A Federal court can order a prejudgement remedy if the state in which it sets provides for a prejudgement remedy
or the Federal Law provides for it – needs to be some authority
constitutionality of prejudgement remedies
types of prejudgement remedies
pre-judicial attachments
maintain dignity interest
what the risk of a wrongful taking is
bond (by Plaintiff)
exigent circumstances nullify these
important governemnt interest
special need for prompt action
process must be under the control of a govermment entity or court supervision
judicial review of the affidavit
post seisure of the affidavit is purely immediate
specific allegations are not conclusory --
showing of the right
hearings can not be examples of due process because
There is a hearing given before – immediately after without the person having to file their own suit
One would need to pay damages for wrongful issuance of the writ – legal fees
The sum of all of these differences, under the facts of the Mitchell case, one doesn’t need to provide prior notice and an opportunity to be heard.
The question is what is so special about these characteristics that they trump prior notice and an opportunity to be heard
This is still an ex-parte hearing
Some courts have found value in a hearing over just a written statement of objections to a claim
Grant and not having exigent circumstances –
has to be something that was the object of the dispute
Test that the court applies in Doher
Protect Defendant’s interest
Risk of eroneous depravation
Where did the dignity interest go
Most significant weight is given to the Plaintiff’s interest
State action question
This was state action
But, it could be that although the state wasn’t the Plaintiff, the logic can apply because the state executes the attachemtn
So, this would apply to private reposessions
From Fuentes there guidelines for exigent circumstances
It fits one of the requirements of the Fuentes exception, that it is a need for immeadiate action—hypothetically it would be giving them notice to waste the property
Directly necessy to secure an important govenrmental and public interest – which fits one’s paradyme
dispute between private litigants
The private interests affected
Risk of error inherent in the given procedure as opposed to alternative procedures
The interest the government sought to protect and
Together with the fiscal and administrative burdens of alternative procedures
Defendant interest (might not be so salient)
State court has upheld the impoundment law (taking car without conviction)
Possibilities that the car is rental car
The defendant’s interest would plummet
This is different than when a private party would the power of the government
Fuentes says that even if one can regain possession of property by posting a bond, their right to due process is still violated without a hearing
Broad reading of Fuentes: any prejudgement sequestration that did not provide notice and an opportunity to be heard prior to the attachment was constitutionally suspect
with judicial approval, a vendor’s lien (rather than anything else),made available a procedure to get the goods back, force the Plaintiff to domesonstate the bass for sequestration rather than allow sequestration based solely on conclusatory evidence
even with a bond of twice the attachment amount, no early hearing was provided, altough the defendant could repossess by posting a counter-bond
Statute authorizing seizsure without a hearing must have the following provisions
Credit most post a pbond to safegrad interest of the debtor
Creditor or someone with personal knowledge of the facts myust file file a affividavit which sets out a prima facia claim for pre-judgment attachment of the property
Neutral magestrate must determine that the affidavit is sufficient before issuing the writ of attachment or replevin
Ther must be a provision for a reasonably prompt post-attachment hearing for the debtor
Pre-notice might not really bre with it for people who lack the intellectual capacity to take advantage of the courts
To get quasi-in rem jurisidciton, prejudicicial attachment might be necessary
With quasi in rem judgment there is LIMITED LIABILITY.
Quasi in rem
jurisdiction subjects the defendant to liability only to the extent of attached or garnished in-state property, whereas in personam jurisdiction subjects the defendant to unlimited personal liability.
LIMITED EFFECT OF JUDGMENT. A judgment based on quasi in rem jurisdiction is not res judicata. Therefore, the plaintiff cannot sue to enforce the judgment in other states — if the plaintiff wants to recover more from the defendant, he must retry the case by attaching other property of the defendant or sue in a court with personal jurisdiction over the defendant).
QIR: Whenever the laws of the state in which it sits permit quasi in rem jurisdiction, pursuant to FRCP 4(n); E Ch.2-V(E). However, under the federal rules, the plaintiff must show that he cannot get personal jurisdiction over the defendant by reasonable efforts. E Ch. 2-V(E)(2). NOTE: For federal diversity cases (where the amount in controversy must be satisfied), federal courts are split as to whether it’s the value of the attached property or the value of the claim that should control in determining whether the jurisdictional amount has been satisfied
Types of jurisdiction
Quasi-in-rem -- the power comes from within a state's borders
Federal use of QIR: Whenever the laws of the state in which it sits permit quasi in rem jurisdiction, pursuant to FRCP 4(n); E Ch.2-V(E). However, under the federal rules, the plaintiff must show that he cannot get personal jurisdiction over the defendant by reasonable efforts. NOTE: For federal diversity cases (where the amount in controversy must be satisfied), federal courts are split as to whether it’s the value of the attached property or the value of the claim that should control in determining whether the jurisdictional amount has been satisfied.
Quasi in rem: will only settle one party's interest
Quai in rem ii: where the property is unrelated to the action -- the fundamental fairness test dictates that mere location oaf a stock is not enough to subject someone to QIRii jurisdiction ) . The purpose for allowing states to exerise quasi-in rem jurisidction is to ensure that one's resident have protection against the action of out staters.
In rem: won't encounter much except for admiralty or governmetn (Calims of an object against the world)
In persona
preliminary injuction
Issue before the actual trial – why does the Plaintiff need temporary relief
It has to be showing that there is irreprable harm that they are trying to prevent
Preliminary injuctions maintains the status quo
Stops everything so that no changes will ensure
This freezes the status quo
Requirements for issuing a preliminary injunction
Always needs to be a hearing
Stong liklihood of success
Can he simply rely on the allegations to show a strong liklihood of success on its merits
But, in a noticepleading jurisdiciton the complains can be skeletal
Not only is it possible to have a hearing, but to combine it with the trial
Can get the grievances in front of PLAINTIFF
The injury isn’t full-blown – we can save the Plaintiff, and the irreprable harm requirement is met
It says imminent irreparable harm
On the balancing of hardships – who is favored?
imminent irreparable harm would happen
Would need to bring in expert testimony
There are no guidelines, it seems
Requirements for issuance of a permanent injunction
Whether it actually would have succeeded on ther merits of the case – one would have needed to have prevailed for of the
Can get a permanent injunction when money isn’t adaquate –
One way in which money damages might have been inadaquate is that people would have suffered irreprable harm
This way a way typically used in the preliminary injunction contexts
We show the inadquacy of mney by hsowing the liklihood of irreprable harm – for permanent injunctions will also have to show that money won’t do
They are borader
Might not do because of the irreprability of the harm
He would have to file repeated lawsuits
Calculation of damages would be too messy
He is also seeking money damages
Why do we have the requirement that money be inadaquate
How iminant does the harm have to be for the court to grant an injunction?
The harm has to be fairly iminant, as opposed to being speculative
There is no administiatve exhaustion requirement that goes with rule 65
Issuance is in public’s iterest
Refers to general public interest
Not going to see a lot of courts grappel with this issue
Instead the public interest is usually implicated where there is a disput like in the million youth march
In public law cases, court will more likely recognize a public law cases and guess what it is
Regulations might be indicative
Courts, in private dispute ignore the requirement that the dispute be in the public’s interest
Factors to be considered for preliminary injunctions
Strong likhood of success on merts
Irreprable harm should preliminary relief be dined
Baloace of hardships favors Pls issuing the injuction will advance public interest
Permanent injunctions
Whether the Plaintiff has actually succeeded on the merits
Whether has has an adaquate remedy at law
Whether he risks the imminent irreprable harm
Whether the balace of hardships weighs against inssurance of an injuction, whether aninjuction would serve the publiuc interest anmd whether the court can, as a paractical matter, administer the injunction
Court’s power to enforce injuctions
Contempt
Compsnsatory civil conempt
Coercive contempt
Temporary restraining order
Maybe granted without notice to the targetted party
Can only last for 10 days without a hearing
Preliminary injunctions are one of the ways to get the merits of a case heard hearly
Items to consider
Subject matter (can be raised any time)
Personal
Notice
Service
Venue
Removal
Waiver
Actions must be brought by the real party in interest
Exceptions for guardians, subrogees, etc.
Can be raised at any time, but subject to estoppel defences
Personal jurisdictio: analysis has to be fact intensive, but one can waive their right to personal jurisdiction:
Collateral attack is defined as he enforcing court can always inquire as to whehter the rendering state had juridiction in the first place and refuse to enact it if eit did not
He could littigate the issue in his home state
Rules will neither expand nor contract a court's jurisdiction
Minimum contacts (expectation of being sued) for non-present defendants -- can't be induced into a state by fraud
Long arm statute: Does the forum state’s long-arm statute provide for jurisdiction over the defendant? (Such statutes typically list the contacts required — domicile, use or ownership of in-state property, results arising from in-state tortious acts, contracts performed wholly or partially in-state.)
Long-arm statutes can be applied based on consent to jurisdiction
Present defendant
: obligations to pay debts travel with the person
someone can only be served in the being in federal court doesn't take away your personal jurisdiction problem -- though it extends the bulge rule
one has to get 120 days notice for the pleading
For a non-present defendant, they need minimum contacts to be sued in the forum state that were initiated by the defendant
Specific jurisdiction: The only contract that matter are contracts that relate to or arise from the Plaintiff’s cause of action
The only contracts that count, are contacts that relate to or arise from the Plaintiff’s cause of action
If the cause of action arises out of or relates to the defendant’s contacts with the forum, the jurisdiction is known as "specific" jurisdiction. Contacts sufficient to merit "specific" jurisdiction include the defendant’s acting in the forum to wrong the plaintiff; the defendant’s use of the mails instead of going to the forum to harm the plaintiff; and the defendant’s sending an agent to act on his behalf in the forum and the agent’s committing an act which wrongs the plaintiff.
the mere fact that the cause of action arises from contacts with the forum is not sufficient to justify personal jurisdiction; the contact must still be sufficient to give the defendant a reasonable expectation of being haled before the courts of that state.
International Shoe spectrum -- applies to corporate as well as inidividauls
Penoyer -- people can't bring suits wherever they want
Gray: whether the contacts are minimum or not can be based on whether it was a purposeful availament -- to satisfy the long-arm/constitutionality test
Quality and nature of the contacts are what count (not causal or isolated)
Must be someone who purposely avails themselves of the benefits and protections of the law of a state
Must be a significant amount of business in the state
Insurane company constitutes enough business
McGee: Specific in persona jurisdiction -- acts arising from the quality and nature of contracts with the state
Burger King: continuous, but limited activity in the forum states, such as the ongoing business relationship
General in persona jurisdiction lies somewhere between the contract that support general in peronam jurisdiction and those that support only specific minimum contacts jurisidction
Under a general in persona jurisdciton, a majoory American compamny would be subject to personal jurisdiction in many, if not all state, regardless of whether the claim in arose the state where the suit was brough
Hansen: must be purposeful availament
General jurisdiction: If the cause of action is unrelated to defendant’s contacts with the forum, the requirements are far more stringent than for "specific" jurisdiction: The contacts must be "systematic and continuous" to justify jurisdiction (e.g., maintaining an office in the state).
There has to be an effort to market (not just foreseeability)
Note that, if minimum contacts are satisfied, it would be extremely unusual for the exercise of jurisdiction to be unreasonable, because the interests of the plaintiff and the forum will generally justify even a serious burden on the defendant. But see Asahi Metals v. Superior Court (U.S.1987).
According to the majority, it is not enough for a component manufacutre to merely put its products into the stream of commerce
This is called "general" jurisdiction, and it gives forum courts jurisdiction over the defendant for any claim, whether related to the "systematic and continuous" contacts or not.
General jurisdiction -- based on a long term of continuous contacts that were continuous
General jurisdiction is rare.
4d addresses serving corporate defendants
Purchaes, even at regular interval do not subject a state to foreign corporation to state jurisdiction if the purchases are unrelated to the cause of action
The Plaintiff needs to purposefully avail themselves of the forum
If one is doing business in one state, they are considered to have fair notice of at least a kind of lawsuit – even if you can’t anticipate a particular kind of Plaintiff
Putting things into the stream of commerce do not necessary satisfy the minimum contacts test.
Consent to jurisdiction
If he consents to jurisdiction (e.g., a corporation registers to do business in forum state; the defendant has consented contractually to forum state jurisdiction; the defendant had made a general appearance to defend the action)
Contacts have to relate to the cause of action or be general jurisdiction
Fair play test
One may be deprived of substantive due process by being forced to appear far from home
Is the assertion of jurisdiction "reasonable"? That is, does it comport with "traditional notions of fair play and substantial justice"?
Burden on the defendant;
Interests of forum state;
The plaintiff’s interest in obtaining relief.
Proper service
Subject matter jurisdiction
Diversity jurisdiction: Controversy between citizens of different states or different countries -- congress can expand and retract the jurisdiction of the federal courts
Has to be within the state's long-arm statute and be constitutional
We determine diversity based on the citizenship at the time of filing the of the lawsuit.
Courts won’t allow diversity to be created by collusion
there is no rule that forbids defeating diversity jurisdiction by collusive joinder (and thereby preventing removal, since, without complete diversity, the case could not have been brought in federal court in the first place).
Can’t remove based on a counterclaim
A counterclaim is only compulsory if it relates to the same transaction or occurrence as the original claim and does not require joinder of third parties over whom the court does not have jurisdiction.
If there is no compulsory coutnerclaim, than things may not be precludedf
If there isn't the ability of the lower court to hear a counterclaim, something may not be issue precluded.
modern trend is away from the rule, with federal courts citing their "inherent" power in invalidating assignments and nzs designed solely to defeat diversity jurisdiction. W §31 pp. 185-88; E Ch.3-I
Finding diversity -- burden of proof is on party invoking the federal court jurisdiction if challenged
Residence plus intent to remain indefinitely equals citizenship
Where she pays her taxes and how long she has been in Idaho may be probative
Definition of housing might be maintains an apartment that she doesn’t sublet, year-round
One can have several residence
Corporate citizenship is defined as To determine citizenship of corporate defendant it is where it is incorporated and where it has its principle place of business
For federal diversity jurisdiction, on the other hand, a corporation is a "citizen" both of the state in which it is incorporated and the state where it has its principal place of business.
Corporations are citizens of the state where they are incorporated, and the principle place of business
"Nerve center" test — principal place of business is the corporate headquarters, where decision making takes place.
"Muscle" test — principal place of business is where the corporation does a majority of its manufacturing or provides most of its services.
Insurance proviso – claims against an unsurance company give the insurance company the citizensship of where the claim is filed
Non-resident aliens and Americans residing abroad are not citizens of any state
Need to have high amount of damages – to permissively join two claims, one needs to have claims that result from the same transaction
A single Plaintiff can aggregate all claims in the federal court irregardeless of transactional relations
The majority rule in non-damage claims (e.g., where an equitable remedy like specific performance or an injunction is sought) is for the court to measure the value of the claim to the plaintiff
Where there are multiple parties and neither satisfies the amount in controversy requirement, claims cannot be aggregated to satisfy the amount in controversy requirement of federal diversity jurisdiction (more than $75,000).
Where the claims are joint claims (where there is a single title or right in which the plaintiffs have a "common and undivided interest")— e.g., the plaintiffs are joint tenants in a piece of land and they’re suing for trespass, or as co-obligors, co-obligees, etc. — where the claims can be aggregated to satisfy the amount in controversy requirement..
Subject to joinder as a necessary party only (not indispensable):
Joint obligors and joint obligees in lawsuit on the obligation.
Joined claims must still have independent grounds for Subject matter jurisdiction
Joined claims are never required, but they can make something subject to Res judicata
Permissive counterclaims are not covered by Subject matter jurisdiction
A counterclaim is only compulsory if it relates to the same transaction or occurrence as the original claim and does not require joinder of third parties over whom the court does not have jurisdiction.
Exceptions to complete diversity
Exceptions to complete diversity
Note: unincorporated associates, such as unions, are citizens of every state which it has any memberw
Statutory interpleader: Only minimal diversity is required
Claims covered by supplemental jurisdiction, such as those brought by third-party defendants: Class actions (and some other representative actions), in which only the citizenship of the representative(s) need be diverse.
One a third party counterclaim is in, he can assert anything. It dones't mean that the court will apply it.
Appellate jurisdiction does not like to review trial court’s findings of diversity jurisdiction
Difficulty of overturning the finding that the Plaintiff is a citizen of Idaho
Factual finding are reviewed under a deferential or "clear error" standard –
Appellate court would show deference to the original court.
Trial court would be closer to the evidence, etc.
Subject matter jurisdiction
Some lower courts have adopted the 6th circuit's ruling that if you can prevail under state law, it should stay there
Complete diversity needed for federal court to try state law (Strawbridge rule)
Complete diversity determined at filing: burden of proof is on party invoking the federal court
Corporate citizenship is defined as To determine citizenship of corporate defendant it is where it is incorporated and where it has its principle place of business
Corporations are citizens of the state where they are incorporated, and the principle place of business
"Nerve center" test — principal place of business is the corporate headquarters, where decision making takes place.
"Muscle" test — principal place of business is where the corporation does a majority of its manufacturing or provides most of its services.
Insurance proviso – claims against an unsurance company give the insurance company the citizensship of where the claim is filed
Non-resident aliens and Americans residing abroad are not citizens of any state
Individual citizenship
Residence plus intent to remain indefinitely equals citizenship
Where she pays her taxes and how long she has been in Idaho may be probative
Definition of housing might be maintains an apartment that she doesn’t sublet, year-round
One can have several residences (for venue purposes)
Courts won’t allow diversity to be created by collusion
there is no rule that forbids defeating diversity jurisdiction by collusive joinder (and thereby preventing removal, since, without complete diversity, the case could not have been brought in federal court in the first place).
modern trend is away from the rule, with federal courts citing their "inherent" power in invalidating assignments and joinders designed solely to defeat diversity jurisdiction.
The 75,000 for divresity claims
A single Plaintiff can aggregate all claims in the federal court irregardeless of transactional relations
Where there are multiple parties and neither satisfies the amount in controversy requirement, claims cannot be aggregated to satisfy the amount in controversy requirement of federal diversity jurisdiction (more than $75,000).
Where the claims are joint claims (where there is a single title or right in which the plaintiffs have a "common and undivided interest")— e.g., the plaintiffs are joint tenants in a piece of land and they’re suing for trespass, or as co-obligors, co-obligees, etc. — where the claims can be aggregated to satisfy the amount in controversy requirement. W §36 p. 211.
Subject to joinder as a necessary party only (not indispensable):
Joint obligors and joint obligees in lawsuit on the obligation.
Joined claims must still have independent grounds for Subject matter jurisdiction
Review: Appellate court does not like to review trial court’s findings of diversity jurisdiction
Factual finding are reviewed under a deferential or "clear error" standard –
Appellate court would show deference to the original court.
Trial court would be closer to the evidence, etc.
Removal jurisdiction (presupposed concurrant jurisdiction if the defendant wishes to remove something – no ability for Plaintiff to exercise – even if on counterclaim)
Removal has to be filed within 30 days of reeving the pl's pleading
Most things a federal court can hear, the state court can hear it as well.
If something is in state court, but there are supplemental claims that are separate and independent causes of action in the federal jurisdiction the entire case may be removed (including the state law claims) and the district court may determine all issues therein, or, in its discretion, may remand all matters in which state law dominates
if a non-removable cause of action is joined with a federal claim and removed, at the federal court’s discretion, the federal court can dismiss the fedearl claims and remand to the state court all matters in which state law predominates
can’t remove based on a counterclaim
there is no expicity authority for removing things from federal court.
Federal venue rules do not apply in removed action
Note: Transfer displaces the Plaintiff's geoegraphical choice for litigation while removal switches system
Removal applies to cases, not claims
Analysis for removal
removal: cannot be made on the basis of an anticipated defense, just as a case cannot be filed in federal on the basis of an anticipated defense
can only look to four corners of complaint as a grounds to removing the case
some division as to whether compulsory counterclaims (whereby the Defendant must make all claims – e.g. auto-accident) can be precluded from removing to Federal Court if the four-corners of the complaint do not provide a federal question
seem to be unfair, because it leaves the Defendant with only a chance to exercise a 1257 (writ or cert) claim to bring his counterclaim into federal court – as soon as it goes as far as the highest court in the state will take it
general test is that a case is removal only if it could have been heard in federal court
exceptions: (only in diversity) - §1441b
no removal if any defendant is a citizen of the forum
there is no removal more than one year after the case was filed in state court – §1446b
can’t remove based on a counterclaim
all defendants must agree to be removed
but one defendant can removed to federal court if there is a separate and independent federal question claim
review of state courts review of state tribunals by federal courts is de nova – because they do not have access to the full set of record
Ginsberg: federal courts might not have expertise overl local policies
Federal courts should decline jurisdiction as a matter of discretion if the state law claims are either novel or complex, or more overwhelming than the federal claim
remanding
motion to remand the case on the basis of any defect other than lack of Subject matter jurisdiction must be made within 30 days after the filing of the removal. If there ia loack of Subject matter jurisdiction the case will be remanded – but it can also be severed and remanded.
Federal Question jurisdiction: Federal question jurisdiction: (§1331) Issues concerning the federal constitution, a federal statute, or treaties of the US (Civil Rights, Admiralty, Patent, or State laws that refer to federal laws)
Supreme court seems rigid in deciding when a question is federal – for instance, negligence by means of violation of a federal statute, that does not provide for specific civil remedies is not a federal question -- but actions that would normally be state actions that relate to federal interests are federal actions
Implied private right of action: Court will look to congresses’s intent in deciding whether it intended suits to be brought at the federal level or the state level – and whether it intended tort claims to be brought as a federal tort claims (e.g. RICO v. Negligence)
Court will look at which classes congress intended the statute to benefit, leaving the Plaintiff with simple state common law negligence
Supplemental jurisdiction -- adding a claim (a federal question has to be your anchor claim) -- do not think about until one considers whether there is an independent basis of Subject matter jurisdiction
pendant jurisdiction – Plaintiff adding a judicial insufficient federal claim to a sufficient claim (joinder of Defendant's by Plaintiff)
Diversity only
Addition of state law claims to diversity transactions, they must be transactionally realted. If all the Plaintiff is attempting to do is to add a state law claim – ask if the state law claim is transactional related (common nucleus of operative fact)
If one is addding a party, it also must be
Can allege "conspiracies" or "policies" as basis for transaction
Requirements
At least one Plaintiff has to have had dealings with at least one of the proposed defendants
For purposes of rule 20 joinder, each Plaintiff needed seek relief against any defendant – one Plaintiff that is seeking releief against each of the defendants
If the anchor claim is dismissed, the federal has the discretion about whether to also dismiss the state law claim
Discretionary factors in Gibbs that done when a federal court should be hearing state claims based on pendant jurisdiction
Would the interests of judicial economy, convenience, and fairness to the litigants be served by the court’s exercising pendant jurisdiction
Do the state issues predominate or is the state claim so clearly tied to the question of federal policy that it should be decided by a federal court?
Which is stronger under the facts of the given case, the desire to avoid needless decision of state law in the interest of federalism, or the need for a federal court to decide issues closely related to the application of federal law
Would a jury be confused by combining the federal and state claims in a single trial
pre-emption – a judge can decide what claims pre-empt a state-law claim
Earlier state actions about the same set of circumstances are res -- covered under the full faither and credit statute. But, we have to look at the similarity of the state law to the federal law.
Even if a claim is transactionaly related as per Rule 14 -- every party must have an independent basis of jurisdiction
Authority is divided as to whether counterclaims against the Plaintiff need independent Subject matter jurisdiction as well
Supplemental claim jurisdiction --
In supplemental jurisdiction one is appending a state law claim to a federal question claim
Needs to be transactionally related
Only one party needed to bring the matter into this jurisdiction.
Can there be a divergence on the set of fact – between their anchor claim and their supplemental claim
There needs to be a state law claim that could be heard in federal court
The supplemental claim will always be a state law claim
Ancillary jurisdiction (Federal courts will get ancillary jurisdiction in the case of compulsory (not permissive) counterclaims, interpleader, and intervention)
According to some courts: Counterclaims by the defendant – if they exceed 75,000 will satisfy diversity jurisdiction
Exceptions are made for arbitration awards
Counterclaim
Compulsory counterclaims are those that result from the same transaction
If Compulsory counterclaims aren’t raised, they are waived
Permissive counterclaims are those which do not result from the transaction or occurrence of the original claim – not subject to ancillary jurisdiction
Can't encourage people to evade the complete diversity requirement
With ancillary jurisdiction a non-federal claim can be added
Impleader: can only impleade someone when the third party may have be liable for part of the claim by the Plaintiff against the Defendant -- have to look at Eerie doctrines and state law
If it transactionally related, doesn’t have to be the total overlap of the evidence m to make a difference): Even if one claim is eliminated there is still a supplemental claim and supplemental jurisdiction analysis: Plaintiff can claim against implead parties based on transactional relations and if there is independent Subject matter jurisdiction
If someone is a defendant, or the complaint is amended, there is no supplemntal jurisdiction over things that are based over amended complaints
The Plaintiff may assert claims against the 3rd-party defendant arising from his 3rd-party counterclaim -- provided this is transactionally related (it is done by amending the complaint)
As a policy matter it seems that defendants get benefit of doubt when it comes to impleding third-parties
Reasons for impleader
Indemnifacation: Right to indemnification can either be express (a contractual provision in which someone agrees to compensate for the damage caused by someone else) or implied (a person without fault is held legally liable for damages another’s fault caused).
Subrogation: One person’s succession to the rights of another, making him a "subrogee.
Breach of warranty: In general, violation of a seller’s representation concerning the character of (or title to) a product.
Contribution: Covers the following situation: A joint tortfeasor is held liable for damages to his victim. The joint tortfeasor can thereafter seek contribution from his fellow joint tortfeasor(s), to reflect his/their fair share of the burden.
Impleader – rule 14 -- where another potential defendant is transactionally related (according to the defendant) – the rule does not allow for addition targets – but it allows defendants to find additional targets to pass on liability (which ever theory of liability the defendant choses, msut be supported by state law)
In impleader, must claim that the impled’s liability is derrivitive – not simply a case of pinning liability on someone else
Types of impleaders -- must be based on substantive state law
Indemnity is defined as the Right to indemnification can either be express (a contractual provision in which someone agrees to compensate for the damage caused by someone else) or implied (a person without fault is held legally liable for damages another’s fault caused).
Subrogation is defined as One person’s succession to the rights of another, making him a "subrogee." Here’s a common example. Some jerk hits your car, and your insurance company pays for repairs pursuant to your car insurance policy. The insurance company can seek recovery from the jerk on a subrogation theory to the extent the insurance company was liable to you under the policy.
Contribution: Covers the following situation: A joint tortfeasor is held liable for damages to his victim. The joint tortfeasor can thereafter seek contribution from his fellow joint tortfeasor(s), to reflect his/their fair share of the burden.
Breach of warranty: In general, violation of a seller’s representation concerning the character of (or title to) a product.
For impleader purposes, the secondary defendant is only liable if the primary defendant is liable
Impleader rules require that the 3rd-party defendant be responsible to the 3rd-party Plaintiff and not the original Plaintiff
Once the defendant impledes a 3rail-road-party defendant, he can join to his impleader any other claims that he has against another party
A party facing impledaer may raise any available defences to the original cause of action in the answer
Impleader must be done in 10 days – or with leave of the court
Implead third parties must assert claims or additional claims against transactionally related parties
Can be counterclaims (at the option)
Third parties can move to sever the dispute
If a counterclaim is lodged by a 3rd-party, against Plaintiff, the Plaintiff can implede additional parties
Impleader of third-party defendants (FRCP 14), but only asto claims by and against third-party plaintiffs and claims by third party defendants, notclaims by the original plaintiff against third-party defendants; do not require an independent basis of Subject matter jurisdiction
intervention
Intervention as of right
SUBJECT MATTER INTEREST:
The intervenor must have an interest concerning the property or transaction involved in the case;
IMPACTED INTEREST:
Disposition of the action may, as a practical matter, impair the intervenor’s ability to protect his interest; and
INADEQUATE REPRESENTATION:
The present parties do not adequately represent his interests (generally due to collusion between the representative and the adverse party, the antagonism of the representative’s interest to those of the intervenor, or the intervenor’s desire to appeal an adverse judgment when the representative refuses to do so).
Examples
Property suits like mortgage foreclosure or quiet title
specific performance of a contract (where any party to the contract can intervene as of right).
that a "necessary party" under FRCP 19(a) would also be an intervenor as of right under FRCP 24(a) — if the court orders joinder, it’s a necessary party; if the party wants to join, it’s intervention.
JURISDICTION: Intervention as of right is covered by ancillary jurisdiction and, thus, creates no jurisdictional problems. (Compare this with permissive intervention, which must meet independent jurisdictional grounds).
TIMELINESS: Intervention should be timely, but the court should rarely deny intervention as of right due to untimeliness (since the potential intervenor may be seriously harmed if excluded).
APPEALABILITY: The order granting intervention as of right is not a final order, so it is not appealable. If the intervention is denied, it is appealable; the appellate court will look at the merits and reverse if it was of right.
Intervenors (what about those representing the public) are collaterally estopped after the case is overIntervenors as of right need diversity (only entiteld to ancilliary jurisdiction if they do not break diversity)
Permissive interventions
"applicant’s claim or defense and the main action have a question of law or fact in common," or a federal statute permits permissive intervention.
The most important facet of permissive intervention is that, as the name suggests, the trial court may permit it — it’s discretionary. As a result, predicting in any given circumstances whether a court will permit intervention is very difficult. A court should not, however, allow permissive intervention that would unduly delay or prejudice adjudicating rights in the main action. FKM §6.10 p. 373-5.
JURISDICTION: Since permissive intervention is not covered by ancillary jurisdiction, it requires independent jurisdictional grounds. Thus, in a diversity case, the intervenor must not have the same citizenship as any opposing party, and his claim must meet the amount-in-controversy requirement. Since intervention as of right is covered by ancillary jurisdiction, this is the most important practical ramification of how you classify an intervention.
analysis’s
Where there is no alternative form where everyone can be brought, chances are that absentees won't be indispensable
Way to intervene as of right
Interests may be harmed
Even though there may be stare decisis, one must be certain the the present interest in the contravercy is sufficient to begin with
Have to know what harm is specifically
Interests are not protected
Would not allowing them to be heard have a stare decisis effect
Would it be irreprable harm
Sufficient represenations
Ways to intervene as of right
Interesests that can't be protected
3rd party beneficiaries might have standing to sue, and rate payers might not
distinction to tell if someone is adequately represented: an interferon is someone who could have brought the lawsuit anyway
way to get around standing requirement
Cascade: economic interst supported by anti-trust interest
Trobovitch: his direct interst in the union falls within the zone of interst protect by the statute
Zone can come from statute or common law
Anti-trust laws are public law and public law is within the zone of interst
Economic interest suffices for economic interst when the intervenor owns the economic interest
NOPSI: they have to own the economic interest
Natural resources
Question is whether an intermediate body besides the court would react in a certain way
Two kinds of standing
Common law or statute
Zone of interst
Please visit
Interpleader: defendants deciding who has the claim to a stakeholder’s money -- doesn’t bring together all littigation resulting from an incident, just clarifies the obligations of stakeholder. Even there is only one suit, interpleader can be raised as a preventative measure
Statutory interpleader -- where only two rival claimants must be diverse with each other
Minimal diversity is all that is necessary (claimants can be anywhere in the coutnrY0, and there is only a minimum of $500
Statutory interpleader suit can be brought in any district in which any claimant resides
Nationwide service of process in interpleader
If the claimants are from the same state, staturory impleader isn’t available
Must desposit money with the court
Rule interpleader m-- based on where the stakeholder not being co-citizens with any of the claimants
No diversity among the interplead complaintants
Rule interpleader requires that the stakehold have diversity from all of the claimants
No need to desposit the money with the court
Venue-- based on where defendant resides
Determined when action is filed
Note: corporate defendants are in proper venue in any place that they would be sufficient to make it subject to personal jurisdiction
(not only one state is going to be its place of bussiness for diversity purposes)
a corporation may be subject to personal jurisdction, but it may be in an improper forum if
it would not suffice that it was subject to personal jurisdiction onj some other claims related to the case before the court
venue only in the particular districts state where the defendant has contacts
hence, some jurisddictions in the state would be improper venue
dismissing -- or tranferring
common law doctrine
Bivens: Court can create a federal common law to protect the constitution protected rights (e.g. creating a cause of action)
IN diveristy cases, no removal of a citizen who is a citizen of the form. And no removal one year after a case was filed.
1404, and forum-non are always relevenat (1404 is what lets people transfer)
Venue: there can be multiple venues
Forum non-convience…
Forum non-conviens transfers (can't be waived by defendants)
Personal jurisdiction exists in the transferee district
Is the district a proper place for venue
Was service of process possible in the transferee district
14014, 1406 -- proving for the option of forum non-convinence
Plaintiff will always have proper venue--401 is transfer
404 is dismissal
Forum non-conviens transfers (can't be waived by defendants)
Personal jurisdiction exists in the transferee district
Is the district a proper place for venue
Was service of process possible in the transferee district
Venue: there can be multiple venues
Forum non-convience…
14014, 1406 -- proving for the option of forum non-convinence
Plaintiff will always have proper venue--401 is transfer
404 is dismissal
Federal question
Venue is proper in a juducicial district where any defendant resides (if all the defendants reside in the same state)
Where it happened
Where defendant may be found (e.g. subject to tag personal jurisdiction)
Venue determined when claim filed
personal jurisdction determined when claim arose
Any jurisdiction in the countr is proper if the defendant is an alient 1391d
Note: venue is propper where any of the events occurred
In rem: if a substantial part of the property was in somewhere
Personal juridiction -- only look at the state
Defects
1404 -- in proper venue
1406 -- in improver venue
Diversity cases
Defendant residnces
Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is sitated
A judicial district in which any defendant is subject ot personala jurisdiction at the tim ewhthe action is commenced, if there is no district in which the suit may otherise be brought
Other cases
Defendant resides
Substnaila part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the actionis sitatted
A judicial district in which any defendant may be found if there is no district in which the action may otherwise be brought
Residence
A personwho is subject to personal jurisdiction is subject to jurisdiction anywhere in theat tstate
Residence seems to mean domicile
Venue can be based on where the substnaitla parts of the claim occurred
If the claim can't be broughtanywhere else, it can be brought in a judicial district in which any defendant is subject to personal jurisdiction
Venue can be waived by the defendant
For corporate defendants, venue is decided based on whether the judicial dsitrct is possible, if it were a separate state
bbb
Diversity venue
Where any defendant resides, if all defendants reside in the same state
Where a substantial part of the events giving rise to the claim occurred
If for in-rem, where a substantial part of the property is located
If neither, then where any defendant is subject to personal jurisdiction
Federal question venue
Where any defendant resides, if all defendants reside in the same state
Where a substantial part of the events giving rise to the claim occurred
If for in-rem, where a substantial part of the property is located
If neither, where any defendant may be found -- treating the district as a state
Note: there are some actions which have special venue provision
Removal venue
When a state action is removed by defendants, venue doesn't matter
Joinder: If the non-diverse party is necessary and indispensable, one must dismiss the entire suite
Compulsory joinder (one can make a motion to dismiss if not they aren’t included
Necessary parties
if the outsider must be joined in order to give complete relief to the parties
without him, proceeding would be substantially prejudicial, because it would either impede his ability to protect his interest (in later proceedings)
or it would expose the current parties to the risk of multiple liability or inconsistent obligations. (The mere possibility of multiple lawsuits doesn’t suffice.
Feasible parties
Neeed to have an independent basis for Subject matter jurisdiction because the Plaintiff is impleading them
note: The mere possibility of lawsuits that are inconsistent result is not protected
Standard is what harm may be accrue if party joinder is not ordered, rather than what policy should be satisfied though joinder
If the existing party or the absent party would be prejudiced by the result, the court looks at a way that it could reshape the settlement to avoid this
Court can decide that it is possible to shape relief in a certain way to avoid prejudice to the absent party (if possible)
Now the courts do not want to dismiss the case
Courts may try to either give a different remedy, or withhold relief
One possible way is for absentee to intervene using defensive interpleader: the defendant can make cross-claims or
Mitigation
Whether Plaintiff has an alternative forum will be considered. IF he has an alternative forum, the court is more likely to find an absent party to be completely indispensable
The court will not grant relief if the judgment would be ineffective (e.g. unwound by subsequent litigation by the absent party)
e.g.: must sue the executor, and avoid "takings"
effect of dismissal – whether Plaintiff would be prejudiced by the dismissal
cannot be merely speculative – must be, real and not just a possibility.
Were there is no alternative form where everyone can be brought – chances are that absentees wont’ be indispensable
Parties brought in through impleader or interpleader are not indispensable
Partition actions make all parties involved indispensible
Joint tortfeasors are never indispensible parties
adequate remedy
courts look creatively at the suit to determine whether parties are jointly and severally liable
note: joinder of joint obligors is up to the Plaintiff's discretion
Joint obligees are usually held to be indispensable – and non-joinder has led to a dismissal of action (indispensible)
effect of dismissal
The court must determine whether the absent person has an interest in the action that may "as a practical matter" be adversely affected in his absence
The court must consider whether the absence of the person will expose any existing party to multiple or inconsistent obligations
Substantive law can provide for double or multiple liability. – and the court will accept it (e.g. joint and servable liability)
Asking for something, that someone else might have a right to makes for a high chance of multipel liability
Judicial gloss
Risk of several lawsuits
Risk of defendant bearing several liability for this risk he shares with another
Absentee’s interests in avoiding from the proceeding
Examples
Patent/copyright owner when exclusive licensee of patent/copyright brings infringement claim against third party;
All other owners of same property when a co-owner of property seeks to quiet title in (or partition) the property;
Original lessee when lessor sues sublessee to force forfeiture of main lease due to sublessee’s acts;
Partial assignees;
All beneficiaries of a trust when action is to fix shares in trust;
All partners in a suit by a partner to dissolve the partnership;
All owners of property in a suit to establish an adverse interest in the property (e.g., foreclose a mortgage or remove an easement);
Corporation in a shareholder derivative suit.
If joinder is not feasible, the case will be dismissed based on the following criteria in good equity on conscience:
Permissive joinder every defendant must meet Subject matter jurisdiction jurisdiction requirements (must have personal jurisdiction)
Criteria for allowing permissive joinder -- interpreted broadly (even the same injury)
Transactional relationship
Must be a common question of law or fact that ties them togetehr
If there are Multiple plaintiffs who join under "permissive joinder" they do not need an independent basis for Subject matter jurisdiction
Tolling aspect – in that when someone is in Federal Court, the state STATUTE OF LIMITATIONS is running – so there might be a tolling issue
Choice of forum
Forum non-convenes – court’s discretionary decline of personal jurisdiction despite the fact that this is This is geographically where one could bring the suit
Factors
Interests of the littigants
Convienience of the original forum
Effect of keeping action in the original court
Choice of law: Diversity cases and state law
Just because you sues in one state, it doesn’t mean that that state law will apply to the lawsuit
Choice of law issue that arose from a diversity suit in federal court
Although they are brought in federal court, they are about state law
It is a question of whether you apply federal law or state law
It is about state law, but there are different aspects of a state law that are either controlled by state law or federal law
Question of who has the burden of proof varies between state and federal law – this is an conflict (an Eerie conflict)
Burden of proof is really 2 things -- bruden of going forward (production) -- wherther youhave presented enough evidence to get to the jury, and burden of persuasion once you get to the jury whether they belive them or not. Summary judgment only deals with the burden of production
If it is a substantive issue then state law would apply, federal law substantive
The real problem is in determining whether something is procedural v. substantive –
Procedural vs. substantaive Hanna case: if ignoring the state rule would be outcome determinative, than the state rule is substantive than we have to apply state law
Things that are arguably argubaly procedural will now be handled under federal rules
Certificaiton (in some states) -- in general the federal court might look to state substative law -- and may may an edjudcated guess as to what state law would be basd on persuasive authority
Eerie won't be applied when the US is a party because of the overwhelming need for uniformity (need outweights state's interests)
Dismissing a case, 1367c provides discretion for the federal court when a federal court may decline to here a state law claim
Novel of complex issue of state law
The state claim substantially predominiates over the claim or claims over which the district court has jurisdiction
The district court has dismissed all claims over which it has original jurisdiction
All meaning all claims in the suit – even by other Plaintiffs
In exceptional circumstances, there are other reasons for declining jurisdiction
Layering With ancillary jurisdiction (where there may be grounds for suing one party, but not the other), if the grounds for suing the first evaporate, the court may say that supplemental claims based on the 2nd may be judicially inefficient
History of eerie Conflict
Tyson:
Eerie: 10th amendment reigns -- in a federal question the federal court can create a fedearl law. Federal court have to follow state law if outcome determinitive.
York: Federal courts are bound by state law if the procedure is otucome determinative
Byrd: Refining -- see if the fedral interests are weightier than the state's interests . We have to ask why the state is intersted in doing what it has done. We know that the staes have gone too far when they have alterend the essential funcation of the federal court.
Hanna: if there is a rule and there is a close call, the rule governs (e.g. Hanna modifies York if there isn't a federal common law) (Hanna also includes the fiarness test). There seems to be a bifurcation between the primary conduct (negligence or non-negligence) (the test fo substantial, si whether disregarding the ste law would be said to effect the privmary conduct, the state law is substantivae)
Hanna -- when the federal rules are on point
Federal court doesn't necessarily have to substitute state court rules for its own -- if there would be inequitable adminstaiton of the laws
If it is a federal rule that is in conflict with the state common law, than the federal rule applies
Hanna: if there isa federal rule, use (if it doesn't abridge, enlarge any substantive)
E.g. jury trial
Hanna -- if there is a conflict than go to "arguably procedural" and REA -- if it is not arguable procedural than it is REA
Hanna number 1 Federal judicial practice is trumped by state law if there is a conflict. If there is a conflict
Hanna number 2 -- Federal rules and statutes trump State, unless abridges or modifies any substantiv e law (REA, 28 USC §2072)
Benefit of doubt is given to federal laws (in deciding whether procedural or not)
York -- the outcome determinitive test
Byrd: federal courts must honor state-created rights
Importance of state policy balanced with importance of federal policy
Eerie is used when there is no federal rule
Eerie (if no federal, apply state law -- do not make new federal common law)
State Law v. Federal Common law
Deciding whether the state law is procedural (when it could be disregarded in favor of federal law)or substantive, in which case it must be applied
Hannah test: if you disregard state law, then that state law is substantive and one has to apply it
This test applies to this sort of conflict, as it applies to state law and federal common law
By outcome determinative – disregarding would be outcome determinative if it would encourage forum shopping
Disregarding the state law would be state law if it would encourage forum shopping
Encouraging litigants to seek a state law to hear a state law claim in the hopes of finding a better outcome
One is supposed to get the same outcome
If disregarding the state law would encourage litigants to go to the state law to get a better outcome – because it is a state law claim
Disregarding the state law will also be outcome determiniative it it would lead to a significantly different result in the case – then we must apply state law
Choice of law and the Eerie Doctrine: The outcome in a diversity case that is brought in federal court should be the same as if was brought in state court – when it is not the same, it has constitutional implications.
If the Federal courts are producing different outcomes than the state would produce, this would conflict with the idea of federalism -- this is when it would be outcome determinative.
Under SD law, for example, the PLAINTIFF has burden of pleasing or proving contributory negligence
Relaxed Eerie doctrine
Bivens: Court can create a federal common law to protect the constitution protected rights (e.g. creating a cause of action)
Federal rules will be supreme, if they are not outcome determinitive, but protect some federal interest
Class actoins:
Amending
by appealing, rather than amending, the Plaintiff has attmeped to --
the same reasons that a court might decide or not decide to treat a admission as a denial might be the same reasons that it might deny leave to amend
being dilatory is a reason to not grant leave to amend
set off claims -- where the is a claim in addition to a Liquidated Damages Clause
where a denial is made in bad faith, a coury may deem in to be admitted
law of the case -- operates -- by appealing, rather than amending the Plaintiff
one waives their right to a new legal theory by appealing
relation back (claims relate back to the original pleading)
if the Plaintiff seeks to amended the compalint after the statute of limitations would have run on the claim there is a question of whether the amended compalint relates back to the date of the filing or the other claim
relation back ius usually permitted -- once you file something, you can add on transactionally related things
can't relate back to new parties
if the party knows (or should know) that he will be joined, this will be viewed as a relation back
for telation back to apply to a new defendant, the defendant must have been on notice within the 120 days -- amended in federal diversity case
dismissal on the pleadings
Fed rule 8 requires a short and plain statement of the claim demonstatint ght that Plaintiff is entitled to relief
Conley v. Gibson -- court will construe - but defendant is entitled to know the basis on which the Plaintiff is seeking damages
Short, plain statement is all that is necessary
The defendant is entitled to know the basis on which the Plaintiff is seeking damages
One reason for notice pleading, is that sometimes the Plaintiff won’t know all the specific of her own case
unintelligibility
can get a motion for a more definite statement
The standard tends to be unintelligibility
This does not allow you to give a simply admit or a deny
Discovery
Why does the court refuse to dismiss this claim – the Plaintiff doesn’t have enough information to say that the Plaintiff might be negligent
discovery things are reasonably calculated to turn up admissible evidence
the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).
if it relates to a material fact, than it is relevant
A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
Have right to everything at the depo, except for the things that are privildiges. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. --vagueness has to be made imediately
having joined a claim, medical evidence ceased to be privilidged
if you do not object to a question, one can be compelled to testify about privildiged material
employees personify a company, even if they aren’t managing people if they are communicating with counsel
work products might be asking for the attorney's own facts on the situation
specifics common law work product
codifies the work product
seems to give the courts some discretion
caryover immunity about whether or not something was deemed to be a work product increases if the cause of actions are the same
control group theory is disproved. -- but it has to be a confiedenial statement and it has to be a communication with an attorney
work product v. attorney client priv: how a subject matter is defined is subject to a court's jurisdiction
automatic disclosure rule
rule 26 -- motion for a protective order
Burdon of proof on requester, and court can make interloquatory rulings
That is is relevant
Info relevant to subject matter
Info that is relevant to narrow allegations of the Plaintiff’s lawsuit
That it is reasonable calculated to lead to the discovery of the admissible evidence
These could show a pattern or a conspiracy
Assuming that the contracts are the same, one might show a pattern
If they are different, one might show that the defendant’s became --
The Plaintiff’s suit is about his own contract and not his own contract
The information can’t be prividldged
Attorney-client priv
Purpose
To facilitate a free-flow of information between the attorney and the client
In the absence, one might not have the free flow of information
Is it in the absence of the client to be forthright with the attorney
A contract is prividledge only between the attorney and the rest – the communication has to be confidental (or undisclosed)
For purposes of obtaining legal advise, for the purpose of receiving or dispensing legal advice
The commication, in fact, has to have been lep confidential
investigationor discovery. The court will treat a "I do not know" as an admission
Discovery doesn’t have to lead to something that would be admissible, but something that the contacts might be inadmissible. Giving them to the Plaintiff might lead to the discovery of admissible evidence
This could lead people to testify as well, about admissions against interests.
Even it isn’t admissible at trial, but it is reasonably calculated to result in something admissible at trial.
Most discovery takes place outside the court
Discovery rulings are applied on an "abuse of discretion standard." (v. the de Novo standard)
There are legal determinations being made that are subject to a wide latitude of discretion.
The appellate court will show deference on the abuse of discretion standard – and they will not lend themselves to categorical, clear-cut answers.
The appellate court might determine that these things are harmless error – but that they might have happened afterwards
Motions to dismiss
Motion for a more definite statement
Motion for a judgment on the pleadings has to be made soon after the pleadings are closed
Summary judgment
In a motion for a new trial the standards are more lienient, he can’t weight the evidence.
New trial standard is more lienient – doesn’t happen much because he probably has some disposition about the case
If the Plaintiff were at trial, how much of a liklihood would they need to show that he died of an accident (preponderance of the evidence)
At the summary judgment stage, it would be less
It is also the standard on summary judgment that the Plaintiff has to satisfy the summary judgment standard
When we say that on Summary judgment that a Plaintiff could find for summary judgment, we are saying that the Plaintiff has to show that under the applicable burden of proof, a reasonable juror could find for it.
This way, there are two burdens that we are dealing with on summary judgmen
The non-movement would survive if we could show that a reasonable juror could inf for a non-movement
Could a reasonable juror find for the non-movement under the applicable burden of proof
Need to show causation yet Strict liability makes it to the jury – where he has to prove that there was an inherant defect in the product.
Always have to show causation – and show that there was no comparative negligence
The Defendant’s answer to its defense is that the mower was state of the art. And claimed that the deadman switch wasn’t available
Before the court addresses the question of unreasonable dangerousness, and the question of causation, there is a procedural issue that the Plaintiff raises
Judge delives a JNOV – when the court grants a JNOV, it is saying that the "the reasonable minds can’t differ"
Juries are permitted to draw reasonable inferences from the facts
They are permitted to connect the estimated amount of time it took to get the existing blade to stop – and permitted to infer from this, that it is the absence of a dead man device that caused the Plaintiff’s injury
Jury verdicts are sacred -- the standard seem to be deference's
Can be overturned because of matters of law
Can be overturned because of incorrect discovery rulings
We are concerned with the reasonableness of the jury’s decision
As it turns out there is never direct evidence everything requires direct evidence
Class actions
Class actions -- have to see whether the federal rules would be outcome determinative -- stategic advantage in decertifying claims
Zahn rule: each member of the class must have a claim for more than the jurisdictional amount -- only the representive needs to have more than the amount -- but can't aggregate (one lower federal court says that you can) -- but for equitable releif there might not need to be a specific amount
What if it is a federal question and not diversity
Haynesbury: being a party to a contract donesn't make you a class
Being forced into a class because you signed a covenant makes it a contract -- especialy when the covenant signed before hand -- the obligations of a covenatn run the the people individually -- not as a class.
To be a class representative, their intersts must co-oncide with yours
There will be no aggregation of claims to get diversity
Prerequisites
Is there an identifiable class
There only needs to be general contours of what a class is
just participating in agreement or making an agreement does not make one a class – as there is a contract action based on this
if the obligations be0ing sued upon run to each members severally it might mean that this isn’t a class as there can be contract actions
Are those purporting to represent that class members of it
This is so that the principle class members will adequately protect the interests of the class
Not every representative need be a member of a class – only one of them need be a member of a class
Is the class so large that joinder is impracticable
The class has to be so large that joinder would be impracticable
Other factors
Nature and complexity of the action
The size of judicial claims
The geographic distribution of the members of the class
The character of the property that is the subject to the suit
Turnover in the members of the class
Are there questions of law or fact common to all the class members
Sometimes only one significant issue of law or fact will suffice
E.g. was a class of people denied counsel
Are the claims or defenses of the representatives of the class typical of those of other class members?
This usually means whether there is antagonism between the members of the class
The courts have ruled that there only need be transactional relationships present – only when the representatives claim is markedly different from that of the other class members will typicality be lacking
It will be fatal if there are significant antagonisms between the class members
Will the representatives adequately represent and protect the interest of the absent class members?
The judge has broad discretion in determining whether the requirements have been met
Sometimes the judges have asked that the class succeed on its merits -- this is no longer true
Must be determined whether the particular class action falls within the definition of one of the class actions -- notice requirements for class actions -- check this
In order to satisfy notice requirements, notices has to be reasonably calculated to have reached the defendant (under all circumstnaces) -- rule 4
Before you get to notice, one has to have power of the defendant International shoe: we will imply consent to be sued based on conduct within the state (two tests are implied consnent, and presence (from Pennoyer) -- plus a fairness test
bind a non-party unless you have a representative suit
one might not be bound to an older suit if the older suit was a victory based on an improper suit
in Hainesbury, the nominal defendants, it doesn’t appear that their interests in defeating the contract outweighed their interest in establishing its validity.
23b1 – the anti-prejudice class action (common fund)
when the prosecution of separate action might result in inconsistent or varying adjudication that would establish incompatible standard of conduct for the party opposing the class
when individual litigation might result in judgment that would be dispositive of those interests of other members of the class who are not parties to those individual actions
23b1b – potentially inconsistent obligations that would be imposed on the defendant census bureau
23b2 (civil rights/equity)
the party opposing the class has acted or refused to act on grounds generally applicable to the class as a whole and
the class representatives are seeking final injunctive relief or corresponding delclaretory relief
will be met if the opponent has either acted in a consistent manner toward the class members, or there is a regulatory scheme that affect or indirectly affects members of the class
the mere fact that the complaints requests an award of damages in addition to injunction or declamatory relief does not defeat a rule 23b2 class action – as long as the damages sought are viewed as incidental
court can decertify the class or create subclasses
joinder becomes impractical because you can't identify who the class members are
the class members do not have to have identical griev ances
liability is established by the class reprsenatives
certification ins't permanent
23b3 – common question or damage -- catch all class action
big numbers of people
two requirements -- must be significant factors in the case
predominance
superiority
common questions of law or fact must predominate over questions that affect individual class members
have to check this
the class action procedure must be superior to other means for adjudicating the controversy
the best notice practical must be given to the class members of the institution
class members must be given a chance to opt out
courts wants to know if there are another methods for resolving the action
remitting the dispute for individual adjudication
joinder of the absent class members through interpleader
intervention
consolidation of separate cases for common adjudication
transfers to a single court for consolidated and coordinate pretrial activities
remitting the matter to an administrative body
and treating one of three claims as a test (Katz v. Carte Blacnche)
factors considered in 23b3a-d: that assess whether a class would work
the judge is invited to inquire whether individual class members have an interest in controlling the prosecution or defense of individual suits involving their rights
strong desire for individual control may reflect dissatisfaction with the representation or may lead a significant number of class members to opt-out of the action, undermining the utility of proceeding on a class basis
the judge will consider whether other action concerning the controversy are pending – and whether they can be enjoined or stayed
efficiency
whether the management difficulties will be too big
best notice
two requirements
the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members
and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
It isn’t just a question of looking for common threads, the commonality in 23b requires that the common question be one of the more significant questions In the case – one has to then look at the substantive law, and the State of the art defense is so significant that it meets the predominance requirement.
Factors to be considered from 23b3
the interest of members of the class in individually controlling the prosecution or defense of separate actions
the extent and nature of any litigation concerning the controversy already commenced by or against members of the class
the desirability or undesirability of concentrating the litigation of the claims in the particular forum
the difficulties likely to be encountered in the management of a class action.
hybrid class action where there is injunctive relief and money
there may be a requirement that parties opt in
23a is defined as numerousity requierment for class action
the intent to settle doesn't change the commonality requirement, nor does it effect the numerousioty or the commonality reuqirement.
Intents to settle effect one representative of the class. The intent to settle heightens the stingency requirement -- courts can decertify at any point. A court can decertify a subclass. District court under 23 will effect the fairness of a settlement.
certification of class
standard for review is abuse of discretion
can be done by motion or sua esponte
23d has rule for what happens to avoid repetition
Rule 23 requires notice to each of these class members – if you know where they are you have to notify them.
23 precludes the trickery of getting more money because of the opt-out provision.
the court can manage the activities of the class rep vis-à-vis the other players
just participating in agreement or making an agreement does not make one a class – as there is a contract action based on this
class certification might not be based on who actually is in the class – but just by how big it is
This is a valid distinction – and rule 23 doesn’t provide any mechanism for determinning a basis for determining who should be included in the case.
If you can decertify people the claims get smaller
Every member of a class must meet the requirement that they satisfy the amount in controversy requirement, except when the class members are seeking to enforce a single title or undivided interest.
Aggregation used to only be permitted in true class actions, but not hybrid or spurious
The no aggregation rule of Zahn has little effect on 23b2 – because these actions are more equitable.
Diversity suits under 23b1 are not effected by 23b1 – because the rights of class members are deemed to be joint or common
Zahn rule usually applies to a common class action for damages when jurisdictions is based on diversity, and with small individual claims -- here it has to be in state courts
binding effect of a class action judgment
in Shutts – 23b3 the court said what factors allows someone who is bound by the jdugement to break it
the Plaintiff must receive must notice and an opportunity to be heard
notice must meet the Hannover standards
absent Plaintiff must have been provided an opp to opt out
opt-outs climaing results of a judgment unfavorable to them
before 1966 there was post-judgment intervention to get a part of a favorable judgment
classes for the intent to settle
district courts can assess the fairness of a settlement
Why can’t we allow it to be addressed under 23e
23e can’t trump this – by relying solely on 23e and ignoring a and b
the court can’t certify a class action (as per 23e) if it violates the tenatns of what a class aciton is – as per 23a and 23b
23a and b talk about whether the is class unity – and the court can trump this by certifying that a settlement is good
notice is still required
satisfy the commonality and the numerousity requirement
may be competing and divergent interests
the intent to settle doesn’t change the commonality requirement
intent to settle doesn’t effect the typicality requirement – if there are divergent claims people can be remvoed from classes
intent to settle effects the stringency of the reprsentational requirement
courts can decertify a class at any point
WHERE THE SUIT IS NEVER GOING TO PROGESS TO THE POINT where conflicts of interest will become apparent then it is a case where there is a heightened representation requirement (if the class exists for settlement purposes)
Question of predominance -- interest in settlement predominates with the class reps
Certain sub-classes can be interested in settling
They don’t’ know what their damages would be – it is too vague.
The settlement cannot mask over the substantive interests.
This procedural device isn’t enough to satisfy the commonality requirement.
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Preclusive effects
Motions to dismiss based on non-joinderof claims does not have a preclusive effect
If one can get dismissal of parties under rule 19, than parties can refile
Many things that are decided (perhaps in error) might become moot by the time the case comes to trial
Res Judicata (claim preclusion)
Requires the same parties, the same claim, and the final judgment in the first suit
One gets the same claim where the first and the second suits are transactional related
Issue preclusion Privity: similarity of legal represenation and witnesses is not suffient enough to create privity. The subsequent littigant did not have control over the first.
Res Judicatta will preclude you from brining the battery claim later
Collateral estoppel is only interested in what was actually brought and what was actually litigated.
The same issue is different from the concept of the same clai
The same issue can arise in very different contexts, and very different factual settings.
The party against whom collateral estoppel is used, needs to have been a party to the prior litigation –
Do not have a different claim because you bring a different legal theory to your case
Party that one seeks to estopp needs a full and fair opportunity to relitigate the claim
There is no estoppel based on the dicta of a prior claim
This is the reverse side of permissive and compulsory joinder
Collateral estoppel and res judicata attach certain consequences to their decision –
Collateral estoppel or issue preclusion – would be inefficient to retry and try the negligence issue
collateral estoppel is a question of what was brought and what was actually littigated
non-mutual collateral estoppel (defensive). – only parties and their privities may take adavantage of a judgment -- but a non-party make be benefitted by a decree only arises in the context of collateral estoppel
we now have liberal joinder rules so more parties are bound
Need a final judgment on the merits. Non-mutual collateral estoppel , the first party to whom collateral estoppel is used needs to have been a party to the first suit.
Non-mutual collateral estoppel. Defensive (defendant) -- and by Plaintiff -- (Park-laine): a nonparty to a prior equitabl action may asser collateral estoppel. Non-mutual collateral estoppel encourgaes a wait and see attitude. Could eliminate a right to rial by jury. Non-mutual use of collateral estoppel may not be held against the government
there is not a scientific definition of what a transactional relationship iss
in some jurisdicitons, mutuality is limited. – traynor has allowed the notion of who was privity with the suit to be enlarged to create a binding effect
whether identical issues are involved
whether there is a final judgment on the merits
whether the person against who estoppel was asserted was a party or in privity with a party
If you want to estopp someone from relittigating an issue, you need to have the same issue in each lawsuit
The issue is the same whether you were negligent
One needs a final judgment for the claim on a first suit
Fourth, one needs to know that the party against who issue preclusion is saugt, (the city) or the Parry had a full and fair opportunity to littigate the issue
It would be an extraordinary thing to
Finality of judgements – normally the supreme court can only handle state court judgements. (28 USC 1257) – but the supreme court has been creative in finding finality especially when treaties or federal rights that were unsuccessfully asserted instate courts are a question -- finality only need to attach to the judgment exercising the power of review
Instead of merely stopping a person from relittigating an issue, the defendant is asserting that the claim has already been litigated.
The argument is tha thtere is a clsoe enough relationship (privity) such that in effect when the insurer littigated the claim against the defendant, it was actually the claimant.
Setting the privity issue aside is that this is an effort at res judicatta at claim preclusion – or collateral estoppel – check this
Response to Res judicata is that if attack it, you might be ratifying an incorrect decision.
Res judicata bars relitation of anupappealed adverser judgment where other Plaintiff in similar actions against common defendant successfully appealed the jdugements against them.
IN federal court: Res judicata, something that is unappealed is final -- even it is final as to other Plaintiffs. Res judicata will bar religttigation, of unappealed adverse judgment where defendants have successfully appealed judements against them. Even if someone else wins on appeal, you can't relittigate
Res judicata isn't a collateral attack -- appeal
Where legal and equitable claims are tied together and one is dismissed -- then one may raise both again (Lytle). The same issues can be relittigated in front of a jury;
Conclusions as to intent
If there is a conclusion as to intent on one grounds (bankrupcy) -- it is not preclusiive as to the intent of the other issues. Multiple findings are less reliable Three aproach 1) all are preclusive 2) only one is preclusive 3) Restatement view is judgment them on their merits
If the claim that is seperated, after it is adjudicated would result in res judicatta or collateral estoppel, then they should be tried in one judicial preceeding
Doesn't apply to government
If we do not know what the jury or the judge based his facts on, collateral estoppel can't be applied
For res judicatta purposes, a party may want to join all claims in one lawsuit – as after the lawsuit is over, he loses the right to sue certain parties
Can't bind someone who hasn't had their day in court
The party against who issue preclusion is sought – needs to have been a party to the first suit
The party that you are trying to use issue preclusion aginst needs to have been a party to the first suit. This is related to the fourth requirement.
Subject matter jurisdiction, joinder, and res judicatta, are interrelated and they all have this transactional relational
In first suit less of an effort was put forward to defend smaller suit – and won judgment
If there were going to be two separate juries, than the jury would be more influenced where one jury would have to find on both of these claims
Possibility of a form of harassment
This is a form of pestering the defendant
Efficient, juridical economy
One is wasting judicial resources if they can seat one jury, get rid of this, and move on
If the city wasn’t found to be negligent, how many chances does it get on the same set o facts.
Set of concerns about allowing her to split her claim
Ohio seems to let her split her claim where there is an injury to property and perso
Interloquatory judgements – 28 USC 1292 -- where there is a great risk of prjudice which cannot be cured by the ultimate right of appeal
Can no longer get an interloquatory judgment on purely equitable grounds --
Interlocutory orders continue, modify or refuse injunctions
Interlocutory orders of great importance nay be appealed immediately if the trial court certifies that an immediate appeal may materailly advance the ultime determinatation of the litigation. The appelate court usually has the discretion to refuse to accept the interlocutor appeal despite the certification
Normally the trial court must certify the issue, and the appealate court must accept the appeals - trial court must certify that it meats the following criteria
The order must involve a controling issue of law
There must be substantial ground for differernce of opinion as to the controling question of law
It must appeal that an immeadiate appeal from the order may be materially advance the ultimate determination of the littigation
Appelate court has disgretion
Appealate court rules on the basis of a clear abuse of disgretion
Other ways to appeal non-final orders
A writ of mandamus – and order to public official to do his duty
The criteria is outlined on page 32 of the rulebook –
Clear abuses of disgression
No adequate alternative means to obtain the relief
Indisputable right to the writ
This can only be used in extreme cases
Only available when non of the other interloquatory appeals can be utilized – other appeals must be impossible to exercise
Collateral order doctrine
Issue has to be one which conclusive determines the question
Example of such an issue is a jurisdictional dispute
The issue would effectively be unreviewable on appeal from the final judgment
Summary judgement
in an action for soncpsiracy, sj ay not be granted unless a defendant can show that no evidnce thereof exissts.
SJ must be entered agianst a party who fails to make a showing suffient to establish the existnace of an element essential to his case on which he bears the bruden of prrof at the trial
if credibility is the only instance, it isn't for the judge to decide. (credibility)
Can't have an issue with evidence in terms of credibility in the abstrct
Summary judgment (Dyer) is approprite when all the individauls involved (as being key) deny it -- e.g. that there was no defamatory statements
If there are specific facts that go to a witnesss's creidbility on the issue than credibility can be a basis for denying summary judement
Three options for sjh
Currie -- I want summary judgment (isnt' a burden
reuqiremnt thenm to negate or disporive nonmvants clai
Lous midpoint
if no question of material fact
To me a sj oit is only necsasy to show that the viddec put on at trail can only be reasonable calcualted to turn up the evidence
Hard to show any intent -- but can show pattern
If there is no evidence of liable because of everyone denying that it happened, then it is sh
Staying judgements
Relief of a prior judgment
Granted under the following means
Clerical mistakes in judgements or other parts of the record
Mistake, surpise, or excusable negliect
E.g. reasons why the party failed to include the alledged error inhis motion for new trial or why he was late in filing an appeal
Newly discovered evidence that probably would change the result and could not have been discvoed before
Fraud, misrepresnenation or other party misconduct
The judgemetn is void
The judgment has been satified, released or vacated, or it is no longer equitable that the judgmeent has prospect effect
Any grounds justifying relief
Must be made within a reasonable time or one year (for clerical or other mistakes)
Stare decisis is general application of the law
Any judgment involving consideration of the merits of the claim (e.g., a trial);
Any adjudication after and including summary judgment;
Consent judgments;
Any judgment in favor of the plaintiff in the original action (including a default or summary judgment);
If the original judgment was in favor of the defendant, the issue’s a bit stickier. Not a judgment on the merits: Any claim dismissed without prejudice due to non-merits problems, including dismissals for lack of personal jurisdiction over the defendant, inability to join an indispensable party, the court’s lack of subject-matter jurisdiction, improper venue. FRCP 41(b) (state courts agree). Keep in mind, however, that such dismissals will be conclusive as to issues decided (e.g., residency of defendant).
Judgment on the merits:
Any dismissal with prejudice, including:
Dismissal for failure to state a claim on which relief may be granted:
Federal court (12(b)(6) motion): judgment on the merits unless court states it’s without prejudice (rationale: Since federal courts are so liberal on permitting amendment of pleadings, if plaintiff doesn’t amend, he shouldn’t be allowed to institute new proceedings on the same claim);
rule 15 has a liberal amendment procedure
State courts now following federal code (demurrer): generally not a judgment on the merits (exception: defect going to merits, e.g., plaintiff seeks relief law doesn’t allow).
Failure to prosecute or failure to comply with a court order (FRCP 41(b); most state courts agree);
Summary judgment.
Settlements: Generally a judgment on the merits unless parties agree otherwise (also, since a settlement is a contract, keep in mind that the parties can always attack the contract itself on contract principles, e.g., fraud or lack of consideration).
8b - affirmative defences v. non-affirmative defences
affirmative defences really create additional issues -- but affirmative defences possibly shift the burden of the pleading and possibly the burden of proof
8c -- list of affirmative defences -- they are not to be confused with counterclaims
13a -- in order to be a compulsory counterclaim, it has to arise out of the same transaction or occurance. Tests 1) logical relation test 2) same evidence, same swittnesses, same docuemntary evidence, lapse of time, common question of law or fact
admissions
under rule 8, it seems that a court might not deny an admission to be a denial
Dismissal of actions
One free dismissal
you have 21 days from the filing of the complaint to get to state that it is sufficeint that it elimades the provisions of
sanctions for a frivoulosu coplain,t and the 21 day grace period.
rule 8 facilitates a harsh Res judicata rule -- and there is a desire to make people state claims more fully in the case of fraud cases
Rule 9 talks about fraud, mistake, etc
There might be an exception to rule 9, if we have to look at the four corners of the pleading.
admissions run through the case (rule of the case)
12b7 -- motion of deficienices timetables in the rulebook at page 1015
Final judgements can be vacated
60b -- when a final judgment can be vacated
JMOL
Directed verdict: standard for mere scintilla is now changed to be some quantym.
Seem to take a broad look at the evidence and say that it doesn’t come close