovery to create a limited domain of shared information.

share P's damage information with D's liability information.

discovery makes it costly and increase settlement possibility.

Resolve the factual disagreement.

New theory, unsettled law.

mistake.

random selection and should split 50/50 win/lose.

Why trial?

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the pretrial screening that is provided by discovery and motion practice were to be far more costly than trials and t

systemic gain.

disadvantages:

Game theory.

How ppl integrate information.

ppl value loss more than gain - endowment effect.

value high salience cues more.

Behavioral complexities.

my outline - analysis

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