Anant Tamirisa Civ Pro II Richman Fall 2011 The Anatomy of a Lawsuit The Complaint initial pleading in a lawsuit

and is filed by the plaintiff complaint is commenced by filing with the court Rule 8(a)(1) - Pleading Jurisdiction a pleading that states a claim for relief must contain a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support Rule 8(a)(2) - short and plain statement of the claim showing that the pleader is entitled to relief Rule 8(a)(3) - a demand for the relief sought can be money damages, injections, or declaratory judgment three elements of the complaint in Rule 8(a) need to be satisfied for counterclaims, third party claims, and crossclaims federal district courts do have the right to dismiss a claim for failing to satisfy Rule 8(a) if taking all the complaint's factual allegations as true, the court cannot plausibly infer that the defendant is liable pleader must state the basic facts of his claim and may not recite legal conclusions that relief should be granted Rule 9 - Pleading Special Matters certain special matters must be pleaded with particularity if they are to be raised at trial typically claims that adversary will not be expecting unless attention is specifically called to them: denials of legal capacity to be sued fraud or mistake any denial of the performance or occurrence of a condition precedent

existence of official documents material facts of time and place special damages certain aspects of admiralty and maritime jurisdiction Rule 8(d)(2) - Alternative and Inconsistent Allegations a party may set out two or more statements of a claim or defense alternatively or hypothetically either in a single count or defense or in separate ones if party makes alternative statements, the pleading is sufficient if any one of them is sufficient Rule 11 - Provisions to Insure Truthful Allegations every pleading, written motion, and other paper must be signed by at least one attorney or representative of the party especially useful in discovery under Rule 26 attorney certifies to the best of the person's knowledge that a reasonable inquiry was made into the filing and certification certification must be made "to the best of the person's knowledge, information and belief, formed after inquiry reasonable under the circumstances filer certifies that factual contentions have evidentiary support or will likely to have evidentiary support after a reasonable opportunity for further investigation or discovery certifies not to present pleading for any improper purpose (harass, cause unnecessary delay, or increase cost of litigation) claims, defenses, and other contentions are warranted by existing law or by a non frivolous argument for establishing new law factual contentions have evidentiary support or will have evidentiary support after investigation or discovery denials of factual contentions are warranted on the evidence or are reasonably based on belief or lack of information Rule 11 - Sanctions

if court determines that attorney, law firm, etc. has violated Rule 11(b) then court may impose appropriate sanctions types of sanctions: monetary sanctions censure additional CLE course requirements goal is to deter no monetary sanctions imposed on a party for mistake made my attorney or legal rep Rule 11(2) - Motion for Sanctions motion for sanctions must be made separate from any other motion and must describe the specific conduct that violated Rule 11(b) motion must be served in accordance with Rule 5 but must not be filed with the court until 21 days after adverse party has been served "safe harbor provision" - do not file motion with court until 21 days after service of motion to adversary in order to give time to correct the error must allow adverse party to correct particular conduct or withdraw it (discourage satellite litigation) Rule 8(a)(3) - Prayer for Relief pleading which states a claim for relief must state a demand for relief sought if demand for relief was inappropriate, the court must grant the relief to which the party is entitled even if the party has not demanded that relief in its pleadings Rule 54(c) - Demand for Judgment; Relief to be Granted a default judgment must not differ in kind from or exceed in amount what is demanded in the pleadings a judgement by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment Responses to the Complaint

motion: is an application to the court for an order must state with particularity the grounds upon which it relies subject to requirements of Rule 11 many jurisdictions allow defendant to file a motion in lieu of an answer pre-answer motion may be use for "dilatory defenses" Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing defendant must serve answer within 21 days of receiving complaint; or if it has waived timely service under Rule 4(b) within 60 days after the waiver was sent Rule 12(b) - How to Present Defenses defenses to a claim for a relief may be stated in responsive pleading, but can also be made by motion: (b)(1) - lack of subject matter jurisdiction (b)(2) - lack of personal jurisdiction (b)(3) - improper venue (b)(4) - insufficient process (b)(5) - insufficient service of process (b)(6) - failure to state a claim for relief (b)(7) - failure to join a party under Rule 19 Attacking the Substantive Sufficiency of the Complaint Rule 12(b)(6) - failure to state a claim upon which relief can be granted not waived if not made in pre-answer motion or initial answer all well pleaded facts (not legal conclusions, rank opinion, or speculation) are taken as true for purposes of the motion questions the availability of justifying relief based on the given facts doesn't test or determine the facts themselves use 12(f) motion to strike to attack defective counts in a complaint Rule 12(c) - Motion for Judgment on the Pleadings after pleadings are closed, but early enough not to delay trial, a party may move for judgment on the

pleadings substance is exactly the same as a 12(b)(6) motion but is made at the closing of the pleadings if evidence is introduced then 12(b)(6) and 12 motions are transformed into Rule 56 - Summary Judgment Motion Attacking Improper Form Rules 12(e) - Motion for a More Definite Statement a party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous the party cannot reasonably prepare a response motion must be made before filing a responsive pleading must point out defects complained of and the defects desired if motion granted and order is not obeyed within 14 days, court may strike pleading or issue any other appropriate order S&R 8.07[2][a] Rule 12(f) - Motion to Strike court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter complaint can be unintelligible 12(f) may be a better vehicle than 12(b)(6) in order to attack specific parts of the complaint Timing and Waiver Rule 12(g) - provides that 12(b)(2)-12(b)(5) defenses are waived unless they are asserted in a pre-answer motion, or initial answer or reply (can be amended under Rule 15) Rule 12(h) - provides that party waives defenses in 12(b)(2)-(5) by omitting in circumstances in 12(g) AND 12(b)(6) and 12(b)(7) motion may be asserted at any time before verdict if court determines that the court lacks subject matter jurisdiction (12(b)(1)), the court must dismiss the action The Answer defendant's response to the plaintiff's complaint is called an answer

answer must state in short and plain terms defenses to each claim asserted against him and admit or deny allegations asserted against him Rules 8(b) - Defenses, Admissions, Denials in responding to a pleading a party must: state in short and plain terms its defenses to each claim asserted against it; and admit or deny allegations asserted against it by an opposing party denial must fairly respond to the substance of the allegation failure to deny an allegation in a required responsive pleading is deemed an admission when a defendant neither knows nor can learn whether an averment in the complaint is true or false, most jurisdictions permit him to say so in the answer with the effect of a denial Rule 8(b)(5) - a party lacking knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial Rule 8 - Affirmative Defenses and Allocating the Burden of Pleading an excuse or justification for his action that would avoid plaintiff's claim even if that claim is proven at trial defendant may combine denials and affirmative defenses in his answer burden of production of evidence is on the defendant in an affirmative defense affirmative defenses make no claim against any party and seeks no relief other than the defeat of the plaintiff's claim failure to include an affirmative defense means it is waived might be able to add later by amendment (under Rule 15) The Reply reply is only necessary if the answer contains a counterclaim plaintiff must serve reply to counterclaim within 21 days after service of answer Amendments Rule 15(a) - Amended and Supplemental Pleadings; Amendments

Before Trial a party may amend its pleading once as a matter of course within 21 days after serving it or 21 days after service of responsive pleading sets forth an extremely liberal policy in the amendment of the pleadings amendment of right is always allowed if it occurs within 21 days after the pleader served the original pleading 21 days after the service of an answer or motion under the rule 12(b),(e),(f) 21 days after it is served after the time for amendment as a matter of course has passed, amendment of a pleading is permitted only by leave of court or written consent of adverse parties court should grant leave freely when justice requires Rule 15(b) - Amendments During and After Trial if a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended if proponent offers evidence on a new issue, the opponent may object, the judge will rule, and may grant a continuance Rule 15 - Amendments and the Statute of Limitations permits an amendment of a pleading after the statute of limitations has run if it sets forth a claim that arises out of the same transaction as the pleading to be amended Rule 15(1) - permits amendment changing parties after the statute of limitations has run if: if item 1 is satisfied AND during the appropriate period the party to be brought in received notice of the action and knew he was the proper party the law Rule 15(d) - Supplemental Pleadings on motion and reasonable notice the court may permit a party to

serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented may permit supplementation even though the original pleading is defective in stating a claim or defense happens after filing of the complaint always need the courts permission to file Discovery Introduction preservation of relevant information that might not be available at trial testimony of witnesses who are aged or ill, etc. ascertain and isolate issues that actually are in controversy between the parties find out what testimony and other evidence is available on each of the disputed factual issues Rule 26(a) Required Disclosures: party must without awaiting a discovery request provide: name, address, telephone number of each individual likely to have discoverable information copy of all documents and tangible things that the disclosing party has in its possession and may use to support its claims or defenses computation of each category of damages claimed by disclosing party any insurance agreements Rule 26(a)(2) - Disclosure of Expert Testimony party must disclose to other parties the identity of any witness it may use at trial to present evidence Rule 26 (a)(2)(B) - if witness is retained to provide expert testimony the written report must also contain: statement of all opinions the witness will express data considered in witness forming opinions any exhibits that will be used to witness's qualifications all cases witness has testified as expert in for past 4 years

compensation paid to expert Rule 26 (a)(2) - Time to Disclose Expert Testimony at least 90 days before the date set for trial Scope of Discovery - Rule 26(b) - parties may obtain discovery regarding any non privileged matter that is relevant to any party's claim or defense including existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and locations of person who know of any discoverable matter The Work Product Rule Rule 26(b)(3) - Trial Preparation: Materials certain immunity from discovery is given to materials prepared by counsel for trial purposes and to the opinions of experts that counsel has consulted for trial preparation a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative party may be able to obtain work product material if they can show a substantial need for the materials to prepare its case qualified immunity: documents prepared for litigation purposes by a party (i.e. notes taken on what prospective witnesses said when interviewed) are given qualified immunity immunity may be overcome by a strong showing that the discovering party has substantial need for the materials and that they are not able to get information

through other means absolute immunity: documents containing subjective thoughts (legal theories, conclusions, opinions, mental impressions) of a party's lawyer are given absolute immunity from discovery this immunity is impossible to overcome Trial Preparation: Experts - Rule 26(b)(4) a party may depose any person who has been identified as an expert whose opinions may be presented at trial Mechanics of the Discovery Devices Rule 30 - Depositions by Oral Examinations a party may by oral questions depose any person, including a party, without leave of court notify other side of intention and subpoena other side of notice to appear examinations/cross examinations proceeds as they would at trial under Fed Rules of Evidence objections are noted on record but examination still proceeds preserve testimony if witness is going to expire, etc. Rule 31 - Depositions by Written Questions a party may by written questions depose any person without leave of court after the beginning of an action any party may take oral responses to questions written prior to the deposition of any person thought to have discoverable information main usage of Rule 31 depositions is for deposing distant nonparty witnesses who cannot be served with Rule 33 interrogatories Rule 33 - Interrogatories to Parties set of written questions to be answered in writing by the person to whom they are addressed only may be addressed to a party are expensive to answer

answers to interrogatories are made under oath by the party and are signed by the party usually in close consultation with counsel Rule 34 - Discovery and Production of Property party may require other party to produce documents, electronically stored information, and tangible things allows party to demand right to inspect, photograph, and survey land within the control of another party material must not be privileged and has to be relevant to the subject matter of the pending action Rule 35 - Physical and Mental Examinations when mental or physical condition of a party is in controversy, the court may order the party to submit to a physical or mental examination must only be made on motion good cause must be shown and notice must be given if parties agree by themselves to allow a physical examination then Rule 35 does not come into play Rule 36 - Requests for Admissions a party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) not used primarily to obtain information but to narrow the disputed issues and remove the necessity of proving at trial the fact whose admission is sought if party does not answer the request to admit at all within 30 days after service, the matter is taken as admitted Sanctions, Controls and Abuse Rules 26(c), (f), (g), 37 Rule 26 - Protective Order party or other person against whom discovery is sought may instead of raising a particular objection may see a protective order deals with a much broader range of material than a simple

objection protective order may prohibit an entire line of questioning, the use of a particular form of discovery, or the examination of a particular witness order to protect party from annoyance, embarrassment, oppression, or undue burden or expense Rule 26(f) - Conference of the Parties; Planning for Discovery parties must confer as soon as practicable and at least 21 days before a scheduling conference is to be held parties must consider the nature and basis of their claims and defenses and the possibilities of settling or resolving the case make or arrange for disclosures required by Rule 26(a)(1) discuss any issues about preserving discoverable information develop a proposed discovery plan Rule 26(g) - Signing Disclosures and Discovery Requests, Responses, and Objections every disclosure under RUle 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name by signing attorney certifies that to the best of knowledge, information, and believe formed after a reasonable inquiry (similar to Rule 11) court may impose sanctions on party for improper certification Rule 37 - Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Rule 37(a) - party seeking discovery may seek an order compelling discovery used when discovered refuses in first instance to divulge requested information may be granted if discoveree fails to do the following: answer written or oral deposition question under Rule 30 or 31 answer interrogatory under Rule 33 allow a request for inspection or a request to produce documents under Rule 34

Rule 37(b) - Sanctions for Failure to Comply During Discovery financial sanctions - depending on how Rule 37(a) is ruled sanctions may be imposed on discoveree or discoveror if party makes a Rule 37(a) motion, is granted the motion and discoveree persists in refusal then Rule 37(b)(2) allows court to: barre certain claims or defenses or prevent from introducing certain matters in evidence dismiss the action or enter, strike any portion of pleadings, or enter default judgment hold party in contempt of court mandatory sanction if party does not apply with automatic early disclosures under Rule 26(a) Adjudication Without Trial Summary Judgment -Rule 56 if one party can show that no genuine dispute as to any material fact exists in a lawsuit he is entitled to judgment as a matter of law wins case without going to trial court will "go behind pleadings" and can grant summary judgement motions if disputed factual issues presented in the pleadings are illusory movant bears initial burden of production on the issue can show through affidavits or discovery materials may be entitled to summary judgment D can make motion for summary judgement without producing evidence is P has not produced any evidence to state a claim for relief differs from 12(b)(6) and 12 motion because movant can supply proof occurs before trial begins rather than before or after Rule 55 - Default Judgment when affirmative relief is sought against a party and that party fails to respond, a default entry must be entered Rule 41(a) - Voluntary Dismissal of Actions plaintiff may dismiss action without a court order by filing a notice

of dismissal before opposing party serves either an answer or motion for summary judgment or a stipulation of dismissal signed by all parties who have appeared dismissal is without prejudice (may bring the suit again) if after answer or motion, then voluntary dismissal may only be granted with the court's approval Pre-Trial Conference & Pre-Trial Order Rule 16 - Pretrial Conferences Judge will use a pretrial conference to simplify the issues in the case, keep case moving, identify witnesses to be presented at trial, and facilitate a settlement scheduling order issued by judge 120 days after filing the complaint sets time limits for joinder, amendment of pleadings, filing motions, and completion of discovery pretrial order entered by judge reciting actions taken in conference is binding during litigation unless court modifies it if party fails to participate in pretrial conference then sanctions may be imposed Trial The Order of Trial jury selection - performed by the clerk's office according to statutory procedures void dire - questioning of potential jurors intended to expose biases or interests of jurors that would disqualify them opening statements - used to tell jury the story of a party's case presentation of plaintiff's case-in-chief - parties proceed with their proof mid-trial motion for directed verdict, involuntary dismissal, or judgment of a matter of law defendant may test plaintiff's case by moving for judgment as a matter of law if plaintiff fails to satisfy burden of evidence no point in submitting the case to jury

if plaintiff has met his burden then defendant's motion should be denied without prejudice to defendant's case presentation of additional evidence - if defendant's mid-trial motion is denied, then defendant presents evidence to rebut motions at the close of all the evidence - at close of all evidence either party can make a motion for judgment as a matter of law motions tests the sufficiency of the opponent's evidence to support a jury verdict closing argument - gives each party an opportunity to put evidence admitted in the case in the best possible light instructions to the jury - judge instructs the jury after closing arguments jury deliberation and verdict challenges to verdict and entry of judgment - party can make a motion for judgment not withstanding the verdict (judgment n.o.v) Trial by Jury Constitutional Right to Jury Trial U.S. Const., Amend VII (Supp. p. 268-269) the right of trial by jury should be preserved Rule 38 - Right to a Jury Trial; Demand right of trial by jury as declared by the 7th Amendment to the Constitution party demands jury trial by serving the other parties with a written demand Rule 39 - Trial by Jury or by the Court when jury trial has been demanded under Rule 38 the action must be designated on the docket as a jury action Casebook pp. 999-1016, 1026-1035 c. Demand and Waiver Rules 38 and 39 Casebook pp. 1045-1047 d. Instructions and Verdicts S&R 12.08 3. Burden of Proof Casebook pp. 986-988 S&R 12.04

Motion for Judgment as a Matter of Law Rule 50 - Judgment as a Matter of Law in a Jury Trial either party may move for a directed verdict which takes the case away from the jury and determines the outcome as a matter of law defendant may move for a directed verdict at the close of plaintiff's case either party may move for directed verdict after both sides have rested Standards for Granting: court has power to direct a verdict if evidence is such that reasonable persons could not differ as to the result if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue Motion for a New Trial Rule 59 - New Trial; Altering or Amending a Judgment the court may on motion grant a new trial on all or some of the issues judge may order a new trial for any reason in which a new trial had been granted in an action at law judge empales a new jury and the case is retried constitutional under the Reexamination Clause new trial granted if the verdict is against the clear weight of the evidence and would result in a miscarriage of justice additur: court's denial of P's new trial motion on condition that D consent to an increase in the amount of damages additur has been held to violate the reexamination clause remittitur: court's denial of D's new trial motion on the condition that P consent to a reduction in the amount of damages Rule 60 - Relief From a Judgment or Order Rule 60(a) court may correct a clerical mistake or a mistake arising from oversight or omission when one is found in judgment

Rule 60(b) on motion or just terms the court may relieve a party or legal reps from a final judgment, order, or proceedings Addition of Claims to the Lawsuit Rule 18 - Joinder of Claims party asserting a claim, counterclaim, cross claim, or third party claim many join, as independent or alternative claims, as many claims as it has against an opposing party once P has a valid claim against a particular D, he can add as many additional claims as he wishes against that defendant Counterclaims - Rule 13 compulsory counterclaim - Rule 13(a) parties that have them must either plead or forfeit them pleading must state as a counterclaim any claim that at the time of service the pleader has against an opposing party if the claim: arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim AND does not require adding another party over whom the court cannot acquire jurisdiction except: claim was subject of another pending action when action commenced Permissive Counterclaim - Rule 13(b) pleading may state as a counterclaim against an opposing party any claim that is not compulsory Crossclaims - Rule 13(g)(h) Rule 13(g) - allows a party in certain situations a claim against a co-party (co-defendant or co-plaintiff) made only against a party who is on the same side of an alreadyexisting claim cross claims fall under federal court's supplemental jurisdiction 28 U.S.C. 1367: district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. two requirements before it can be a cross-claim: must have arisen out of the same transaction or occurrence that is the subject matter of the original action or of a counterclaim therein must ask for actual relief from the co-party against whom it is directed The most typical supplemental jurisdiction problem occurs when P is diverse from D, thus satisfying 28 USC 1332, but D is not diverse from 3PD. 28 USC 1367 permits excersing supplemental jurisdiction over the impleader claim Joinder of Parties Needed for Just Adjudication Rule 19 - Required Joinder of Parties persons required to be joined if feasible if joinder will not disrupt subject matter jurisdiction raised by a 12(b)(7) motion to dismiss for failure to join a party under Rule 19(b) Rule 19(a) feasible (necessary): must be joined when possible but can go on without them must meet one of the following two tests: incomplete relief: in that person's absence, the court cannot accord complete relief among existing parties impaired interest: judgment in the person's absence will impair an interest the person has OR impose on some of the existing parties double payments if one of these tests are met then court must determine if the party is not feasible Rule 19(b) not feasible (indispensable parties): action must be dismissed if cannot be joined P-FAR is what the court should consider Prejudice: the extent of prejudice to the absentee, or to those already parties Framing of judgment: possibility of framing the judgment so as to mitigate such prejudice

Adequacy of remedy: adequacy of remedy can be granted in his absence Result of dismissal: whether plaintiff will have an adequate remedy if the action is dismissed Permissive Joinder of Parties Rule 20 - Permissive Joinder of Parties Rule 20(a)(1) Plaintiff's may be joined in one action if: single transaction or occurrence: they arise out of the same, transaction, occurrence, or series of transactions or occurrences common question: must be a question of law or fact common to all plaintiffs which will arise in the action party can only become a co-plaintiff if he agrees completely at option of the plaintiff whether to use this device or not Rule 20(a)(2) Defendants may be joined in one action if: single transaction or occurrence: arise out of the same transaction, occurrence, or series of transactions or occurrences common question: any question of law or fact common to all defendants will arise in the action Rule 21 - Misjoinder misjoinder of parties is not a ground for dismissing an action Impleader - Rule 14 defending party may, as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or party of the claim against it a defendant alleging that a third person is liable to him "for all or part of the plaintiff's claim against the defendant" may implead such a person as a third-party defendant purpose of impleader is to assert claims for indemnification, subrogation, contribution, and breach of warranty indemnification: if required to pay damages and contracted with third-party to pay damages for you, you are indemnified

Interpleader - Rule 22 bears no resemblance to impleader allows all plaintiffs to litigate amongst themselves for appropriation of damages so that defendant will not have to double pay technique whereby a party who owes something to one of two or more other persons but isn't sure which, may force them to argue out their claims among themselves before coming to sue him designed to prevent party from being made to pay the same claim twice Class Actions Rule 23 mega-joinder of too many parties for each to be separately represented in multi-party action (20+) bringing everyone together and only representation by one team of legal counsel must have prerequisites - Rule 23(a) numerosity - minimum number of parties is usually 25 or higher. class is so numerous that joinder of all members is impracticable common question of law or fact - questions of law or fact common to the class typicality - claims or defenses of the representative parties are typical of the claims or defenses of the class adequate representation - representative parties will fairly and adequately protect the interests of the class do the lawyers have enough money, sophistication, knowledge, incentive, etc to represent the team effectively Types of Class Actions: Rule 23(b)(1) Prejudice Class Actions: prosecuting separate actions by or against an individual class member would create risk of: 23(b)(1)(A) to opposing party: inconsistent or incompatible standards of conduct

23(b)(1)(B) to class members: class action preferred if separate actions would exhaust opponent's funds or insurance few people get paid entire fund whereas the rest won't get compensated Injunction - Rule 23(b)(2) party opposing the class has acted or refused to act on grounds that apply generally to the class, so final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole i.e. race/gender issues geared toward legislative action Common Question - Rule 23(b)(3) court finds that questions of law or fact common to class members predominates over any questions affecting individual members and class action is a superior method to handle the dispute set of facts determining whether class action is better than individual action Certification Order - Rule 23(1) 23(1)(A) - court must determine whether to certify the action as a class action 23(1)(B) - prejudice or injunctive class - parties are more likely to know they is a class action going on and they are appropriate members of the class. common question class action - if not notified by mail etc. then hard to know that rights are at stake for a class action 23(2)(B) - court must direct class members the best notice that is practicable under the circumstances so that all members affected can be identified by a

reasonable effort individual will lose chance to fight claim if class action is adjudicated proper individuals have right to opt out of the suit - only works with 23(b) (3) class actions, not with 23(b)(1) or 23(b)(2) notice must be paid for by the representative of the class action plaintiffs 23(e) - settlements, voluntary dismissal, compromise settlements must be approved by the court