Civ Pro II The prophecies of what the courts will do in fact and nothing more pretentious are what

I mean by the law. Oliver Wendell Holmes, Jr. Read cases and know parties and reasons, what the case means, and why the court decided the way that it did. Federal Rules of Civil Procedure: http://www.law.cornell.edu/rules/frcp/

I.

Intervention (Rule 24)

a. Intervention device for outsider who has an interest in a lawsuit to voluntarily join it. i. Consequences- you are bound by the decision, but also can participate in the litigation. b. Rationale for allowing intervention: i. Efficiency prevents duplication ii. Deterrence iii. Justice by having all issues viewed at once iv. Additional facts provided by intervenor c. Tension between allowing intervention to promote justice and unwieldy litigation d. *Rule 24(a) Intervention of Right 2 ways to intervene by right*: i. 24(a)(1) statute gives an unconditional right to intervene; or 1. i.e. allowing state or U.S. attorney general to intervene in special cases because of the risk that private parties might mess things up ii. 24(a)(2) intervenor bears burden of satisfying three-part test: 1. Interest in the Subject Matter a. The intervenor claims an interest relating to the subject of the action b. Continuum: i. Direct economic interest (more likely to be an interest) ii. General non-economic interest (less likely) c. The Court has a lot of discretion in defining what an interest is (pp.285-288): i. NRDC (p. 285)- any significantly, protectable interest; any significant legal effect; not a direct interest in the outcome of the lawsuit; ii. Cascade (p. 294)- broad interpretation of interest including non-legally protected interest, such as economic concerns. iii. Donaldson (p. 294)- significantly protectable interest, rejects practical

Civ Pro II interest, possibly asserts a requirement of a legally-protected interest iv. New Orleans (p. 295) - interest must be one which the substantive law recognizes as belonging to or being owned by the applicant (zone of interest). v. General interest in the public welfare is not a sufficient interest. 2. Impairment of the interest a. Intervenor is situated so disposing of the action may impair or impede the intervenors ability to protect his interest b. Continuum: i. Immediate effect, i.e. res judicata (more likely to be an impairment) ii. Adverse precedent that doesnt affect immediate behavior (less likely) 3. Inadequate Representation a. Intervenors interest is not adequately represented by existing parties b. Continuum: i. Potential for malfeasance/collusion (more likely to be inadequate) ii. Existing parties want exactly the same thing (less likely) 4. In practice, there are other factors tied up in the test, i.e. headache to litigate? e. Rule 24(b) Permissive Intervention f. Rule 24(c) Notice and Pleading Required i. Intervention is procedurally accomplished by timely filing a motion and pleading g. Timeliness Intervention must be timely, assessed using four factors: i. When intervenor knew/shouldve known of his interest in the case ii. Whether there was prejudice to existing parties from the delay in seeking intervention iii. Whether there would be prejudice to the intervenor if intervention were denied iv. Any unusual circumstances

a. Natural Resources Def. Council v. US Nuclear Regulatory Commission (pg. 285) US App. 10th Cir.
i. Facts States granting uranium licenses w/o requiring impact statements, contrary to a federal law. The NRDC sued to enjoin this. United Nuclear allowed to intervene w/o objection b/c it

Civ Pro II already had license. Kerr-McGee, a competitor, wanted to intervene. ii. Holding: K-M allowed to intervene b/c it satisfied burden for all three intervention reqts: 1. Interest K-M had significantly protectable interest in license decision w.r.t. UN 2. Impairment K-M would be bound by adverse ruling against UN (stare decisis) 3. Inadequate Representation b/c: a. K-M not adequately represented by UN b/c UN would have chance to screw its competitor who didnt already have a license b. A defense was available to a party, but not a party seeking to intervene iii. Once a party intervenes, they are bound by the judgment iv. Rule 19 vs. Rule 24 1. Rule 19 and Rule 24 are similar, but Rule 24 provides a way for a party to enter who couldnt enter using Rule 19 a. Rule 24 Party seeks to jump in b. Rule 19 Mandatory requirement for party to be in suit. v. Supplemental Jurisdiction and Intervention (1367) 1. 1367(b) precludes supplemental jurisdiction of claims by a party intervening under Rule 24 if 1332 is the basis for jurisdiction and the intervening party would destroy complete diversity b. Also read Rules 1 and 24 in your Rule Book, skim Rule 19 and 28 U.S.C. 1367 as well. i. Why doesnt 42 U.S.C. 4332 cited in this case obviate the need for litigation? Why is there a lawsuit if this provision requires the federal agency to issue an environmental impact statement when it issues licenses? 1. It is a federal law and the state has jurisdiction in this case b/c state agencies are the ones who are issuing the licenses. 2. The complaint further alleges that the granting of licenses to state agencies by the Defendant eliminates the need of the state agency to prepare environmental impact statements since it is not a federal agency. ii. What criteria does a court use to determine whether to allow a party to intervene; how are those criteria applied in this particular case? 1. Interest, Impairment, Inadequate Representation iii. Who or what is the American Mining Congress? Why would a court want to allow them in as part of the litigation? What would the practical effect of their participation be?

Civ Pro II 1. A company that represents a number of companies having a wide variety of interests, so they can provide a useful supplement to the defense of the case. iv. What problems can you imagine are created by intervention, especially if frequently permitted? 1. Confusion, cost, waste of time/resources, etc. v. What is the difference between intervention and amicus brief? 1. Interveners are a part of the case and those who file amicus briefs dont have any control over the case. c. Hypos: P, a citizen of Kentucky, is a famous breeder of horses. P buys from D, a Maryland citizen, a horse named Certiorari. D claims that Certiorari carries the genes of Affirmed, the last horse to win the Triple Crown (Derby, Preakness, Belmont Stakes). As part of the contract negotiation, D agrees to place into an escrow account $80,000 in stabling fees as payment for the services of a qualified veterinarian or veterinarian practice. Any dispute over this escrow account to be resolved by a court of competent jurisdiction. P and V, a veterinarian and citizen of Virginia, are acquaintances (their spouses are best friends). P consulted with V about the suitability of purchasing Certiorari and had V inspect Certiorari to make sure the animal was healthy. P has V stable and care for Certiorari. One day, while going for a light trot, Certiorari stumbles, breaks a leg, and has to be put down. P files suit in federal court against D claiming breach of warranty and common law fraud. P claims that D hid defects in Certiorari, and refuses to pay any part of the stabling fees. D defends on the ground that V is an incompetent vet and either did not adequately examine the animal prior to purchase, or harmed the horse after the purchase; he too refuses to pay any stabling fees. Certiorari was valued at $1,000,000. You are a lawyer representing V. i. Scenario 1: V wants to intervene in the lawsuit as a plaintiff against D for the stabling fees. 1. YES- V needs to get paid from P who is getting paid $80,000 from D. P also wouldnt adequately cover its interest b/c they want money for horse rather than stabling ii. Scenario 2: You represent V, but V doesnt want to sue as an individual. Instead, he wants to sue in the name of his company Horse Sense, a general partnership made up of V and V, Jr., a citizen of Maryland. 1. would have to prove that contract was between P and Vs company and not as a regular citizenwhat is the companys interest? 2. Under 1332, Unincorporated associates are held in every state where they have a member SO it is inconsistent in this case b/c V is breaking complete diversity rule b/c his partner is a citizen of MD just like D 3. 1367 (b) Supplemental jurisdiction shall not extend to certain claims by plaintiffs in diversity casesclaims by

Civ Pro II plaintiff against persons made under Rule 14, 19, 20, or 24, or over claims by persons proposed to be joined as plaintiffs under Rule 24, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of 1332. (codifies Owen) (Does not apply to multiple plaintiffs joined under Rule 20, Exxon) iii. Scenario 3: Same facts as above, except that you discover the Vet Protection Act, a federal law that gives a private right of action to any partnership, company or natural person who is injured by the failure of another to pay stabling fees. V still wants his partnership, Horse Sense, to intervene. 1. DEF YES b/c OF STATUTE--- RULE 24(a)(1)- if one is injured in the partnership, both are 2. This also isnt based in diversity but rather under fed law iv. Scenario 4: There is no Vet Protection Act. Also, instead of common law claims of breach of warranty and fraud, P sues D under the federal Commercial Livestock Act, which gives a private right of action for individuals who claim that they have been defrauded in the purchase of any domesticated animal that weighs over 20 pounds. V still wants his partnership, Horse Sense, to intervene. 1. Maybe since the act doesnt pertain to V but rather just P 2. Also there is a big conflict of interest/adequacy of act 3. BUT will there be Subject Matter Jurisdiction (like how there wasnt in Scenario 2)

II.

Class Actions (Rule 23)

In 2005/2006, the largest class action verdicts were $7.1 billon, $6.1 billon, an $4.5 billon.

a. Pros/Cons
i. Pros: 1. Deters bad conduct 2. Allows individuals who have not been harmed enough to justify bringing an individual lawsuit to recover 3. Allows collection of group harms where no individuals have incentive to litigate 4. Judicial economy ii. Cons: 1. Legalized blackmail that forces businesses to settle 2. Costs of class actions passed on to consumers 3. Attorneys take a disproportionate amount of the award from the class members

Civ Pro II

b. Due Process Backstop of adequate representation required:

i. Class Actions are Constitutional 1. It is constitutional under the 14th Amendment for judgments in certain class action suits to bind some class members who were not formal parties to the suit. ii. Absent members of a class generally not bound by a judgment, except when: 1. Absent members adequately represented by parties who are present; or 2. Absent members actually participate in the conduct of the litigation; or 3. Interest of the members of the class, some of whom are present, is joint; or 4. Any other situation where the relationship between the parties present and absent legally entitles those present to stand in judgment of those absent iii. 14th Amendment Backstop/Floor 1. Due process under the 14th Amendment is satisfied unless the procedure adopted doesnt fairly ensure the protection of the interests of absent parties bound by it. 2. Due Process Floor - there must be safeguards to ensure that those that purport to represent the interest of the class dont do anything or have motives/interests contrary to the classs interest: a. Principal-Agent Problem Risk that the class representative will act in self-interest, contrary to the interest of the absent class members. b. Double Agent Problem Risk of the attorney of the class acting in self-interest, in conflict with the interest of the class. 3. Requirements are intentionally set as a floor to avoid constitutionalizing/federalizing state class action procedures c. Hansberry v. Lee (p. 299) Defendant Hansberry was not bound by a previous class-action that established a racially restrictive covenant because Ds interests were not adequately represented by the Ps in the previous class-action because the Ps in the previous class action wanted the covenant enforced, while D in this case wants covenant voided so he can sell to a black family. 1. Originated in state court and was appealed to the Supreme Court (there is no diversity of citizenship). 2. Cant anticipate that the defendant will bring up a federal question defense (14th amendment violation) 3. The covenant had been upheld in a prior class action lawsuit, which had included Lee, along with all the other

Civ Pro II neighborhood landowners, as members of the class. The defense in the present case argued that Hansberry could not contest the covenant because it had already been deemed valid by the courts in the prior lawsuit. The U.S. Supreme Court disagreed and held that, since it was shown that some of the neighborhood landowners (46%) comprising the class of the prior lawsuit did not support the restrictive covenant, the previous decision that the covenant was valid could not apply to each and every member of that class. In other words, it was erroneous to allow the 54% of neighborhood landowners who had supported the restrictive covenant to represent the interests of the 46% who were against it. Therefore, the Supreme Court held that the restrictive covenant could be contested in court again, even though some of the parties involved may have been included in the prior class of neighborhood landowners. 4. The Court cant define a class so broadly that says the people who are for the covenant and people who are against the covenant are a part of the same class. 5. Pennoyer v. Neff- one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process 6. Agency problem- how can you make sure the agent is adequately representing What does the plaintiff want in this case, and what is his argument? 1. To live in the neighborhood The trial court found as a matter of fact that only 54% of homeowners had in fact signed the covenant, why did the Hansberrys lose in the trial court? 1. The Burke v. Kleiman case and res judicata. They said even if they werent there, they had people standing in for their interests in the Burke case. Look at where the Court says "[h]ere, as elsewhere, the Fourteenth Amendment does not compel ...." Why are these two sentences here? (pg. 301) 1. To make sure the case isnt used to expand the 14th amendment. This holding only applies to cases where the procedure adopted fails to insure the protection of the interests of absent parties who are bound by it. 2. Dont want to Federalize the State court system. They dont want to say the Federal governments rule for res judicata is the only way states can use. What does the world look like if Hansberry had come out the other way?

ii.

iii.

iv.

v.

Civ Pro II 1. Absent parties would be denied due process of law and be bound by decisions (Res judicata) that didnt have their interests protected.

d. Certification
i. There are several brakes to address agency problems: 1. Judge decides whether a class is certified 2. All 4 of the Rule 23(a) prerequisites must be satisfied ii. Rule 23(a) Prerequisites to a Class Action 1. Numerosity - the class must be so numerous that joinder of all class members is impracticable. a. < 20 is not a class b. > 150 is a class c. 20-150 is a gray area where other considerations matter: i. Geographic location ii. Amount claimed iii. Mental disability/incapacity iv. Inability to speak English 2. Commonality - questions of law or fact common to the class a. Usually easy to satisfy b/c there must only be one issue in common b. Specific differences do not undermine commonality 3. Typicality claims or defenses of the class representatives are typical of the claims or defenses of the class a. It is usually sufficient for a class representative to have suffered harm that meets the typicality of the class unless he is an outlier. b. There must be typicality for the essentials of litigation c. Typicality requirement helps to curb agency problems d. Ps arg: Talk about damages b/c damages likely to be similar for different harms e. Ds arg: Talk about harm b/c no two Ps have suffered the exact same harm 4. Adequate Representation the representative parties will fairly and adequately represent the interests of the class a. Counsel Quality of counsel matters (i.e. pro se is frowned upon) i. The adequacy of counsel is for a proposed class action b. Class Representative There are some practical considerations:

Civ Pro II i. Background of class representative ii. Rudimentary understanding of litigation c. The court can allow Ps to cure an inadequate class representative iii. Rule 23(b) Types of Class Actions 1. In addition to the requirements of 23(a), one of the three requirements of 23(b) must be met: 2. Rule 23(b)(1) prejudice class actions Mandatory: no opt-out a. 23(b)(1)(a) risk to defendant from inconsistent adjudications arising from prosecuting separate actions i. Focus on requiring incompatible standards of conduct. ii. Inconsistent monetary damages are not enough iii. i.e. A bunch of different Ps wouldnt be allowed to bring individual suits all arguing that D calculated bond rates wrong and propose a bunch of different ways that bond rates should have been calculated b. 23(b)(1)(b) risk to absent class members by adjudications of claims of individual class members that would hurt the interests of absent class members i. Limited fund class action 1. i.e. toothpaste company worth $200M facing $1B in liability. People who werent members would be too late 2. Because 23(b)(1)(b) class actions are mandatory, this creates risk of the binding absent class members and Ds getting together with Ps attorney. 3. Ortiz deals with these problems by requiring a showing that the fund is truly limited and by preventing Ds from getting together with Ps attorney. 3. Rule 23(b)(2) injunctive class actions Mandatory: no opt-out a. When defendant has acted in a way generally applicable to the class so that injunctive/declaratory relief is appropriate for the class as a whole

Civ Pro II b. E.g.: Civil Rights and constitutional cases where discrimination against a whole class is alleged, and injunction prohibiting further discrimination is sought. c. The class can be divided into subclasses under Rule 23(c)(5) if the conduct complained about doesnt affect all of the class or some of the class members do not want counsel d. Walters v. Reno (p. 306) Class certification upheld for a class of Plaintiffs seeking injunction against unclear INS deportation procedures (i.e. an unappealable deportation order). i. Dist. Court- plaintiffs met the requirements of 23(b)(2) ii. Commonality satisfied because all aliens received notice that didnt comport with due process and the minor variations among offices is not enough to undermine commonality. While there may be an influx of cases after the injunction, those cases will not be about the constitutionality of INSs official forms and procedures. 1. Purpose of commonality- (1) ensuring that absentee members are fairly and adequately represented; and (2) ensuring practical and efficient case management. iii. Procedure: District Ct- summary judgM for plaintiffs b/c the INS procedures for securing waivers of a hearing on document fraud charges create an unacceptable risk of confusion likely to result in erroneous deportation. iv. Issues: (1) Was summary judgment for Ps proper? YES (2) Due Process: Are the current INS forms constitutional? NO (3) Prejudice: YES e. In re Monumental Life Insurance Co. (p. 317)black policy owners sued 3 life insurance companies alleging that, for decades, they were discriminated against in the premiums and benefits provided in low value life insurance policies. Court found that the plaintiffs proposal to use Standardized formulas or restitution grids to calculate individual class members damages

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Civ Pro II satisfied the predominance requirement even if a large number of grids must be constructed. 4. Rule 23(b)(3) $$$$ - common question class actions / damages class actions require two additional requirements: a. Predominate Common Qs of fact/law predominate over individual Qs i. Very fact-specific determination ii. Satisfied if common issues of law/fact overshadow all of the smaller peculiarities when wrapped up. b. Superior Class action is superior for fairly and efficiently adjudicating i. Even more unclear and fuzzy than the predominate requirement ii. Evaluated using several factors: 1. Whether there would likely be litigation if people left to their own devices 2. Deterrent effect of class action 3. The states ability to deter bad conduct without resorting to litigation 4. Class members interest in individually controlling separate actions 5. Extent and nature of litigation already begun by or against class members 6. Desirability of concentrating litigation of claims in the particular forum 7. Likely difficulties in managing a class action c. Opt-out of 23(b)(3) class actions is permitted by 23(c)(2)(B) d. 23(b)(3) class actions used frequently for consumer protection, antitrust, and securities fraud cases. e. Castano v. The American Tobacco Co. (p. 318) i. Facts: The federal court certified a class described as those that were dependant on nicotine and who smoked Defendants cigarettes, their estates and derivative claimants. Defendant appealed class certification arguing that the lower court did not conduct the proper analysis.

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Civ Pro II ii. Issue: Did the District Court err in granting class certification without analyzing the extent to which state law varies on the issues raised and whether common questions of law and fact predominate over individual issues? YES iii. Issue: Is the class action the superior method of adjudication for the injuries allegedly sustained by proposed class members? NO iv. Holding: Reversed. v. Reasoning: The District Court was required to conduct a survey of state law on the issues presented in order to determine whether or not variances of the issues would make individual cases more feasible than a class action. The court cannot assume that a class action would be more manageable than a million trials on the issue unless the manageability of both situations is known. The District Court must look past the pleadings to the potential issues presented at trial and what issues would predominate in order to determine whether there are sufficient common questions over individual questions warranting class certification. Class certification is not appropriate in this situation because of the nature of mass tort actions as well as the novelty and specificity of the issues involved. The class certified alleges addiction as the injury. This may or may not be a viable injury. It will be necessary for some individual cases to be tried in order to determine whether this claim is worth trying. Therefore, to certify a class alleging addiction as an injury is to waste judicial resources as a potential failing claim.

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Civ Pro II In addition, claims based on fraud where reliance is an issue requires individual analysis of each class members reliance on Defendants product. This will require individual analysis of each claim, which is not an appropriate feature of a class action. vi. Mass torts should usually not be certified because it creates pressure on the defendant to settle claims that are not necessarily meritorious. Therefore, careful scrutiny of all the issues is required in order to properly determine whether certification is proper. f. In re Rhone-Poulenc Rorer Class certification of class with respect to certain issues reversed where Ps were hemophiliacs with AIDS harmed by Ds products. i. Certification reversed b/c this setup was beyond the district courts discretion b/c (1) issues would overlap after the special verdict; (2) negligence law differs among states; (3) individuals have sufficient incentive (i.e. $5M) to bring the cases themselves; and (4) enormous pressure for D to settle given the stakes. iv. Incentive to settle The class certification decision is very important with regard to incentive for the company to settle and incentive for parties to continue the case. 1. It is desirable to have the class certification decision early to avoid uncertainty, discovery costs, early litigation, etc.

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e. Notice and Opt-Out (Rule 23(c)(2)) (p. 338)

i. Notice 1. There is no requirement for notice of 23(b)(1) or 23(b)(2) class actions [23(c)(2)(A)] 2. There is a right to notice for 23(b)(3) class actions [23(c)(2)(B)] a. Notice must be reasonably calculated under all circumstances to make the parties aware of the litigation b. It is unclear why this is required: 7th Amendment? Due Process? c. Plaintiff bears the cost of notice i. Attorneys can front these costs and recoup their money on the back end ii. Opt-Out [Rule 23(b)(3)]

Civ Pro II 1. A party can opt-out of the class action and litigate the matter on their own and not be bound by the judgment of the class action. [23(c)(2)(B)] 2. Members who do not opt-out are bound by the judgment of the class action

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f. Rule 23(e) Settlement, Voluntary Dismissal or Compromise

i. Rule 23(e): Court approval is required 1. Addresses the principal-agent problems by protecting the interests of the absent class members ii. Rule 23(e)(2): If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate: 1. Amount 2. Type 3. Procedure for distributing 4. After discovery, otherwise the settlement looks collusive

g. Rule 23(f) Appeals

1. Discretionary appeal of class cert. decision allowed w/in 10 days after entry of order. 2. The ability to appeal eliminates the need for a party opposing class certification to seek a writ of mandamus, as was necessary in In re Rhone-Poulenc Rorer

h. Appointing Class Counsel (Rule 23(g))

i. The court must appoint the advocate that is best able to represent the interest of the class 1. A newly-minted lawyer must worry about a more experienced class action attorney stealing the case 2. The practical implication of this is a small, capable, and affluent class action bar that creating a hurdle for young attorneys. ii. There is tension between the class representatives ability to choose counsel and the Courts requirements in appointing counsel under Rule 23(g) iii. This requirement addresses adequacy of counsel for a certified class action iv. 23.1 Derivative Actions & 23.2 Actions Relating to Unincorporated Associations 1. These are just examples of the principles of class actions applied to other contexts

Civ Pro II

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i. Class Action Fairness Act of 2005 (CAFA)

i. CAFA is just a jurisdictional requirement if a case fails to satisfy the jurisdictional requirements of CAFA, a federal court still may be able to exercise jurisdiction based on federal question jurisdiction or diversity jurisdiction. 1. If federal jurisdiction exists under CAFA, all of the requirements of Rule 23 must be analyzed to determine whether a class will actually get certified ii. Abuses that CAFA sought to address: 1. Coupon settlements 2. Class members being financially worse off after settlement and paying attorney 3. Attorneys fees 4. Discrimination against Ps 5. Forum shopping/magnet courts iii. Rationale for class actions: 1. Efficiency 2. Deterrence, but dont want to over-deter a. There is no requirement to have class actions. There could be criminal deterrence, attorneygeneral enforcement, etc. But, class actions are permitted in order to prevent over-deterrence iv. Rationale for CAFA - state court judges elected, but federal court judges appointed v. 3 categories of change affected by CAFA: 1. Diversity (1332(d)(1)-(4), (7),(10)) a. AIC > $5,000,000 i. Aggregation is OK b. Minimal Diversity i. Look at citizenship of all members, both named and unnamed 1. Citizenship of unnamed class members doesnt matter if CAFA jurisdiction doesnt exist and jurisdiction is evaluated under vanilla diversity jurisdiction ii. Reasonable probability that an unnamed class member is a citizen of a different state is enough to satisfy the minimal diversity requirement. iii. citizen reside iv. Citizenship of defendants is determined by the time the lawsuit is filed v. Citizenship of plaintiffs determined when complaint filed or when P served when federal jurisdiction is discovered

Civ Pro II vi. Citizenship of unincorporated associations Unincorporated associations are citizens of the state where they are organized and the state of their principal place of business, but are not necessarily citizens of all of the states in which a member of the unincorporated association is a citizen c. CAFA only applies when there are 100 or more class members d. Exceptions where CAFA is inapplicable: [1332(d)(5)] i. Proposed plaintiff classes less than 100 in the aggregate ii. defendants are states or state officials whom the district court may be foreclosed from ordering relief e. 3 levels of jurisdictional discretion for district courts: i. Must exercise jurisdiction [1332(d)(2)] 1. Less than 1/3 of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed ii. Discretionary jurisdiction [1332(d)(3)] 1. More than 1/3, but less than 2/3 of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed, and 2. Primary Defendants are citizens of the state in which the action was originally filed, and i. Formulations of primary defendant include: (1) who has the greater liability exposure; (2) is most able to satisfy a potential judgment; (3) is sued directly, as opposed to vicariously, or for indemnification or contribution; (4) is the subject of a

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Civ Pro II significant portion of the claims asserted by plaintiffs, or (5) is the only defendant named in one particular cause of action. 3. It is in the interest of justice looking at the totality of circumstances to decline jurisdiction, looking at the following factors: a. Matters of national or interstate interest? b. Is governing law that of State originally filed in or of other States? c. Has class action been pleaded in a way to avoid Federal jurisdiction? d. Has class action been brought in a forum with a distinct nexus with class members, the alleged harm, or the defendants? e. Is the # of citizens of forum state substantially more than # of citizens from any other State and the citizenship of citizens of other States is dispersed among a substantial number of other states? f. Has 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons been filed during the 3-year period preceding the filing? f. Must not exercise jurisdiction [1332(d)(4)] i. Home State Exception [1332(d)(4)(B)] 1. 2/3 or more of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed, and 2. Primary Defendants are citizens of the state in which the action was originally filed

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Civ Pro II a. See above formulations of what is meant by primary defendants ii. Local Controversy Exception [1332(d)(4)(A)] 1. More than 2/3 of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed, and 2. At least one defendant is a defendanta. From whom significant relief is sought by plaintiff class; and b. Whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and c. who is a citizen of the State in which the action was originally filed; and 3. Principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and 4. During the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons. iii. Note: significant in 1332(d)(4)(A) is easier to satisfy than primary in 1332(d)(4)(B) 2. Removal (1453(a)-(c)) a. Allows Ds to leap out of judicial hell-holes [1453(b)] b. Removal permitted even if D is a citizen of the forum state [1453(b)] c. A D doesnt have to get unanimous consent from other Ds to remove [1453(b)] d. Cases can be removed beyond one year [1453(b)]

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Civ Pro II e. Discretionary appeal of removal orders permitted [1453(c)] 3. Settlements (1711-1713) a. Stricter scrutiny of coupon settlements (1712) i. Coupon settlements are subject to court approval after a hearing and written finding that the proposed settlement is fair, reasonable, and adequate ii. Ps attorney fees, if working on contingent basis, based on value of coupons redeemed, not face value of all coupons awarded iii. In a case where injunctive relief is awarded, the plaintiffs attorney fees for that portion will be based on billable hours b. Protection against loss by class members (1713) i. The court must make written findings that nonmonetary benefits of settlement substantially outweigh monetary loss when a proposed settlement makes a class member worse off financially. vi. Definitions in 1332(d)(1)/ 1711 intended to prevent states from circumventing the federal rules by calling a class action something other than class action

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j. Class Discussion
i. How does the statute define "class action." Why is it defined in this manner? 1. (B) the term class action means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action; ii. How does 1332(d) change the amount in controversy and complete diversity requirements for class actions? 1. 5 million and only 1 person has to be diff citizen than def iii. Look at 1332(d)(5)(A) & (B) under what circumstances does the CAFA provisions not apply? What if I bring a class action with only 80 members, does that mean that the federal court must dismiss the case for lack of subject matter jurisdiction? 1. (A) the primary defendants are States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief; or 2. (B) the number of members of all proposed plaintiff classes in the aggregate is less than 100.

Civ Pro II 3. No. It is just saying that the stipulations in 2-4 of CAFA dont apply. It could be federal question or diversity case. Ordinary 1332 jurisdiction Look at 1332(d)(4)(B). Under what circumstances can a court decline jurisdiction under CAFA? Must it decline jurisdiction under CAFA? How do you know? 1. two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed. 2. Yes b/c section 3 says when they have discretion. This is worded just like section 2 that says when a court shall have juris. Look at 1332(d)(4)(A). Under what circumstances can a court decline jurisdiction under CAFA? Must it decline jurisdiction under CAFA? How do you know? 1. YES Look at 1332(d)(3). Under what circumstances can a court decline jurisdiction under CAFA? Must it decline jurisdiction under CAFA? How do you know? 1. No. It has discretion Look at 1332(d)(10). Identify how it changes the rule regarding the citizenship of unincorporated associations. 1. (10) For purposes of this subsection and section 1453, an unincorporated association shall be deemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized. Review 1453(a)-(c)(1)&(2). How do these rules modify what you learned about removal jurisdiction? 1. Allows Ds to leap out of judicial hell-holes [1453(b)] 2. Removal permitted even if D is a citizen of the forum state [1453(b)] 3. A D doesnt have to get unanimous consent from other Ds to remove [1453(b)] 4. Cases can be removed beyond one year [1453(b)] 5. Discretionary appeal of removal orders permitted [1453(c) Harkening back to Civ Pro I, write out the ordinary requirements of subject matter jurisdiction for the following (a) citizenship of natural persons; (b) citizenship of corporations and unincorporated entities; (c) amount in controversy for diversity jurisdiction; (d) requirements to remove a case from state to federal court. (you may use the attached chart) 1. only defendants can remove Fed Question Complete Diversity CAFA diversity

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iv.

v.

vi.

vii.

viii.

ix.

Provision/Juris.

Civ Pro II juris 5 million Any member is diff from def

21

Amt controversy Diversity of citzn

$75,000 Doesnt matter

$75,000 each is from diff states One from a diff state than def Each member from diff state More than1?

Doesnt matter Citzn of which class members? Citzn of unincorp. Each member from diff state More than 1 Numeric req. of class members

Principle place of business 100

Exception name # of class members & identity of def &/or factors

CAFA CAFA CADA mandatory mandatory discretionary decline of juris (?) jurs jurisdiction Section 3

k. HYPO/HANDOUT
i. Look at the attached data breach story. For Wednesday, either alone or with a group of your classmates, imagine you have a potential client in Cincinnati who wants our firm to represent her in a class action suit due to this data breach. We are going to have a strategy meeting on Wednesday: 1. How are we going to structure the suit; specifically, what theories of liability are we going to use? a. Breach of contract- Heartland b. Negligence c. Strict liability 2. What information do we need and where are we going to get it to determine if this case meets the Rule 23(a) requirements? a. Numerosity there is very likely to be over 250 members considering the large size of heartland b. Commonality all members had their credit card(s) processed by heartland c. Typicality all have had the same or very similar type of harm.. identity theft? i. What about credit report any difference? ii. Did you take steps to protect your identity? iii. Did you cancel the credit card? iv. Did the company take any steps to monitor?

Civ Pro II d. Adequate Representation the representative parties will fairly and adequately represent the interests of the class i. Character of representative, connections with heartland? 3. How are we going to characterize this class to fit within one or more of the Rule 23(b) class action types? a. 23(b)(1)(b) risk to absent class members by adjudications of claims of individual class members that would hurt the interests of absent class members b. because the company said that the potential lost is way more costly than the fines? 4. Write out a potential definition of the class. a. Subscribers of Heartland Payment who have had their credit card information hacked and suffered harm because of it.

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III. Discovery (Rules 24, 30, 33, 34, 36) (p. 343)
* Rule 11 requires a party filing a pleading to certify that factual allegations have evidentiary support. Thus, discovery cannot be used as a fishing expedition. * Discovery is only available to litigants to a case. Thus, discovery cant be used to satisfy the rule 11 requirements before a decision is made to file suit.

a. Discovery Introduction
i. Practical Considerations 1. Gut check moment because so costly and time consuming 2. Cases are won or lost based on discovery 3. Ethical issues a. malpractice potential b. inadvertence vs. hiding c. you cannot interview potential adversaries who are represented 4. There are many cost-effective ways to get information without going through the mechanical discovery procedures ii. Advantages to Discovery 1. Promotes judicial efficiency 2. Minimizes surprises and crafty lawyering during trial 3. Promotes settling out of court by educating parties of strengths/weaknesses of case 4. Preserves information

Civ Pro II 5. Gives weaker party access to info they wouldnt normally be able to afford or access Disadvantages of Discovery 1. Costly 2. Time-consuming 3. Richer parties advantaged because they can manage discovery better and can bury the other side in paper 4. Can be used as a weapon in the adversarial process 5. Invades privacy Evolution of Discovery in litigation 1. Earl C/L formalistic pleading using little discovery a. Pleading was central to defining the issues and the facts b. P learned as much as possible about the case before filing suit c. Once pleadings were closed, the shape of the case was settled 2. Modern notice-pleading with broad discovery to find out facts a. Pleadings only form a tentative view of the case based on preliminary research and investigation b. Parties then develop their positions through the use of discovery to find out further information c. Parties usually can amend the pleadings based on information found out during discovery Comparative costs to P and D 1. Ps Counsel: a. Paid based on contingency b. Low volume of documents likely to be discoverable by D c. High opportunity cost to review documents once exchanged 2. Ds Counsel: a. Paid based on hourly fee b. High volume of documents likely to be discoverable by P c. Low cost to review documents once exchanged Are discovery rules procedural devices to attain a substantive end, i.e. discourage lawsuits or protect defendant businesses? In re Convergent Technologies (p. 347) Ps granted time to do some discovery before being forced to answer ~ 30,000 contention interrogatories served on P by D. D attempting to hide the ball and use discovery as a sword was contrary to the spirit of discovery 1. There is a tension in balancing the desire to get rid of meritless suits early with the desire to allow Ps with legitimate claims to proceed when Ds have all the info.

23

iii.

iv.

v.

vi. vii.

Civ Pro II 2. Lawyers must use good faith and common sense.

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b. Scope & Limitations of Discovery Rule 26(b)

i. Broad scope includes all nonprivileged relevant matter [26(b)(1)] 1. Nonprivileged a. A party doesnt have to answer questions covered by privilege b. Some relationships are valued more than truth c. E.g. privileges: doctor-patient, attorney-client, spousal, clergy-penitent 2. Relevant to claims or defenses a. Information doesnt have to be admissible, but must be reasonably calculated to lead to the discovery of admissible information b. e.g. hearsay may be relevant, but is not admissible c. Relevant to the claims likely means the claims that were initially pleaded. Thus, it isnt likely that a new claim could be added based on new information from discovery d. Jurisdictional issues are clearly relevant to a potential jurisdictional defense ii. Judicial limitation of discovery is required when[26(b)(2)(C)]: 1. Discovery sought is unreasonably cumulative or duplicative or can be obtained from another source more conveniently, less burdensomely, or more cheaply; or 2. Party seeking discovery has had ample opportunity already to discover the info; or 3. The burden or expense of the proposed discovery outweighs the likely benefit. a. Meaningless in reality because judges are flying blind and consequently are not in a position to perform such a cost-benefit analysis

c. Signature Requirement Rule 26(g)

i. Every disclosure and every discovery request, response, or objection must be signed [26(g)(1)] 1. A reasonable inquiry must be performed to ensure the document is complete, correct, and proper. 2. Requirements similar to Rule 11 with respect to an objective reasonable inquiry ii. A party has no obligation to respond to a request if it is unsigned [26(g)(2)] iii. Sanctions can be imposed on the party or attorney for violation [26(g)(3)

Civ Pro II

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d. Time & Sequence of Discovery Rule 26(d)

i. Parties must wait until after the 26(f) conference to begin discovery ii. The order of discovery is very flexible once it is allowed to proceed

e. Discovery Devices (p. 352)

i. *Devices of discovery are powerful mechanisms for demanding the production of information from those who have it ii. HYPO: I file a lawsuit against a defendant in federal court on October 1, 2011 and serve by mail on the same day. Two weeks later, I get a notice that on November 15, there will be a Rule 16 initial scheduling conference with the Court. a. The parties must confer as soon as practicable and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). b. October 25 2. When do I have to hold the Rule 26(f) discovery planning conference with the other side? a. Date of 26(f) conference No later than [Day X 21 days]. It can be earlier than this, but [Day X 21 days] is the latest date for the 26(f) conference b. October 25 3. When do I have to send in our Rule 26(f) discovery plan (also called a Rule 26(f) report)? a. 26(f) report due = [Date of 26(f) conference + 14 days] b. November 8 4. When do I have to send to the other side my initial disclosures under Rule 26(a)? a. 26(a)(1) initial disclosures due [Date of 26(f) conference + 14 days] (unless otherwise stipulated) b. November 8 5. What is the latest date for the court to issue a scheduling order? a. 16(b) Scheduling Order Due 120 days after service or 90 days after appearance b. March 15, 2012? iii. Initial Disclosures (Rule 26(a)(1)) 1. A party is required to send information it may use to support its claims or defenses before discovery and before the other party asks for the information.

Civ Pro II 2. Only information that may be used to support claims or defenses is required to be turned over in order to avoid helping the opponent 3. Several types of information must be provided [26(a)(1)(A)(i)-(iv)]: a. Name, address, number of all people who may have discoverable information b. Copy of all documents in custody, possession, or control c. Computation of each category of damages d. Insurance agreements 4. Enforced by 37(c) which doesnt allow a party to use witnesses or documents that should have been included in an initial disclosure, but were not 5. Timing Due 14 days after the 26(f) conference iv. Discovery Conference (Rule 26(f), Rule 16) 1. Timing of Discovery Conferences, Disclosures, and Reports [from exam review] a. Day X = i. Date scheduled by the court for a preliminary pre-trial conference under R16; OR (if there is no preliminary pre-trial conference scheduled) ii. Earlier of date when 16(b) scheduling order is due: iii. Date of service of complaint on any defendant + 120 days; or iv. Date of appearance of any defendant + 90 days b. Date of 26(f) conference No later than [Day X 21 days]. It can be earlier than this, but [Day X 21 days] is the latest date for the 26(f) conference c. 26(f) report due [Date of 26(f) conference + 14 days] d. 26(a)(1) initial disclosures due [Date of 26(f) conference + 14 days] (unless otherwise stipulated) e. Filings can be due on Saturdays f. Cannot rely on the judges calculation of due dates 2. Timing of Discovery Conferences, Disclosures, and Reports [from class notes] a. 26(f) Conference Must be held at least 21 days before a scheduling conference is to be held or a 16(b) scheduling order is due b. 26(a)(1) Initial Disclosure Due 14 days after 26(f) conference

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Civ Pro II c. 26(f) Report Due 14 days after 26(f) conference d. 16(b) Scheduling Order Due 120 days after service or 90 days after appearance e. Typical order: service of process; 26(f) conference; 26(f) reporr/26(a)(1) initial disclosure; scheduling conference; scheduling order f. Filings can be due on Saturdays g. Cannot rely on the judges calculation of due dates 3. Scheduling conference is important because it is the first impression to the judge 4. Magistrate judges (not Article III judges, but hired by the district for a term) often oversee 26(f) conference and scheduling conference v. Interrogatories (Rule 33) 1. A party can send written questions that must be answered under oath to another party 2. Limited to 25 absent special permission 3. Only limited to the scope of discovery: relevant (to claims and defenses) non-privileged information 4. Must be answered by party to whom the interrogatory is addressed 5. Objections available when stated in specificity, i.e. privilege; burdensome; repetitive 6. Signature of person answering the interrogatory is required 7. 30 days for responding party to answer or object 8. Option to produce business records - when the answer to an interrogatory may be found in business records, etc. It is sufficient to turn over relevant documents and given specification on where the party can readily find his answers 9. Contention interrogatories can be used, but are a doubleedged sword 10. Can be ineffective b/c they are answered by lawyers who craft responses to reveal as little information as possible and frequently invoke privileges. 11. Practically, interrogatories are good at finding out basic background information and who has information, but not that useful for finding out much substantive information because they are answered by lawyers vi. Request for Documents (Rule 34(a)-(b)) 1. A party can demand to inspect and copy documents and other tangible things in the responding partys possession, custody, or control a. Custody/control varies by jurisdiction, i.e. sometimes influence = control 2. Definition of document is extremely broad

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Civ Pro II 3. Requested docs or categories of docs must be described with reasonable particularity 4. Responding party can categorize the documents as requested or provide them in the ordinary course of business [26(b)(2)(E)] 5. Responding party has 30 days to respond in writing 6. Useful b/c document dont lie. They are not filtered or spun like interrogatories are. 7. Can be ineffective b/c parties construe them narrowly and liberally invoke objections and privileges 8. Make sure to follow the document policy a. Serious consequences can result from failure to properly retain documents b. Spoliation issues: destruction or materially altering otherwise discoverable documents vii. Request for Admissions (Rule 36) 1. A party can send a request to another party asking for an admission of truth of any matter within the scope of discovery (non-privileged relevant information) 2. Requests for admissions are a means of narrowing the scope of trial by eliminating uncontested issues 3. The responding party has 30 days to respond, otherwise the fact is admitted 4. Powerful tool because the receiving party must answer, otherwise the silence is deemed to be an admission a. It is very difficult to withdraw an admission 5. Often underutilized viii. Depositions (Rule 30(a)-(d);(g)) 1. Compelled, live testimony of a witness under oath. 2. Most useful for getting accurate information because: a. they are done under oath with the penalty of perjury b. They are done real-time and unfiltered by lawyers 3. Timeline/When leave required: a. Any time after the 26(f) conference without leave b. Leave required if more than the 10th deponent; party already deposed; or deposition before 26(f) conference 4. Duration is limited to 1 day of 7 hours by default[30(b)(6)] unless otherwise stipulated 5. Corporations can be deposed by allowing them to stipulate who they want to answer questions on specific topics. [30(b)(6)] 6. Mechanics consist of the witness being deposed by the deposing attorney, while the witnesss attorney and the court reporter are present 7. Objections:

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Civ Pro II a. Speaking objections are not allowed anymore. Objections must be short and succinct b. Objections are preserved, so the only objections really necessary are for privileged information or for form of the question. 8. Extremely expensive b/c they involve costs for: stenographer, transportation, preparation, attorney time, etc. 9. Most utilized discovery tool by litigators 10. Witness preparation: a. Make sure witnesses pay attention to and only answer the question asked. Dont want to volunteer too much information b. Let witness know what the other side is seeking. But, you cant tell the witness to lie or not be forthcoming 11. Timing Depositions usually occur after interrogatories and document requests b/c counsel should have a thorough understanding of the case before taking depositions. a. But, early depositions can be a good tactical choice in order to pin down an opponent to a particular version of the facts or a particular legal position.

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f. Managing Discovery
i. The order of conducting interrogatories, document requests, requests for admissions, and depositions is flexible and is frequently changed for strategic reasons ii. Depositions are generally taken after interrogatories because the interrogatories are usually used to discover which people are important to depose. iii. Responding party pays the cost of discovery by default, but costshifting may be available for some electronic discovery iv. Davis v. Ross (p. 368) D fired her assistant and wrote a letter that P claimed was defamatory. 1. P wanted information related to: a. Ds net worth and income: Ability for D to pay damages not related to Ps claim b. Other employees complaining about D as an employer: Not discoverable b/c dont bear on objective evaluation of Ps performance c. Ds law bills: Attorney-client privilege protects the contents of the bills, but not necessarily the amount of the bills 2. D wanted Ps psychiatric records in order to assess the harm to P a. Court found this to be discoverable

Civ Pro II 3. Ps should be aware that they may have to open themselves up to probing discovery depending on the types of claims made at the outset v. Kozlowski v. Sears (p. 377) Kid was burned by pajamas and Sears refused to reveal information about any other incidents. Court ordered Sears to produce documents even though it would be costly and time-consuming because the requested documents were within the scope of 26(b), P needed them, D possessed them, and P had no other way to get them. 1. Distinction between interrogatories and request for documents: a. Interrogatories allow D to ask P to go through tons of documents b. Requests for documents require D to produce documents as requested or kept in the ordinary course of business that P must then go through 2. Companies do not have to organize documents to be conducive to discovery by Ps attorneys. They must provide them as stored in the ordinary course of business. 3. That discovery will be costly and time-consuming is not a valid reason to be excused from discovery. vi. Notes: 1. I file a lawsuit against a defendant in federal court on October 1, 2011 and serve by mail on the same day. Two weeks later, I get a notice that on November 15, there will be a Rule 16 initial scheduling conference with the Court. 2. When do I have to hold the Rule 26(f) discovery planning conference with the other side? 3. When do I have to send in our Rule 26(f) discovery plan (also called a Rule 26(f) report)? 4. When do I have to send to the other side my initial disclosures under Rule 26(a)? 5. What is the latest date for the court to issue a scheduling order?

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g. Electronic Discovery
i. Problems created by electronic data: 1. Volume a. ~ 90% of business information is stored electronically b. Storage costs are very low, so there is a massive amount of information that is retained and never deleted 2. Form

Civ Pro II a. There are many varieties and forms of information that is related to the substantive electronic data, including: metadata; embedded data; versions; access history; etc. 3. Access: 5 categories (listed from most-accessible to leastaccessible) a. Active on-line data (accessible) b. Near-line data (accessible) c. Off-line storage/archives (accessible) d. Backup tapes (inaccessible) e. Erased, fragmented, or damaged (inaccessible) 4. Spoliation a. Electronic information is easily altered b. Sometimes electronic information is not really deleted c. Heisenberg uncertainty principle: opening document changes data 5. Cost a. Electronic discovery is very expensive ($$$) ii. Cost-shifting test developed by Rowe and modified by Zubalake sometimes used by cts: 1. Is the data accessible (active on-line data, near-line data, or off-line storage/archives)? a. If yesResponding party pays costs of producing responsive data 2. Responding party must restore and produce a small sample from the media to determine what data may be found on the inaccessible media 3. Perform a cost-shifting analysis, taking into account the following factors in order of their weight: a. Extent to which the request is specifically tailored to discover relevant info b. Availability of such information from other sources c. Total cost of production, compared to the amount in controversy d. Total cost of production, compared to the resources available to each party e. Relative ability of each party to control costs and its incentive to do so f. Importance of the issues at stake in the litigation g. Relative benefits to the parties of obtaining the information iii. Rule 26(b)(2)(B) Specific Limitations on Electronically Stored Information

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Civ Pro II 1. Responding party doesnt have to produce electronically discoverable information if it is not reasonably accessible because of undue burden or cost 2. The party resisting discovery bears the burden of showing undue burden or cost 3. Even if the party resisting discovery shows undue burden or cost, the party requesting discovery can show good cause that the information should be produced anyways a. Good cause = value of information outweighs the burden or cost of producing it 4. 7 factors used to determine whether there is good cause for requiring production of information that is not reasonably accessible b/c of undue burden or cost: a. Specificity of request b. Quantity of information available from other easily accessible sources c. Failure to produce relevant information that seems likely to have existed, but is no longer available through more easily accessible sources d. The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessible sources e. Predictions of importance and usefulness of the further information f. Importance of the issues at stake in the litigation g. The relative resources of the parties 5. Cost-shifting may be imposed to shift the cost of the discovery of information that is not reasonably accessible, but where good cause requires discovery to be permitted iv. Form of Production for Electronically Stored Information (Rule 34) 1. Decision Tree a. Did the requesting party specify the form of production? i. If yes, the responding party can: 1. Object to the request; or 2. Object to the form and specify the form of production it intends to use; or 3. Produce documents as they are kept in the ordinary course of business or organize and label them to correspond to the categories of the request ii. If no, the responding party can: 1. Object to the request; or

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Civ Pro II 2. Produce documents in a form which is ordinarily maintained or in a reasonably usable form and specify the form they are producing the documents in b. The requesting party may specify the form or forms in which electronically stored information is to be produced [34(b)(1)(C)] c. If the requesting party does not specify the form of production, the producing party must specify the form of production [34(b)(2)(E)] v. Sanctions cannot be imposed for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system [37(e)]

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h. Exemptions from Discovery (Priv./Work Prod.)

i. Sometimes, confidentiality is more important than access to evidence ii. Attorney-Client Privilege 1. Generally, conversations with potential/actual clients in furtherance of potential/actual representation that are confidential are covered. 2. Rationale Encourage clients to be candid with their attorneys 3. Requirements for asserting the attorney-client privilege [p.406 n.1] a. where legal advice of any kind is sought b. from a professional legal adviser in his capacity as such c. the communications relating to that purpose d. made in confidence e. by the client f. are at his instance permanently protected g. from disclosure by himself or by the legal adviser h. except the protection be waived. 4. Corporate employees a. Sometimes, the control group test is used to exclude communication between attorneys and lower-level employees from the attorney-client privilege b. The Supreme Court rejects the control group test, extending the attorney-client privilege to all communications between an attorney and an

Civ Pro II employee of a corporation acting within the scope of employment. c. Factors for determining whether communication between a corporate employee and lawyer is protected by attorney-client privilege: i. Comm. between an attorney/employee ii. the information is needed for legal advice iii. the comm. is about the employees duties iv. the employee knows she is being questioned to help the corporations defense v. the employee understands the communication is confidential. 5. The attorney-client privilege only protects communication, not facts 6. A party that objects to the claim of attorney-client privilege can ask the objecting party to provide the basis for the objection , and then possibly file a Rule 37 motion to compel. 7. Upjohn (pg. 399) IRS asked for in-house counsel to turn over internal questionnaires and interviews performed to further investigation of Upjohn bribing foreign officials. The Court holds that this information is protected by the attorney-client privilege, rejecting the control group test in favor of a test that recognized the employees as clients because the in-house counsel asked them questions to give legal advice to the company, that was to be confidential, and that was w/in the scope of employment. a. Rule: The attorney-client privilege may protect all communications between corporate employees and corporate counsel, and the work-product exemption for oral statements can only be overcome by a strong showing of necessity and unavailability. iii. Work-Product Doctrine 1. Applies to more than just attorneys 2. Rationale a. The adversarial system would be undermined if an attorney could use another attorneys wits against him. (We dont want to encourage free-riding) b. Not protecting work-product would encourage attorneys not to write stuff down in order to avoid discovery. This would hurt their ability to represent their clients. 3. Physical vs. Opinion work-product a. Physical work-product is like the transcript of an interview, deposition, etc.

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Civ Pro II i. Physical work-product is only discoverable if it is necessary to the other party and the other party cant obtain it elsewhere without undue hardship ii. Rule 26(b)(3) Trial Preparation: Materials 1. 26(b)(3)(A): Ordinarily, documents and tangible things prepared in anticipation of litigation or at trial are not discoverable, except if: a. They are discoverable under 26(b)(1) [nonprivileged and relevant] b. There is a substantial need for them by the other party, and c. They cannot be obtained through other means without undue hardship 2. 26(b)(3)(B): Even if some physical work-product is found discoverable under 26(b)(3)(A), all opinion work-product is still undiscoverable. iii. Documents generated in the ordinary course of business are not covered by the workproduct doctrine b. Opinion work-product is like an attorneys notes of opinions; mental impressions; or professional judgment. Opinion work-product is much broader than just opinions, e.g. how documents are assembled and notations about who will testify. i. Opinion work-product is never discoverable, but cant be used to shield the underlying facts. Only shields the attorneys impressions of the facts. 4. The work-product doctrine is not absolute in instances where witnesses die or become unavailable, etc. 5. Hickman (pg. 387) Witness statements of opposing counsel taken in preparation of tug-boat litigation were held to be undiscoverable under the work-product doctrine. Although the information was relevant and non-privileged, the witnesses were available for the other side to interview without undue hardship a. Attorney-client privilege didnt apply b/c the witnesses were not clients

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Civ Pro II b. Rule: A party is not entitled, without a showing of good cause, to obtain copies of an opposing attorneys notes and memoranda acquired from interviews with witnesses. iv. Burden to claim attorney-client privilege or work-product is on the party making the claim and must include enough information that the other party can assess the claim [26(b)(5)(A)] v. Discovery is very laborious and expensive because you have to research where all marks and notes on all documents came from in order to find out if they are covered under either attorney-client privilege or work-product doctrine vi. Differences b/w attorney-client privilege and work-product doctrine: 1. Attorney-client privilege protects information, while workproduct doctrine protects physical documents 2. Attorney-client privilege can only apply to clients, but work-product can apply to non-clients

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i. Discovery Obligations and Enforcement

i. Duty to Supplement There is an affirmative duty to continually supplement all disclosures and responses once it is discovered that something is incomplete or incorrect [26(e)(1)] ii. Sanctions [Rule 37] 1. Purposes: a. Ensure the violating party doesnt profit b. Specific deterrence c. General deterrence 2. Range of sanctions that can be imposed: a. Mildest Reimburse other party for expenses caused by violation b. Harsher Striking portions of pleading; prohibiting introduction of certain evidence; accepting certain things as admitted by the party in violation c. Harshest Dismissal and default judgment i. Reserved only for willful and bad-faith conduct iii. Cine Forty-Second Street Theatre Harshest Rule 37 sanction was appropriate in case where P claimed that D colluded in order to prevent P from getting new run movies and P is repeatedly grossly negligent in complying with discovery orders for an extended period of time. iv. Bratka Default judgment and payment of fees was sanctioned on D in a case where an employee sued Busch beer over exposure to chemicals. Ps seek a bunch of documents trying to show that the same problem existed with other employees among Buschs other

Civ Pro II plants. D repeatedly fails to produce the requested documents in a timely or adequate manner. Trial attorney did a terrible job of communicating with the in-house counsel to make sure that the required documents were being produced timely. 1. Trial attorney who receives a request for production of documents has a duty to formulate a plan that will ensure full and fair compliance with the request. 2. The Court expects that any trial attorney appearing as counsel of record in this Court who receives a request for production of documents in a case such as this will formulate a plan of action which will ensure full and fair compliance with the request. Such a plan would include communicating with the client to identify the persons having responsibility for the matters which are the subject of the discovery request and all employees likely to have been the authors, recipients or custodians of documents falling within the request. The plan should ensure that all such individuals are contacted and interviewed regarding their knowledge of the existence of any documents covered by the discovery request, and should include steps to ensure that all documents within their knowledge are retrieved. All documents received from the client should be reviewed by counsel to see whether they indicate the existence of other documents not retrieved or the existence of other individuals who might have documents, and there should be appropriate follow up. Of course, the details of an appropriate document search will vary, depending upon the circumstances of the particular case, but in the abstract the Court believes these basic procedures should be employed by any careful and conscientious lawyer in every case.

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IV. Pre-Trial Dispositions a. Dismissals (Rule 41)

i. Voluntary Dismissal 1. By the Plaintiff a. Without a court order P may dismiss w/o a court order by filing: i. Notice of dismissal before D serves answer or motion for SJ; or ii. Stipulation of dismissal signed by all parties [allows settlement] b. Effect Without prejudice P can file the same suit later. But, if P previously dismissed any suit

Civ Pro II based on same claim, then this dismissal acts as an adjudication on the merits [This prevents P from harassing D by refilling over and over again] 2. By Court Order Court has discretion to dismiss if P doesnt have an absolute right to voluntary dismissal. This type of dismissal is without prejudice by default. ii. Involuntary Dismissal 1. D can dismiss for Ps failure to prosecute, or to comply with rules or Court orders 2. Ct. can invoke this sua sponte 3. This type of dismissal is with prejudice, i.e. an adjudication on the merits. Cant file the case again.

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b. Default Judgment (Rule 55a-c)

i. Rule 55 1. Entry of Default [55(a)] a. When party against whom judgment or affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the partys default 2. Default Judgment [55(b)] a. By clerk when [55(b)(1)]: i. Ps claim must be for a sum certain or capable of being made certain by computation i.e. liquidated damages ii. P must file affidavit that the amount is correct iii. D defaulted for not appearing and D not a minor or incompetent iv. Different courts have different standards for what an appearance is v. D cannot be a minor or incompetent vi. Strict requirements for clerk entering default judgment b/c the impact is high b. By Court when [55(b)(2)]: i. Party must apply to the Court for a default judgment ii. Sometimes, a hearing is scheduled iii. Must notify party against whom default judgment is sought ii. Entry of default vs. default judgment 1. Entry of default is a simple, ministerial task taken on by the clerk 2. Default judgment is a judgment

Civ Pro II iii. It is much more difficult to get a default judgment overturned than it is to get an entry of default removed [55(c)] 1. Setting aside a default judgment requires a more stringent standard under Rule 60(b) 2. Entry of default can be set aside for good cause a. FRCP wants to err on the side of hearing cases on the merits b. A default entry can only be set aside when: i. P will not be prejudiced; and ii. D has a meritorious defense; and iii. D moves promptly to set aside the default entry and offers a credible explanation that does not exhibit disregard for the judicial proceedings iv. Darrah (p. 200) Ds secretary asked for extension of time to answer and misunderstood the time allowed. D fails to answer and P requests clerk to enter default. D then engages in a flurry of filings. Ds attorney made several mistakes: agreed to answer when he should have agreed to respond; didnt file the letter with the court; didnt pay attention to the calendar or review the case file or letter. This case establishes the standard for what good cause is when moving to set aside an entry of default for good cause. 1. What is the difference between a default entry and a default judgment? a. Entry of default is a simple, ministerial task taken on by the clerk b. Default judgment is a judgment 2. In William Darrah, what precisely is the legal issue? What question is the Court called upon to decide? a. What is considered good cause for moving to set aside an entry of default for good cause?

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c. Summary Judgment (p. 430)

i. Introduction 1. SJ usually used by Ds 2. Species of judgment as a matter of law 3. Prevents cases that cant win from going to the jury 4. Procedures and mechanisms for SJ governed by local rules ii. Rationale: Avoid wasting time and resources in unnecessarily empanelling a jury iii. Situations where SJ is appropriate No genuine issue of material fact; parties agree to facts, but not to the legal implications; Resolve individual claims of a multi-claim lawsuit; Claims by or against one party in a multi-party lawsuit

Civ Pro II iv. Summary Judgment vs. 12(b)(6) motion to dismiss: 1. 12(b)(6) motion to dismiss do the plaintiffs allegations, if true, state a claim for which the court might grant relief (a well pleaded claim)? 2. summary judgment motion to dismiss case based on pleadings + other evidence v. Burden of proof (p. 431) 1. Burden of production a. Audience is the court b. Is there enough evidence that a rational jury could come to the conclusion based on the burden of persuasion? c. Who bears the burden of production initially? i. P initially bears the burden of production for all elements of claims ii. D initially bears the burden of production for all affirmative defenses 2. Burden of persuasion a. Audience is the jury b. Who must convince the trier of fact at trial of the accuracy of his factual assertions c. P bears the burden of persuasion on all elements of Ps claims and D bears the burden of persuasion for all of Ds affirmative defenses d. The party with the burden of persuasion loses if the issue ends in equipoise e. Several burdens depending on context: i. Beyond a reasonable doubt (criminal) ii. Clear and convincing evidence iii. Preponderance of the evidence (civil) iv. Prima facie case 3. Burden-shifting a. The burden of persuasion doesnt shift, but the burden of production can shift b. 0-----JMOL for D-----//-----Jury (equipoise)----//---JMOL for P------ i. The areas denoted by // are where the respective burdens of production are satisfied vi. Procedurally, the party opposing summary judgment (non-movant) has 3 options: 1. Do nothing 2. Respond with specific facts showing a genuine issue for trial

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Civ Pro II 3. Respond that specific facts showing a genuine issue cannot yet be produced. Discovery is needed to obtain the facts that prove there is a genuine issue vii. Standard under Rule 56(c): No Genuine Issue as to any material fact 1. The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 2. Adickes (p. 434) Moving party must prove the absence of any genuine issue of material fact with affidavits. a. In order for the moving party to avoid SJ, the burden is on the moving party to disprove all elements that the non-moving party must prove at trial. Seems to create a narrow, useless test for when SJ applies. b. F: P sued under 1983, alleging a conspiracy to arrest her for vagrancy. P must prove there was a police presence and a conspiracy. District Court granted SJ b/c there was no evidence from which a reasonably-minded person might draw an inference of conspiracy. c. The Supreme Court reversed b/c D failed to show the absence of a genuine issue as to any material fact. d. Class Questions: i. When you read Adickes, tally up on a piece of paper the type of evidence that each side presents on the summary judgment motion. 1. Plaintiff-2 2. Defense-3 3. Celotex (p. 440) Moving party still bears the burden of showing that there is no genuine issue of material fact, but moving party can satisfy this burden by pointing out holes in the record of essential elements of the non-moving partys case. (Rehnquist approach) a. Core Holding - A party moving for SJ who does NOT bear the burden of persuasion at trial (usually the defendant) can satisfy the initial SJ requirement by pointing to the absence of evidence of an essential element of the non-moving party's claim in the record. The burden is then on the non-moving party (usually the plaintiff) to come up with evidence to shift the burden back to equipoise (point at which there is a genuine issue of

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Civ Pro II material fact to send to the jury) so that a jury has to decide an issue of fact. But, a party moving for SJ who does bear the burden of persuasion at trial must provide more than point out holes in the evidence/record in order to avoid summary judgment. b. Affidavits are not required to prove the absence of a genuine issue of material fact c. F: D pointed out that P offered no evidence to establish exposure. Thus, P couldnt show causation. P bears the burden of persuasion on causation. SJ was appropriate when D pointed to absence of evidence supporting a critical element of Ps claim. d. Evidence doesnt have to be admissible to avoid SJ, but must be reducible to admissible evidence. i. If hearsay can be reduced to evidence at trial (i.e. call witness to read the statement) then it can be used to oppose SJ. e. 56(f) options can be used to avoid potential of Ps being railroaded by allowing Ps more time to discover before the SJ motion is decided f. Rehnquist approach good for Ds b/c: i. Gets rid of cases earlier ii. Gives D a sneak peek of Ps case iii. Tool in hands of D attorney to sow seeds of doubt in undeveloped cases iv. Shifts bargaining power in favor of Ds g. Brennan (Dissent): D failed to discharge initial burden of production to shift the burden to P to produce evidence in support of Ps claim. 4. HYPO: Dr. Caligari, a cabinet maker, delivers an entertainment console to Ms. Francis' home. While moving the console into her living room, the console slips out of its box and lands on her award-winning Chow, Henry, mortally wounding it. Ms. Francis sues for negligence and trespass to chattels. Dr. Caligari raises the affirmative defense of waiver and release. Assume the Dr. moves for summary judgment on the entire case. In the motion the Dr. points to a single request for admission where Ms. Francis admits that the death of her dog was an accident, that she has no direct knowledge whether the Dr. actually meant to drop the console, and as far as she knows it just slipped out of the box which appeared to be inadequately banded. He also points to the fact that Ms. Francis has supplied no evidence that she did not in fact sign a

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Civ Pro II waiver. There is no other evidence of record except the admission. What should the court do? a. Strict liability? Intent doesnt matter with negligence, JURY SHOULD DECIDE. There is a clear dispute of facts- who packaged it? b. If there is no causation, there is no negligence. BUT there is causation. INTENT DOESNT MATTER. viii. Reasonableness questions: What is necessary to meet the burden of production? 1. To oppose SJ, more than the slightest doubt is needed [MAJ] a. SJ cannot be denied when P claims something that is denied by D and many witnesses and Ps only hope is that the jury wont believe all of them. b. Slightest doubt test rests on the slightest doubt that may exist b/c all of the witnesses may be judged to be incredible by the jury at trial and P may still win. But, this is definitely a minority rule on its way out. 2. There is much debate over what is a reasonable inference a. Depends on what the judge perceives his role to be 3. Sham affidavits - cant oppose SJ by trying to correct depositions with affidavits in order to create a genuine issue of fact a. Although, Ohio allows it if there is a credible explanation 4. Arnstein (p. 455) P sues D for copyright infringement for Ds songs. D swears through affidavit that he does not even know D and has no idea what this case is about. The only evidence that P offers was that Ds goons could have broken into Ps place and accessed his music. Ps entire case was based on the hope that Ds credibility would be impeached at trial. This case adopts the slightest doubt standard and denies SJ. 5. Dyer (p. 458)- demeanor evidence. In opposing a motion for summary judgment, the opposing party cannot rely on credibility evidence alone to ensure that the case goes to the jury. 6. Doehler Metal v. US (p. 463)- slightest doubt test- a litigant has a right to a trial where there is a slightest doubt as to the factsheavily rejected and courts demand a stronger evidentiary showing by a nonmovant who will bear the burden of production at trial 7. New York Times v. Sullivan (pg. 468)- public officials in defamation cases must prove presence of actual malice by clear and convincing evidence (higher standard)

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Civ Pro II ix. Appealability 1. SJ denials are not generally appealable 2. SJ grant can be appealed and appellate court reviews de novo

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V.

Trial (p. 523) a. Introduction

i. Grounded in 7th Amendment of Constitution 1. In suits at common law, where the amount in controversy shall exceed $20, the right of trial by jury shall be preserved. 2. 7th Amendment not incorporated against the states to require civil jury trials ii. Historical Development 1. Began with formalistic writ system 2. Equitable courts developed to lessen harshness of writs 3. Thus, two parallel courts emerged: courts of law and courts of equity 4. Sometimes, the chancellor could prevent suits from being filed in courts of law 5. Merger of courts of law and equity by FRCP Rule 2: one action, the civil action 6. Difficulties arose when functions of law and equity were jammed into one court iii. Equity vs. Law 1. Law ~ Damages (except restitutionary and damages incidental to injunctive relief) 2. Equity ~ Injunction a. Equity not available unless money not good enough, i.e. real property, specific performance, accounting, etc. iv. Arguments for and against juries 1. For juries: a. Less likely to be biased b. Dont change the law and bind others c. More representative 2. Against juries: a. More likely to be biased b. Incompetence c. Susceptible to theatrics more easily swayed d. Delayed v. Trial Procedure: 1. Jury Selection

Civ Pro II 2. Opening Statements 3. Presentation of Evidence 4. Argument (Closing) 5. Instructions 6. Jury Deliberation and Verdict 7. Post-Trial Motions and Judgments vi. Rule 38 1. 38(a): 7th Amendment right to a jury is preserved 2. 38(b): To demand a jury trial, a party must serve the other parties with a written demand (which may be included in a pleading) no later than 10 days after the last pleading directed to the issue is served 3. 38(c): A proper demand may only be withdrawn with the consent of both parties. vii. The Clean-Up Doctrine (p. 546) 1. If the claim is primarily equitable, the clean-up doctrine allows courts sitting in equity to decide any incidental legal issues that arise in the course of litigation. 2. Katchen v. Landy Diff from Beacon and Dairy Queen because neither case had involved a specific statutory scheme contemplating the prompt trial of a disputed claim without the intervention of a jury.

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b. Beacon Theatres v. Westover (p. 533)

i. RULE: A court may not deny a jury determination of factual issues through a prior determination of equitable claims. ii. All legal issues must be resolved first b/c the 7th Amendment provides a jury right for legal issues. Then, any leftover issues can be resolved equitably. iii. F: Fox sues Beacon for injunction (equitable relief) and Beacon counter-claims with anti-trust violation seeking damages (legal relief). [Primarily equitable claims are opposed by purely legal counterclaims.] Supreme Court holds that all legal issues must be heard first by a jury, including issues that overlap law and equity, because the 7th Amendment guarantees a jury to hear legal claims. There is no right to have the first-filed claim decided first. iv. Strict historical analysis is rejected in light of Congressional purpose and the FRCP. v. Dissent: The availability of an action for declaratory judgment should not deprive a court of equity the power to act. Rather, when declaratory relief is sought, the right to trial by jury depends on the basic context in which issues are presented. vi. Solution after Beacon: 1. Jury decides issues of facts and damages 2. Judge decides injunction

Civ Pro II vii. Class Notes:

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c. Dairy Queen v. Wood (p. 541)

i. RULE: An action seeking money damages, even phrased in equitable terms, cannot be considered purely equitable. ii. The determination of whether there is a right to a jury is determined on an issue-by-issue basis, not by determining whether the case as a whole is more legal or more equitable. iii. F: DQ sued Wood in a TM infringement case for injunctive relief and an accounting. Accountings are a form of equitable relief available when computation is too difficult for a jury. Here, DQ really seeking damages, but calling it an accounting to avoid a jury. iv. FRCP solves the problem of juries being unable to understand complicated complications by appointing a master to assist the jury v. Look at the content/context of a claim to determine if it is legal or equitable, not the form. vi. The notion of incidental legal issues is rejected. The jury right exists on each legal issue. There is no balancing test for whether a case is mostly legal or mostly equitable vii. Who decides? 1. Legal issues Jury 2. Issues that overlap law and equity Jury 3. Purely equitable issues Judge a. A judge decides issues of fact when only injunctive relief is sought

d. Ross v. Bernhard (p. 548)

i. A shareholder derivative suit is a lawsuit brought by a shareholder on behalf of a corporation against a third party. Often, the third party is an insider of the corporation, such as an executive officer or director. ii. Rule: A court may overcome procedural impediments, which traditionally precluded a jury trial, in order to grant a jury trial. 1. We hold that the right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury. iii. Origin of the test for determining whether an issue is legal or equitable: 1. Pre-merger custom with reference to such questions [Historical Analysis] 2. Remedy sought: is it legal or equitable? 3. Practicable abilities and limitations of juries

Civ Pro II a. This factor is dangerous because it undermines the Bill of Rights and we are afraid of the government doing exactly this type of thing

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e. Curtis v. Loether (p. 557)

i. RULE: The Seventh Amendment applies to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.

f. Tull v. US (p. 561)

i. RULE: A statute may provide for jury trial by codifying commonlaw actions and also allow a judge to impose a remedy once liability is established. ii. Uncomfortable dichotomy set up of jury deciding liability issues and judge deciding damages. Brennan noted that the relief prong of the test is more important than the historical analysis prong. 1. Not all remedies involving $ are necessarily legal

g. Teamsters v. Terry (pg. 565)

i. CURRENT LAW Reaffirms the two prong test. ii. Framework for deciding whether an issue is legal or equitable: 1. Historical comparison to analogous 18th-century C/L causes of action 2. Remedy sought: is it legal or equitable? *** More Important prong *** iii. Asking for money damages = legal, except: 1. Restitutionary 2. Incidental to injunctive relief iv. Facts: P sued union for breach of duty of fair representation and breach of K seeking compensatory damages. v. RULE: An action for breach of fair representation, although analogous to equitable claims at common law, carries a right to jury trial. vi. Marshall: Court found a right to a jury trial because the compensatory damages sought made the claim legal even though the historical prong of the test was in equipoise. vii. Brennan (Concurrence): Dispense with the historical comparison prong all together and build a historical inquiry into the evaluation of the relief sought

Civ Pro II viii. Kennedy (Dissent): If there is no analogous writ at 18th-century common law dont even look at the relief sought b/c the issue is equitable, not legal.

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h. Complex Cases and Jury Right (p. 585)

i. Competing views 1. In re Japanese Electric Products Antitrust Litigation: A jury who cant understand complex legal issues undermines the courts ability to render basic justice (5th amendment due process), so jury denials on ground of complexity should be held to suits in which due process clearly requires a nonjury trial. a. The complexity must be so great that it renders the suit beyond the ability of a jury to decide by rational means with a reasonable understanding of the evidence and applicable legal rules. 2. In re US Financial Securities Litigation: Some cases appear complicated at the beginning stages, but as the trial goes on, what was once complex has been synthesized into a coherent theory by the efforts of counsel ii. Congresss ability to alter the scope of the right to a jury trial? 1. 1-way ratchet: Congress can allow more jury trials than is Constitutionally required, but cannot allow less jury trials than is required by the 7th Amendment Constitutional bedrock 2. Congress having full power to alter the scope is another possibility, but this seems to be contrary to the purpose of the 7th Amendment to preserve the right of trial by jury iii. Jury Size 1. Federal Jury size [6,12] 2. Unanimity is required 3. Ohio Jury size = 8 4. 6/8 jurors required, not unanimity iv. Jury Selection 1. Litigants are entitled to fair and impartial jurors representing a cross-section of the community 2. Jurors are elected at random (by clerk of court) from a fair cross-section of the community 3. Process: a. Called to court b. Qualifications c. Instruction of duties/split into groups of 50 assigned to different courtrooms d. Courtroom deputy clerk randomly fills jury box

Civ Pro II e. Lawyers/judge question jurors to see if any should be excused for cause f. Peremptory challenges (Fed. Court = 3

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VI. Post Trial-Motions

a. Motion for Judgment as a Matter of Law (JMOL) (Rule 50(a)-(b)) (p. 594)
i. JMOL combines directed verdict and judgment n.o.v.: 1. directed verdict (JMOL) entered after jury empanelled, but before jury deliberates 2. judgment n.o.v. (RJMOL) entered after jury verdict comes in ii. Another mechanism (like 12(b) motions and SJ motion) that allows cases to be taken away from the jury when the jury has nothing to do 1. Function of jury: find facts; evaluate credibility; weigh evidence iii. JMOL vs. 12(b)(6) 1. 12(b)(6) motion is decided on the pleadings alone, with no extra facts 2. JMOL is decided on pleadings and any evidentiary record in existence at the time iv. 7th Amendment no fact, tried by a jury, shall otherwise be reexamined, except according to the rules of common law v. Difference in timing between JMOL and SJ: 1. Procedurally, JMOL comes after close of evidence [D can move for JMOL after close of Ps evidence or after close of all evidence; P can move for JMOL after close of all evidence] whereas SJ motion is filed sometime after the scheduling conference, usually after some discovery vi. Standard (Rule 50(a)) 1. Party must be fully heard on the issue; and 2. no legally sufficient evidentiary basis for a reasonable jury to find for that party on the issue a. Functionally, JMOL standard = SJ standard (no genuine issue of material fact) vii. Galloway (p. 596) RULE: A directed verdict is proper where juries would have to make inferences and bridge large gaps in testimony, and the verdict does not violate the 7th Amendment. 1. Flexibility allowed in the procedural mechanisms of the jury trial so long as the Constitutional backstop (the basic

Civ Pro II institution of jury trial in the most fundamental elements) is preserved a. Directed verdict close enough to the 1791 mechanisms of demurrer and motion for a new trial to preserve the basic institution of the jury trial in its most fundamental elements b. Living Constitution vs. strict constructionist argument viii. Renewed Motion for Judgment as a Matter of Law (RJMOL) 1. Rationale Avoid the need to conduct a new trial if a judges entry of JMOL is reversed on appeal. 2. A JMOL must be filed in order for a party to have the right to file a RJMOL a. This is necessary because the 7th Amendment preserves this C/L practice b. Another reason for requiring JMOL before RJMOL is that it gives the opposing party time to cure potential defects before the jury has gone out. 3. Must be filed no later than 10 days from the judgment ix. RJMOL more likely to be granted by trial judge than JMOL b/c we want less retrials: 1. Assume JMOL granted. If JMOL grant is reversed on appeal, then there must be a new trial 2. Assume JMOL denied and RJMOL granted. If RJMOL grant is reversed on appeal, then the jury verdict can be instituted without the need for a new trial

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b. Motion for New Trial (MNT) (Rule 59)

i. Gives court the option to correct its own mistakes or the mistakes of the jury ii. 2 categories of errors that can result in new trial: 1. Procedural errors, i.e. improper evidence decisions, improper jury instructions, etc. 2. Result is clearly wrong iii. Standard 1. When the verdict is against the clear weight of the evidence; or 2. is based upon evidence which is false; or 3. will result in a clear miscarriage of justice iv. There is a high threshold for when a MNT is granted. 1. It will not be granted because someone doesnt like the verdict or how it was reached 2. No new trial granted if error would be harmless, i.e. party would still clearly lose

Civ Pro II 3. Parties are Constitutionally entitled to a fair trial, not a perfect trial Practical examples of prejudicial situations when motion for a new trial may be granted: 1. Verdict against the clear weight of the evidence 2. Verdict influenced by fraud or false testimony 3. Newly discovered evidence that couldnt have been obtained during discovery 4. Court making a clear error of law (i.e. applying wrong standard, or wrong choice of law) MNT standard distinguished from SJ/JMOL standard 1. 13th juror - A judge has limited ability to weigh evidence and credibility when ruling on a MNT, which is unavailable when ruling on SJ or JMOL a. This is Constitutionally allowed b/c it was historically available at C/L and the judge is simply evaluating the evidence, not substituting his judgment Procedurally, MNT usually filed with RJMOL If a MNT is granted, the winner of the original trial must participate in the new trial until there is a final judgment, and then appeal the grant of the MNT.

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v.

vi.

vii. viii.

c. Procedural/Appealability interplay between JMOL and MNT

i. Assume JMOL denied, RJMOL denied and MNT denied. The party against whom the verdict is rendered can appeal that either RJMOL or MNT should have been granted 1. If RJMOL denied by the trial court and subsequently reversed by the appellate court, Rule 50(e) allows the party whom the verdict was in favor of to argue for a new trial ii. Assume JMOL denied, RJMOL denied and MNT granted. There is a new trial and there is no way to appeal it iii. Assume JMOL denied and RJMOL granted. Now, the court must conditionally rule on a MNT. 1. If the appellate court affirms the RJMOL grant, then verdict is reversed 2. If the appellate court reverses the RJMOL grant and the trial court conditionally granted a MNT, then there is a new trial 3. If the appellate court reverses the RJMOL grant and the trial court conditionally denied a MNT, then the losing party can appeal, arguing that a new trial should have been granted

Civ Pro II

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d. Motion for Relief from Judgment (Rule 60(b))

i. This motion is used when a party seeks to be relieved of a judgment ii. Rule 60(b) enumerates the reasons for granting relief from judgment 1. (1) mistake, inadvertence, surprise, or excusable neglect; 2. (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 3. (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 4. (4) the judgment is void; 5. (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 6. (6) any other reason that justifies relief. iii. Other examples are when there is a settlement, but one of the parties materially misrepresented some facts, or when there is a change in the law after judgment entered iv. Very rarely granted

VII. Appeals (p. 1016) a. Introduction

i. Intro: 1. There is no constitutional due process right to appeal 2. Scope of right to appeal completely determined by Congress 3. The right to appeal is almost universally established by statute for both state and federal courts ii. Pros/Cons 1. Pros a. Corrects mistakes of law b. Promotes faith in the process in: (a) litigants; and (b) public c. Legitimizes the decisions of the lower courts d. Quality control e. Consistent with democratic values f. Allows standardization 2. Cons a. May not ensure quality, i.e. appellate court draws the line in the wrong place b. Undermines authority and confidence in trial judges

Civ Pro II c. Takes up resources growing caseloads in federal appellate courts d. May reduce flexibility, i.e. sacrifice fairness at the expense of standardization iii. How do we maintain fairness without sacrificing too much efficiency? 1. Screening which cases are accepted on appeal 2. Avoiding frivolous appeals 3. Limit in which cases oral argument is allowed 4. Limit the number of written opinions a. Unresolved issue of precedent/citability of unpublished opinions

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b. Standards of Review
i. (ordered least-deferential to most-deferential): ii. De novo Reviewed anew 1. Typically applies to questions of law iii. Clear error Appellate court can overturn the district court decision only when, from an objective viewpoint, the court of appeals is left with a definite/firm conviction that a mistake has been made 1. Typically applies to questions of fact iv. Abuse of discretion Appellate court can overturn the district court decision only when, the court of appeals is left with a definite/firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice 1. Typically applies to evidentiary decisions

c. Procedure of Appeals
i. from district court to appellate court ii. Parties have 30 days to file their notice of appeal from the date of entry of judgment iii. If 30 day deadline is missed, you are done iv. Notice of appeal is filed in the district court v. Bowles v. Russell (p. 1021) (Russell is warden of state penitentiary) The Court ruled that, even though Bowles was relying on the mistaken order of the District Court, the Circuit Court was correct to dismiss his untimely appeal. Justice Clarence Thomas's opinion for the 5-4 majority held that statutory time limits for filing a notice of appeal are jurisdictional, and therefore the Circuit Court had no choice but to dismiss Bowles's appeal once it found that the appeal was filed too late. The Court ruled that it had no authority to create an exception for Bowles under the little-used doctrine of "unique circumstances," and it overruled its

Civ Pro II precedents "to the extent they purport to authorize an exception to a jurisdictional rule." The majority left it to Congress to change the rule if Congress thought it unfair. 1. In dissent, Justice David Souter wrote: "It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch."

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d. Final Judgment Rule (1291) (p. 1030)

i. 1291 The court of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States 1. This is a statutorily created appeal of right in the federal court system ii. What are final judgments? 1. 12(b)(6) motion;12(c) motion are final judgments 2. Denial of motion for SJ is not final judgment iii. Problems with setting the standard of what final is: 1. Problems with setting the standard too high (i.e. always requiring technical finality): a. A right may be irreparably lost if a party has to wait until the technical final judgment b. Judicial economy why waste time and resources on a trial that shouldnt have happened? 2. Problems with setting the standard too low (i.e. taking teeth out of finality): a. Waste of judicial resources b. Appellate courts dont want to standardize everything, reducing the flexibility of the district courts. iv. Technical vs. Pragmatic finality 1. Technical finality Ends the litigation on the merits and leaves nothing for the court to do except execute the judgment 2. Pragmatic finality effectively put out of court a. Pragmatic finality is just a construction of the term final in the appeal statute b. Pragmatic finality has appeal of getting away from the bad old days c. Quackenbush (p. 1031) District Court remanding a case to state court was held to be appealable because it effectively put the litigants out of court. 3. Death-knell doctrine rejected by Supreme Court a. Death-knell Doctrine: if class certification is denied, individual claims are too small to be litigated and thus are effectively foreclosed.

Civ Pro II b. In response to this concern, FRCP Rule 23(f) allows discretionary appeal of denials/grants of class certification decisions 4. Thus, pragmatic finality approach is still on the books, but courts have set a high threshold for satisfying pragmatic finality, in order to keep the good aspects of appeals without allowing piecemeal litigation to overtake v. Abstention when federal court has jurisdiction, but decides to remand or delay because of a parallel state court case

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e. Collateral Order Doctrine (Judge-Made Exception to statutory requirement of finality)

i. Limited body of law recognizing collateral order doctrine, but it is very narrow in scope, dealing mostly with immunity. ii. Basically, deals with issues that are completely separate from the action but are so important that they must be appealed right then iii. Requirements for Collateral Order Appeal 1. Conclusive The order must conclusively determine the disputed question 2. Important/Separate The order must resolve an important issue completely separate from the merits of the action 3. Unreviewable The order must be effectively unreviewable on appeal from a final judgment iv. Judge-made exception 1. Congress defines the jurisdiction of the Supreme Court 2. Thus, the Court really had no authority to make this exception 3. But, Congress later granted the Court power to create such exceptions, basically explicitly allowing what the Court had been doing v. Digital Equipment (p. 1047) Court is hesitant to extend collateral order doctrine, too far. The court divides the universe into: 1. Subject to the collateral order doctrine: a. Executive privilege b. Double jeopardy c. Judicial immunity 2. Not subject to the collateral order doctrine: a. Lack of personal jurisdiction b. Statute of Limitations defenses c. Summary judgment denials d. 12(b)(6) motion denials 3. Cohen (p. 1036)- The New Jersey statute should be followed because the statute is not a procedural matter that would preempt federal rules. The statute is constitutional,

Civ Pro II and can be used on ongoing litigation, as long as the attorneys fees covered are solely the fees accrued postenactment of the statute. Further, the statute does not violate the Contract clause of the United States Constitution because the requirement to pay opposing legal fees is a justifiable necessity to prevent frivolous lawsuits. 4. Will v. Hallock (p. 1037)- US customs agents take a couples computers to look for child porn. Their identity had been stolen and had nothing to do with child porn. They agents destroyed their equipment and they go out of business. They sued and the agents filed a motion for dismiss for immunity. District ct. denied motion and they appealed. a. Issue: Did the Circuit Court have jurisdiction under the collateral order doctrine to hear an appeal of the District Court's order? NO b. In a unanimous opinion, the Court ruled that the Circuit Court had no jurisdiction to hear an appeal under the collateral order doctrine. Writing for the Court, Justice David Souter stressed the narrow scope of the doctrine. The Court reiterated that only orders that cannot be "effectively" reviewed after a final judgment can be appealed before the close of the trial. Essential to this determination is the importance of the interest at stake. In this case, the Court ruled that the agents' interest in appealing the District Court's order had no "greater importance than the typical defense of claim preclusion" and it therefore warranted "no immediate appeal of right as a collateral order." c. Class Notes: i. Bivens someone from FBI cant rifle through your stuff and then say oh we made a mistake and leave, leaving no recourse for action

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f. Interlocutory Appeals (1292(b)) (p. 1057)

i. An appeal of a ruling by a trial court that is made before the trial itself has concluded. ii. For certification under 1292(b), both the district court and appellate court must be convinced of all of the elements iii. Elements 1. Substantial grounds for difference of opinion, i.e. circuit splits 2. Issue of law

Civ Pro II 3. Issue of law is controlling 4. Immediate appeal must materially advance the ultimate termination of the litigation iv. If issue is accepted on interlocutory appeal, the standard of review is de novo v. Nystrom v. Trex (p. 1058)- court dismisses for lack of jurisdiction b/c TREXs invalidity and unenforceability counterclaim remains pending at the district court vi. Yamaha Motor Corp. v. Calhoun (p. 1066)- the Court held that an appellate court which accepts a certification under 1292(b) can address a question different from the one certified by the district court so long as it is included within the order on which the appeal is based.

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g. Mandamus (1651) (p. 1068)

i. Extraordinary remedy reserved for extraordinary circumstances 1. Mandamus is used very infrequently ii. 5 Factors: 1. No adequate alternative relief available, i.e. no right to appeal 2. Petitioner will be damages or prejudiced in a way not correctible on appeal 3. District courts order is clearly erroneous as a matter of law 4. District courts order is oft-repeated error or manifesting persistent disregard for the rules 5. District courts order raises new and important problems of issues of first impression iii. Will (dist.ct. judge) v. United States (p. 1068) 1. Issue: For what purposes may a writ of mandamus be used? 2. Holding: A writ of mandamus may be used only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. a. The Government requested the writ on the grounds that the Judges conduct displayed a pattern of manifest noncompliance with the rules governing federal criminal trials. The court held that there was absolutely no foundation in the record for the Governments assertions concerning Wills practice. b. Mandamus is not a punitive remedy. Without findings of fact by the issuing court and some statement of the courts legal reasoning the writ cannot be issued. The court held that writs of

Civ Pro II mandamus are reserved only for extraordinary cases and there was nothing in this record to demonstrate that its use was warranted in this case.

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VIII. Preclusion Doctrines (pg. 1094) a. Introduction

i. Arises when there is one case, and then a subsequent case. Thus, not applicable to appeals based on the same case or to bifurcated cases. ii. Rationale: 1. Efficiency 2. Fairness, i.e. prevents harassment 3. Legitimacy dont want one judge ruling one way, then another judge ruling the other way on the same set of facts 4. Finality/Certainty Allows people to plan and order their affair iii. Res Judicata- claim preclusion- is case #2 barred b/c the claim or cause of action was raised or couldve been raised in case #1? iv. Collateral Estoppel- issue preclusion- is some discrete issue in the case barred by its resolution in a previous adjudication?

b. Res Judicata (Claim Preclusion) (p. 1097)

i. 5 Factors 1. Valid judgment in case 1 a. Judgment rendered by a court with competent jurisdiction to render the judgment b. Example of invalid judgment is the judgment of a court that lacks subject matter jurisdiction or personal jurisdiction 2. Final judgment in case 1 a. Technical finality is the test: all that is left is to execute the judgment 3. Judgment in case 1 is on the merits a. The key inquiry is whether the party has had an opportunity to litigate the merits b. on the merits ~ verdict, SJ, JMOL, 12(b) motions, default judgments, etc. c. not on the merits ~ failures of joinder, venue problems, lack of personal jurisdiction, lack of subject matter jurisdiction, etc. 4. Same parties or parties in privity in case 2 as in case 1

Civ Pro II a. Privity ~ mandatory class members; class members who could have opted out but didnt; parties with close legal relationships (i.e. guardian/ward; trustee/bankrupt; successors to decedent) 5. Same claim in case 2 as in case 1 a. Same claim = same transaction or occurrence standard used in joinder (rules 18&20) b. Same transaction/occurrence determined by pragmatically giving weight to: i. Whether facts are related in time, space, origin, or motivation ii. Whether the facts form a convenient trial unit iii. Whether treatment of the facts as a unit conforms to the parties expectations or business understandings/usage c. Rationale for same transaction approach i. Conserve judicial resources ii. Common-sense to ask closely related discovery questions all at once Merger/Bar 1. When all 5 factors are satisfied, the party seeking to litigate is subject to merger (if winning party seeking to litigate) or bar (if losing party seeking to litigate) Claim preclusion puts pressure on Ps to not leave out claims 1. Thus, you should bring all claims permitted by Rule 11 to avoid preclusion of potential claims Courts have broad discretion in determining what claims will be precluded 1. For example, crowdedness of the docket could be a factor Other action pending If D gets sued in more than 1 court by a P asserting the same claim, D can request all courts except 1 to stay proceedings 1. Generally, the first case filed generally goes forward and all other cases are stayed 2. Res judicata bars claims in all courts, not just federal or state courts Relation to compulsory counter-claims If you dont bring a compulsory counterclaim, you cannot sue on it later. Relation to joinder Just because a party could have joined a claim in the first suit does not necessarily mean that the claim is barred in the second suit 1. i.e. as long as it doesnt come out of the same common nucleus of facts/same transaction

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ii.

iii.

iv.

v.

vi. vii.

Civ Pro II viii. A party cannot bring another suit just because there is some additional remedy available due to a change in the law (i.e. NIED now recognized, but wasnt at time of first suit) 1. But, if the law changes while a suit is pending, the new law will apply ix. Manego v. Orleans Board of Trade (p. 1097) 1. Issue: Is Plaintiff barred from bringing a second lawsuit involving some of the defendants in a prior action, when the claims are based upon the same facts as those that formed the basis for the first suit? YES 2. Adopted transactional approach 3. Case # 1- Manego v. Board of Selectmen/Willard/Bank a. Summary Judgment against Manego 4. Case # 2- Manego v. Bank/Orleans Board of Trade/Willard

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c. Collateral Estoppel (Issue Preclusion)

i. Rationale: Efficiency; Fairness; Certainty; Legitimacy ii. Broader and narrower than claim preclusion 1. Broader b/c issue preclusion can foreclose litigation of a particular issue in an entirely new context 2. Narrower b/c issue preclusion does not preclude all issues that might have been raised in a prior action but only those actually raised and litigated in the prior action 3. Claim preclusion forbids a party from relitigating a claim that should have been raised in former litigation. If a claim comes out of the same nucleus of operative facts, for efficiency reasons, we want people to bring all the claims at one time. 4. Issue preclusion is when an issue of fact or law is actually litigated and determined by a valid judgment such that the determination is conclusive in a subsequent action between the parties, whether on the same or different claims. Same deal: why waste our resources finding out the answer to a question again when the question has already been answered? 5. Claim and issue preclusion both talk about parties. Claim preclusion is claim-specific, while issue preclusion is specific to issues of law or fact. Claim preclusion deals with things that should have been brought up, but werent, while issue preclusion deals with things that have been actually litigated. Make sure you correctly classify the type of preclusion thats going on! iii. 5 Synthesized Elements (not adopted by all courts): 1. *Issue in case 2 is the same issue as the issue in case 1 a. same issue factors:

Civ Pro II i. Overlap - Substantial overlap between the evidence/argument in the two cases? ii. Application of a rule of law - Does new evidence/argument involve application of some rule of law? iii. Pre-trial discovery/preparation - Could the pre-trial discovery/preparation relating to case 1 reasonably be expected to embrace the issue of case 2? iv. How closely related are the claims? b. *The issue must have been raised and actually litigated in case 1 c. *Determination on the issue must have been necessary to the outcome of case 1 i. Hardy (p. 1150) Case 2 will not apply collateral estoppel based on case 1 if it is unclear/ambiguous what issues were necessarily decided in case 1s verdict d. *Case 1 must have concluded with a valid judgment that is final and on the merits e. *Party against whom collateral estoppel is sought must have had a full and fair opportunity to litigate the issue in case 1 i. full and fair opportunity factors: 1. Procedural protections - Did proceedings in case 1 occur in a forum with different measures of procedural protection? 2. Fraud/Concealment - Is there any sort of fraud/concealment in case 1? 3. Incentive to litigate - Was there sufficient incentive to fully litigate the issue in case 1? ii. Parties in privity are subject to collateral estoppel (See Mutuality of Estoppel) iv. Little v. Blue Goose Motor (p. 1145) 1. Facts - Dr. Littles car and a Blue Goose bus collided, doing damage to the bus, and injuring Dr. Little. Blue Goose brought an action against Dr. Little for damage to the bus, and won. The appeal was dismissed for failure to prosecute. During the pendency of the first suit, Dr. Little commenced an action against Blue Goose for personal injuries, and then died. His executrix was substituted as , and she amended the claim to allege wrongful death, and willful and wanton negligence [to which contributory

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Civ Pro II negligence is not a defense]. Blue goose plead the defense of issue preclusion, and lost. 2. Issue: Whether an issue essential to the judgment in a first action is precluded from reconsideration in a second action if the parties to the second action were in privity with the parties in the first action.YES 3. Reasoning - It does not matter that the new action is for wrongful death, or that the new plaintiff was not Dr. Little. The issue that was the basis for the first action was whether Dr. Little was negligent. That issue was conclusively determined in the first action, and was only available for review on direct appeal. Thus, when the appeal was lost for failure of prosecution, it became a final determination of that issue between all of the persons in privity with either of the parties, whether upon the same claim or different claims. The fact that a willful negligence claim is brought, to which contributory negligence is not a defense, does not matter, because in the first action, by determining that Dr. Little was liable for the damages, the court necessarily determined that the bus company was not willfully negligent. v. Hardy v. Johns-Manville Sales Corp. (p. 1150) 1. Holding: Case 2 will not apply issue preclusion based on case 1 if it is unclear/ambiguous what issues were necessarily decided in case 1s verdict 2. Reasoning: Cant estop for the interrelated reasons: a. Borel is ambiguous on certain key issues i. Given these facts, it is impossible to determine what the Borel jury decided about WHEN a duty to warn attached. b. Further, the court found that there was no way to know what particular failure in the duty to warn was the key element. 3. Class Questions: a. In Hardy, what issue does the plaintiff want to say was actually raised and litigated in the prior proceeding and necessary to the outcome? i. 3 and 4 of the list that no warnings were issued before 1964 and that the warning standard was not met from 1964-69 ii. Manufacturers knew or should of known it was unreasonably dangerous b/c of failure to warn b. What is the rule from Hardy regarding whether an issue was actually raised and litigated?

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Civ Pro II i. The court stated that collateral estoppel only applies to issues of fact or law necessarily decided by a prior court. Since Borel did not ultimately decide that all manufacturers of asbestos-containing insulation products knew or should have known of the dangers of their products at all relevant times, collateral estoppel is an inappropriate remedy in this particular case. vi. Taylor v. Sturgell (p. 1168) VIRTUAL REPRESENTATION 1. Facts: Herrick petitions the FAA to give him technical specs about an airplane he is restoring, which he argues is required by the Freedom of Information Act. Court denies based on trade secret exemption and ruling is upheld in higher courts. His friend, Taylor, decides to bring the same suit and is denied based on claim preclusion. Men were close friends with same lawyer and were sharing discovery documents regarding the case. Defense says Taylor was virtually represented in the first suit and that courts should look at whether relationship between two parties was close enough to bring them under the same judgment 2. Issue: Was Taylor virtually represented in the first suit or should he have a claim in his own right? NO, virtual representation does not exist because it is not one of the accepted types of privity. 3. Reasoning: Everyone has a right to their own trial and we do not want to open the door for class action at will. One must understand that his interests are represented by another party to have his later claims precluded under the doctrine. Human tendency not to waste money will prevent excess suits in matters that have already been decided. 4. Class Questions: a. In Taylor, under what circumstances may a nonparty may be precluded from the activity of another person? Imagine a set of facts that could fall within some of the exceptions discussed in Taylor. b. Six Recognized Nonparty Exclusion Reasons i. A person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement ii. Substantive legal relationship(s) between the person to be bound and a party to the judgment

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Civ Pro II 1. i.e. previous/current owner of prop, bailee/bailor, assignee/assigner In certain limited circumstances when the party was adequately represented by someone with the same interests who was a party to the suit If the nonparty assumed control over the litigation in which that judgment was rendered A party bound by a judgment may not avoid its preclusive force by relitigating through a proxy In certain circumstances, a special statutory scheme may expressly foreclose successive litigation by nonlitigants

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iii.

iv.

v.

vi.

d. Mutuality of Estoppel (When you have a full and fair trial) (p. 1187)
i. Mutuality- both parties couldve been bound by judgment ii. Basic principle for non-mutual collateral estoppel non-mutual collateral estoppel is only available when the estopped party has already had a full and fair opportunity to litigate the issue iii. Offensive vs. defensive non-mutual collateral estoppel 1. Defensive non-mutual collateral estoppel - Used by D against a P to prevent P from relitigating an issue that P lost in a prior lawsuit against a different D a. Rationale: Prevent harassment; Legitimacy 2. Offensive non-mutual collateral estoppel - Used by P against a D to prevent D from relitigating an issue that D lost in a prior lawsuit brought by a different P a. Rationale: Judicial economy; fair b/c already had a full and fair opportunity b. Potential problems with offensive non-mutual collateral estoppel: i. Inefficient b/c it encourages wait and see plaintiffs ii. Unfair b/c D might have low incentive to defend in the first lawsuit. But, Ds may be forced to litigate small claims with lots of $$$ b/c of the risk of future liability iii. Unfair to make D lose every subsequent case after one adverse judgment iv. Unfair if there were less favorable procedures in case 1 than in case 2

Civ Pro II v. D at a disadvantage in case 1 b/c D didnt get to choose forum c. Solution to problems Offensive non-mutual collateral estoppel should not be used if: i. P in case 2 could easily have joined in case 1 ii. D didnt have an incentive to litigate the issue in case 1 iii. Judgment in case 1 inconsistent with judgments prior to case 1 iv. Different procedural opportunities in case 2 that was unavailable in case 1 d. Trial courts given broad discretion in deciding whether preclusion based on non-mutual collateral estoppel should be permitted iv. Parklane (p. 1187) Shore permitted to use offensive collateral estoppel for issue of false/misleading proxy statements against Parklane where Parklane found to have issued false/misleading proxy statements in a prior case filed by the SEC against Parklane. None of the circumstances the potential problems with collateral estoppel were found to exist in this case. 1. Rule: Trial courts have broad discretion to apply the doctrine of offensive collateral estoppel, even in cases where the defendant will be deprived of a jury trial. 2. A party can be precluded from re-litigating facts resolved adversely to the party in prior equitable proceedings where the court determines that the party has had a full and fair opportunity to litigate the facts. 3. Rehnquist dissent 7th A violated b/c no jury in case 1, but there is a jury in case 2. Even if 7th A not violated, there is a difference in procedural opportunities b/w case 1 and case 2 b/c judges and juries approach cases differently 4. Miller Questions: a. What are the policy concerns for and against collateral estoppel as used in Parklane? i. For- save resources, fairness- cost ii. Against- fairness b. How does the Court suggest judges can avoid potential strategic behavior on the part of parties seeking to use collateral estoppel? i. Wait and see plaintiffs may be denied preclusive effect of the judgment ii. Determine whether the plaintiff could easily have joined the earlier action 1. Valid tactical considerations c. Hypo chart
Trial 1 A v. B / B loses Trial 2 A v. B Result offensive mutual collateral estoppel by A

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Civ Pro II
A v. B / A loses A v. B / A loses A v. B / B loses A v. B / B loses A v. B / A loses A v. B A v. C C v. B A v. C C v. B defensive mutual collateral estoppel by B defensive non-mutual collateral estoppel by C offensive non-mutual collateral estoppel by C xx NOT ALLOWED xx (shouldve joined defs) xx NOT ALLOWED xx (B already won)

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IX. Alternative Dispute Resolution (p. 491) a. Practical Considerations

i. ADR encompasses ways to attempt to resolve disputes without a full-blown trial ii. ~98% of cases never go to trial iii. When interviewing clients, take their pulse about settlement iv. Receptivity to settlement and the use of ADR procedures is included in the initial report that must be provided to the Court under Rule 26.

b. Meditation (Least Formal)

i. ii. iii. iv. Facilitation of settlement/compromise between parties Non-binding, unlike arbitration which is binding Mechanics differ among courts and states Things to know/do before a mediation: cost; length; some discovery; who is mediating v. Mediators usually require a mediation statement ahead of time asking about any settlement discussions to date and the settlement position of your client, among other things vi. Confidentiality considerations with the mediator should be explicitly discussed and understood

c. Early Neutral Evaluation

i. Third party evaluating case to give parties an expert quick peek

d. Court-Annexed Arbitration
i. A private informal arbitration hearing conducted by 1-3 people that courts can order to be conducted before any potential trial ii. Limitations on cases that can go to arbitration: 1. Tax issues arent arbitrated 2. Constitutional issues arent arbitrated 3. Cases where the amount in controversy > $150K arent arbitrated

Civ Pro II iii. Attendance and production of documents can be compelled by arbitrator iv. Backstop Party can ask for review of an arbitrators decision de novo v. State courts have their own rules, i.e. Ohios Private Judging Act 1. Allows retired judge to be hired and paid by agreement of the parties to adjudicate the case as if he was a real judge a. Legitimacy issue of allowing such a person to subpoena b/c parties are essentially empowering a private tribunal to have the power of the state without permitting the rest of the state to have a say. But, other provisions of the Ohio constitution permit this. b. Concern of giving power without requiring accountability vi. It is possible for arbitration decisions to have res judicata and collateral estoppel effect

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X.

Exam a. Study Materials

i. http://www.lifeofalawstudent.com/category/1l/civilprocedure/civil-procedure-ii/

b. Details
i. Open notes/textbooks but no commercial outline ii. 4 hours iii. Questions 1 (2 parts)- issue spotter (75%) 1. Accurate2. Precisea. 23(b) class action has predominant prong and whether it is superior to other adjudications b. include cases if you can to support your answer 3. Transparent a. How did you get to that conclusion? Make it known that you didnt just stumble upon it. 4. Conciseiv. Question 2- policy question (25%) 1. Show that you know the terms of the debate.. not just on what the background law is.. you have to go beyond that. 2. Dont just rehash what we talked about in class. 3. This is a good proposition, badly reasoned or What do you think about..

Civ Pro II

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